RULE 10. SUSPENSION:
Government of India Decisions
(1) Report of arrest to superiors by Government servants:-
It shall be the duty of the Government servant who may be arrested for any reason to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even though he might have subsequently been released on bail. On receipt of the information from the person concerned or from any other source the departmental authorities should decide whether the fact and circumstances leading to the arrest of the person call for his suspension. Failure on the part of any Government servant to so inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the police case against him.
[MHA letter No. 39/59/54-Est.(A) dated the 25th February, 1955]
State Governments have also been requested to issue necessary instructions to Police authorities under their control to send prompt intimation of arrest and/or release on bail etc. of Central Government servant to the latter’s official superiors.
(2) Headquarters of Government servant under suspension.
A question recently arose whether an authority competent to order the suspension of an official has the power to prescribe his headquarters during the period of suspension. The matter has been examined at length in this Ministry and the conclusions reached are stated in the following paragraphs.
2. An officer under suspension is regarded as subject to all other conditions of service applicable generally to Government servants and cannot leave the station without prior permission. As such, the headquarters of a Government servant should normally be assumed to be his last place of duty. However, where an individual under suspension requests for a change of headquarters, there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of T.A. etc. or other complications.
3. The Ministry of Finance/etc. may bring the above to the notice of all concerned.
[M.H.A. O.M. No. 39/5/56-Ests. (A) dated the 8th September, 1956]
(3) How suspension is to be regulated during pendency of criminal proceedings, arrests, detention etc.
The case of suspension during pendency of criminal proceedings or proceeding for arrest, for debt or during detention under a law providing for preventive detention, shall be dealt with in the following manner hereafter:-
(a) A Government servant who is detained in custody under any law providing for preventive detention or a result of a proceeding either on a criminal charge or for his arrest for debt shall if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension from the date of detention until further orders as contemplated in rule 10 (2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Government servant who is undergoing a sentence of imprisonment shall be also dealt with in the same manner pending decision on the disciplinary action to be taken against him.
(b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g., a person released on bail) may be placed under suspension by an order of the competent authority under clause (b) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course.
(c) A Government servant against whom a proceeding has been taken for arrest for debt but who is not actually detained in custody may be placed under suspension by an order under clause (a) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 i.e., only if a disciplinary proceeding against him is contemplated.
(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in clause (a) or who is suspended in circumstances mentioned in clause (b) is re-instated without taking disciplinary proceedings against him, his pay and allowances for the period of suspension will be regulated under FR 54 i.e., in event of his being acquitted of blame or if the proceedings taken against him was for his arrest for debt or it being proved that his liability arose from circumstances beyond his control or the detention being held by any competent authority to be wholly unjustified, the case may be dealt with under FR 54 (2), otherwise it may be dealt with under FR 54 (3).
[M.O.F. No. F.15(8)-E IV/57, dated 28th March, 1959]
(4) Circumstances under which a Government servant may be placed under suspension –
Recommendation No. 61, contained in paragraph 8.5 of the report of the Committee on Prevention of Corruption, has been carefully considered in the light of the comments received from the Ministries. It has been decided that public interest should be guiding factor in deciding to place a Government servant under suspension, and the disciplinary authority, should have discretion to decide this taking all factors into account. However, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. These are only intended for guidance and should not be taken as mandatory:-
(i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
(ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
(iii) Where the continuance in office of the Government servant will be against the wider public interest [other than those covered by (1) and (2)] such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) Where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.
NOTE:
(a) In the first three circumstances the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established.
(b) Certain types of misdemeanor where suspension may be desirable in the four circumstances mentioned are indicated below:-
(i) any offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty;
(v) refusal or deliberate failure to carry out written orders of superior officers.
In respect of the types of misdemeanor specified in sub clauses (iii) and (v) discretion has to be exercised with care.
[MHA OM No. 43/56/64-AVD dated the 22nd October, 1964]
(5) Forwarding of Application of Government servants involved in disciplinary proceedings:
A case has come to the notice of this Ministry in which the application of a Government servant against whom departmental proceedings were pending was forwarded for an assignment under an international organisation. The propriety of such an action has been considered carefully and the following decisions have been taken:-
(a) Cases of Government servants who are under suspension or against whom departmental proceedings are pending:-
Applications of such Government servants should not be forwarded, nor should they be released, for any assignment, scholarship, fellowship, training, etc. under an international agency / organisation or a foreign Government. Such Government servants should also not be sent or allowed to go on deputation or Foreign Service to posts under an authority in India.
(b) Cases of Government servants on whom the penalty of withholding of increments or reduction to a lower stage in a time-scale or to a lower time scale or to a lower service, grade or post has been imposed:-
Applications of such Government servant should not be forwarded, nor should they be released during the currency of the penalty, for any assignment under international agency/organisation or a foreign Government. Such Government servants should also not be sent or allowed to go, during the currency of the penalty, on deputation or Foreign Service to posts under an authority in India. Even after the expiry of the penalty, it will have to be examined, having regard to the nature of the offence and the proximity of its occurrence, whether the Government servant concerned should be permitted to go on foreign assignment/deputation to another Department/Foreign Service to an authority in India.
