( 2025:HHC:21221 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 2450 & 6042/2025 Decided on: 04.07.2025 1. CWP No.2450/2025 Paramjeet Singh …Petitioner Versus State of H.P. & Anr. .…Respondents. 1. CWP No.6042/2025 Chaman Lal …Petitioner Versus State of H.P. & Ors. .…Respondents. ………………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 Yes. For the petitioner(s): Mr. Vijender Katoch, Advocate in CWP No. 2450/2025 & Mr. J.L. Bhardwaj, Sr. Advocate with Mr. Sanjay Bhardwaj, Advocate in CWP No. 6042/2025. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rajat Choudhary, Assistant Advocate General, in both the petitions. Jyotsna Rewal Dua , J Petitioner(s) in both these writ petitions have challenged the sealed cover procedure adopted by the Departmental Promotion Committee (DPC hereinafter) while considering their cases for further 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 ( 2025:HHC:21221 ) promotion, whereas, the respondent-State opposes this plea, hence the dispute. According to learned Advocate General, the ‘challans’/charge-sheets had been filed against the petitioner(s) in the criminal cases registered against them at the time of consideration of their cases for promotion to the next posts, justifying the sealed cover procedure resorted to by the DPC. The sealed cover cannot be opened till the petitioner(s) are exonerated in the criminal cases filed against them. Whereas, as per Mr. Vijender Katoch, learned Advocate and Mr. J.L. Bhardwaj, learned Senior Advocate, for the respective petitioner(s), mere filing of the ‘challans’/charge-sheets against the petitioner(s) in the criminal cases is not sufficient for keeping the recommendations of the DPC in sealed cover. Since charge had not been framed against the petitioners on the date of convening the DPC, the sealed cover procedure could not be resorted to by the DPC. The sealed cover is required to be opened and the recommendations of the DPC need to be given effect to. The issue involved in both these writ petitions is common, therefore, with consent of learned counsel for the parties, these petitions have been taken up together for adjudication. 3 ( 2025:HHC:21221 ) 2. Background facts 2(A) Facts of CWP No. 2450/2025 (Paramjeet Singh) 2(A)(i) Petitioner was appointed as Clerk in the respondent- Rural Development Department on 22.12.1999. He was promoted as Senior Assistant on 16.06.2011. 2(A)(ii) On 27.04.2013, FIR No. 85/2013 was registered against the petitioner under Sections 420, 409, 465, 468 and 13 of the Prevention of Corruption Act 1988 at Police Station Dehra, District Kangra. Petitioner was co-accused in the said FIR. Prosecution sanction was accorded against him under Section 19 of the Prevention of Corruption Act, 1988 on 24.01.2017. 2(A)(iii) Departmental inquiry was also initiated against the petitioner on 27.02.2015. Inquiry officer submitted his report on 01.11.2019 holding charges levelled against the petitioner were not proved. As per office instructions dated 02.06.2025 from the Director Rural Development, Himachal Pradesh, placed on record by learned Advocate General ‘in the present case, the disciplinary proceedings have culminated in exoneration and no longer survive.’ 2(A)(iv) In the criminal case registered against the petitioner, final report under Section 173 of the Criminal Procedure Code (Cr.PC) (‘Challan’) was filed by the prosecution before the Court of learned Additional Chief Judicial Magistrate Dehra on 09.05.2017. The criminal case is stated to have been transferred to the Court of 4 ( 2025:HHC:21221 ) learned Additional Session Judge-I Dharamshala on 29.03.2018. As per office instructions dated 04.06.2025 from the Additional Director Rural Development, Himachal Pradesh, placed on record by the learned Advocate General ‘criminal proceedings are pending before the competent court but the charges are yet to be framed by the competent court.’ 2(A)(v) The respondent-Department convened meeting of the DPC on 18.12.2024 for promotion to the posts of Superintendent Grade-II from amongst feeder cadre of Senior Assistant. Petitioner’s name figured at serial No. 12 of the eligible incumbents falling in the zone of consideration. Against the name of the petitioner, remarks were given by the respondents that he was co-accused in FIR No. 85/2013 dated 27.04.2013 under Sections 420, 409, 465, 468 and 13 of the Prevention of Corruption Act, registered at Police Station Dehra, District Kangra. In view of registration of the FIR, the DPC kept its recommendations concerning petitioner’s promotion to the post of Superintendent Grade-II in a sealed cover, which was to be acted upon in due process on the outcome of the said Court case. It appears that respondents had initially promoted the petitioner to the post of Superintendent Grade-II based upon the recommendations of the DPC vide office order dated 04.01.2025. Later realizing that DPC had kept its recommendations concerning 5 ( 2025:HHC:21221 ) petitioner’s promotion in sealed cover, the promotion order of the petitioner was withdrawn by issuing corrigendum on 06.01.2025. In the aforesaid background, the petitioner has instituted this writ petition seeking direction to the respondents to promote him to the post of Superintendent Grade-II on regular basis by setting aside the corrigendum dated 06.01.2025. 