judgement:
ivil Appeal No. 3383 of 199 1.
From the Judgment and Order dated9.11.1990 of the Cen tral Administrative Tribunal, Jabalpur in O.A. No. 129 of 1989.
Altar Ahmed, Additional Solicitor General, Hemant Sharma and C.V.S. Rao for the Appellant.
B.S. Banthia, Piyush Mathur, G. Prakash, T.C. Sharma, S.K. Agnihotri and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
What falls for consideration in this appeal is the interpretation of clauses (1), (2) and ,(3) of Regu lation 5 of the Indian Administrative Service (Appointment by Promotion) Regulations,.
1955 (hereinafter referred to as the 'Regulations ').
The first respondent and five others who were members of the Madhya Pradesh State Civil ' Service had approached the Central Administrative Tribunal ( 'Tribunal ' for brevity) with a grievance that the selection of officers to the Indian Administrative Service ( 'IAS ') on the basis of recommendation made by the Selection Committee in its meet ing held on December 19, 1988 and on March 16, 1989 was illegal.
In its meeting on December 19, 1988, the Selection Committee had estimated 7 vacancies in the IAS cadre and was, therefore, required to prepare a select list of 14 members of the State Civil Service for promotion to the IAS, under Regulation 5(1) of the Regulations.
While preparing the list, the committee had to consider for inclusion in the said list the cases of members of the State Civil Service (in the order of there seniority) equal to three times the number of officers to be placed on the list.
Hence the Committee had to consider the cases of 42 members of the Service.
The Committee, however, considered the cases only of 30 officers, graded them and submitted its recommendation to the Union Public Service Commission.
The Commission directed the Committee to meet again and grade the remaining 12 officers also.
Accordingly, the Committee met again on March 779 16, 1989 to complete the select list as directed.
As a result of this selection, appointment orders of 14 officers who were included in the select list were issued on 29th/30th March 1989.
This was challenged by the applicants before the Tribunal by pointing out that the State had wrongly calculated the number of vacancies as 7 by Counting the period of 12 months under Regulation 5(1), from December 1, 1988 to November 30, 1989 instead of from 16th March 1989 to 15th March.
If the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would be 11 and the select list of 22 officers would have to be prepared.
That will extend the zone of consideration in all to 66 officers.
Since 1.8 of the 66 officers were ineligible, the zone of consideration will extend to the 84th officer in the seniority list.
On behalf of the State Government, it was contended that since the meeting was first held on 19th December.
1988 the period of 12 months under the said Regulation will have to be calcu lated from December 1, 1988 to November 30, 1989 according to the previous practice of the State Government, ,which was that since the Committee meets in the second fortnight of December, the period was to be calculated from the 1st December of that .year.
We agree with the Tribunal that neither the practice adopted by the State Government nor the interpretation placed by it on Regulation 5(1) is proper.
The relevant portion of Regulation 5(1) reads as follows: "5.
Preparation of a list of suitable officers. (1) . .
The number of members of the State Civil Service included in the list shall not be more than twice ,.he number of substantive vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list.
in the posts available for them . . . (Emphasis supplied ) We are not concerned with the rest of the provision of the said regulation for the purposes of this point.
The wording of the regulation is very clear.
It says "commencing from the date of the preparation of the list".
In the.
present case, admittedly the list which was prepared by the Selection Committee on 19.12.
1988 was not according to Regulation 5(1) read with Regulation 5(2).
Regulation 5(2) requires that the cases of members of the State Civil Serv ice which are required to be considered for preparation of the select list have to be in number equal to three times the number of officers to be placed on the select list.
As pointed out earlier, the Selection Committee had on the basis of its estimate of vacancies on 19th December, 1988 considered the 780 cases of only 30 officers when it was required to consider the cases of 42 officers.
It is for this reason that the Union Public Service Commission had returned its recommenda tion and asked the Selection Committee to consider the cases of 12 more officers.
Hence the preparation ' of the select list was not complete in December 1988 and the Commit tee was required to convene a fresh meeting on March 16, 1989 on which date alone it ican be said to have prepared the select list as required under Regualtion 5(1).
Since the select list, as required by Regulation 5(1), was for the first time prepared on March 16, 1989, the period of 12 months under Regulation 5(1) had to be counted from that date.
The Tribunal had, therefore, rightly held, that the span of 12 months would begin from March 16, 1989 and end on March 15, 1990.
There is further no dispute that during the period of 12 months from 16th March, 1989 to 15th March, 1990, the esti mated vacancies were 11 and, therefore, the Tribunal 's direction to prepare a select list of 22 officers by consid ering the cases in all of 66 officers and, therefore, ex tending the zone to the 84th officer in the,seniority list according to the order of seniority (18 officers out of 66 being ineligible), is both proper and valid.
A contention was then advanced before us on behalf of the appellant that the select list lapses when a meeting of the Selection Committee to prepare a fresh select list is held.
Hence no appointment could be made from the earlier select list on and after the date of the meeting of the next Selection Committee.
There is nothing on record as to wheth er any Selection Committee met after March 16, 1989.1n fact, the Tribunal 's direction to constitute a Review Committee to consider the cases of the applicants before it and any other officers who were in the consideration zone, has not yet been implemented and the Selection Committee has yet to meet to prepare the list of members of the State Civil Service eligible to be placed in the select list as on March 16, 1989.
There is, therefore, no question of the lapse of the list which is yet to be prepared.
A meeting of the Selection Committee to prepare the list for future years cannot be held unless the meeting as directed by the Tribunal is first held and the select list finalised.
The last contention was that under Regulation 5(3), there is a bar on the Selection Committee taking into con sideration the cases of the members of the State Civil Service who have attained the age of 54 years on the first day of January of the year in which it meets.
The argument was that some of the officers had attained the age of 54 years 781 on 1st January, 1989 and, therefore, would be ineligible for consideration to be placed in the select list.
According to us, this contention is inconsistent with the provisions of Regulation 5(3) of the Regulations.
Regulation 5(3) reads as follows: "5(3) The Committee shall not consider the cases of the members of the State Civil Serv ice who have attained the age of 54 years on the first day of January of the year in which it meets:" (Emphasis ours) The provision of Regulation 5(3) is clear.
It speaks of the first day of January of the year "in which", the Selection Committee " 'meets".
It is unlike the language of Regulation 5(1) which, as pointed.
out earlier, speaks of "the date of the preparation of the list".
In the present case, admitted ly the Committee first met on 19th December, 1988.
There fore, for the purpose of 'Regulation5(3), it iv that date which is relevant and if that is so, it is only those mem bers of the State Civil Service who will be ineligible who had attained the age of 54 years on 1st January, 1988.
