Guidelines on treatment of effect of penalties on promotion
No. 22011/4/2007-Estt. (D)
Government of India
Ministry of Personnel, Public Grievances & Pension
Department of Personnel & Training
North Block, New Delhi,
Dated the 28th April, 2014
OFFICE MEMORANDUM
Subject:
Guidelines on treatment of effect of penalties on promotion — role
of Departmental Promotion Committee
***
The
Department of Personnel & Training had in its O.M. No.22011/5/86-Estt (D)
dated 10.04.1989 issued consolidated instructions on Departmental Promotion
Committee and matters related thereto. Para 6.2.3 of said O.M. provides that
"before making the overall grading after considering the CRs for the relevant
years, the DPC should take into account whether the officer has been awarded
any major or minor penalty or whether any displeasure of any superior officer
or authority has been conveyed to him as reflected in the ACRs." These
guidelines further provide that "the DPC should not be guided merely by
the overall grading, if any, that may be recorded in the ACRs (now APARs) but
should also make its own assessment on the basis of entries in the CRs (now
APARs) because it has been noticed that sometimes the overall grading in a ACR
(now APAR) may be inconsistent with the grades under various parameters or
attributes".
2. It
further provides that an officer whose increments have been withheld or
who has been reduced to a lower stage in the time scale, cannot be considered
on that account to be ineligible for promotion to the higher grade as the
specific penalty of withholding promotion has not been imposed on him/her. The
suitability of the officer for promotion should be assessed by the DPC as and
when occasions arise for such assessment. In assessing the suitability, the DPC
will take into account the circumstances leading to the imposition of the
penalty and decide whether in the light of the general service record of the
officer and the fact of the imposition of the penalty he should be considered
suitable for promotion. However, even where the DPC considers that despite the
penalty, the officer is suitable for promotion, the officer should not be
actually promoted during the currency of the penalty.
3.
Further this Department's O.M. No. No.22034/5/2004-Estt (D) dated 15.12.2004
provides that a Government servant, on whom a minor penalty of withholding of
increment etc. has been imposed, should be considered for promotion by the
Departmental Promotion Committee which meets after the imposition of the said
penalty and after due consideration of full facts leading to imposition of the
penalty, if he is still considered fit for promotion, the promotion may be
given effect after the expiry of the currency of the penalty.
4. The
procedure and guidelines to be followed for promotion of Government servants
against whom disciplinary/court proceedings are pending or whose conduct is
under investigation has been laid down in this Department's O.M.
No.22011/4/91-Estt(A) dated 14.9.92 and O.M. No.22034/4/2012-Estt (D) dated
02.11.2012 and 23.1.2014.
5. The
role of Departmental Promotion Committee(DPC) in assessment of the officers
being considered for promotion, including the officer(s) against whom a
chargesheet has been issued or on whom a penalty has been imposed, has been
examined by the Supreme Court in several judgments. The observations of Supreme
Court in some of the important cases are summarized as under:
(a) In A.K. Narula case (AIR 2007 SC 2296), the Hon'ble Supreme Court has observed:
"the
guidelines give a certain amount of play in the joints to the DPC by providing
that it need not be guided by the overall grading recorded in the CRs, but may
make its own assessment on the basis of the entries in the CRs. The DPC is
required to make an overall assessment of the performance of each candidate
separately, but by adopting the same standards, yardsticks and norms. It is
only when the process of assessment is vitiated either on the ground of bias,
malafide or arbitrariness, the selection calls for interference. Where the DPC
has proceeded in a fair, impartial and reasonable manner, by applying the same
yardstick and norms to all candidates and there is no arbitrariness in the
process of assessment by the DPC, the court will not interfere".
(b) In
Union of India vs. K.V. Jankiraman case(AIR 1991 SC 2010), the Supreme Court has taken
cognizance of role of DPC the case of an officer on whom a penalty has been
imposed and has held that:
"An
employee has no right to promotion. He has only right to be considered for
promotion. The promotion to a post and more so, to a selection post, depends
upon several circumstances. To qualify for promotion, the least that is
expected of an employee is to have an unblemished record. That is the minimum
expected to ensure a clean and efficient administration and to protect the
public interest. An employee found guilty of misconduct cannot be placed on par
with the other employees, and his case has to be treated differently....... In
fact, while considering an employee for promotion his whole record has to be
taken into consideration and if a promotion committee takes the penalties
imposed upon the employee into consideration and denies him the promotion, such
denial is not illegal and unjustified."
(c) In
UOI & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) 689/2007
-SLP(C)-2410/2007), the Hon'ble Supreme Court has held that:
"DPC
enjoyed full discretion to devise its method and procedure for objective
assessment of suitability and merit of the candidate being considered by it.
Hence interference by High Court is not called for. "
While
delivering the above judgement, the Division Bench has observed that:
"...it
is now more or less well settled that the evaluation made by an Expert
Committee should not be easily interfered with by the Court which do not have
the necessary expertise to undertake the exercise that is necessary for such
purpose."
6. It has
been brought to the notice of this Department that DPCs have been adopting
varying criteria in assessment of officials undergoing penalty that are not
consistent with the extant instructions of the DOPT for e.g., downgradation of
grading in ACR/APAR, denying promotion for specified number of years, etc.
7. The
matter has been examined in consultation with the Department of Legal Affairs.
It is a settled position that the DPC, within its power to make its own
assessment, has to assess every proposal for promotion, on case to case basis.