2(B) Facts of CWP No. 6042/2025 (Chaman Lal) 2(B)(i) Petitioner was selected as Patwari on 17.02.2014. On completion of training, he was appointed as Patwari on 06.10.2015. 2(B)(ii) On the basis of a complaint made against the petitioner on 17.01.2023, FIR No.1/2023 was registered against him on 20.01.2023, under Section 7 of the Prevention of Corruption Act, 1988 at State Vigilance & Anti-Corruption Bureau Baddi, Tehsil Baddi, District Solan. Petitioner was arrested in the aforesaid FIR on 20.01.2023 and released on bail on 23.01.2023. Charge-sheet in FIR No.1/2023 was presented by the prosecution on 17.03.2025 before the learned Special Court Solan. Charges have not yet been framed against the petitioner. 2(B)(iii) Petitioner was placed under suspension by the respondent-State Revenue Department on 03.02.2023. The suspension order was revoked on 29.05.2023. Respondent No.2- Deputy Commissioner, Solan issued a show cause notice to the petitioner on 29.05.2023 as to why the disciplinary proceedings be 6 ( 2025:HHC:21221 ) not initiated against him as per the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [(CCS (CCA) Rules)]. Petitioner furnished his response to the show cause notice on 06.06.2023. Charge-sheet was issued to the petitioner on 16.05.2025. 2(B)(iv) On 03.04.2025, respondent No.2 convened a meeting of DPC for making promotions to the posts of Kanungo. Based on the recommendations of the DPC, juniors to the petitioner as Patwari were promoted to the posts of Kanungo. The DPC kept its recommendations for petitioner’s promotion to the post of Kanungo in a sealed cover in view of pendency of the criminal case against him with the remarks that sealed cover would be opened as and when the delinquent official/petitioner is completely exonerated. Feeling aggrieved, the petitioner has preferred this writ petition seeking direction to the respondents’ inter-alia for opening the sealed cover and for promoting him w.e.f. 03.04.2025, when his juniors were promoted as such and for assigning him seniority in accordance with law and facts. 3. In the aforesaid admitted factual background of two cases: - 3(i) Learned Advocate General placed reliance upon Union of India Vs. Doly Loyi2 to urge that presentation of police 2 Civil Appeal No(s). 8387/2013 decided on 24.09.2024 7 ( 2025:HHC:21221 ) challan in the court of competent jurisdiction is sufficient for keeping the recommendations of the DPC for further promotion of the petitioner(s) in sealed cover. Paragraphs from the said decision pressed into service by the learned Advocate General are as under: - “24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge- sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure. 25. In view of the aforesaid legal position, the crucial aspect requiring examination is as to whether the prosecution for criminal charge was pending against the respondent when the DPC meeting was held. 26. It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law.” 8 ( 2025:HHC:21221 ) According to learned Advocate General, since police challans had been filed against both the petitioner(s) and the same were pending consideration before the Court of competent jurisdiction on the date of convening of the DPC, the DPC’s recommendations had to be kept in sealed cover. Learned Advocate General contended that filing of charge memo by the prosecution in the Court of law is to be considered as issuance of charge memo to the petitioner(s); In para-24 of Doly Loyi2, the Hon’ble Apex Court has held that the disciplinary/criminal proceedings can be said to be initiated against an employee, when a charge memo is issued to him in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The gist of submissions made by learned Advocate General is that the charge-sheets had been filed by the prosecution in the respective criminal cases registered against the petitioner(s) much prior to the date of convening the DPC, therefore, sealed cover procedure was justly adopted by the Departmental Promotion Committee. Para-26 of Doly Loyi2 was also focused upon by the learned Advocate General, where in the facts of the said case, the Hon’ble Apex Court had taken note of date of filing of the charge- sheet against the employee and a conclusion was drawn on facts of said case that charge-sheet was filed after the DPC was convened and accordingly, held the adoption of sealed cover procedure by the DPC qua the employee therein as illegal. 9 ( 2025:HHC:21221 ) 3(ii) As per learned counsel for the petitioners, the stage of filing of police ‘challan’/charge-sheet has no relevance for considering the cases of petitioner(s) for promotion. Mere filing of ‘challan’ in the criminal cases in the Court of competent jurisdiction does not create any embargo for considering and promoting the petitioner(s) on the basis of recommendations of the DPC. It is only when the charges are framed against the accused persons and the charges are served upon the accused persons/petitioner(s), that criminal proceedings can be said to be pending against them to justify keeping the recommendations of the DPC qua their promotions in sealed cover. In the instant case, charges have till date not been framed against the petitioner(s) in the criminal cases registered against them. There was no justification for the DPC to keep its recommendations qua promotion of the petitioner(s) in sealed cover. 