The Tribunal has also clarified this while giving the direction for a Review Selection Committee.
We make it clear that for the purposes of the Review Selection Committee to be convened as directed by the Tribu nal the zone of consideration will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be considered has already been indicated in our judgment.
In the circumstances of the case, the appeal fails and is dismissed.
In view of the fact that these proceedings have been pending for some time we direct that the Review Departmental Promotion Corn ' mittee/Selection Committee should meet and prepare the select list within two months from the day of the receipt of the writ of this Court.
In the circumstances of the case, there will be no order as to costs.
N.P.V. Appeal dis missed.

summary/full:
The first respondent and five other members of Madhya Pradesh State Civil Service challenged before the Central Administrative Tribunal the selection of 14 officers of the State Civil Service for promotion to the Indian Administra tive Service as illegal on the ground that the State had wrongly calculated the anticipated number of vacancies as 7 by counting the period of 12 months under Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, from December 1, 1988 to November 30, 1989, instead of from March 16, 1989 to March 15, 1990, and if the latter period was considered as the proper period for the purposes of the said Regulation, the vacancies would he 11 and the select list of 22 officers would have to he prepared, for which 66 officers would have to be considered, and the zone of consideration would extend to the 84th officer in the seniority list, since 18 of the 66 officers were ineligible under Regulation 5(3).
On behalf of the State Government it was contended that since the meeting was first held on December 19, 1988 the period of 12 months under the Regulation 5(1) would have to he calculated from December 1, 1988 to November 30, 1989 according to the previous practice of the Government, which was that since the Committee met in the second fortnight of December, the period was to be calculated from the 1st December, 1988.
The Tribunal held that neither the practice adopted by the State Government, nor the interpretation placed by it on Regulation S(1) was proper, and that the span of 12 months would begin from March 16, 777 1989 and end on March 15, 1990 and directed that a Select List of 22 officers should be prepared since during the later period, the estimated vacancies were 11, and that a Review Committee should be constituted to consider the cases of the applicants.
Dismissing the appeal preferred by the Union of India, this Court, HELD: 1.1 The wording of the Regulation 5(1) of the Indian Administrative Service (Appointment by promotion) Regulations, 1955, is very clear.
It says "commencing from the date of preparation of the list".
[779F] 1.2 In the present case, admittedly the list which was prepared by the Selection Committee on December 19, 1988 was not according to Regulation 5(1) read with Regulation 5(2).
Since the Selection Committee had, on the basis of its estimate of seven vacancies on December 19, 1988 considered the cases of only 30 officers when it was required to con sider the cases of 42 officers, the Union Public Service Commission had returned its recommendation and asked the Selection Committee to consider the cases of 12 more offi cers.
Hence, the preparation of the Select List was not complete in December, 1988 and the Committee was required to convene a fresh meeting on March 16, 1989, on which date alone it can be said to have prepared the select list as required by Regulation 5(1).
Since the select list, as required by Regulation 5(1) was for the first time prepared on March 16, 1989, the period of 12 month under Regulation 5(1) had to be counted from that date.
[779G H, 780A B] 1.3 During the period of 12 months from 16th March, 1989 tc 15th March, 1990, the estimated vacancies were 11 and, therefore, select list of 22 officers has to be prepared by considering the cases in all of 66 officers and extending the zone to the 84th officer in the seniority list according to the order of seniority (18 officers out of 66 being ineligible).
[780C D] 2.
The provision of Regulation 5(3) speaks of the first day of January of the year "in which", the Selection Commit tee "meets" unlike the language of Regulation 5(1) which speaks of "the date of the preparation of the list".
In the present case, the Committee first met of December 19, 1988.
Therefore, for the purpose of Regulation 5(3), it is that date which is relevant and if that is so, it is only those members of the State Civil Service who had attained the age of 54 years on January 1, 1988 who would be ineligible.
[781C D] 778 3.
In the circumstances, for the purposes of the Review Selection Committee to be convened, the zone of considera tion will be as if the meeting was held on March 16, 1989.
The actual number of vacancies which will have to be consid ered is 11.
[781E]


judgement:
Civil "Appeals Nos.
30 18 21 of 1987.
From the Judgment and Orders dated 24.4.87, 2.3.87, & 1.4.87 of the Central Administrative Tribunal, Hyderabad in Original Applica 794 tion No. 121/86, T.A. Nos.
958& 180 of 1986 and O.A. No. 140of 1986.
WITH CA Nos.
3016/88 & 51 55/90 with CA Nos.
3083 & 4379 of 1990 and S.L.P. (C) Nos.
1094, 2344/90, 11680 of 1991.
Altar Ahmed, Additional Solicitor General, V.C. Mahajan, J.D. Jain, C.V.S. Rao, Hemant Sharma, B. Parthasarthy, A. Subba Rao, M.N. Krishnamani, Pravir Choudhary, Ms. Indu Malhotra, Ms. Shirin Jain, T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
Civil Appeals Nos.
3019/87, 3020/87 and 3016/88 arise out of the judgment dated March 2, 1987 deliv ered by the Full Bench of the Central Administrative Tribu nal (hereinafter referred to as the 'Tribunal ').
Civil Appeals Nos.
3018/87 and 3021187 arise out of the judgments dated April 24, 1987 and April 1, 1987 respective ly of the Tribunal, Hyderabad Bench.
Civil Appeals Nos.
3083/90 and 4379/90 arise out of the judgments dated March, 2, 1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal respectively and which are based on the aforesaid decision of the Full Bench of the Tribunal.
Civil Appeals Nos.
51 55 of 1990 arise out of the deci sion dated July 12, 1989 of the Tribunal, Chandigarh Bench.
Special Leave Petition (C) No. 1094 of 1990 arises out of the decision dated June 29, 1989 of the Tribunal; Bombay Bench.
SpeCial Leave Petition (C) No. 2344 of 1990 arises out of the decision dated 18th September, 1989 given by the Tribunal, Principal Bench, New Delhi.
Special Leave Petition (C) No. 11680 of 1991 arises out of the decision dated January 25, 1991 given by the Tribu nal, Principal Bench, New Delhi.
2, The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure".
Concisely stated, the questions are: (1) what is the date from which it can be said that disciplinary/criminal proceedings are 795 pending against an employee? (2) What is the course to be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or par tially exonerated is entitled to and from which date? ' The , 'sealed cover procedure" is adopted when an employee is due for promotion, increment etc.
but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over '.
Hence.
the relevance and importance of the questions.
The Union of India and the other appellant authori ties have by these appeals challenged the findings recorded by the different Benches of the Tribunal in reply to one or the other ' of or all the aforesaid three questions, in the decisions impugned therein.