[MHA OM No. 39/17/63-Ests. (A) dated the 6th September, 1968]
(5A) Forwarding of applications for other posts – Principles regarding –
The question regulating the forwarding of applications to the Ministries/Departments/other Government offices or to the UPSC from candidates serving under the Government has been reviewed.
2. It has been decided to consolidate the instructions on the subject. Therefore, the following instructions in supersession of the instructions contained in this Department’s OMs No. 11012/10/75-Estt. (A) dated 18.10.1975 and No. 42015/4/78-Estt. (C) dated 01.01.1979 are issued for guidance of all the Administrative Authorities.
3. Application of a Government servant for appointment, whether by Direct Recruitment, transfer on deputation or transfer, to any other post should not be considered/forwarded if:-
(i) He is under suspension; or
(ii) Disciplinary proceedings are pending against him and a charge sheet has been issued; or
(iii) Sanction for prosecution, where necessary has been accorded by the competent authority; or
(iv) where a prosecution sanction is not necessary, a charge sheet has been filed in a court of law against him for criminal prosecution.
4. When the conduct of a Government Servant is under investigation (by the CBI or by the controlling Department) but the investigation has not reached the stage of issue of charge sheet or prosecution sanction or filing of charge-sheet for criminal prosecution in a court, the application of such a Government servant may be forwarded together with brief comments on the nature of allegations and it should also be made clear that in the event of actual selection of the Government servant, he would not be released for taking up the appointment, if by that time charge sheet for imposition of penalty under CCS (CCA) Rules, 1965 or sanction for prosecution is issued or a charge sheet is filed in a court to prosecute the Government Servant, or he is placed under suspension.
5. Where Government servants apply directly to UPSC as in the case of direct recruitment, they must immediately inform the Head of their office/Department giving details of the examination/post for which they have applied, requesting him to communicate his permission to the Commission directly. If, however, the Head of the Office/Department considers it necessary to withhold the requisite permission, he should inform the Commission accordingly within 45 days of the date of closing for receipt of applications. In case any situation mentioned in para 3 is obtaining, the requisite permission should not be granted and UPSC should be immediately informed accordingly. In case a situation mentioned in para 4 is obtaining, action may be taken to inform UPSC of this fact as also the nature of allegations against the Government servant. It should also be made clear that in the event of actual selection of Government servant, he would not be relieved for taking up the appointment, if the charge sheet/prosecution sanction is issued or a charge sheet is filed in a court for criminal prosecution, or if the Government servant is placed under suspension.
6. The administrative Ministries/Departments of the Government of India may also note that, in case of Direct Recruitment by selection viz., “Selection by Interview” it is the responsibility of the requisitioning Ministry / Department to bring to the notice of the Commission any point regarding unsuitability of the candidate (Government servant) from the vigilance angle and that the appropriate stage for doing so would be the consultation at the time of preliminary scrutiny i.e. when the case is referred by the Commission to the Ministry/Departments for the comments of the Ministry’s Representatives on the provisional selection of the candidates for interview by the Commission.
[Deptt. Of Personnel & Training OM No. AB14017/101/91-Estt. (RR) dated 14th May, 1993]
(6) Suspension – Reduction of time limit fixed for serving charge-sheet:-
In the Ministry of Home Affairs OM No. 221/18/65-AVD, dated the 7th September, 1965, the attention of all disciplinary authorities was drawn to the need for quick disposal of cases of Government servants under suspension and it was desired, in particular, that the investigation in such cases should be completed and a charge-sheet filed in court, in cases of prosecution, or served on the Government servant, in cases of departmental proceedings, within six months. The matter was considered further at a meeting of the National Council held on the 27th January, 1971 and in partial modification of the earlier orders it has been decided that every effort should be made to file the charge-sheet in court or serve the charge-sheet on the Government servant, as the case may be within three months of the date of suspension, and in cases in which it may not be possible to do so, the disciplinary authority should report the matter to the next higher authority explaining the reasons for the delay.
[Cabinet Sectt. (Department of Personnel) Memo. No. 39/39/70-Ests.(A) dated the 4th February, 1971].
Government have already reduced the period of suspension during investigation, barring exceptional cases which are to be reported to the higher authority, from six months to three months. It has been decided that while the orders contained in the Office Memorandum of 4th February, 1971 would continue to be operative in regard to cases pending in courts in respect of the period of suspension pending investigation before the filing of a charge-sheet in the Court as also in respect of serving of the charge sheet on the Government servant in cases of departmental proceedings, in cases other than those pending in courts, the total period of suspension viz., both in respect of investigation and disciplinary proceedings should not ordinarily exceed six months. In exceptional cases where it is not possible to adhere to this time limit, the disciplinary authority should report the matter to the next higher authority, explaining the reasons for the delay.