4. Heard learned counsel on both sides and considered the case record as well as the law relied upon by the learned counsel for the parties. To avoid repetition, the submissions made by learned counsel and consideration thereof have been discussed hereinafter: - 4(i) In CWP No. 2450/2025, it is an admitted position that departmental proceedings have culminated in petitioner’s exoneration and no longer survive. Petitioner was not facing any disciplinary proceedings on the date of convening of the DPC i.e. 18.12.2024 though criminal case registered against him in relation to FIR 10 ( 2025:HHC:21221 ) No.85/2013 on 27.04.2013 was pending. In the said case, final report under Section 173 Cr.PC (‘challan’) had been presented by the prosecution before the Court of competent jurisdiction on 09.05.2017 but charges had not been framed against the petitioner on the date the DPC was convened for promotion to the post of Superintendent Grade-II. In-fact charges in the said case have not been framed till date. In CWP No. 6042/2025, the petitioner was put under suspension on 03.02.2023 but the suspension was revoked by the respondents on 29.05.2023. On the date of convening the DPC i.e. 03.04.2025 for considering the case of eligible Patwaris for promotion to the posts of Kanungo, disciplinary proceedings had not been initiated against the petitioner. Charge-sheet was issued to the petitioner under the CCS (CCA) Rules, 1965 on 16.05.2025. Final report under Section 173 Cr.PC (‘Challan’) was though presented by the prosecution against the petitioner in the Court of competent jurisdiction on 17.03.2025 arising out of FIR No. 1/2023 dated 20.01.2023, but, charges have not been framed against him till date. 4(ii) The question that arises for consideration is whether filing/presenting final report under Section 173 Cr.PC (‘Challan’) is to be considered equivalent to issuance of charge-sheet to the accused. According to the respondent-State, filing of ‘challan’ would mean issuance of charge-sheet. Upon filing of ‘challan’ in the Court of 11 ( 2025:HHC:21221 ) competent jurisdiction against an accused person/delinquent official, the DPC’s recommendations qua him are to be kept in sealed cover. According to the petitioners, mere filing of the charge memo in a criminal case is not sufficient for the DPC to resort to sealed cover procedure, for that eventuality charge memo should have been issued to the officer. And charge memo can be said to have been issued only after framing of charges. 4(iii) The question as to the ‘date’ from which, the disciplinary/criminal proceedings can be said to be pending against an employee/delinquent official, was authoritatively answered by the Hon’ble Apex Court in Union of India & Ors. Vs. K.V. Jankiraman & Ors.3 While deliberating the issue, Hon’ble Apex Court concurred with the conclusion drawn by the Full Bench of the Tribunal that it is only when a charge memo in disciplinary proceedings or a charge- sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/chargesheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The contention advanced by learned counsel for the appellant-authorities that when there are serious allegations and it 3 (1991)4 SCC 109 12 ( 2025:HHC:21221 ) takes time to collect necessary evidence to prepare and issue charge- memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc, was rejected. The Hon’ble Apex Court held that acceptance of this contention would result in injustice to the employees in many cases. The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times, they never result in the issuance of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. If the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. The Hon’ble Apex Court concluded that promotion cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/chargesheet had already been issued to the employee. Relevant portion from this decision reads as under: - “8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions 13 ( 2025:HHC:21221 ) are: (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? The “sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over'. Hence. the relevance and importance of the questions. 9-15………….. 16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/ criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/chargesheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations 14 ( 2025:HHC:21221 ) take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. 17. … The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/chargesheet has already been issued to the employee….” It is, thus, well settled that departmental/criminal proceedings can be said to have been initiated only upon issuance of charge memo/charge-sheet and not prior thereto. 