While recording its findings, the Full Bench of the Tribunal has also struck down two provisions of the Central Government Memorandum of 30th January, 1982 on the subject.
We may, therefore, first refer to the said memorandum.
The Government of India (Deptt. of Personnel & Train ing) issued an Office Memorandum No, 22011/1/79.
(A) dated January 30, 1982 on the subject of promotion of offi cers in whose cases "the sealed cover procedure" had been followed but against whom disciplinary/court proceedings were pending for a long time.
The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom discipli nary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate discipli nary proceedings or, (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmen tal Promotion Committee (hereinafter referred to as the 'DPC ') at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings.
While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis.
If on the conclusion of the departmen tal/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was.wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon.
If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated.
On his 796 promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/ court proceedings.
However, no arrears of salary are paid in respect of the period.
prior to the date of actual promotion.
The Memoran dum goes on to state further that it was noticed that some times the cases in the courts or the departmental proceed ings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it is not intended to deprive them of promotion for Such a long time.
The Government, therefore, in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances can be mitigated and has laid down the following procedure in such cases: "3.
(i)(a) It may be ascertained whether there is any departmental disciplinary proceedings or any case in a court of law pending against the individual under consideration, or (b) there is a prima facie case on the basis of which a decision has been taken to proceed against the official either departmentally or in a court of law. ' (ii) The facts may be brought to the notice of the Departmental PromOtion Committee who may then assess the suitability of the official(s) for promotion to the next grade/post and for the purpose of this assessment, the D.P.C. shall not take into consideration the fact of the pending case(s) against the official.
In case an official is found "unfit for promo tion ' on the basis of his record, without taking into consideration, the case(s) pending against him, the findings of the D.P.C. shall be recorded in the proceedings.
In respect of any other kind of assessment, the grading awarded by the D.P.C. may be kept in a sealed cover.
(iii) After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent D.P.Cs.
, if any, held after the first D.P.C. during the period the discipli nary/court proceedings may be pending, will also consider the officer 's case and record their findings.
which will again be kept in sealed cover in the above manner.
797 In the normal course, on the conclu sion of the disciplinary/court proceedings, the sealed cover or covers may be opened, and in case the officer is completely exonerated i.e. no statutory penalty, including that of censure, is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/court proceedings against him, may be determined with reference to the position(s) assigned to him in the findings in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position.
The officer con cerned may then be promoted, if necessary by reverting the juniormost officiating person, and he may be given a notional promotion from the date he would have been promoted, as determined in the manner indicated above.
But no arrears of pay shall be payable to him for the period .of notional promotion proceeding the date of actual promotion.
If any penalty is imposed on the officer as a result of the disciplinary pro ceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon.
The officer 's case for promotion may be con sidered in the usual manner by the next D.P.C. which meets in the normal course after the conclusion of the disciplinary/court proceed ings.
The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, "warning" should not be issued as a result of such proceedings.
If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed.
This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him.
" Clause (iv) of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned offi cer when the disciplinary/court .proceedings are not con cluded even after the expiry of two years from the date of the DPC which first considered him for promotion and whose findings are kept in the sealed cover, provided however that the officer is not under suspension.
It is not necessary to reproduce that clause in extenso here.
Suffice it to say that the Memorandum urges that in making the ad hoc promo tion in such cases, his case should be placed before the DPC which is held after the 798 expiry of the said period of two years, and the ad hoc promotion has to be made on the basis of the totality of the record of service etc.
Para 4 of the Memorandum states that if the officer concerned is acquitted in the court proceedings on the merits of the case or exonerated in departmental discipli nary proceedings, the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant bene fits.
In such cases, the sealed cover may be opened and the official may be assigned his place in the seniority list as he would have got in accordance with the recommendation of the DPC.
Paras 5, 6 and 7 of the Memorandum then read as follows: "5.
Where the acquittal in a court case is ' not on merits but purely on technical grounds, and the Government either proposes to take the matter to a higher court or to pro ceed against the officer departmentally, the appointing authority may review whether the ad hoc promotion should be continued.
Where the 'acquittal by court is on technical grounds, if the Government does not propose to go in appeal to a higher court or to take further departmental action, action should be taken in the same manner as if the officer had been acquitted by the court on merits.
If the officer concerned is not acquitted/exonerated in the court proceedings or the departmental proceedings, the ad hoc promotion already granted should be brought to an end by the issue of the "further order" contemplated in the order of ad hoc promotion (Please see para 3(vi) above) and the officer concerned reverted to the post from which he was promoted on ad hoc basis.
After such reversion, the officer may be considered for future promotion in the usual course by the next D.P.C." , 5.
To bring the record uptodate, it may be pointed out that in view of the decision of this Court in Union of India & Anr.
vs Tajinder Singh, [ ; decided on September 26, 1986, the Government of India in the Deptt.
of Personnel & Training issued another ' Office Memorandum No. 22011/2/86.
(A) dated January 12, 1988, in superses sion of all the earlier instructions on the subject 799 including the Office Memorandum dated 30th January, 1982 referred to above.
There is no difference in the instruc tions contained in this and the earlier aforesaid Memorandum of January 30, 1982, except that this Memorandum provides in paragraph 4 for a six monthly review of the pending proceed ings against the Government servant where the proceedings are still at the stage of investigation and if as a result of the review, the appointing authority comes to the conclu sion on the basis Of material and evidence collected in the investigation till that time, that there is no prima facie case in initiating disciplinary action or sanctioning prose cution, the sealed cover is directed to be opened and the employee is directed to be given his due promotion with reference to the position assigned to him by the the DPC.
A further guideline contained in this Memorandum is that the same sealed cover procedure is to be applied where a Govern ment servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prose cution has been issued or decision to accord such sanction is taken.
These differences in the two Memoranda have no bearing on the questions to be answered.
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have com menced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceed ings/criminal prosecution is initiated against the employee.
The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued.
The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.
We are in agreement with the Tribunal on this point.
The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge memo/charge sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc.
does not impress us.
The acceptance of this contention would result in injustice to the employees in many cases.
As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initi ated at the 800 instance of the interested persons, they are kept pending deliberately.
Many times they never result in the issue of any charge memo/chargesheet.
If the allegations are serious and the authorities are keen in investigating them, ordi narily it slould not take much time to collect the relevant evidence and finalise the charges.
What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a ,remedy.
It was then contended on behalf of the authorities that conclusions nos.
1 and 4 of the Full Bench of the Tribunal are inconsistent with each other.
Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or crimi nal proceedings against an official; ( 3 ) . . . . . . . . (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before . ' ' There ' is no doubt that there is a seeming contradiction between the two conclusions.