[Cabinet Sectt. (Department of Personnel) OM No. 39/33/72-Estt. (A) dated the 16th December, 1972].
In spite of the instructions referred to above, instances have come to notice in which Government servants continued to be under suspension for unduly long periods. Such unduly long suspension while putting the employee concerned to undue hardship, involves payment of subsistence allowance without the employee performing any useful service to the Government. It is, therefore impressed on all the authorities concerned that they should scrupulously observe the time limits laid down in the Office Memoranda referred to in the preceding paragraph and review the cases of suspension to see whether continued suspension in all cases is really necessary. The authorities superior to the disciplinary authorities should also exercise a strict check on cases in which delay has occurred and give appropriate directions to the disciplinary authorities keeping in view the provisions contained in the aforesaid Office Memoranda.
[Department of Personnel & AR OM No. 11012/7/78-Ests.(A) dated the 14th September, 1978].
The attention of the Ministry of Finance etc. is invited to this Department’s OM No. 11012/7/78-Estt. (A) dated 14th September, 1978, in which the existing instructions relating to suspension of Government employees have been consolidated. In spite of these instructions it has been brought to the notice of this Department that Government servants are sometimes kept under suspension for unduly long periods. It is, therefore, once again reiterated that the provisions of the aforesaid instructions in the matter of suspension of Government employees and the action to be taken thereafter should be followed strictly. Ministry of Finance etc. may, therefore, take appropriate action to bring the contents of the OM of 14.09.1978, to the notice of all the authorities concerned under their control, directing them to follow those instructions strictly.
2. So far as payment of subsistence allowance is concerned, Ministry of Finance etc. are also requested to bring the contents of FR 53 to the specific notice of all authorities under their control, with particular reference to the provisions in the aforesaid rule regarding the need for review of the rate of subsistence allowance after a continued suspension of more than 90 days, for strict compliance.
[Deptt. of Personnel & A.R. O.M. No. 42014/7/83-Ests.(A) dated the 18th February, 1984]
(6A) Reasons for suspension to be communicated on expiry of three months period if no charge-sheet is issued.
Under Rule 10 (1) of the CCS (CCA) Rules, 1965, the competent authority may place a Government servant under suspension –
(a) where a disciplinary proceeding against him is contemplated or is pending; or
(b) Where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interests of security of the State; or
(c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
The Government servant is also deemed to have been placed under suspension by an order of the competent authority in the circumstances mentioned in rule 10 (2) of the aforesaid rules.
2. Where a Government servant is placed under suspension, he has a right of appeal against the order of suspension vide Rule 23 (i) of the CCS (CCA) Rules, 1965. This would imply that a Government servant who is placed under suspension should generally know the reasons leading to his suspension so that he may be able to make an appeal against it. Where a Government servant is placed under suspension on the ground that a disciplinary proceeding against him is pending or a case against him in respect of any criminal offence is under investigation, inquiry or trial, the order placing him under suspension would itself contain a mention in this regard and he would, therefore, be aware of the reasons leading to his suspension.
3. Where a Government servant is placed under suspension on the ground of “contemplated” disciplinary proceeding, the existing instructions provide that every effort would be made to finalise the charges, against the Government servant within three months of the date of suspension. If these instructions are strictly adhered to, a Government servant who is placed under suspension on the ground of contemplated disciplinary proceedings will become aware of the reasons for his suspension without much loss of time. However, there may be some cases in which it may not be possible for some reason or the other to issue a charge sheet within three months from the date of suspension. In such cases, the reasons for suspension should be communicated to the Government servant concerned immediately on the expiry of the aforesaid time-limit prescribed for the issue of a charge sheet, so that he may be in a position to effectively exercise the right of appeal available to him under Rule 23 (i) of the CCS (CCA) Rules, 1965, if he so desires. Where the reasons for suspension are communicated on the expiry of a time-limit prescribed for the issue of charge sheet, the time-limit of forty five days for submission of appeal should be counted from the date on which the reasons for suspension are communicated.
4. The decision contained in the preceding paragraph will not, however, apply to cases where a Government servant is placed under suspension on the ground that he has engaged himself in activities prejudicial to the interests of the security of the State.
[Deptt. of Personnel & A.R. O.M. No. 35014/1/81-Ests.(A) dated the 9th November, 1982]
(7) Timely payment of subsistence allowance:-
In the case of Ghanshyam Das Srivastava Vs. State of Madhya Pradesh (AIR 1973 SC 1183), the Supreme Court had observed that where a Government servant under suspension pleaded his inability to attend the inquiry on account of financial stringency caused by the non-payment of subsistence allowance to him the proceedings conducted against him exparte would be in violation of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings.