4(iv) When can charge-sheet be said to have been issued to the accused? Whether mere presentation/filing of charge-sheet by the prosecution in the criminal case registered against the delinquent official, would set off bells ringing for the DPC to keep its recommendations for his further promotion covered by the lid, are the aspects being deliberated here. Both sides have relied upon Doly Loyi2, therefore, it will be in place to refer to the said decision: - 15 ( 2025:HHC:21221 )  In Doly Loyi2’s case, an FIR was registered against the employee on 31.12.2001 for the offences punishable under Section 120B of the Indian Penal Code and Sections 13(1) and 13(1)(d) of the Prevention of Corruption Act. Prosecution sanction was accorded on 02.06.2006. Meeting of DPC was convened on 22.02.2007 for considering the promotion of eligible incumbents for the post of Commissioner of Income Tax. Respondent-employee’s case was also considered, however, DPC kept its recommendations for his promotion in sealed cover on the basis that ‘prosecution for criminal charge’ was pending against him. The respondent/employee filed original application before the learned Central Administrative Tribunal against keeping his case for promotion in sealed cover. His original application was allowed. Directions were issued for opening the sealed cover and for considering the case of respondent/employee for promotion and to give effect to the DPC’s recommendations and if found fit, to promote him with consequential benefits. The employer-UOI assailed the said order before the Hon’ble Apex Court. On behalf of the employer-UOI, reliance was placed upon office memorandum dated 14.09.1992 for keeping the DPC’s recommendations with respect to respondent-employe’s promotion in sealed cover. The said office memorandum dealing with the ‘Promotion of Government servants against whom Disciplinary/Court proceedings are pending or whose conduct is 16 ( 2025:HHC:21221 ) under investigation-Procedure and guidelines to be followed’,` has also been relied upon by the respondent-State in the instant writ petitions as well. It will be appropriate, at this stage, to extract relevant portion of the said office memorandum dated 14.09.1992 as reproduced in Dolly Loyi2’s judgment: - “2. At the time of consideration of the cases of Government servant for promotion, details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee: - i) Government servants under suspension; ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending: and iii) Government servants in respect of whom prosecution for criminal charge is pending. 2.1 The Departmental Promotion Committee shall assess the suitability of Government servants coming within the purview of the circumstances mentioned above along with other eligible candidates without taking into consideration the disciplinary case/criminal prosecution pending. The assessment of the DPC including 'unfit for promotion' and the grading awarded by it will be kept in a sealed cover. The cover will be superscribed 'Findings regarding suitability for promotion to the grade/post of of Shri.. ...in respect (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri.......'. The proceeding of the DPC need only contain the note. The findings are contained in the attached sealed cover'. The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the findings of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover.” (emphasis supplied)” 17 ( 2025:HHC:21221 ) On behalf of the employer-UOI, submissions made before the Hon’ble Apex Court were that para-2(iii) of the aforesaid office memorandum, authorizes the employer to keep the recommendations of DPC in sealed cover in respect of employees for whom prosecution for criminal charges is pending. That this expression should be interpreted in a wider sense to cover even a case in which investigation for a criminal charge is pending with the Investigating Agency in light of object that a tainted officer should not be promoted till cloud is clear. It was also stated that the office memorandum does not specify the stage when the prosecution for criminal charge can be stated to be pending in order to attract sealed cover procedure, thus, the definition of pendency of judicial proceedings provided in Rule 9(6)(b)(i) of the CCS(Pension) Rules, 1972, should be adopted, which reads as under: - “(b) Judicial proceedings shall be deemed to be instituted (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made.” The gist of submissions made for the employer-UOI was that in the criminal prosecution, the sanction for prosecution is an event of utmost importance relating to the criminal charge as the sanction is accorded by the concerned authority on the basis of contents of FIR and the material collected during investigation. Once 18 ( 2025:HHC:21221 ) the sanction is granted, the prosecution for criminal charge can be said to be pending.  As against above, the submissions made for the respondent-employee were that his case did not fall under any of the three clauses of para-2 of the memorandum dated 14.09.1992. Neither the respondent was placed under suspension nor the departmental proceedings were initiated against him and criminal charges were also not pending against him, therefore, he had a right to be considered for promotion.  