But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other.
The conclusion No. 1 should be read to mean that the promotion etc.
cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee.
To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee.
Thus read, there is no inconsistency in the two conclusions.
We, therefore, repel the challenge of the appellant authorities to the said finding of the Full Bench of the Tribunal.
The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January.
1982 has, among other things, held that the portion of paragraph 2 of the memoran dum which says "but no arrears are allowed in respect of the period prior to the date of the 801 actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotion al post for the perked during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees ' who are not at the verge of promotion when the disciplinary proceedings ' were intiated against them.
The Tribunal has, therefore, directed that.
on exonera tion.
full salary should be paid to such employee which he would have on promotion if he had not been subjected to disciplinary proceedings.
We are afraid that the Tribunal 's reference to para graph 2 of the Memorandum is incorrect.
Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the 'last sentence of the first sub para graph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above.
That sentence reads as follows: "But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion".
This sentence is preceded by the observation that when the ' employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statu tory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee.
This direction in the Memorandum has also to be read along with the other direction which follows in the next sub paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed.
This direction is in supersession of the earlier instructions which provided that in a case where departmen tal disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.
There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits includ ing the salary of the promotional post.
It was urged on behalf of the appellant authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes charge of the same.
They relied on F.R. 17(1) ' of the Fundamental 802 Rules and Supplementary Rules which reads as follows: "F.R. 17(1) Subject to any excep tions specifically made in these rules and to the provision of sub rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.
" It was further contended on their behalf that the normal rule is "no work no pay".
Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged.
To allow him to do so is against the elemen tary rule that a person is to be paid only for the work he bas done and not for the work he has not done.
As against this, it was pointed out on behalf of the concerned employ ees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed Under suspension.
When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
We are not much impressed by the contentions advanced on behalf of the authorities.
The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his.
This is not a case where the employee remains away from work for his own reasons, although the work is offered to him.
It is for this reason that F.R. 17(1) will also be inapplicable to such cases.
We are, therefore, broadly in agreement with the find ing of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ 803 criminal proceedings.
However, there may be cases ' where the pro ceedings, whether disciplinary or criminal, are, for example, delayd at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee etc.
In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it.
Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary.
To ignorehowever, such circumstances when they exist and lay down ' an inflexi ble rule that in every case when an employ ee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopar dise public interests.
We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal.
While, therefore, we do not ap prove of the said last sentence in the first sub paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution.
Where the authority denies arrears of salary or part of it, it will record its reasons for doing so.
" To this extent we set aside the conclusion of the Tribu nal on the said point. 8.
The Tribunal has also struck down the 'following portion in the second sub paragraph after clause (iii) of paragraph 3 which reads as follows: "If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceed ings against him, the findings in the sealed cover/covers shall not be acted upon" and has directed that if the pro ceedings result in a penalty, the person concerned should be considered for promotion in a 804 Review DPC as on the original date in the light of the results of the scaled cover as also the imposition of penal ty and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions.
It may be pointed out that the said sub paragraph directs that "the officer 's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary/court proceedings".
The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty.
According to the Tribunal, " 'it not only violates Articles 14 and 16 of the Constitution compared with other .employees who are not at the verge of promotion when the disciplinary proceedings are Initiated against them but also offends the rule against double leopardy contained in Article 20(2) of the Constitu tion".
The Tribunal has, therefore,.held that when an em ployee is visited with a penalty as a result of the disci plinary proceedings there should be a Review DPC us on the date when the sealed cover procedure was followed and the review DPC should consider the findings in the sealed cover as also the penalty imposed.
It is not clear to us as to why the Tribunal wants the review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even.
when a penalty is imposed, amounts to double jeopardy.
However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.
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 circum stances.
To qualify for promotion, the least that is expect ed of an employee is to have an 805 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 discrimi nation when in the matter of promotion, he is treated dif ferently.
The least that is expected of any administration is that it does not reward an employee with promotion retro spectively from a date when for his conduct before that date he is penalised in presentii.
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 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 penal ties 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.
In the circumstances, the conclusions arrived at by the Full Bench of the Tribunal stand modified as above.
It is needless to add that the modifications which we have made above will equally apply to the Memorandum of January 12,1988 9.
In the result, in Civil Appeals Nos. 3019/87, 3020/87 and 30 16/88 which arise out of the decision of the Full Bench, the Division Bench of the Tribunal to which the matters are remanded by the Full Bench., will dispose of the cases of the employee/s involved in the appeals in the light of what we have held hereinabove.
Civil Appeal No. 3018 of 1987 In this case, no charge sheet was served on the respon dentemployee when the DPC met to consider the respondent 's promotion.
806 Yet, the sealed cover procedure was adopted.
The Tribunal has rightly directed the authorities to open .the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date his immedi ate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986.
The Tribunal has also directed the authorities to grant to the respondent all the conse quential benefits.
The Tribunal has further stated in the impugned order that its order would not mean that the disci plinary proceedings instituted against the respondent em ployee should not go on.
We see no reason to interfere with this order.
The appeal, therefore, stands dismissed.
In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 302 1 of 1987 In this case, the DPC did not consider the case of the respondent employee for crossing efficiency bar w.e.f. 14th September, 1983 on the ground that disciplinary proceedings were contemplated against him.
We are, therefore, of the view that the Tribunal 's direction that the DPC should be convened to consider the case of the respondent for crossing the efficiency bar w.e.f.
14th September, 1983 on the basis of his confidential record at the relevant date and without reference to the contemplated disciplinary proceedings is both proper and valid.
In this case also the Tribunal has given the said direction without prejudice to the right of the appellant authorities to take any disciplinary action as might have been contemplated.
This order also does not require any interference from this Court.
Hence, the appeal stands dismissed.
In the circumstances of the case, however, there will be no order as to costs.
Civil Appeal No. 3083 of 1990 In this case, the respondent employee 's case was considered for promotion by the DPC in August 1982.
However, the result was kept in a sealed cover in view of the pending disciplinary proceedings against him.
According to the employee, on October 11, 1985 the disciplinary proceedings ended in complete exoneration.
Thereafter, a DPC was again constitut ed in March 1986 which, after consideration of the employ ee 's case, recommended him for promotion w.e.f.
July 26, 1986.
this was obviously contrary even to the instructions contained in the Memorandum.
He was entitled to promotion from the date his immediate junior was promoted in or after August 1982 if he was in August 1982 found fit for promotion by the DPC, The Tribunal has, 807 therefore, rightly directed the appellant to open the sealed cover and if the DPC in 1982 had found him fit for promo tion, to give him the promotion from the date on which his immediate junior was promoted.