2. In the light of the judgment mentioned above, it may be impressed on all authorities concerned that they should make timely payment of subsistence allowance to Government servants who are placed under suspension so that they may not be put to financial difficulties. It may be noted that, by its very nature, subsistence allowance is meant for the subsistence of a suspended Government servant and his family during the period he is not allowed to perform any duty and thereby earn a salary. Keeping this in view, all concerned authorities should take prompt steps to ensure that after a Government servant is placed under suspension, he received subsistence allowance without delay.
3. The judgment of the Supreme Court referred to in para 1 above indicates that in that case, the disciplinary authority proceeded with the enquiry ex-parte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enquiry on account of financial difficulties caused by non-payment of subsistence allowance. The Court had held that holding the enquiry ex-parte under such circumstances, would be violative of Article 311 (2) of the Constitution on account of denial of reasonable opportunity of defence. This point may also be kept in view by all authorities concerned, before invoking the provisions of rule 14 (20) of the CCS (CCA) Rules, 1965.
[Cabinet sect. (Department of Personnel & Administrative Reforms) OM No. 11012/10/76-Estt. (A) dated 6th October, 1976].
As mentioned in the OM dated 6th October, 1976 referred to above, the Supreme Court have held that if a Government servant under suspension pleads his inability to attend the disciplinary proceedings on account of non-payment of subsistence allowance, the enquiry conducted against him, ex-parte, could be construed as denial of reasonable opportunity of defending himself. It may, therefore, once again be impressed upon all authorities concerned that after a Government servant is placed under suspension, prompt steps should be taken to ensure that immediate action is taken under FR 53, for payment of subsistence allowance and the Government servant concerned receives payment of subsistence allowance without delay and regularly subject to the fulfillment of the condition laid down in FR 53. In cases where recourse to ex-parte proceedings becomes necessary, if should be checked up and confirmed that the Government servant’s inability to attend the enquiry is not because of non-payment of subsistence allowance.
[Deptt. of Personnel & Training, OM No. 11012/17/85-Estt.(A) dated the 28th October, 1985.]
(8) Erroneous detention or detention without basis –
One of the items considered by the National Council (JCM) in its meeting held in January, 1977 was a proposal of the Staff Side that a Government servant who was deemed to have been placed under suspension on account of his detention or on account of criminal proceedings against him should be paid full pay and allowances for the period of suspension if he has been discharged from detention or has been acquitted by a Court.
2. During the discussion, it was clarified to the Staff Side that the mere fact that a Government servant who was deemed to have been under suspension, due to detention or on account of criminal proceedings against him, has been discharged from detention without prosecution or has been acquitted by a Court would not make him eligible for full pay and allowances because often the acquittal may be on technical grounds but the suspension might be fully justified. The Staff Side were, however, informed that if a Government servant was detained in police custody erroneously or without any basis and thereafter he is released without any prosecution, in such cases the official would be eligible for full pay and allowances.
3. It has accordingly been decided that in the case of a Government servant who was deemed to have been placed under suspension due to his detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and re-instatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed.
[Department of Personnel & A.R. OM No. 35014/9/76-Estt. (A) dated 08.08.1977]
(9) Deemed suspension on grounds of detention to be treated as revoked if conviction does not follow –
In the Committee of National Council (JCM) set up to review the CCS (CCA) Rules, 1965, the Staff Side had expressed the view that the period of deemed suspension on grounds of detention should be treated as duty in all cases where conviction did not follow. The matter was discussed and it was agreed to that in cases of deemed suspension, if the cause of suspension ceases to exist the revocation of the suspension should be automatic.
2. Attention is invited to the instruction contained in this Department’s OM No. 35014/9/76-Ests.(A) dated 08.08.1977 [decision (2) (a) above] which provides that in the case of a Government servant, who was deemed to have been placed under suspension due to detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and reinstatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed. There instructions may be kept in view and scrupulously complied with in all cases where deemed suspension is found to be erroneous and the employee concerned is not prosecuted. In all such cases, the deemed suspension under Rule 10 (2) of the CCS (CCA) Rules, 1965 may be treated as revoked from the date the cause of the suspension itself ceases to exist i.e. the Government servant is released from police custody without any prosecution having been launched. However, it will be desirable for the purpose of administrative record to make a formal order for revocation of such suspension under Rule 10 (5) of the CCS (CCA) Rules, 1965.
[Deptt. of Personnel & Trg. OM No. 11012/16/85-Estt. (A) dated 10.01.1986]
(10) Disciplinary proceedings against an employee appointed to a higher post on ad-hoc basis -
The question whether a Government servant appointed to a higher post on ad-hoc basis should be allowed to continue in the ad-hoc appointment when a disciplinary proceedings is initiated against him has been considered by this Department and it has been decided that the procedure outlined below shall be followed in such cases:-
(i) Where an appointment has been made purely on ad-hoc basis against a short-term vacancy or a leave vacancy or if the Government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period less than one year, the Government servant shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against him.