In assessing the suitability, the DPC is to take into account the circumstances
leading to the imposition of the penalty and decide, whether in the light of
general service record of the officer and the effect of imposition of penalty,
he/she should be considered suitable for promotion and therefore, downgradation
of APARs by one level in all such cases may not be legally sustainable.
Following broad guidelines are laid down in respect of DPC:
a) DPCs
enjoy full discretion to devise their own methods and procedures for objective
assessment of the suitability of candidates who are to be considered by them,
including those officers on whom penalty has been imposed as provided in DoPT
O.M. dated 10.4.89 and O.M. dated 15.12.2004.
b) The
DPC should not be guided merely by the overall grading, if any, that may be
recorded in the ACRs/APARs but should make its own assessment on the basis of
the entries in the ACRs/APARs as it has been noticed that sometimes the overall
grading in a ACR/APAR may be inconsistent with the grading under various
parameters or attributes. Before making the overall recommendation after
considering the APARs (earlier ACRs) for the relevant years, the DPC should
take into account whether the officer has been awarded any major or minor
penalty.
(Refer
para 6.2.1(e) and para 6.2.3 of DoPT OM dated 10.04.89)
c) In
case, the disciplinary/criminal prosecution is in the preliminary stage and the
officer is not yet covered under any of the three conditions mentioned in para
2 of DoPT O.M. dated 14.09.1992, the DPC will assess the suitability of the
officer and if found fit, the officer will be promoted along with other
officers. As provided in this Department's O.M. dated 02.11.2012, the
onus to ensure that only person with unblemished records are considered for
promotion and disciplinary proceedings, if any, against any person coming in
the zone of consideration are expedited, is that of the administrative
Ministry/Department.
d) If the
official under consideration is covered under any of the three condition
mentioned in para 2 of O.M. dated 14.09.1992, the DPC will assess the
suitability of Government servant 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 are kept in a sealed cover. (Para 2.1 of DoPT OM dated 14.9.92).
e) Para
7 of DoPT OM dated 14.09.92 provides that a Government servant, who is
recommended for promotion by the DPC, but in whose case, any of the three
circumstances on denial of vigilance clearance mentioned in para 2 of ibid O.M.
arises after the recommendations of the DPC are received but before he/she is
actually promoted, will be considered as if his/her case had been placed in a
sealed cover by the DPC. He/she shall not be promoted until he/she is
completely exonerated of the charges against him/her.
f) If any
penalty is imposed on the Government servant as a result of the disciplinary
proceedings or if he/she is found guilty in the criminal prosecution against
him/her, the findings of the sealed cover/covers shall not be acted upon.
His/her case for promotion may be considered by the next DPC in the normal
course and having regard to the penalty imposed on him/her (para 3.1 of DoPT
OM dated 14.9.92).
g) In
assessing the suitability of the officer on whom a penalty has been imposed,
the DPC will take into account the circumstances leading to the imposition of
the penalty and decide whether in the light of general service record of the
officer and the fact of imposition of penalty, the officer should be considered
for promotion. The DPC, after due consideration, has authority to assess the
officer as 'unfit' for promotion. However, where the DPC considers that despite
the penalty the officer is suitable for promotion, the officer will be actually
promoted only after the currency of the penalty is over (para 13 of DoPT OM
dated 10.4.89).
h) Any
proposal for promotion has to be assessed by the DPC, on case to case basis,
and the practice of downgradation of APARs (earlier ACRs) by one level in all
cases for one time, where a penalty has been imposed in a year included in the
assessment matrix or till the date of DPC should be discontinued immediately,
being legally non-sustainable.
i) While there
is no illegality in denying promotion during the currency of the penalty,
denying promotion in such cases after the period of penalty is over would be in
violation of the provisions of Article 20 of the Constitution
j) The
appointing authorities concerned should review comprehensively the cases of
Government servants, whose suitability for promotion to a higher grade has been
kept in a sealed cover on the expiry of 6 months from the date of convening the
first Departmental Promotion Committee which had adjudged his suitability and
kept its findings in the sealed cover. Such a review should be done
subsequently also every six months. The review should, inter alia, cover the
progress made in the disciplinary proceedings/criminal prosecution and the further
measures to be taken to expedite the completion. (Para 4 of O.M. dated
14.09.1992)
k) In
cases where the disciplinary case/criminal prosecution against the Government
servant is not concluded even after the expiry of two years from the date of
the meeting of the first DPC which kept its findings in respect of the
Government servant in a sealed cover then subject to condition mentioned in
Para 5 of this Department's O.M. dated 14.09.1992, the appointing authority may
consider desirability of giving him ad-hoc promotion (Para 5 of
this Department's O.M. dated 14.09.1992).
8. All
the administrative authorities in the Ministries/Department are advised to
place relevant records, including chargesheet, if any, issued to the officer
concerned, penalty imposed, etc., before the DPC/ACC who will decide the
suitability of officer for promotion keeping in view the general service
records of the officer including the circumstances leading to the imposition of
the chargesheet or penalty imposed. If such an officer is found suitable,
promotion will be given effect after the currency of the penalty is over.
9. All
Ministries/Departments are, therefore, requested to keep in view the above
guidelines while convening DPC for promotion of the Government servants on whom
either penalty has been imposed or where there are adverse remarks in the
reckonable ACRs/APARs.
sd/-
(Mukta Goel)
Director
Tele: No.23092479
sd/-
(Arunoday Goswami)
Under Secretaty to the Govt. of India
Tele: No. 23040339
Post a Comment