However, while doing so, the Tribunal has ' also directed arrears of salary to be paid for intervening period along with all consequential benefits.
Since we have held disagreeing with the decision of the Full Bench of the Tribunal that the .benefit of the arrears of salary will not flow automatically but will depend upon the circumstances in each case, we modify the said order to the extent it directs the payment of arrears of salary, and direct the appellant authority to consider whether the employee in the circumstances of the case was entitled to any arrears of salary and to what extent.
The authority will, of course give reasons for denial of the whole or part of the arrears of salary The appeal is, there fore, allowed partly with no order as to costs.
Civil Appeal No. 4379 of 1990 In this case, the respondent employee was not recommend ed for promotion by the DPC in its meeting held on February 1, 1988 Instead, the DPC had kept the results in a sealed cover because of the pending dis.ciplinary proceed ings.
Admittedly, no charge memo was served.
On the employee till the date the DPC met on February 1, 1988 it was issued only in March 2, 1989.
The Tribunal has, therefor rightly directed the authorities tO open the sealed cover.
We are, however, unable to understand the direction of the Tribunal to convene a Review DPC for considering the employee 's case as on February 1 1988.
If the DPC had considered the case of the employee on February 1, 1988 and withheld the result because of the pending disciplinary proceedings, the proper direction would have been to ask the appellant authority to open the sealed cover and if the employee was found fit for promotion, to direct the authority to promote him from the date on which his immediate junior was promoted as a result of the recommendation of the DPC on February 1, 1988.
In case he is so found fit, he would be entitled to the bene fits of seniority etc.
on a notional basis.
However, whether he. would be entitled to the arrears of salary for the intervening period and to what extent will have to be decid ed by the appellant authority in the light of what we have state above.
In case the authority denies to the employee the salary in full or in part, it will, of course, record its reasons for doing so.
The appeal is therefore, allowed partly as above with no order as to costs.
Civil Appeals Nos.
51 55 of 1990 These appeals are filed against five respondent employees.
Dis 808 ciplinary proceedings as well as criminal prosecution were launched against each of them for lodging false Leave Travel Concession claims and for using forged documents to support them.
The employees were suspended from service on 15th July , 1983.
They admitted guilt and pleaded revocation of their suspension on depositing the amount of Rs. 1600.
They were reinstated in service in November, 1983.
Keeping in view the deposit of the amount voluntarily in October 1983, a lenient view was taken and the criminal.
prosecutions against them were dropped by the Administration by an order of January 14, 1985.
However, this was done without prejudice to the departmental proceedings which were subsequently initiated and the formal chargesheet was issued to the employees on December 24, 1987.
The Departmental Promotion Committee met in July 1986 to consider the cases of the employees for promotion but re sorted to sealed cover procedure in view of the pendency of the disciplinary proceedings against them.
There is no dispute that the formal chargesheet was issued either on August or December 24, 1987.
Conflicting months have been mentioned in the decision of the Tribunal.
However, we find that the Tribunal has taken a mechani cal view and applied the decision of the Full Bench and directed the promotions to be given to the employees on the basis of the recommendations, if any, of the DPC of July 1986.
We are of the view that in the present case when the DPC met in July 1986, the Committee had before it the record of the refund of the amount by the respondent employ ees and the consequent withdrawal of the prosecutions with out prejudice to the authorities ' right to institute depart mental proceedings.
In view of the aforesaid peculiar facts of the present case, the DPC which met in July 1986 was justified in re sorting to the .sealed cover procedure, notwithstanding the fact that the charge sheet in the departmental proceedings was issued in August/December, 1987.
The Tribunal was, therefore, not justified in mechanically applying the deci sion of the Full Bench to the facts of the present case and also in directing all benefits to be given to the employees including payment of arrears of salary.
We are of the view that even 'if the results in the sealed cover entitle the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional 'benefits of seniority etc., the.
employees in no case should be given any arrears of salary.
The denial of the benefit of salary will, of course, be in addition to the penalty,.if any,.
imposed on the employees at the end of the disciplinary proceedings.
We, 809 therefore, allow these appeals as above with no order as to costs.
S.L.P. (Civil) No. 1094 of 1990 Special leavegranted.
The respondent employee in this case was a Sepoy in the Department of Central Excise and Customs.
He passed his Departmental examination for the post of Lower Division Clerk against 10% vacancies and by letter of October 14, 1981, he was informed about his selection for the said post against the said vacancies reserved for educationally quali fied Group D staff.
However, he was informed that.
his appointment order as L.D.C. would be issued if he was exon erated from the disciplinary proceedings which were then pending against him.
In the Departmental Inquiry, .he, was exonerated of all the charges and by an order.of June 6, 1985 he was appointed to officiate as Lower Division Clerk.
By a subsequent order of July 3, 1985, the earlier order of June 6, 1985 was made effective from September 25, 1981.
By yet another order of July 29, 1985, his pay was fixed by giving him increment from September 25, 1981 but he was denied arrears of pay from that date till June 2, 1985.
The employee did not challenge the said order denying him ar rears of pay till he made his representation on February 18, 1988.
To his representation a reply was sent that since he had not worked as LDC during the said period he was not entitled to the arrears of salary.
By the impugned decision, the Tribunal has directed the authorities to grant to the respondent employee his pay and allowances from September 25, 1981 to June 2, 1985.
In view of what we have held above, the appeal is al lowed, the impugned order is hereby set aside and instead the appellant authorities are directed to examine the ques tion whether the respondentemployee was entitled to any salary and if so to what extent in the light of the view taken by us.
The appellant authorities will, of course, have to record reasons if the arrears of salary in its entirety or in part are denied to the employee.
In the circumstances of the case, however, there will be no order as to costs.
S.L.P. (Civil) No. 11680of1991 Special leave granted '.
The order impugned in this appeal is an interim one whereby the Tribunal has directed the appellant Union of India to open the sealed 810 cover and if the result shows that the DPC has found the respondentemployee fit for promotion to the post of Commis sioner of Incometax, to give effect to the said recommenda tions.
The admitted facts are that the DPC which met in 1988 had considered the respondentemployee 's case for promotion to the post of Commissioner of Income tax.
However, since some departmental proceedings were pending against him, he was not given the ,said promotion.
It was for the first time in 1990, that the appellants served on him a memorandum asking his explanation in respect of certain alleged acts of misconduct to which he sent a reply on May 18, 1990.
Till the date of the 'impugned order of the Tribunal, i.e., January 1, 1991, no charge sheet was served upon the re spondent employee.
However, 12 persons.
junior to him were promoted by an order dated April 16, 1990.
The Tribunal has, as stated above, therefore, made the impugned order.
