IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1521/2007 Reserved on: 6.5.2008 Decided on.16.5.2008 Roshan Lal. …Petitioner. Versus District and Sessions Judge, Solan. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no. For the petitioner : Mr. Tarlok Chauhan, Advocate. For the respondents : Mr. Atul Jhingan, Advocate. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that the petitioner was served with a charge-sheet while he was working as a Reader in the office of Civil Judge (Junior Division)- cum-Additional Chief Judicial Magistrate, Solan on 8.4.2004. He filed reply/defence statement to the charge-sheet. Thereafter an inquiry was held against him. The Inquiry Officer submitted his report. A copy of the inquiry was furnished to him on 23.9.2006. As per the inquiry report, the article of charge No.1 was not proved, however, charge No.2 was proved against him. The Disciplinary 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Authority passed the orders on 13.7.2007 against him thereby imposing the penalty of stopping of one increment from following the due date to the petitioner after passing of the order for two years. The order had to take effect from the date of his next date of increment. He preferred a review petition against the imposition of penalty. Mr. Tarlok Chauhan, Advocate appearing on behalf of the petitioner had strenuously argued that his client was fully eligible and qualified to be considered for promotion to the post of Superintendent Grade-II. He also contended that his client is senior most Reader as per the seniority list since persons above him already stand promoted. He further contended that it is evident from the language employed in the letter dated 13th July, 2007 that the penalty will take effect from the date of his next increment i.e. from April, 2008. Mr. Atul Jhingan, Advocate appearing on behalf of the respondent had strenuously argued that once the penalty as per the letter dated 13th July, 2007 has been imposed, the petitioner’s case could not be considered for promotion. He had strongly relied upon instruction No.22 below rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (Swamy’s Compilation). His contention, in nutshell, on the basis of the instruction No.22 is that the petitioner’s case for promotion could not be considered for promotion while being under punishment. He has further clarified that once the penalty has been imposed, it becomes 3 effective and during this period an incumbent cannot be considered for promotion. I have heard the learned counsel for the parties and perused the record meticulously. What emerges from the above enumerated facts is that the disciplinary proceedings were initiated against the petitioner by way of charge-sheet issued on 8.4.2004. The Disciplinary Authority had imposed the penalty upon the petitioner vide office order dated 13th July, 2007. It will be apt to reproduce the entire text of office order dated 13th July, 2007, which reads thus: “Consequent upon my findings on the Inquiry Report with respect to articles of charge referred to therein in the disciplinary proceedings against Shri Roshan Lal, Reader of the office of Additional District and Sessions Judge, Solan, I, P.C. Sharma, Disciplinary Authority, in exercise of powers vested in me vide rule 11 (iv) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 impose the penalty of stopping of one increments falling due to the indicted Government official (Shri Roshan Lal, Reader) after passing of the order for two years. This order shall take effect from the date of his next increment.” Mr. Tarlok Chauhan, Advocate appearing on behalf of the petitioner had strenuously argued that the order dated 13th July, 2007 is to take effect from the date of his next increment i.e. in the year 2008. On the contrary, Mr. Atul Jhingan, Advocate had argued that once the penalty has been imposed upon the petitioner on 13th 4 July, 2007, under the currency of punishment, the petitioner could not be called for interview on 6.9.2007. He had strongly relied upon instruction No.22 appended below rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which reads thus: “21.- Promotion/transfer while under punishment.- An official on whom the penalty of withholding of increment or reduction to a lower service, grade or post, or to a lower time-scale or to a lower stage in a time-scale has been imposed for a specified period should not be transferred or posted to another service, grade or post, on or after the date of orders imposing the penalty but before the date from which the orders finally cease to be operative, if such a transfer, or posting results in payments of basic pay higher than that admissible to him in the existing service, grade or post consequent on the punishment orders.” It is evident from the phraseology employed in instruction No.22 that promotion cannot be granted to an incumbent upon whom the penalty of withholding of increment or reduction to a lower service, grade or post or to a lower time scale or to a lower stage in a time scale has been imposed for a specified period. The heading of instruction No.21 below rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 deals with both the contingencies i.e. promotion and transfer while under punishment. The petitioner on his promotion was bound to get higher pay scale than admissible to him as against the post of Reader. The petitioner cannot take advantage of the expression that the order had to take 5 effect from the date of his next increment. The penalty has already been imposed upon him on 13th July, 2007. The petitioner could not be promoted during the currency of punishment imposed vide office order dated 13th July, 2007. The whole-some principle of instruction No.22 is that the person upon whom the penalty has been imposed including withholding of increment should not be given premium on misconduct. The effect of grant of promotion to such like persons would be that though the penalty has been imposed, but still they will be promoted. While considering the case of the incumbent for promotion the entire record is seen by the Departmental Promotion Committee. The employer could not over look that the penalty of stoppage of one increment has already been imposed upon the petitioner on 13th July, 2007 before the date of interview i.e. 6th September, 2007. It may be true that the instruction issued as appended to rule 11 of the Central Civil Services (Pension) Rules cannot be applied mutatis mutandis to the employees of the subordinate judiciary, but there is a whole-some principle enunciated therein not to promote persons during the currency of punishment. Their Lordships of the Hon’ble Supreme Court in State of T.N. versus Thiru K.S. Murugesan and others, (1995) 3 SCC 273 have held that unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Their Lordships have held has under: “We find no substance in the contentions. It is already seen that on 6/12/1982, the punishment of stoppage of two increments was imposed and it was in vogue on 6 6/11/1984, when the list was approved by the government. The punishment was reiterated after fresh inquiry. Rule 3 of the Rules provides that "promotion to the posts of Director of Statistics, Deputy Director of Statistics shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal". In other words, the claim of Assistant Statistical Officer for promotion to Deputy Director shall be considered on grounds of merit and ability alone. Unless the seniority is approximately equal, seniority has no role to play and needs to be relegated to the background. 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 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.” In view of the observations made hereinabove, and instruction No. 22 appended to Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the law laid down by the Hon’ble Supreme Court, there is no merit in the writ petition and the same is dismissed. There shall be no order as to costs. (Rajiv Sharma), Judge May 16, 2008 *Awasthi*