(ii) Where the appointment was required to be made on ad-hoc basis purely for administrative reasons (other than against a short term vacancy or a leave vacancy) and the Government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him.
Appropriate action in such cases will be taken depending on the outcome of the disciplinary case.
[Deptt. of Pers. & Trg. OM No. 11012/9/86-Estt. (A) dated the 24th December, 1986]
(11) Suspension in cases of dowry death:-
Sub-rule (1) of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides, inter alia, that a Government servant may be placed under suspension where a disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation, inquiry or trial. Sub-rule (2) of the same rule lays done that a Government servant shall be deemed to have been placed under suspension by an order of the appointing authority w.e.f. the date of detention if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-either hours.
2. As Government takes a very serious view of offences against women, Government has reviewed the provisions in the rules in regard to placing a Government servant under suspension if he is accused of involvement in a case of “dowry death” as defined in Section 304-B of the Indian Penal Code. The Section reads as follows:-
“304-B (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation – For the purpose of this sub-section “dowry” shall have the same meaning as in Section 2 of the “dowry Prohibition Act, 1961.”
3. If a case has been registered by the Police against a Government servant under Section 304-B of the I.P.C., he shall be placed under suspension in the following circumstances by the competent authority by invoking the provisions of sub-rule (1) of Rule 10 of the CCS (CCA) Rules, 1965:
(i) If the Government servant is arrested in connection with the registration of the police case, he shall be placed under suspension immediately irrespective of the period of his detention.
(ii) If he is not arrested, he shall be placed under suspension immediately on submission of a police report under sub-section (2) of section 173 of the Code of Criminal Procedure, 1973, to the Magistrate, if the report prima-facie indicates that the offence has been committed by the Government servant.
[Deptt. of Personnel & Trg. OM No. 11012/8/87-Ests. (A) dated the 22nd June, 1987]
(12) Resignation from Service procedure in respect of:-
Instructions have been issued from time to time on the subject of resignation. These instructions have now been consolidated for facility of reference and guidance of all the Ministry/Departments of the Government of India.
1. Resignation is an intimation in writing sent to the competent authority by the incumbent of a post, of his intention or proposal to resign the office/post either immediately or from a future specified date. A resignation has to be clear and unconditional.
2. It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances indicated below:-
(i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightway but only when alternative arrangements for filling the post have been made.
(ii) Where a Government servant who is under suspension submits a resignation the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation. Normally, as Government servants are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation from a Government servant under suspension. Exceptions to this rule would be where the alleged offences do not involve moral turpitude or where the quantum of evidence against the accused Government servant is not strong enough to justify the assumption that if the departmental proceedings were continued, he would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.
In those cases where acceptance of resignation is considered necessary in the public interest, the resignation may be accepted with the prior approval of the Head of the Department in respect of Group ‘C’ & ‘D’ posts and that of the Minister in charge in respect of holders of Group ‘A’ and ‘B’ posts. In so far as Group ‘B’ officers serving in Indian Audit and Accounts Department are concerned, the resignation of such officers shall not be accepted except with the prior approval of the Comptroller and Auditor General of India. Concurrence of the Central Vigilance Commission should be obtained before submission of the case to the Minister-in-charge/Comptroller and Auditor General, if the Central Vigilance Commission had advised initiation of departmental action against the Government servant concerned or such action has been initiated on the advice of the Central Vigilance Commission.
3. A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant, who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned.
4. Since a temporary Government servant can sever his connection from a Government service by giving a notice of termination of service under Rule 5 (1) of the Central Civil Services (TS) Rules, 1965, the instructions contained in this Office Memorandum relating to acceptance of resignation will not be applicable in cases where a notice of termination of service has been given by a temporary Government servant. If, however, a temporary Government servant submits a letter of resignation in which he does not refer to Rule 5 (1) of the CCS (TS) Rules, 1965, or does not even mention that it may be treated as a notice of termination of service, he can relinquish the charge of the post held by him only after the resignation is duly accepted by the appointing authority and he is relieved of his duties and not after the expiry of the notice period laid down in the Temporary Service Rules.
5. The procedure for withdrawal of resignation after it has become effective and the Government servant had relinquished the charge of his earlier post, are governed by the following statutory provision in sub-rules (4) to (6) of Rule 26 of the CCS (Pension) Rules, 1972 which corresponds to Art. 418 (b) of the Civil Service Regulations:-
“(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:-
(i) that the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available;
(v) request for withdrawal of resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up an appointment in or under a corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government;
(vi) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.”
6. Since the CCS (Pension) Rules are applicable only to holders of permanent posts, the above provisions would apply only in the case of a permanent Government servant who had resigned his post. The cases of withdrawal of resignation of permanent Government servants which involve relaxation of any of the provisions of the above rules will need the concurrence of the Ministry of Personnel, P.G. & Pensions, as per Rule 88 of the CCS (Pension) Rules, 1972.