There is .no direction in the order to pay him the arrears of salary for the interregnum.
In the circumstances of the case, we do not think it necessary to interfere with the impugned order.
The appeal, therefore, stands dismissed.
In the circumstances of the case, however, there will be no Order as to costs.
S.L.P. (Civil) No. 2344 of 1990 Special leave granted.
The peculiar facts in this case are that at the relevant time the respondent employee was working as Superintending Engineer since July 1986.
When earlier he was working as Garrison Engineer in Bikaner Division, there was a fire in the Stores in April 1984 and there were also deficiencies in the Stores held by: the Store keeper during the 'period between 1982 and 1985.
Hence, disciplinary proceedings were commenced in February 1988 and the respondent was served with a charge sheet on February 22, 1988.
By an order of August 19, 1988 a penalty of withholding of increment for one year was imposed on the respondent as a result of the said disciplinary proceedings.
On June 3, 1988, the DPC met for considering 'the promo tion 'to the Selection Grade.
Pursuant to this meeting, by an order of July 28, 1988 some juniors were given the Selection Grade with retrospective effect from July 30, 1986.
The respondent employee 's name was kept in a sealed cover and was, therefore, not included in the list of the promotee officers.
The Tribunal has found fault With the authorities on two 811 grounds.
The Tribunal has observed that although when the DPC met in June 1988, the employee was already served with a charge sheet on February 22, 1988 and, therefore, the sealed cover procedure could not be faulted, since admittedly his juniors were given promotion with retrospective effect from July 30, 1986,.
the DPC should not have excluded the re spondent 's name from consideration when it met on June 3, 1988.
The second fault which the Tribunal has found is that since the penalty of stoppage of increment was imposed at the end of the disciplinary proceedings, it was not open for the authorities to deny the 'respondent his promotion to the.
Selection Grade as that amounted to 'double penalty.
Having taken this view, the Tribunal has directed that a Review DPC should consider the 'respondent 's case for promo tion w.e.f.
July 1986 when his juniors were given promotion taking into account his performance and confidential records up to 1986.
We are afraid the Tribunal has taken an errone ous view of the matter.
Admittedly, the DPC met in June 1988 when the employee was already served with the charge sheet on February 22, 1988.
The charge sheet was for misconduct for the period between 1982 and 1985.
Admittedly further, the employee was punished by an order of August 19, 1988 and his one increment was withheld.
Although, therefore, the promotions to his juniors were given with retrospective effect from, July 30, 1986, the denial of promotion to the employee was not unjustified.
The DPC had for the first time.
met on June 3, 1988 for considering promotion to the Selection Grade.
It is in this meeting that his juniors were given Selection Grade with retrospective effect from July 30, 1986, and the sealed cover procedure was adopted in his case.
If no disciplinary .proceedings were pending against him and if he was.
otherwise selected by the DPC he Would have got the Selection Grade w.e.f. July 30, 1986, but in that case the.
disciplinary proceedings against him for his misconduct for the earlier period, viz., between 1982 and 1985 would have been meaningless.
If the Tribunal 's finding is 'accepted it would mean that by giving him the Selection Grade w.e.f. July 30, 1986 he would stand rewarded notwith standing his misconduct for the .earlier period for which disciplinary proceedings were pending at the time of the meeting of the DPC and for which again he was visited with a penalty.
We, therefore, allow the appeal and set aside.
the finding of the Tribunal.
There will, however, be no order as to costs.
Before we part with these appeals, we make it clear that if any of the respondent employees in any of the above appeals has/have been given any benefits the same will not be disturbed.
G.N. Appeals disposed of.

dataset_name: IN-Abs

summary/full:
When an employee is due for promotion, increment etc.
but disciplinary/criminal proceedings are pending against him at the relevant time, the findings of his entitlement to such benefit are kept in a sealed cover to be opened after the proceedings in question are over.
According to this procedure, while the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis.
If on the conclusion of the departmental/court pro ceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed, cover is opened and the recommendations of the DPC are acted upon.
If the officer could have been promoted earlier, he is promoted to the post which is Idled on an 791 officiating basis, the officiating arrangement being termi nated.
On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the .pending disciplinary/court proceedings.
However, no arrears of salary.
are paid in respect of the period prior to the date of actual promotion.
Sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it was not intended to deprive.
them of promotion for such a long time.
The Government in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances could be mitigated and laid down certain procedures by an Office Memorandum No. 2201111179 Eatt.
(A) dated January 30, 1982.
In interpreting the Memorandum as to what is the date from which it can be said that disciplinary/criminal pro ceedings are pending against an employee; as to what would be the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal; and as to what benefits an employee who is completely or partially exonerated is entitled to and from which date, different Benches of the Central Adminis trative Tribunal recorded their findings and while doing so, the Full Bench of the Tribunal struck down two provisions of the said Memorandum dated January 30, 1982, which related to a prohibiton against acting upon the findings contained in the sealed cover in case the officer was imposed penalty as a result of disciplinary proceedings or found guilty in the Court proceedings against him and regarding arrears of pay for the period of notional promotion.
Aggrieved by the decisions of the various Benches of the Tribunal, the Union of India and other authorities preferred the present appeals and special leave petitions.
Disposing of them matters, this Court, HELD: 1.
The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is issued.
The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.
The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept 792 pending deliberately.
Many times they never result in the issue of any charge memo/charge sheet.
If the allegations are serious and the authorities are keen in investigating them ordinarily it should not take much time to collect the relevant evidence and finalise the charges.
If the charges are that serious, the authorities have the power to suspend the employees under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure.
The authorities thus are not without a remedy.
[799F H; 800A B] 2.
When an employee is completely exonerated meaning thereby that he is not found blame worthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary .of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings.
However, there may be cases.
where the proceed ings, whether disciplinary or criminal, are delayed at the instance of the employee or the clearance in the discipli nary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of nonavailability of evidence due to the acts attributable to the employee etc.
In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it.
being com plex, it is not possible to anticipate and enumerate exhaus tively all the circumstances under which such consideration may become necessary.
To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary lot the intervening period is to undermine disci pline in the administration and jeopardise public interests.
The Tribunal was not right in holding that to deny the salary to an employee would in all circumstances be illegal.
[802G H; 803A D] 3.
The normal rule of "no work no pay" is not applicable to cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his.
This is not a case where the employee remains away from work for his own ' reasons, although the work is offered to him.
It is for this reason that F.R. 17(1).will also be inapplicable to such caseS. [802F G] 4.
The Tribunal 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 adminis tration.
In the first instance, the penalty short of 793 dismissal will vary from reduction in rank to censure.
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, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of reduction in rank.
[804F G] 5.