In the aforesaid background, Hon’ble Apex Court held as under: - “19. We have given our thoughtful consideration to the submissions advanced at bar and have perused the impugned judgments. With the assistance of learned counsel for the parties, we have thoroughly examined the material available on record. Discussion and Conclusion: - 20. The core issue for consideration before this Court is: “Whether by the mere grant of prosecution sanction, it could be said that the prosecution for a criminal charge is pending against the respondent Government Servant and whether grant of sanction for prosecution could be a valid ground for putting the DPC recommendations in a sealed cover”? 21. On a bare perusal of OM dated 14th September, 1992, which covers the issue, it is clear that it prescribes the conditions under which the assessment done by the DPC is to be kept in the sealed cover. According to this OM, the sealed cover procedure can be resorted to in respect of three categories of Government servants i.e. Government servants under suspension, Government servants in respect of whom a charge sheet has been issued and 19 ( 2025:HHC:21221 ) the disciplinary proceedings are pending, and Government servants in respect of whom prosecution for criminal charge is pending. 22. Learned counsel for appellant made a pertinent submission that the case of the respondent falls under the third clause of the above OM, i.e. Government servants in respect of whom prosecution for criminal charges is pending. Thus, the question requiring consideration is as to whether a mere grant of prosecution sanction would be sufficient to infer that the prosecution for a criminal charge was pending against the respondent. Similar issue came up for consideration before this Court in the case of Union of India Vs. K.V. Jankiraman & Ors. wherein it was held that sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued. The relevant extract is reproduced hereinbelow: xxxxx [extracted in para 4(iii)] 23. At this stage, it is pertinent to note that the Ministry of Personnel, Government of India vide OM dated 2nd November, 2012 issued certain clarifications regarding the stage when a prosecution for criminal charge can be said to be pending, keeping in view the dicta laid down in K.V. Jankiraman (supra). Para Nos. 6 and 8 of OM dated 2nd November, 2012 states as under: “6. When a government servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in departmental proceedings and or prosecution of criminal charges followed by either penal/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge-sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued or the officer is placed under suspension. The pendency of preliminary investigation prior to that stage is not adopt the sealed cover procedure.” (emphasis supplied) 20 ( 2025:HHC:21221 ) 24. Considering the above position, the disciplinary/criminal proceedings can be said to be initiated against the employee only when a charge memo is issued to the employee in a disciplinary proceeding or a charge-sheet for a criminal prosecution is filed in the competent Court. The sealed cover procedure is to be resorted to only after issuance of the charge-memo/charge-sheet is issued. The pendency of investigation and grant of prosecution sanction will not be sufficient to enable the authorities to adopt the sealed cover procedure. 25. In view of the aforesaid legal position, the crucial aspect requiring examination is as to whether the prosecution for criminal charge was pending against the respondent when the DPC meeting was held. 26. It is not in dispute that the sanction to prosecute the respondent was granted on 2nd June, 2006 and the charge sheet was filed by CBI, after completion of investigation on 25th October, 2008, whereas the DPC to consider the promotion of Additional Commissioners of Income Tax was convened on 22nd February, 2007, wherein the sealed cover procedure was adopted qua the respondent. It is thus clear that the charge sheet against the respondent was filed well after the meeting of the DPC was convened. Hence, it could not be said that the prosecution for a criminal charge was pending against the respondent when the DPC was convened. Therefore, the move on the part of DPC to resort to the sealed cover procedure was unjustified and unsustainable on facts and in law. 27. Resultantly, we have no hesitation in holding that the impugned judgment of the High Court dated 26th April, 2013 is based on apropos consideration of facts and law and hence the same does not warrant interference.” The question before the Hon’ble Apex Court was that whether by mere grant of prosecution sanction, it could be said that prosecution for criminal charge was pending against the Government 21 ( 2025:HHC:21221 ) servant and whether grant of sanction of prosecution would be a valid ground for putting the DPC recommendations in sealed cover. For answering these questions, the Hon’ble Apex Court reiterated the law laid down in Union of India Vs. K.V. Jankiraman & Ors3, that sealed cover procedure can be resorted only after the charge memo/charge- sheet is issued to the employee. Learned Advocate General has contended that the date of presentation/filing of the police challans before the Court of competent jurisdiction is to be construed as the date of issuance of the charge-sheets to the petitioner(s). As observed earlier, in support of this submission, reliance has been placed upon paras-24 & 26 of Doly Loyi2. 