7. Cases of quasi-permanent Government servants requesting withdrawal of resignation submitted by them would be considered by the Department of Personnel and Training on merits.
8. A Government servant who has been selected for a post in a Central Public Enterprises/Central Autonomous body may be released only after obtaining and accepting his resignation from the Government service. Resignation from Government service with a view to secure employment in a Central Public enterprise with proper permission will not entail forfeiture of the service for the purpose of retirement/terminal benefits. In such cases, the Government servant concerned shall be deemed to have retired from service from the date of such resignation and shall be eligible to receive all retirement/terminal benefits as admissible under the relevant rules applicable to him in his parent organisation.
9. In cases where Government servants apply for posts in the same or other Departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new post treating the resignation as a ‘technical formality’.
(13) Promotion of Government servants against whom disciplinary/court proceedings are pending or whose Conduct is under investigation-Procedure and guidelines to be followed.
The procedure and guidelines to be followed in the matter of promotion of Government servants against whom disciplinary/court proceedings are pending or whose conduct is under investigation have been reviewed carefully. Government have also noticed the judgement dated 27.08.1991 of the Supreme Court in Union of India etc. vs. K.V. Jankiraman etc. (AIR 1991 SC 2010). As a result of the review and in supersession of all the earlier instructions on the subject (OM No. 39/3/59-Estt.A dated 31.08.1960, 7/28/63-Estt.A dated 22.12.1964, 22011/3/77-Estt.A dated 14.07.1977, 22011/1/79-Estt.A dated 31.01.1982, 22011/2/1986-Estt.A dated 12.01.1988, 22011/1/91-Estt.A dated 31.07.1991), the procedure to be followed in this regard by the authorities concerned is laid down in the subsequent paras of this OM for their guidance.
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.
2.1 The Departmental Promotion Committee shall assess the suitability of the Government servants coming within the purview of the circumstances mentioned above alongwith 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 super scribed ‘Findings regarding suitability for promotion to the grade/post of …………… in respect of Shri …………………….. (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution against Shri ……………………….’ The proceedings 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.
2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent Departmental Promotion Committees convened till the disciplinary case/criminal prosecution against the Government servant concerned is concluded.
3. On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Govt. servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated, the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. These are only some of the circumstance where such denial can be justified.
3.1 If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.
3.2 It is also clarified that in a case where disciplinary proceedings have been held under the relevant disciplinary rules ‘warning’ should not be issued as a result of such proceedings. If it is found, as a result of the proceedings, that some blame attaches to the Government servant, at least the penalty of ‘censure’ should be imposed.
4. It is necessary to ensure that the disciplinary case/criminal prosecution instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the case 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 their completion.
5. In spite of the six monthly review referred to in para 4 above, there may be some 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. In such a situation the appointing authority may review the case of the Government servant, provided he is not under suspension, to consider the desirability of giving him ad-hoc promotion keeping in view the following aspects:-
(a) Whether the promotion of the officer will be against public interest;
(b) Whether the charges are grave enough to warrant continued denial of promotion;
(c) Whether there is any likelihood of the case coming to a conclusion in the near future;
(d) Whether the delay in the finalisation of proceeding, departmental or in a court of law, is not directly or indirectly attributable to the Government servant concerned; and
(e) Whether there is any likelihood of misuse of official position which the Government servant may occupy after ad-hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution.
The appointing authority should also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigations conducted by the Bureau.
5.1 In case the appointing authority comes to a conclusion that it would not be against the public interest to allow ad-hoc promotion to the Government servant, his case should be placed before the next DPC held in the normal course after the expiry of the two year period to decide whether the officer is suitable for promotion on ad-hoc basis. Where the Government servant is considered for ad-hoc promotion, the Departmental Promotion Committee should make its assessment on the basis of the totality of the individual’s record of service without taking into account the pending disciplinary case/criminal prosecution against him.
5.2 After a decision is taken to promote a Government servant on an ad-hoc basis, an order of promotion may be issued making it clear in the order itself that:-
(i) the promotion is being made on purely ad-hoc basis and the ad-hoc promotion will not confer any right for regular promotion; and
(ii) the promotion shall be “until further orders”. It should also be indicated in the orders that the Government reserve the right to cancel the ad-hoc promotion and revert at any time the Government servant to the post from which he was promoted.
5.3 If the Government servant concerned is acquitted in the criminal prosecution on the merits of the case or is fully exonerated in the departmental proceedings, the ad-hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad-hoc promotion with all attendant benefits. In case the Government servant could have normally got his regular promotion from a date prior to the date of his ad-hoc promotion with reference to his placement in the DPC proceedings kept in the sealed cover(s) and the actual date of promotion of the person ranked immediately junior to him by the same DPC, he would also be allowed his due seniority and benefit of notional promotion as envisaged in para 3 above.