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 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.
[804G H; 805A] 6.
The least that is expected of any administration is that it does not reward an employee 'with promotion retro spectively from a date when for his conduct before that date he is penalised in presenti.
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.
[805B C] 7.
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 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.
[805C D]


judgement:
ivil Appeal No. 3471 of 1991.
From the Judgment and Order dated 14.9.1990 Punjab and Haryana High Court in C.W.P. No. 12328 of 1990.
860 G.K. Bansal for the Appellants.
K.C. Bajaj, Ms. Kusum Chaudhary and Y.K. Jain for the Respondent.
The following Order of the Court was delivered: Special leave granted.
We have heard learned counsel for both the parties and also considered the order passed by the High Court.
Admit tedly, these two appellants were appointed much earlier to the appointment of respondent Nos. 3 and 4 in the post of Assistant Sub Inspector of Police.
Their appointment being on 30.3.71 and 24.4.71 whereas the appointment of respondent Nos. 3 and 4 were on 18.2.83.
They were promoted in 1983 as Assistant Sub Inspectors of Police.
On 1.1.89 respondent Nos. 3 and 4 and appellant Nos.1 and 2 were promoted as Inspectors of Police and a composite Seniority List of appellants, respondent Nos. 3 and 4 and other similarly appointed persons was issued by respondent No. 1 in which appellant No 1 was shown at serial No. 33, appellant No. 2 at serial No. 34 and the respondent Nos. 3 and 4 were at serial numbers 46 and 47 respectively.
On 16.10.89 by order of respondent Nos. 1 and 2, State of Haryana and Director General of Police respondent No. 3 was promoted out of turn as Deputy Superintendent of Police.
On 23.10.89 respondent No. 4 was promoted as Deputy Superintendent of Police, out of turn.
It is rather curious that not a single whisper was there in the order of promotion why the said, out of turn, promotion was given.
It was tried to be contended by learned counsels on behalf of respondent Nos. 3 and 4 that because of their gallantry this out of turn promotion was given.
However, there is no whisper about this in the letters giving promotion.
The appellants, on the other hand, were promoted as Deputy Superintendents of Police as on 11.1.90.
While filing the Writ Petition before the High Court, the appellants stated that they came to know of this out of turn promotion sometime on 3.8.90.
We have considered the order of the High Court.
It is really a matter of great regret that inspite of several pronouncements of this Court that the order dismissing the writ petition must be a speaking order in order to enable the persons affected to know what were the reasons which weighed with the High Court in dismissing the writ petition.
This Court has observed several times that the High Court should not pass laconic order.
In that view of the matter, we think it 861 just, proper and fair to set aside the order of the High Court and send the case back on remand to the High Court to hear out the writ petition after giving opportunity to parties and recording a reasoned speaking order on merits.
The appeal is accordingly disposed of R.P. Appeal disposed of.

summary/full:
Respondents No. 3 and 4, who were junior to the appel lants as Inspectors of Police in the State of Haryana, were given out of turn promotions as Deputy Superintendents of police earlier than the appellants.
The Appellants chal lenged the said promotion order in a writ petition which was dismissed by the High Court by a non speaking order.
Ag grieved, the appellants filed the appeal by special leave to this Court.
Disposing of the appeal, this Court, HELD: 1.
The order dismissing the writ petition must be a speaking one in order to enable the person affected to know what were the reasons which weighed with the High Court in dismissing it.
The High Court should not pass a laconic order.
[860G] 2.
In the instant case, in the order of promotion there was not a single whisper why the said out of turn promotion was given.
[860E] 3.
The order of the High Court is fit to be set aside, and the case be sent back on remand to the High Court to hear the writ petition after giving an opportunity to the parties and recording a reasoned speaking order on merits.
[861A]


judgement:
N: Criminal Appeal No. 533of 1991.
From the Judgment and Order dated 10.1.
1989 of the Gujarat High Court in Miscellaneous Criminal Application No. 32 of 1989.
H.S. Zaveri for the Appellant.
Dushayant Dave, Ashish Verma and Anip Sachthey.
for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Petitioner 's daughter Chhaya Was married to Respondent No. 2 Satish on5.
12. 1984 and they started living together in their marital home at Bagasara.
On 13.8.
1986, Chhaya died at Bagasara.
The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died.
The petitioner suspected that their daughter 's death was unnatural resulting from torture by her husband and his relatives.
The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister which was trans ferred to the Court of.
Judicial Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under section 498 A read with section 34 I.P.C.
The petitioner filed an application for committing the case to the Court of Session for trial for .an offencepunishable under section 304 B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f.
19.11.1986.
On 29.11.1988, the Learned Magistrate dismissed the petition er 's application holding that this amendment being prospec tive was inapplicable to a death which occurred on 13.8.1986, prior to the amendment.
Aggrieved by this order, the petitioner moved an application (Misc.
Criminal Applica tion No. 32 of 1989) in the High Court of Gujarat .for a direction to commit this case of dowry death to 'the Court of Session since an 'offence punish able under section 304 B is triable by the Court of Session. ' By the impugned order dated January 10, 1989, the High Court has dismissed that application.
Hence this special leave petition.
815 Leave is granted.
The point arising for our decision is the applicability of section 304 B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304 B in the Indian Penal Code.
This is the only ground on which the.
appellant claims trial of the case in the Court of Session.
The reason.given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304 B in the Indian Penal Code on account of which the section can have no application to the present case.
None of the courts below.
has examined the applicability .of any other pre existing more stringent provision even if section 304 B does not apply.
As such affirmation of the view that section 304 B does not apply, will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa tion made.
If that point is raised, the courts below will have to decide the same on merits on the basis of accusation made.
It is in this background that the point raised by the appellant regarding applicability of section 304 B is decid ed by us.
Section 304 B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women 's liberation movement.
This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career.
Society contin ues to perpetuate the difference between them for the pur pose of marriage and it is this distinction which makes the dowry system thrive.
Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its .prohibi tion and punishment are some steps in that direction.
The was enacted for this purpsoe.
The Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: " Legislation .cannot by itself normally solve deep rooted social problems, One has to ap proach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.
" 816 The enactment of in its original form was found inadequate.
Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to 'avoid leaving any evidence of the offence.
Similarly, the conse quences of non fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride.
This experience has led to several other legislative measures in the continuing battle to combat this evil.
The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the .
Section 498 A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A .therein and also inserted section 113A in the ,. 1872.
Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition .Act, 1961 and to make certain .necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the .
