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OFFICE MEMORANDUM 

Subject: Guidelines on treatment of effect of penalties on promotion — role of  Departmental Promotion Committee
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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 th
e 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  Page 1 of 5 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 U01 & Anr. Vs. S.K. Goel & Ors. (Appeal (Civil) 689/2007 -SLP0-2410/2007),  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  Page 2 of 5 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  Page 3 of 5 ) 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). 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  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

g)
Page 4 of 5 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.


All Ministries/Departments of the Government of India
Copy to:-
1. The President's Secretariat, New Delhi.
2. The Vice-President's Sectt, New Delhi
3. The Prime Minister's Office, New Delhi.
4. The Cabinet Secretariat, New Delhi.
5. The Rajya Sabha Secretariat, New Delhi.
6. The Lok Sabha Secretariat, New Delhi.
7. The Comptroller and Audit General of India, New Delhi.
8. The Secretary, Union Public Service Commission, New Delhi
9. The Secretary, Staff Selection Commission, New Delhi.
10. All attached offices under the Ministry of Personnel, Public Grievances and
Pensions.
11. All Officers and Sections in the Department of Personnel and Training.
12. Establishment(D) Section, DoP&T (10 copies)
13. NIC for updation on the website.
(Arunoday Goswami)
Under Secretary to the Govt. of India
Tele: No. 23040339
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