RSA No. 3433 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3433 of 2008 Date of Decision: October 13, 2009 Rajnish Kumar Madan ...... Appellant Versus The New India Assurance Company Limited and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.R.N.Sharma, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the concurrent judgments of the Courts below dismissing the suit of the appellant claiming declaration that the result for promotion to the post of Assistant Administrative Officer be quashed as well as for mandatory injunction directing respondent No.1 to promote him as Assistant Administrative Officer. Both the courts have held that the appellant's case was duly considered but he was not found fit for being promoted. The following questions have been proposed:- i) Whether an employee may be promoted even after punishment effecting for one year and for that the employee was not eligible but promoted by ignoring the period of RSA No. 3433 of 2008 2 punishment? ii)Whether instructions/promotion policy issued by the company are of statutory natures and have the binding effect? iii)An employee may be debarred from the zone of promotion, if he has been punished? iv)Whether the appellant/plaintiff is entitled for the relief prayed for? v) Whether the judgment and decree of the trial court as well a first Appellate Court are perverse, against the record and are liable to be set aside in the facts and circumstances of the present case? Questions No. (i),(ii) and (iii) deal with the promotion of respondent No.4. It is not disputed that punishment of withholding of promotion for one year was imposed upon respondent No.4 in April, 1996 and he was ultimately promoted w.e.f. 1.6.98. Learned counsel has argued that the very consideration of respondent No.4 in December,1996 was invalid. He has relied upon State of Tamilnadu v. Thiru K.S. Murugesan and others reported as 1995(3) RSJ 271 wherein the Hon'ble Supreme Court held as follows:- “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 ge4ts 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 RSA No. 3433 of 2008 3 violative of Article 21 nor Article 14 read with Article 16 of the Constitution.” It would be seen that what the Hon'ble Supreme Court has laid down is that the claim for promotion during the punishment should not be considered and not that during the currency of punishment the person cannot be considered at all for promotion after the necessary efflux of time. In this view of the matter questions No. 1 to 3 have been decided against the appellant. Remaining questions are pure questions of fact. Learned counsel has not been able to persuade me that the said findings recorded thereon are either based on no evidence or on such misreading of evidence so as to be liable for interference under Section 100 C.P.C. Consequently this appeal is dismissed. No costs. (AJAY TEWARI) JUDGE October 13, 2009 sunita