5.4 If the Government servant is not acquitted on merits in the criminal prosecution but purely on technical ground and Government either proposes to take up the matter to a higher court or to proceed against him departmentally or if the Government servant is not exonerated in the departmental proceedings, the ad-hoc promotion granted to him should be brought to an end.
6. The procedure outlined in the preceding paras should also be followed in considering the claim for confirmation of an officer under suspension, etc. A permanent regular vacancy should be reserved for such an officer when his case is placed in sealed cover by the DPC.
7. A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.
[Deptt. of Personnel & Training OM No. 22011/4/91-Estt.(A) dated 14.09.1992]
(13A) Instructions on sealed cover procedure – Applicability to review DPC – clarification regarding.
A question whether the sealed cover procedure is to be followed by a Review DPC has been under consideration of this Department in the light of the decision of the Central Administrative Tribunal in certain cases. The matter has been considered in consultation with the Ministry of Law and it has been decided that the sealed cover procedure as contained in the OM dated 14.09.1992 cannot be resorted to by the Review DPC if no departmental proceedings or criminal prosecution was pending against the Government servant concerned or he/she was not under suspension at the time of meeting of the original DPC or before promotion of his junior on the basis of the recommendations of the original DPC.
[Deptt. of Personnel & Training OM No. 22011/2/99-Estt. (A) dated 21.11.2002]
(13B) Sealed Cover Procedure – Judgment of the Supreme Court in the case of Delhi Jal Board Vs. Mohinder Singh [JT 2002 (10) SC 158].
Para 7 of this Department’s OM No. 22011/4/91-Estt. (A) dated 14th September, 1992 envisages as follows:-
“A Government servant, who is recommended for promotion by the Departmental Promotion Committee but in whose case any of the circumstances mentioned in para 2 above arise after the recommendations of the DPC are received but before he is actually promoted, will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this OM will be applicable in his case also.”
2. In the case of Delhi Jal Board Vs. Mohindber Singh the Supreme Court [JT 2000 (10) SC 158] has held as follows:-
“The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officers would have to be given effect to as they obviously relate back to the date on which the charges are framed. …………. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the seal was opened to give effect to it, another departmental inquiry was started by the department, would not come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection.”
3. It is, therefore, clarified that para 7 of the O.M. dated 14th September, 1992 will not be applicable if by the time the seal was opened to give effect to the exoneration in the first enquiry, another departmental inquiry was started by the department against the Government servant concerned. This means that where the second or subsequent departmental proceedings were instituted after promotion of the junior to the Government servant concerned on the basis of the recommendation made by the DPC which kept the recommendation in respect of the Government servant in sealed cover, the benefit of the assessment by the first DPC will be admissible to the Government servant on exoneration in the first inquiry, with effect from the date his immediate junior was promoted.
4. It is further clarified that in case the subsequent proceedings (commenced after the promotion of the junior) results in the imposition of any penalty before the exoneration in the first proceedings based on which the recommendations of the DPC were kept in sealed cover and the Government servant concerned is promoted retrospectively on the basis of exoneration in the first proceedings, the penalty imposed may be modified and effected with reference to the promoted post. An indication to this effect may be made in the promotion order itself so that there is no ambiguity in the matter.
[Deptt. of Personnel & Training OM No. 22011/2/2002-Estt. (A) dated 24.02.2003]
14. Deemed Suspension under Rule 10 (2) of the CCS (CCA) Rules, 1965 - Supreme Court decision in the case of Union of India Vs. Rajiv Kumar.
Reference is invited to Rule 10 (2) of the CCS (CCA) Rules, 1965 which provides that a Government servant shall be deemed to have been placed under suspension by an order of the appointing authority with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours.
2. A question whether the order of suspension in a case covered under Rule 10 (2) of the CCS (CCA) Rules, 1965 has limited operation for the period of detention and not beyond it, was considered by the Supreme Court in the case of Union of India Vs. Rajiv Kumar (2003 (5) SCALE 297). Allowing the appeals of the Union of India in this case the Supreme Court has held that the order in terms of Rule 10 (2) is not restricted in its point of duration or efficacy to the actual period of detention only. It continues to be operative unless modified or revoked under Sub-Rule (5) (c) as provided in Sub-Rule 5 (a) of Rule 10 of the CCS (CCA) Rules, 1965.
3. Ministries/Departments are requested to bring the above ruling of the Supreme Court to the notice of all concerned so that the same is appropriately referred to in all cases where the question of validity of continued suspension after release from detention of a Government servant comes up consideration before the CAT, High Court or Supreme Court.
[Deptt. of Personnel & Training OM No. 11012/8/2003-Estt. (A) dated 23.10.2003]
(15A) Suspension of Government servants – Review of – Instructions reg.