4(v) Filing/presentation of the charge-sheets/challans before the Court of competent jurisdiction cannot be treated akin to issuance of charge-sheet to the accused person. Challan may be filed in a Court of law, but that would not mean that the charge-sheet has been issued to the accused person. Issuance of charge-sheet is a stage that would arise only on framing of the charges against the accused by the Court of law. This is the letter, spirit and intent of the decision in K.V Jankiraman3 (ratio extracted earlier). This is also the ratio of Doly Loyi2. In the facts of Doly Loyi2, the charge-sheet in the criminal case had not even been filed at the time of convening the DPC. It was in the given factual background of the case the Hon’ble Apex Court observed that at the time of convening the DPC, the charge- 22 ( 2025:HHC:21221 ) sheet had not even been filed. However, the import of this decision that reiterates K.V. Jankiraman3 is that charge-sheet must have been issued to the accused in the criminal case as on the date of considering him for promotion for the DPC to keep its recommendations in sealed cover. Doly Loyi2 does not support the contentions urged by learned Advocate General that mere filing of charge-sheet in criminal case is to be construed as issuance of charge-sheet to the accused person or mere filing of charge-sheet in criminal case would attract disability for further promotion till exoneration of delinquent employee. If this contention is to be accepted, the conclusion drawn in K.V Jankiraman3, the findings rendered therein and in several subsequent authoritative pronouncements of the Hon’ble Apex Court and the reasoning for such conclusion would become otiose. In fact, it is for this reason the Hon’ble Apex Court did not accept the appellant’s contention that mere grant of prosecution sanction against delinquent employee would attract sealed cover procedure. At this stage, it would also be relevant to refer to Manoj Thakur Vs. State of H.P. & Ors.4. The said petition was allowed qua petitioner’s promotion on the ground that charges had not been framed on the day, the sealed cover procedure was resorted to by the respondent. Relevant para reads as under: - 4 CWP No. 1529/2019 decided on 26.12.2019 23 ( 2025:HHC:21221 ) “7. This, however, is not the fact situation obtaining in the instant case as only FIR had been lodged and no charges had been framed on the date the sealed cover procedure was resorted to by the respondents.” Rajeshwar Dayal Janartha Vs. State of H.P. & Ors.5 held that a criminal charge can be stated to be pending against the incumbent only when charge-sheet is served upon the accused and which obviously will follow the framing of the charge. Prosecution for criminal charge cannot be said to be pending against an employee before the charges are framed. Position from the decision relevant to the context is as under: - “22. Chapter XVI of the Code of Criminal Procedure deals with commencement of proceedings before Magistrates and close scrutiny of the provisions of Section 204 to 210 also demonstrates that in none of these statutory provisions, the word ‘çharge sheet’ is used. Section 207 of the Code also provides for supply to the accused of copy of police report and other documents in any case where the proceedings have been instituted on a police report. This Section also does not the word ‘çharge sheet’. Therefore, a criminal charge can be stated to be pending against an incumbent only when a charge sheet is served upon the accused and which obviously will follow the framing of the charge and thus by no stretch of imagination it can be held that a prosecution for criminal charge can be said to be pending against an employee before the charges are framed. Clause 3 of the amended para 6.4 of the Himachal Pradesh Vigilance Manual is thus read down as above. Meaning thereby that the Vigilance Clearance Certificate cannot be withheld in respect of a government servant against whom charges have not yet been framed in a criminal case and the said certificate cannot be withheld only on the ground that the police 5 CWP NO. 3466/2021 decided on 22.08.2022 24 ( 2025:HHC:21221 ) report stands filed before the Magistrate concerned under Section 173 of the Criminal Procedure Code. If we apply the above discussion to the facts of the present case, it is abundantly clearly that adopting of sealed cover procedure in the case of the present petitioner was totally uncalled for because Vigilance Clearance Certificate could not have been denied in favour of the petitioner as it is not in dispute at all that as on the date when the Vigilance Clearance Certificate was requisitioned or when the DPC met for consideration of eligible candidates for promotion to the post of Additional Excise and Taxation Commissioner, charges had yet not been framed in the criminal case against the petitioner.” 