IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.514 of 2010 1. SHASHI BHUSHAN KUMAR CHOUDHARY S/O KAILESHWAR MANDAL R/O MOH- ANANDPURI, P.S. KRISHNAPURI, DISTT. PATNA Versus 1. THE STATE OF BIHAR 2. THE SECRETARY ROAD CONSTRUCTION DEPTT., BIHAR, PATNA 3. THE JOINT SECRETARY ROAD CONSTRUCTION DEPTT., BIHAR, PATNA 4. THE DEPUTY SECRETARY (MANAGEMENT CELL) ROAD CONSTRUCTION DEPTT., BIHAR, PATNA For the Petitioner: Mr. Vinod Kumar Kanth, Sr. Adv. Mr. P.N. Pathak, Adv. For the State : Mr. P.K. Verma., A.A.G. 2. ----------- 3/ 30/08/2010 Heard learned counsel for the petitioner and learned counsel for the State. The issue for consideration is whether a minor punishment for stoppage of two increments with non- cumulative effect treating the same as equivalent to censure, shall be operative for two years from the period of charge year 1996-97 or shall it be operational with effect from 14.5.2009, the date of the punishment till withholding of two increments prospectively in the next two consecutive years. The counter affidavit affirmed by one Shri Surendra Kumar, Under Secretary, Road Construction Department states at paragraph-2 that he has gone through the contents of the writ application and understood the same. That he had been authorised by the competent authority to swear the counter affidavit. He then confronts the Court with his conclusions by - 2 - referring to certain Government instructions without even annexing copies of those instructions as if it were the duty of the Court to search them out and then adjudicate. Paragraph-15 of the counter affidavit raising violation of a Constitutional right of equality by urging hostile discrimination vis-à-vis one Kedar Baitha, has been answered most casually and perfunctorily. In pursuance of a proceeding the petitioner has been visited with an order of punishment dated 14.5.2009 of stoppage of two increments with non- cumulative effect for the charge year 1996-1997 equivalent to censure, and that for the next five years he shall be posted on a non-works assignment. It was submitted that in accordance with the Government Instruction dated 17.5.1982 the punishment was minor in nature to have adverse effect for two years debarring the person to be considered for promotion from the charge year. The charge year being 1996-1997 the period of two years would come to an end in 1998-1999. The petitioner is therefore entitled to be considered for promotion thereafter. The duration of debarment from promotion is not to be reckoned from 14.5.2009 prospectively. The Bihar Government Service (Classification, Control and Appeal) Rule-3 Amendment Rule-10 being prospective in nature from 10.2.2010 shall - 3 - have no relevance in determination of the present controversy. The respondents have themselves interpreted their powers accordingly while imposing a punishment of stoppage of three increments with non- cumulative effect by an order dated 3.3.2009 on one Kedar Baitha for the charge years prior to the same and have given him promotion on 11.5.2010 on the premise that the period of punishment has to be computed from the charge year. Learned counsel for the State did not seriously question the need for consideration of the Rules as published on 10.2.2010 being prospective in nature. He, however, relies upon Government Instruction No.3644 dated 30.4.2005 to submit that earlier no separate punishment was prescribed with regard to withholding of “increments” as distinct from “censure”. This clarificatory notification was issued which stipulates that a pecuniary punishment could not be with retrospective effect and has necessarily to be prospective. It had therefore been directed that the effect of such pecuniary punishment shall be computed from the date of issuance of the order of punishment. Thus, it was contended that the petitioner is not entitled to be considered for promotion for the period that his next two entitlements fall due computed after 14.5.2009. - 4 - “Censure” and withholding of “increments”, both being minor punishments form one class. If “Censure” debars consideration for promotion reckoned from the charge year, the same reason has to apply insofar as increments hindering promotion is concerned. The contention on behalf of the State does not appeal to the Court for the simple reason that the consequence for denial of promotion pursuant to a punishment of withholding increments is one aspect of the matter and the physical withholding of the increments is another aspect of the matter. The charge year of the petitioner is 1996-1997. The proceedings continued. He received his increments. The question now is of withholding increments in pursuance of the punishment. Obviously, instead of taking recourse to recovery of increments the respondents considered it prudent to withhold future increments. It is in that context that the order provides that the withholding of the increments shall take effect prospectively from the date of punishment. If there were any doubt on this aspect of the matter it stands clarified by the second part of paragraph-2 of the notification dated 30.4.2005. It states that if for any reason increments prior to the punishment had not been paid, such increments cannot be withheld and the recovery under the punishment can - 5 - be only against future increments. When a proceeding is initiated the person becomes disentitled to be considered for promotion. When the proceedings culminate with a minor punishment, he is to be visited with adverse consequences, but of a limited nature, given the kind of punishment. If what the respondents contend is correct, firstly the petitioner would be denied consideration for promotion on grounds of certain charges. The charges are found fit for a minor punishment of withholding two increments that has to be computed from the date that the order of punishment is passed. It in effect debars the petitioner for a much longer period of time than for which the increments are actually to be withheld. That is an arbitrary interpretation of the Circular which this Court does not uphold. The respondents have not denied the specific assertion of the petitioner that one Kedar Baitha has been granted promotion on 11.5.2010 barely a year later after punishment was imposed on 3.3.2009 of stoppage of three increments with non-cumulative effect. This Court therefore holds that the petitioner is debarred to be considered for promotion from two years that his increments fall due after the charge year of 1996-97. The increments having been paid to him during - 6 - that period of time the punishment has to be implemented by withholding of the next two increments to which he becomes entitled from the date of the punishment i.e. 14.5.2009. The petitioner is therefore held entitled to be considered for promotion to the post of Executive Engineer from the date that his juniors may have been promoted after the expiry of the punishment as discussed above. The writ application standsallowed. KC ( Navin Sinha, J.)