No.22011/4/2007-Estt.(D)
Government of India
Ministry of Personnel, Public and Training
(Department of Personnel and Training)
North Block, New Delhi – 110 011

November 21, 2016

OFFICE MEMORANDUM

Sub: Guidelines on treatment of effect of penalties on promotion – role of Departmental Promotion Committee

The Department of Personnel & Training vide its OM of even number dated 28.4.2014 issued instructions on the above subject. Paragraph 7(d), 7(f) and 7(g) of the said OM provides as follows:

7(d)

If the official under consideration is covered under any of the three condition mentioned in paragraph 2 of OM dated 14.9.1992, 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. [Paragraph 2.1 of DoPT OM dated 14.9.1992]

7(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 [paragraph 3.1 of DoPT OM dated 14.9.1992].

7(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 [paragraph 13 of DoPT OM dated 10.4.1989].
2. Questions have been raised by the Ministries and Departments asking whether this is applicable in the case of ‘Censure‘ also. In this regard, it is reiterated that paragraphs 7(d), 7(f) and 7(g) cited above are applicable in all the recognized penalties under CCS (CCA) Rules including the minor penalty of Censure as well for which no currency has been prescribed, it would mean that as per para 7(g), if the DPC considers the officer fit for promotion notwithstanding the award of censure, he / she can be promoted without referring to the currency of penalty.

(G. Jayanthi)
Director

Download DOPT OM No.22011/4/2007-Estt.(D) dated 21.11.2016

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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

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/22011_4_2007-Estt.D-28042014.pdf]

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 No.6/3/2013-Estt (Pay-I)
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel & Training

North Block, New Delhi
Dated the 6th February, 2014

OFFICE MEMORANDUM

Subject: Regulation of pay on imposition of a penalty under CCS (CCA) Rules, 1965.

The undersigned is directed to say that the following penalties prescribed in the Rule 11 of CCS (CCA) Rules, 1965, have a bearing on the pay of the officer:

11. Penalties

Minor Penalties –
(iii a) reduction to a lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.
(iv) withholding of increments of pay;

Major Penalties –
(v) save as provided for in clause (iii) (a), reduction to a lower stage in the time- scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction Will or will not have the effect of postponing the future increments of his pay
(vi) reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period –
(a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and
(b) the Government servant shall regain his original seniority in the higher time scale of pay , grade, post or service;

2. Consequent upon implementation of the recommendations of 6 th CPC under the CCS (RP) Rules, 2008 pay scale of a post/grade for below HAG level means the Pay Band and Grade Pay specified for that post. Under the CCS (RP) Rules, 2008 a Pay Band may cover Government servants in more than one Grade Pay or posts in the hierarchy. As per Rule 9 of the CCS (Revised Pay) Rules, 2008, the rate of increment in the revised pay structure is 3% of the sum of the pay in the Pay Band arid Grade Pay applicable, which is to be rounded off to the next multiple of 10. Further, as per Rule 10 of the CCS (Revised Pay) Rules, 2008, there is now a uniform date of increment, that is, lst July of the year.

3. The mode of implementation of these penalties has been clarified to individual Ministries/Departments wherever references have been received. It is now proposed to issue detailed guidelines on the issue. The regulation of pay on imposition of these penalties is in the subsequent pants:

A. Reduction to a lower stage of pay by one stage (Rule 11( iii a)
On imposition of a penalty under this Rule, the pay would be fixed at the next lower stage in the Pay Band. In other words, in case of reduction by one stage, the revised pay would be the pay drawn in the Pay Band at the stage before the last increment. Grade Pay attached to the post would remain unchanged. The pay will be fixed by reversing the mode of allowing increments given in Rule 9 of the CCS (RP) Rules, 2008. The formula would be:-

Reduced Pay In Pay Band = {(Pay in Pay Band+ Grade Pay) x 100/103} less (Grade Pay) (rounded off to next 10)
Pay would be Pay in Pay Band as above + Grade Pay

B. Withholding of increment {Rule 11(iv)}
As the uniform date of increment now is 1st July, on imposition of a penalty of withholding of increment, the increment(s) due on the 1st of July falling after the date of imposition of the penalty would be withheld. In case where penalty of withholding of more than one increment is imposed, increments due on 1st of Juty in the subsequent years would similarly be withheld. The increment would be restored at the end of the period for which the penalty is imposed.

This also applies to cases where the penalty is imposed for part of a year. For instance, if the penalty of withholding of the increment for six months is imposed on a Government servant in April 2013, then the increment falling due on 1.7.2013 will be withheld for a period of six months, that is, till 31.12.2013. The increment would be released w.e.f. 1.1.2014. In this case the next increment falling due on 1.7.2014 will also be allowed.

C. Reduction to a lower stage in the time-scale of pay for a specified periodfRule 11(v)}
The process of imposition of penalty of reduction by one stage under Rule 11(iii a) explained above shall be repeated for every additional stage of reduction by taking the pay arrived at notionally as pay for the second reduction, and so on. Grade Pay shall remain unchanged.

NOTE 1: It is not permissible to impose a penalty under this rule if the pay after imposition of the penalty would fall below the minimum of the Pay Band attached to the post.

NOTE 2: A Pay Band may cover Government servants in different Grade Pays or holding posts at several levels in the hierarchy. It needs to be kept in mind that reduction to lower pay scale or grade is a distinct penalty, under Rule 11(vi).Therefore, while imposing a penalty of reduction to a lower stage in the time-scale of pay under Rule 11(v) of the CCS (CCA) Rules, 1965, Disciplinary Authorities should weigh all factors before deciding upon the quantum of penalty, i.e., the number of stages by which the pay is to be reduced.