4(v)(a) It would also be appropriate to refer to following paras-6, 8 & 12 of OM dated 02.11.2012 by Ministry of Personnel Government of India keeping view the dictum in K.V. Jankiraman3 issuing certain clarifications regarding the stage when a prosecution for criminal charge can be said to be pending: - “6. When a government servant comes under a cloud, he may pass through three stages, namely, investigation for a criminal charge in departmental proceedings and or prosecution of criminal charges followed by either penal/conviction or exoneration/acquittal. During the stage of investigation prior to issue of charge-sheet in disciplinary proceedings or prosecution, if the Government is of the view that the charges are serious and the officer should not be promoted, it is open to the Government to suspend the officer which will lead to DPC recommendation to be kept in sealed cover. The sealed cover procedure is to be resorted to only after the charge memo/charge-sheet is issued or the officer is placed under suspension. The pendency of preliminary investigation prior to that stage is not sufficient to adopt the sealed cover procedure. 25 ( 2025:HHC:21221 ) 8. As regards the stage when prosecution for a criminal charge can be stated to be pending, the said O.M. dated 14.9.92 does not specify the same and hence the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 is adopted for the purpose. The Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 provides as under:- "(b) judicial proceedings shall be deemed to be instituted – (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made. 12. It may thus be noted that vigilance clearance cannot be denied on the grounds of pending disciplinary/criminal/court case against a Government servant, if the three conditions mentioned in Para 2 of this Department's O.M. dated 14.09.1992 are not satisfied. The legally tenable and objective procedure in such cases would be to strengthen the administrative vigilance in each Department and to provide for processing the disciplinary cases in a time bound manner. If the charges against a Government servant are grave enough and whom Government does not wish to promote, it is open to the Government to suspend such an officer and expedite the disciplinary proceedings.” 4(v)(b) It would also be pertinent to take note of OM dated 30.08.2022 issued by Government of India, Ministry of Personnel, Public Grievances & Pension Department of Personnel & Training on ‘sealed cover procedure’. Para-2 thereof gives the situations where sealed cover procedure is applicable & reads as under: - 26 ( 2025:HHC:21221 ) “Sealed Cover Procedure “Department of Personnel & Training has issued various instructions on sealed-cover procedure and its implications on the Government servants at the time of promotion. The procedure to be followed in this regard by the authorities concerned is summarized in the following paras forguidance and better understanding: - GOVERNMENT SERVANTS TO WHOM SEALED COVER PROCEDURE IS APPLICABLE 2. At the time of consideration of the cases of Government servants for promotion, details of Government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee: - (i) Government servants under suspension; (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and (iii) Government servants in respect of whom prosecution for a criminal charge is pending. For the purpose of pendency of prosecution for a criminal charge, the definition of pendency of judicial proceedings in criminal cases given in Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 [Now Explanation 1(b)((i) under Rule 8 of CCS (Pension) Rules, 2021] is adopted. The Rule 9 (6)(b)(i) of CCS (Pension) Rules, 1972 [Now Explanation 1(b)(i) under Rule 8 of CCS (Pension) Rules, 2021] provides as under:- "(b) judicial proceedings shall be deemed to be instituted – (i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made" [Para 2 of OM No. 22011/4/91-Estt.(A) dated 14.09.1992; and Para 8 of OM No. 22034/4/2012-Estt.(D) dated 02.11.2012]” 27 ( 2025:HHC:21221 ) The office memorandums dated 02.11.2012 and 30.08.2022 make it clear that judicial proceedings (criminal proceedings) shall be deemed to instituted against a Government servant on the date on which the complaint or the report of a police officer, of which the Magistrate takes cognizance, is made. Cognizance by the Magistrate under Section 190 CrPC is taken on filing of police report (‘challan’) under Section 173 Cr.PC : - “190. Cognizance of offences by Magistrates.