IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 13202/2008 Reserved on: 30.8.2011 Decided on: 4.11.2011 _____________________________________________ Chet Ram Tanwar. …Petitioner. Versus The Board of Directors, H.P. State Cooperative Milk Producers’ and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No For the petitioner : Mr. Onkar Jairath, Advocate. For the Respondents: Mr. M.R. Verma, Advocate for respondents No.1 and 2. Mr. Vikas Rathore, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondent No. 3 . ____________________________________________________ Justice Rajiv Sharma, Judge. Disciplinary proceedings were initiated against the petitioner. The Board of Directors of the respondent-federation reviewed its decision taken vide resolution No. 1235/2006 in 98th meeting held on 1 Whether reporters of the local papers may be allowed to see the judgment? no 2 20.12.2006 and resolved vide resolution No. 1292/2006 as under: “Sh. C.R. Tanwar, Senior Assistant (Accounts) be censured and warned in this matter and advised not to repeat such instances in future.” 2. Petitioner was considered for promotion, however, his case was kept in a sealed cover vide resolution dated 25/27.6.2002 due to pendency of disciplinary proceedings. 3. Mr. Onkar Jairath has strenuously argued that as per instructions issued by the State of Himachal Pradesh, contained in para 16.13 of the Hand Book on Personnel Matters Volume-I (Second Edition), minor penalty of censure cannot be taken into consideration and the sealed cover is required to be opened. 4. Mr. M.R. Verma has vehemently argued that since the penalty of censure has been imposed upon the petitioner, case of the petitioner cannot be considered for promotion by opening the sealed cover. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. It is evident from Annexure A-15 dated 20.3.2007 that the penalty of censure has been imposed upon the petitioner. It is contained in para 3 16.13 of the Hand Book on Personnel Matters Volume- I (Second Edition) that the imposition of penalty of censure does not by itself stand against the consideration of such person for promotion. 7. Mr. M.R. Verma has relied upon the judgments of the Hon’ble Supreme Court reported in (2007) 5 SCC 425 and (2009) 16 SCC 329. According to him, once the penalty of censure has been imposed upon the petitioner, sealed cover cannot be opened. The judgments cited by Mr. M.R. Verma are distinguishable since in the present case, case of the petitioner is covered by instruction 16.13, as noticed hereinabove, wherein the imposition of penalty of censure does not stand against the consideration of an employee for promotion. 8. Mr. Onkar Jairath has also argued that though the Service Rules called “ The H.P. State Cooperative Milk Producers Federation Limited (Revised) Employees Service Rules, 1994 have been framed by the Milk Federation, however, in case, the matter is not covered by the Service Rules, the Milk Federation follows the instructions/guidelines issued by the State Government. 4 9. Their Lordships of the Hon’ble Supreme Court in Jagan Narain versus Food Corporation of India and others, 2010 (2) Scale, 497 have held that the promotion cannot be withheld due to imposition of minor penalty of recovery of amount. Their Lordships have held as under: “6. Seen in the background of the two Circulars dated 13.12.2001 and 19.12.2001, it is evident that the promotion of petitioner by order dated 24.1.2005 was not the result of any oversight. It should be noticed that as on 24.1.2005, the minor penalty proceeding had come to an end by levying penalty of Rs. 5,000/-. Even as on 8.11.2004 what was pending was only a minor penalty proceeding. Therefore, having regard to the Circulars dated 13.12.2001 and 19.12.2001, neither the pendency of minor penalty proceedings nor the imposition of minor penalty by way of recov- ery of Rs. 5000/- would come in the way of the employee being considered for promotion or being promoted. It, therefore, follows that there was no justification for cancelling the said promotion dated 24.1.2005. If the appellant was thus entitled to promotion and the cancellation of the promotion was not warranted, the case of the appellant being considered again for the very same promotion and adoption of sealed cover procedure in view of the pendency of subsequent disciplinary proceedings will not arise (vide : Delhi Jal Board v. Mahinder Singh, 2000 (7) SCC 210 : (AIR 2000 SC 2767: 2000 AIR SCW 3139).” 9. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. 5 Respondent-Federation is directed to consider the case of the petitioner for promotion to the higher post after opening the sealed cover and in case he has been recommended, he will be entitled to all the consequential benefits from the due date. Needful be done within a period of two months from the date of production of certified copy of this judgment by the petitioner. No costs. (Justice Rajiv Sharma), Judge. 4.11. 2011 *awasthi*