D. Reduction to lower time-scale of pay under Rule 11(vi)
As a result of imposition of a penalty of reduction to lower time-scale of pay, the pay of the Government servant would be reduced to the stage of pay he /she would have drawn had he/she continued in the lower post for the period of penalty. The mode of fixation of pay in this case is similar to reversing the mode of fixation of pay on promotion. Therefore, both pay in Pay Band and Grade Pay would be reduced.

However, Disciplinary Authority has the power, in terms of FR 28, to indicate the pay which the Government servant on whom a penalty of reduction in rank has been imposed, would draw. The Government servant will be entitled to the Grade Pay of the post to which he has been reduced. Thus, the power of the Disciplinary Authority under FR 28 is limited to indicating the pay in the Pay Band applicable to the lower rank/post.

In some cases imposition of a penalty under Rule 11(vi) may also involve a change in Pay Band. For instance a Government servant holding a post in PB-2 with Grade pay of Rs.4200/- may be reduced to a post in PB-1 with Grade Pay of Rs.2800/-

It may also be noted that a Government servant cannot be reduced in rank to a post not held earlier by him in the cadre. For example, an LDC who qualifies as Assistant as a Direct Recruit and is later promoted as Section Officer cannot be reduced to the rank of LDC but only to that of an Assistant.

4. Some illustrations on pay fixation in above types of cases are annexed.

sd/-
(Mukesh Chaturvedi)
Deputy Secretary to the Government of India

Source: www.persmin.gov.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/6_3_2013-Estt.Pay-I-06022014.pdf]

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RBE No. 9/2014

GOVERNMENT OF INDIA
MINISTRY OF RAILWAYS
(RAILWAY BOARD)

No. E(D&A) 2008 RG6-36
New Delhi, 15/01/2014

The General Marlager(P)
All Indian Railways and
Production Units etc.
(As per standard list).

Sub: Determination of date of increment after expiry of duration of penalties of withholding of increments/ reduction to lower stage imposed for less than a year regarding.

Ministry of Railways have received a few references regarding certain penalties of rule 6 of Railway Servants (Discipline And Appeal) Rules, 1968 which are having pay element imposed for less than a year. In one case, the penalty of withholding of increments was imposed on 24.3.2008 for a period of six months with cumulative effect and in the other case the penalty of reduction to lower stage was imposed on 9.2.2009 for a period of six months with non-cumulative effect.

2. The question of date of release of increment in the above cases on expiry of the penalty, in the context of fixing of 1st July as the date of increment uniformally for all Government servants following VIth CPC, has been examined in consultation with the Department of Personnel & Training. It is advised that fixing of 1st July as the date of increment for all Government servants under the Revised Pay Rules following the acceptance of the recommendation of the IVth CPC, is relevant, only in respect of Annual increment. This provision is not applicable where the increment is withheld as a measure of penalty. In cases where the increment is withheld as a penalty for a specified period restoration of the withheld increment would be at the end of the currency of the penalty and not postponed to the next 1st July. The person concerned may even be entitled to the next increment on the 1st July following the expiry of the currency of the penalty, (notwithstanding the fact that the penalty imposed on him was having postponing effect on his future increments), if he has net qualifying service of six months prior to the relevant 1st July.

3.  Likewise, where the penalty of reduction to lower stage was imposed, the pay will be restored immediately on expiry of the currency of the penalty. In so far as release of next increment is concerned, the same may also be allowed immediately on restoration if the person concerned has rendered net qualifying service of six month on the 1st July preceding the date of the expiry of the currency of the penalty.

Please. acknowledge receipt,

sd/-
(Harish Chander)
Dy. Director Est. (D&A)

Source: AIRF
[http://www.airfindia.com/Orders%202014/RBE-09.2014.pdf]

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 No.5/6/2013-CS.I(U)
Government of India
Ministry of Personnel, Public Grievances and Pensions
Department of Personnel and Training

Lok Nayak Bhavan, Khan Market,
New Delhi-110003
Dated the 12th November, 2013

OFFICE MEMORANDUM

Subject: Preparation of Select List for the year 2012 of Grade I (Under Secretary) of the CSS — Vigilance status and statement of minor / major penalties imposed etc.

The undersigned is directed to refer lo DoPT’s O.M of even number dated 18.10.2013 and subsequent reminder dated 01.11.2013 on the subject mentioned above (available in the web site of this Department at persmin.nic.in -> DoPT -> central secretariat ->CSS -> promotion -> regular -> SO to US) and to say that fresh vigilance status of officers whose names figure in Annexure have not yet been received Out of 406 officers in the zone of consideration, fresh vigilance status has been received only in respect of 158 officers. For want of vigilance status forwarding of proposal to UPSC is getting delayed.

2. Ministries/ Departments concerned are, therefore, once again requested to furnish vigilance status of the officers indicated in Annexure to this OM afresh so that the proposal for preparation cl USSL 2012 may be sent to UPSC at the earliest. The information should reach this Department by 22.11.2013. Vigilance status in respect of retired officers and who are in the zone of promotion is also required to be furnished.

3. All Officers concerned, in their own interest are also requested to pursue with the Administration Division concerned to ensure that the said documents/information in their respect are furnished to this Department urgently.

4. Vigilance status of the officers is also required to be updated in the vigilance module of Web Based Cadre Management System hosted at http://10.21.145.125

sd/-
(V.Srinivasaragavan)
Under Secretary to the Government of India

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02csd/USSL12_rem_12_11_13.pdf]

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