—(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence— (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try.” In Mehmood UL Rehman Vs. Khazir Mohammad Tunda & Ors.6, while holding that application of mind by Magistrate in taking cognizance and issuing process to accused is necessary, it was inter alia held as under: - 6 (2015) 12 SCC 420 28 ( 2025:HHC:21221 ) “13. In Kishun Singh and Others v. State of Bihar7, this Court reiterated the position that where, on application of mind, the allegations in the complaint, according to the Magistrate, if proved, would constitute an offence, cognizance is to be is taken of the offence so as to proceed further against the accused. To quote: “7. … Even though the expression ‘take cognizance’ is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code …” 14. In State of W.B. and another v. Mohd. Khalid8, it has been held by this Court that while exercising the power to take cognizance, a Magistrate has to see whether there is any basis for initiating judicial proceedings. At paragraph-43, it has been held as follows: “43. … Section 190 of the Code talks of cognizance of offences by Magistrates. This expression has not been defined in the Code. In its broad and literal sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word ‘cognizance’ indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of 7 (1993) 2 SCC 16 8 (1995) 1 SCC 684 29 ( 2025:HHC:21221 ) proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 15-20………………… 21. Under Section 190(1)(b) of CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) of CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) of CrPC, he has only a complaint before him. The Code hence specifies that … “a complaint of facts which constitute such offence”. Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) of CrPC. The complaint is simply to be rejected. 22. The steps taken by the Magistrate under Section 190(1) (a) of CrPC followed by Section 204 of CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 of CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 of CrPC, if any, the 30 ( 2025:HHC:21221 ) accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 of CrPC, by issuing process for appearance. Application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 of CrPC, the High Court under Section 482 of CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before criminal court as an accused is serious matter affecting one’s dignity, self respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment. 23. Having gone through the order passed by the Magistrate, we are satisfied that there is no indication on the application of mind by the learned Magistrate in taking cognizance and issuing process to the appellants. The contention that the application of mind has to be inferred cannot be appreciated. The further contention that without application of mind, the process will not be issued cannot also be appreciated. Though no formal or speaking or reasoned orders are required at the stage of Section 190/204 CrPC, there must be sufficient indication on the application of mind by the Magistrate to the facts constituting commission of an offence and the statements recorded under Section 200 of CrPC so as to proceed against the offender. No doubt, the High Court is right in holding that the veracity of the allegations is a question of evidence. Question is not about veracity of the allegations; but whether the respondents are answerable at all before the criminal court. There is no indication in that regard in the order passed by the learned Magistrate.” Thus, mere filing of police report under Section 173 Cr.PC against a Government servant in criminal proceedings pending 31 ( 2025:HHC:21221 ) before a Court of law will not attract sealed cover procedure. The disability in form of adoption of sealed cover procedure will start only upon issuance of charge-sheet i.e. on framing of charges. If prior to actual framing of charges, the respondent-employer is of the view that charges against the employee are serious, nothing prevents it from suspending the employee. Suspension is one such eventuality that activates DPC’s power to keep its recommendation concerning promotion of such employee, under sealed cover. Even if charge- sheet has not been issued to the employee in the criminal case, the employer is not remediless, was the observation made in K.V. Jankiraman3 in view of the provisions enabling the DPC to keep its recommendations in sealed cover. But in the instant case, none of the situations exist. The petitioners were in service, their suspensions had been revoked; Neither the charge-sheet memo in disciplinary proceedings nor the charge-sheet in criminal cases registered against them had been issued to them on the date of convening the DPC. Their cases for promotion could not be kept under sealed cover. 5. In view of above discussion, these writ petitions are allowed. Respondents are directed to open the sealed cover of the recommendations made by the DPC with respect to respective promotion cases of the petitioner(s) and to take such recommendations to their logical conclusion. If on the basis of such recommendations, petitioner(s) are found eligible to be promoted, 32 ( 2025:HHC:21221 ) they be promoted along with all consequential benefits including monetary & due seniority placements. This entire exercise be completed within four weeks. The writ petitions are disposed of above in above terms. Pending miscellaneous application(s), if any, shall also stand disposed of. Jyotsna Rewal Dua Judge 4th July, 2025(rohit)