CIVIL WRIT PETITION NO.6013 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 02, 2011 Sujana Ram .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Jai Vir Yadav, Advocate, for the petitioner. **** RANJIT SINGH, J. The petitioner seeks direction for his promotion to the post of Chief Engineer from the date his juniors-respondent Nos.3 and 4 have been promoted. Having been appointed as Assistant Executive Engineer (A.E.E) on 6.7.1987, in PWD, Public Health Engineering Department of the State, the petitioner was promoted as Executive Engineer on 16.2.1991 and as Superintending Engineer on 15.6.2004. As per the seniority list circulated in the year 1998, the petitioner is shown at Sr.No.100, whereas respondent Nos.3 and 4 are at Sr.Nos.101 and 102 respectively of the seniority list. CIVIL WRIT PETITION NO.6013 OF 2011 :{ 2 }: On 20.4.2006, the petitioner was served a charge sheet and enquiry proceedings were initiated against him. Enquiry report was submitted on 20.12.2006. Thereafter show cause notice was issued to the petitioner on 31.12.2008. The petitioner submitted his reply on 7.1.2009 and was afforded personal hearing on 14.7.2009. The petitioner was ultimately imposed punishment of censure alongwith recovery on 16.7.2009. The petitioner was held responsible for lack of supervision for which the punishment was proposed. The Minister found this to be a serious matter, where a water tank had collapsed and so the punishment of censure and recovery of loss to the exchequer was proposed, which was approved by the Chief Minister. During the pendency of these proceedings, the case of respondent Nos.3 and 4 for promotion to the post of Chief Engineer was sent for consideration. As per the petitioner, disciplinary proceedings against him were purposely withheld so that person junior to him could be promoted. Respondent Nos.3 and 4 were accordingly promoted on 20.8.2009, ignoring the claim of the petitioner due to pendency of the disciplinary proceedings. The promotion was made subject to the claim of the petitioner for promotion. The petitioner represented on 26.8.2009, making a grievance that he was deprived of promotion due to failure to finalise the disciplinary action in time. The petitioner ultimately was imposed a punishment of 10% of loss alongwith censure. The petitioner then approached the respondents for promoting him from the date his juniors were promoted. The case, however, was not considered, CIVIL WRIT PETITION NO.6013 OF 2011 :{ 3 }: when the petitioner filed CWP No.571 of 2009, which was disposed of on 14.1.2010 with a direction to the respondents to take a decision on the representation filed by the petitioner within a period of two months. Still, the respondents have promoted one Sh.B.S.Singhroha to the post of Chief Engineer without complying with the directions issued by this Court. The petitioner then filed another writ petition No.1837 of 2010, which is pending adjudication before this Court. On 13.7.2010, respondent No.1 has rejected the claim of the petitioner for promotion from the date his juniors were promoted. The petitioner, thus, has filed the present writ petition for promotion to the post of Chief Engineer from the date his juniors were promoted. The petitioner has not raised any challenge to the punishment imposed and rather has pleaded with the respondents that the recovery be effected in instalments. The same is being followed. The petitioner has been imposed a penalty of Rs.six lacs alongwith censure. The main grievance of the petitioner is that finalisation of disciplinary proceedings against him was unduly delayed, which has caused a prejudice to his right to consideration of promotion to the post of Chief Engineer vis-a-vis his juniors. Once the disciplinary proceedings have culminated into award of punishment and when on the date of consideration, the petitioner was facing disciplinary proceedings, he could not have been considered for promotion. His claim for promotion from the date his juniors were promoted would have automatically followed, if the petitioner has been able to earn clean chit in the departmental proceedings. Once the disciplinary proceedings have culminated into CIVIL WRIT PETITION NO.6013 OF 2011 :{ 4 }: punishment, which the petitioner has accepted, he can not claim promotion with effect from the date his juniors were promoted. He has now to be considered for promotion by taking into account the effect of punishment that has been imposed on him. The claim of the petitioner, thus, was rightly rejected. The case set up by the petitioner that the punishment imposed is minor and so the impugned order is illegal, can not be accepted as a legally valid. The submission that the censure can not be a ground to deny the promotion is being made without taking into account that the censure is coupled with the punishment of recovery of substantial sum amounting to Rs.six lacs. As per the settled position of law, a person can be considered under a ban for promotion, once the memo of charge or charge sheet is issued to him. His right to consideration for promotion during the pendency of proceedings certainly would remain under eclipse. It will ultimately depend upon the outcome of the disciplinary enquiry. If the person is exonerated completely, then he would be entitled to be considered for promotion from the date his juniors were promoted. Upon being inflicted with any punishment, the right to consideration for promotion from the date juniors are promoted, can not be claimed, as is being prayed for by the petitioner. The reliance on Annexure P-11, in my view, would not help the cause of the petitioner as censure or warning may be not so major punishment but still, are to be kept in view as part of complete record to see his overall suitability. Similarly, the recovery from the pay as a punishment is also to be kept in view at the time of CIVIL WRIT PETITION NO.6013 OF 2011 :{ 5 }: promotion as a part of whole record. There is, thus, no unfairness on the part of the respondents in rejecting the claim of the petitioner for promotion from the date his juniors were promoted in view of the punishment imposed. Instructions dated 18.11.1971 (Annexure P-12) also clearly provide that if it has been decided that an enquiry should be held then the Government employee should not be promoted until he has been exonerated in the enquiry. It is only on complete exoneration without imposing any penalty or a warning that he can be promoted retrospectively. These instructions, as such, again would not come to rescue of the petitioner. In any case, these are relatively old instructions and the law has made much strides in the field. As has been observed in Union of India etc. etc. Vs. K.V.Jankiraman, etc.etc., AIR 1991 Supreme Court 2010, when an employee is completely exonerated in criminal/disciplinary proceedings and is not visited with penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits, including salary on the promotion post. The Hon'ble Supreme Court in this case has clearly observed that an employee found guilty of misconduct can not be placed at par with other employees and treating such a case differently will not be discriminatory. The view taken by the Tribunal was not accepted by the Hon'ble Supreme Court by observing as under:- “According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his CIVIL WRIT PETITION NO.6013 OF 2011 :{ 6 }: duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a 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 interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and CIVIL WRIT PETITION NO.6013 OF 2011 :{ 7 }: penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. 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. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of “paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.” The law is, thus, clearly well settled that the award of penalty would dis-entitle the petitioner to seek promotion at par with his juniors and denial thereof can not be termed to be arbitrary, CIVIL WRIT PETITION NO.6013 OF 2011 :{ 8 }: discriminatory or suffering from any illegality. It may also require notice that the petitioner is seeking promotion to the rank of Chief Engineer. His conduct and punishment relate to his duties performed as Superintending Engineer. The petitioner was found guilty of lacking in supervision and was imposed a penalty of `6,00,000/-. Such punishment and misconduct alleged are relevant factors, which the Committee considering his case for promotion could take into account. The petitioner can not claim to have an unblemished record. As observed by the Supreme Court, minimum, which is expected, is to ensure a clean and efficient administration to protect public interest. There is, thus, no merit in the writ petition and the same is accordingly dismissed. August 02, 2011 (RANJIT SINGH ) khurmi JUDGE