The undersigned is directed to say that Rule 10 (Suspension) of the CCS (CCA) Rules, 1965 is being amended to provide that an order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose. It is also being provided in the Rules that an order of suspension made or deemed to have been under sub-Rules (1) or (2) of rule 10 shall not be valid after 90 days unless it is extended after review for a further period before the expiry of 90 days. It is further being provided that extension of suspension shall not be for a period exceeding 180 days at a time. (copy of the Notification is enclosed).
2. It is, therefore, necessary to constitute Review Committee(s) to review the suspension cases. The composition of Review Committee(s) may be as follows:-
(i) The disciplinary authority, the appellate authority and another officer of the level of disciplinary/appellate authority from the same office or from another Central Government office, (in case another officer of same level is not available in the same office), in a case where the President is not the disciplinary authority or the appellate authority.
(ii) The disciplinary authority and two officers of the level of Secretary/Addl. Secretary/Joint Secretary who are equivalent or higher in rank than the disciplinary authority from the same office or from another Central Government office, (in case another officer of same level is not available in the same office), in a case where the appellate authority is the President.
(iii) Three officers of the level of Secretary/Addl. Secretary/Joint Secretary who are higher in rank than the suspended official from the same Department/Office or from another Central Government Department/Office, (in case another officer of same level is not available in the same office), in a case where the disciplinary authority is the President.
The administrative ministry/department/office concerned may constitute the review committees as indicated above on a permanent basis or ad-hoc basis.
3. The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned.
4. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these instructions are issued in consultation with the Comptroller and Auditor General of India.
5. All Ministries/Departments are requested to bring the above instructions to the notice of all disciplinary authorities under their control and ensure that necessary Review Committees are constituted accordingly. It may also be impressed upon all concerned that lapsing of any suspension order on account of failure to review the same will be viewed seriously.
[Deptt. of Personnel & Training OM No. 11012/4/2003-Estt. (A) dated 7.01.2004]
(15B) Suspension of government servants – Review of – Instructions reg.
The undersigned is directed to refer to this Department’s O.M. of even number dated the 7th January, 2004 which contains guidelines for constitution of Review Committees to review suspension cases. The Notification of even number dated the 23rd December, 2003 inserting sub-rules (6) & (7) in Rule 10+ of the CCS (CCA) Rules, 1965 has been published as GSR No. 2 in the Gazette dated January 3, 2004. It would, therefore, be necessary to review of pending cases in which suspension has exceeded 90 days, by 2nd April, 2004. Other suspension cases will also have to be reviewed before expiry of 90 days from the date of order of suspension.
2. Ministries/Departments are requested to ensure that necessary Review Committees are constituted as per the guidelines laid down in the O.M. dated the 7th January, 2004 and suspension cases are reviewed accordingly.
[Deptt. of Personnel & Training OM No. 11012/4/2003-Estt. (A) dated 19.03.2004]
(15C) Review of suspension - Amendment to the provisions of rule 10 -
The provisions of rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 regarding deemed suspension have since been reviewed by this Department.
2. The provisions in Rule 10 of CCS (CCA) Rules have been modified and amendments to the same have been notified in Notification No. GSR 105 dated 6.06.2007 published in the Gazette of India dated 16.06.2007.
3. As per the original provisions of rule 10 of the CCS (CCA) Rules, 1965, the provision for review within ninety days was applicable to all types of suspensions. However, in cases of continued detention, the review becomes a mere formality with no consequences as a Government servant in such a situation has to continue to be under deemed suspension. It has, therefore, been decided that a review of suspension shall not be necessary in such cases. Accordingly, a proviso has now been added to sub-rule (7) of the said rule 10 as follows:
“provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule(2), if the Government servant continues to be under detention at the time of completion of ninety days of suspension and the ninety days period for review in such cases will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.”
4. In deemed suspensions under sub-rule (2), the date of order of suspension may be much later than the deemed date of suspension. With a view to making these provisions explicit, sub-rule (6) of the aforesaid rule 10 has now been amended to substitute the words “ninety days from the date of order of suspension” occurring therein with “ninety days from the effective date of suspension”. Consequent upon this amendment, it would henceforth be necessary to specifically indicate in the orders of suspension the effective date of suspension.
5. Sub-rule (7) of the aforesaid rule 10 stipulates says that “Notwithstanding anything contained in sub-rule (5) (a), an order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.” Sub-rule (5)(a) of the aforesaid rule 10 has, therefore, now been amended to read as follows:-
“Subject to the provisions contained in sub-rule (7), an order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.”
Consequently, the words “Notwithstanding anything contained in sub-rule (5)(a)” stated in sub-rule(7) of Rule 10 have become redundant and have, therefore, been deleted.
6. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these amendments have been made in consultation with the Comptroller and Auditor General of India.
[DOPT OM No. 11012/4/2007-Estt. (A), dated 12th July, 2007]
Source : http://www.referencer.in/CS_Regulations/CCS(CCA)Rules1965/GOI_Decisions_10.aspx
