CIVIL WRIT PETITION NO.10789 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JULY 22, 2009 Ved Pal .....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. N. D. Achint, Advocate, for the petitioner. **** RANJIT SINGH, J. What would be the effect of punishment of stoppage of increments with cumulative effect on the promotion of an employee, is the question raised by the petitioner in this writ petition. The petitioner pleads that his case would be required to be considered for promotion with his batch mates by taking in account the punishment awarded to see his suitability for promotion. The respondents, by relying on the amended instructions dated 31.5.2006 would justify the impugned order dated 16.3.2009 (Annexure P-4), whereby the petitioner was informed that case shall remain closed and he can not CIVIL WRIT PETITION NO.10789 OF 2009 :{ 2 }: be promoted. Besides challenging the denial of promotion, the petitioner has also questioned the instructions dated 31.5.2006, (Annexure P-5), which he claims, are liable to be quashed, being illegal. The petitioner was appointed as a Revenue Patwari in the year 1975 and is still in service. The petitioner complains that number of junior Revenue Patwaris shown as such in the seniority list have been promoted but the case of the petitioner not considered for promotion. This action is justified by the respondents on the ground that the petitioner was facing an enquiry which at the time of consideration was in progress. On 14.8.2008, the petitioner served a legal notice and when the same was not being decided, he filed a writ petition before this Court, seeking direction to the respondents to consider his case and to decide his legal notice. The said writ petition was disposed of on 23.12.2008 with a direction to the respondents to consider and decide the legal notice served by the petitioner. Subsequently, on the basis of enquiry finding, the petitioner was awarded a punishment of stoppage of two increments with cumulative effect vide order dated 5.2.2009, which was communicated to the petitioner on 13.3.2009. Consequently the respondents have passed the impugned order, Annexure P-4, intimating that two annual increments shall remain closed with cumulative effect and he can not be promoted. The impugned order is justified on the basis of Government instructions No.2/5/2006-2 dated 31.5.2006 through which earlier instructions dated 18.11.1971 and 19.7.1973 have been modified. The counsel for the petitioner contends that the CIVIL WRIT PETITION NO.10789 OF 2009 :{ 3 }: respondents have erred in relying upon instructions, Annexure P-5, which, as per him, are against law. Perhaps the plea is that these are unjust. The validity of these instructions is, thus, questioned. The counsel would say that the case of the petitioner is required to be considered for promotion while taking into account the entire service record including the punishment and then his suitability judged. Reference is made to some instructions issued in the year 1973 (not placed on record), which provide that over all record should be seen for considering a person for promotion even if the employee is awarded punishment of stoppage of one or more grade increments, when his turn comes for promotion during the currency of the punishment. In this context, the counsel contends that the modification of these instructions done in the year 2006 through impugned instructions (Annexure P-5) are against law. It is urged that the respondents, while amending these instructions, have not properly appreciated the law laid down in State of T.N. Vs. Thiru K.S.Murugesan and others,, 1995 (3) RSJ 271, which is stated to be the cause for modifying earlier instructions. The counsel accordingly contends that the case of consideration of the petitioner for promotion can not be kept pending for indefinite period, if otherwise his over all record is good. While rejecting the claim of the petitioner, a reference is made to the instructions No. 2/5/2006-2 dated 31.5.2006, para 3 of which reads as under:- “The State Government has considered the matter in the light of aforesaid judgment and it has been decided that no promotion should be allowed to any employee during CIVIL WRIT PETITION NO.10789 OF 2009 :{ 4 }: the currency of punishment of stoppage of his grade increment(s). The instructions issued vide letters No.6034-2GSI-71/32498 dated 18.11.1971 and N. 3505- 4GSI-173/16540 dated 19.7.73 shall stand modified to the extent indicated above.” Copy of the instructions dated 31.5.2006 are annexed with the petition as Annexure P-5. A perusal thereof would show that the earlier instructions issued in the year 1973 have been modified in view of the judgment passed by the Hon'ble Supreme Court in the case of Thiru K.S.Murugesan (supra). The State Government has accordingly modified the instructions to provide that no promotion should be allowed to any employee during the currency of punishment of stoppage of his grade increments. The petitioner has, thus, challenged these instructions as well as the order Annexure P- 4. Issue is important but the petitioner does not seem to have given considered thought to raise the challenge. Though the petitioner has challenged the instructions but literally there is no ground or the basis disclosed by him in the writ petition to substantiate the challenge. As is clear, these instructions have been modified on the basis of the judgment of Hon'ble Supreme Court. Having so conceded in the writ, the petitioner has simply mentioned that instructions Annexure P-5 are against law and are liable to be set-aside in the interest of justice. Brevity of the challenge is only thing which can be noticed in favour of the challenge so made by the petitioner. No ground of challenge is made out from the petition. The question which the Hon'ble Supreme Court considered in Thiru CIVIL WRIT PETITION NO.10789 OF 2009 :{ 5 }: K.S.Murugesan (supra) is noted in Para 3 of the judgment, which is as under:- “The only question is whether non-consideration of the respondent's promotion for the year 1983-84 is in accordance with law. The Tribunal found that having imposed the penalty of punishment of stoppage of three increments, promotion cannot be withheld on that account which otherwise amounts to “double jeopardy” offending Article 21 of the Constitution and that, therefore, it is arbitrary exercise of power violating Article 14 read with Article 16 of the Constitution. We find the reasoning of the Tribunal to be not correct.” It has been held by the Hon'ble Supreme Court that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. It is further observed that unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period can not be taken up. The observations in this regard are as under:- “It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is CIVIL WRIT PETITION NO.10789 OF 2009 :{ 6 }: impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.” While forming its view the Hon'ble Supreme Court, in the case of Thiru K.S.Murugesan (supra), a reference is made to earlier three Judges Bench decision in the case of Union of India Vs. K.V.Jankiraman, AIR 1991 SC 2010. In this case, it is held:- “According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his 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 CIVIL WRIT PETITION NO.10789 OF 2009 :{ 7 }: 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 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 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 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 CIVIL WRIT PETITION NO.10789 OF 2009 :{ 8 }: 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 judgment of the Hon'ble Supreme Court is a law laid down for all to follow. There is hardly any scope to say that the instructions issued on the basis of this judgment would be against law. Even otherwise, counsel for the petitioner has not been able to show how these instructions issued by the Government are illegal. The petitioner certainly can not be considered for promotion during the currency of punishment of stoppage of two increments. Whether he would be considered thereafter is not clearly indicated from the record. In other words, the submission that the case of the petitioner for promotion would be closed for all times to come is not indicated either from the order or from the instructions as such. I think consideration would be a right though promotion may not be. In K.V.Jankiraman's case (supra), it is noted that while considering an employee for promotion his whole record for promotion and penalty has also to be taken into consideration. As on date, no case for interference is made out in view of the instructions and the law laid down by the Hon'ble Supreme Court as the petitioner is still in the currency of punishment. The writ petition is accordingly dismissed. July 22, 2009 ( RANJIT SINGH ) khurmi JUDGE