Two of the salient features of the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the State ment of Objects and Reasons of the Bill are as under: "(e) Offences under the Act are proposed to be made non bailable. "(g) A new offence of "dowry death" is proposed to be included in the Indian Penal Code and the necessary consequential amend ments in the Code of Criminal Procedure, 1973 and in the have also been proposed." Accordingly by section 7 of the Amendment Act, section 8 of the was amended to make every Offence under this Act non bailable while continuing it to be non compoundable.
By sections 10, 11 and 12, amendments were made in the Indian Penal Code, Code of Criminal Proce dure, 1973 and the , as part of the same scheme as follows: 817 "10.
In the Indian Penal Code, after, section 304 A, the following section shall be inserted, namely: '304 B. Dowry death.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that .soon before her death she was subjected to cruelty or harass ment by her husband or any relative of her husband for, Or in connection with, any demand for dowry such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation For the purposes of this sub section, , 'dowry".
shall have the same meaning as in section 2 of the Dowry Prohibi tion Act, 196 1 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for "11.
In the Code of Criminal Proce dure, 1973, in the First Schedule after the entries relating to section 304 A, the follow ing entries shall be inserted, namely: Section Offence Punishment COgnizable Bailable or By what or non non bail Court cognizable able tribale 1 2 3 4 5 6 "304 B ' Dowry Imprison Ditto Non Court of death ment of not bailable ' Session." lesS ' than seven years but which may extend to imprisonment for life. ' "12.
In the , after section 818 113 A, the following section shall be insert ed, namely: "11.3 B. Presumption as to dowry death.
When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her 'death.
such woman has been subjected by such .person to cruelty Or harassment for, or in connecting with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.
For the purpose of this section ', "dowry death" shall have the same meaning as in section 304 B of the Indian Penal Code (45 of 1860).
" It is clear from the above historical background that the offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No. 43 of 1986 came into force.
The offence under section 304 B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session.
The corresponding amendments made in the Code of Criminal Procedure and the relate to the trial and proof of the offence.
Section 498;A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine.
It is for the offence punishable under section 498 A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class.
The offence punisha ble under section 304 B, known as.
dowry death, was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence ' than section 498 A. Section 304 B is a substantive provision creating a new offence and not merely a provision effecting a, change in procedure for trial of a pre existing substantive offence.
Acceptance of the appel lant 's contention would amount to holding that the respond ents can be tried and punished for the offence of dowry death provided in section 304 B of the Indian Penal Code with the minimum sentence of seven years ' imprisonment for an act done by them prior to creation of the new offence of dowry death.
In our opinion, this would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution which reads as under: 819 "20.
Protection in respect of con viction for offences.
(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commis sion of the act charged as an offence, 'nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ' ' " In our opinion ,.
the protection given by Article 20(1) is a complete answer to the appellant 's contention.
The contention 'of learned counsel 'for the appellant that section 304 B inserted in the Indian Penal Code does not create a new offence and ' contains merely a rule of evidence is untenable.
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous ' amendment made in the for proving the offence of dowry death.
The fact that the was so amended simultane ously with the insertion of section 304 B in the Indian Penal ' Code by the same Amendment Act is ' another pointer in this direction.
This contention is, therefore, rejected.
In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent 'to the commission of the offence attributed to the respondents does not suffer from any infirmity.
However, as earlier indicated, in case the accusation against the respondents discloses commission of any other more stringent pre existing offence by the re spondents than section 498 A of the Indian Penal Code, the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis.
No such argument having been advanced before us or any of the courts below so far, the same does not arise for considera tion in the present proceeding.
With these observations, the appeal is dismissed.
T.N.A. Appeal dis missed.

summary/full:
Appellant 's daughter was married to respondent No. 2 on 15.12.1984.
She died on 13.8.1986.
The appellant filed a criminal comp .
laint against the respondents viz. daugh ter 's husband and his relatives for an offence under section 498 A, triable by a Magistrate of First Class, 'read with section 34 of the Indian Penal Code, 1860 alleging that his daughter 's death was unnatural resulting from torture by her husband and his relatives.
By Act No. 43 of 1986, the Indian Penal Code was amended and Section 304 B, offence of dowry death, was inserted in the Code w.e.f.
19.11.1986.
Since the newly inserted offence of dowry death was triable.
by a Court of Session, the appellant flied an application before the Magistrate for committing the case to the Caurt of Session for trial of offence under section 304 B. 'The Magistrate dismissed his application by holding that the amendment being prospective was inapplicable 'to the case because the death had occurred prior to the amendment.
Thereafter the appellant filed an application in the High Court for a direction to Commit the case of dowry death to the Court of Session.
The High Court also dismissed his application by holding that since the offence was committed prior to the date of insertion of section 813 304 B, the section was not applicable to the case.
In appeal to this Court on the question whether section 304 B of the Indian Penal Code was applicable to a case of dowry death where the death has occurred prior to the insertion of Section 304 B, it was contended on behalf of the appellant that section 304 B of the Indian Penal Code does not create a new offence and contains merely a rule of evidence.
Dismissing the appeal, this Court, HELD: 1.
The offence of dowry death punishable under section 304 B of the Indian Penal Code is a new offence inserted in the code with effect from .19.11.1986 when Act No. 43 of 1986 came into force The said offence is punisha ble with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session.
The corresponding amendments made by Act No. 43 of 1986 in the Code of Criminal Procedure and the relate to the trial and proof of the offence.
Section 498 A inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1983 is an offence triable by a Magistrate of the First Class and is punishable with impris onment for a term which may extend to three years in addi tion to fine.
The offence of dowry death punishable under section 304 B provides for a more stringent offence than section 498 A. Section 304 is a substantive provision creat ing a new offence and not merely a provision effecting a change in procedure for trial of a pre existing substanative offence.
The rule of evidence to prove the offence of dowry death is contained in section 113 B of the providing for presumption as to dowry death which was a simultaneous amendment made in the for proving 'the offence of dowery death.
The fact that the was so amended simul taneously with the insertion of section 304 B in the Indian Penal code by the same Amendment Act is another pointer in this direction.
There fore, it cannot be held that section 304 B. does not create a new offence and contains merely a rule of evidence.
[818D F, 819C D] 2.
The respondents are being tried in the Court of Magis trate of .the
First Class for the offence punishable under section 498 A which was in the statute book on the date of death of Appellant 's daughter Their trial and punishment for the offence of dowry death provided in section 304 B of the Indian Penal Code 'with the minimum sentence of seven years ' imprisonment for an act done by them prior to creation of the new offence of dowry death would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution.
Accord ingly, the view taken by the High Court that the respondents cannot be 814 tried and punished for the offence provided in section 304 B of the Indian Penal Code which is a new offence created subsequent to the commission of the offence attributed to the respondents does not suffer from any infirmity.
[818E, G, 819E]