Telangana High Court
H.Surender vs The State Of Telangana on 4 September, 2020
Author: P.Naveen Rao
Bench: P.Naveen Rao
*THE HONOURABLE SRI JUSTICE P.NAVEEN RAO
+ WRIT PETITION Nos. 8639, 9958 & 9974 OF 2020
% 04.09.2020
# K.Babu, s/o.K.Venkati, aged about 56 years,
Occu: Forest Section Officer/Forester,
Kotalpally Section of Indalwai Range,
Nizamabad Forest Division of Nizamabad District,
erstwhile Kamareddy Forest Division of Nizamabad District
Telangana State.
.... Petitioner
Vs.
$ The State of Telangana, rep.by its Principal Secretary to
Government, Environment Forests Science and Technology
Department, Telangana Secretariat, Hyderabad 500 022 and others.
.... Respondents
!Counsel for the petitioner : Sri G Raman Goud
Counsel for the Respondents : Government Pleader
<Gist :
>Head Note:
? Cases referred:
AIR 1955 SC 549
(1971) 1 SCC 607
(1982) 1 SCC 39
(2011) 5 SCC 214
2011 (3) CTC 129 =
MANU/AP/0521/2009
(1991) 4 SCC 109
PNR,J
WP No.8639 of 2020 and batch
2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
********
WRIT PETITION Nos. 8639, 9958 & 9974 OF 2020
Between :
K.Babu, s/o.K.Venkati, aged about 56 years,
Occu: Forest Section Officer/Forester,
Kotalpally Section of Indalwai Range,
Nizamabad Forest Division of Nizamabad District,
erstwhile Kamareddy Forest Division of Nizamabad District
Telangana State.
.....Petitioner
And
The State of Telangana, rep.by its Principal Secretary to
Government, Environment Forests Science and Technology
Department, Telangana Secretariat, Hyderabad 500 022 and others.
.....Respondents
JUDGMENT PRONOUNCED ON : 04.09.2020
THE HON'BLE SRI JUSTICE P.NAVEEN RAO
1. Whether Reporters of Local Newspapers may : NO
Be allowed to see the Judgments ? :
2. Whether the copies of judgment may be marked : YES
To Law Reporters/Journals :
3. Whether Their Ladyship/Lordship wish to : NO
See fair Copy of the Judgment ? :
PNR,J
WP No.8639 of 2020 and batch
3
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.8639, 9958 & 9974 OF 2020
Date: 04.09.2020
WP No.8639 of 2020:
Between:
K.Babu, s/o.K.Venkati, aged about 56 years,
Occu: Forest Section Officer/Forester,
Kotalpally Section of Indalwai Range,
Nizamabad Forest Division of Nizamabad District,
erstwhile Kamareddy Forest Division of Nizamabad District
Telangana State.
..... Petitioner.
And
The State of Telangana, rep.by its Principal Secretary to
Government, Environment Forests Science and Technology
Department, Telangana Secretariat, Hyderabad 500 022 and others.
..... Respondents
This Court made the following:
PNR,J
WP No.8639 of 2020 and batch
4
HON'BLE SRI JUSTICE P.NAVEEN RAO
WRIT PETITION NOs.8639, 9958 & 9974 OF 2020
COMMON ORDER:
In these three writ petitions, petitioners are working as Forest Section Officers and are aspiring for promotion to the post of Deputy Range Officer. By proceedings dated 10.6.2020, juniors to the petitioners were promoted as Deputy Range Officers ignoring the petitioners. Petitioners allege that they were ignored for promotion on the ground that punishment of 'CENSURE' was imposed on them and that they are under currency of punishment. While in W.P.No.8639 of 2020, petitioner only seeks direction to consider him for promotion in the vacancy arose on 01.07.2020 due to retirement of the incumbent; in W.P.Nos.9958 and 9974 of 2020, petitioners challenge the order dated 10.06.2020 promoting their juniors and seek direction to grant them promotion on par with their juniors retrospectively with all consequential benefits. However, the crux of the issue in these three writ petitions is, what is meant by currency of punishment and when juniors to petitioners were promoted, whether petitioners were under currency of punishment. Thus, as the issue is same in all the three writ petitions, they are considered and decided by this common order.
2. To the extent relevant, facts as averred in the affidavits filed in support of the writ petitions are as under:
(i) W.P.No.8639 of 2020:
On 13.03.2015 charge memo was drawn which contains three charges. The disciplinary proceedings resulted in imposing the punishment of 'Censure' vide order dated 13.02.2019. This order of punishment has become final. On 28.06.2019 five juniors to petitioner PNR,J WP No.8639 of 2020 and batch 5 were promoted as Deputy Range Officers but petitioner was not considered. On 24.2.2020 proposals were called to take up promotions. In the seniority list as on 1.1.2020 petitioner stood at serial no.6. However, on 10.6.2020 promotions were granted to eight of his juniors by-passing the petitioner.
(ii) W.P.No.9958 of 2020:
On 10.04.2018 charge-memo was drawn against petitioner alleging misconduct. The disciplinary proceedings resulted in imposing punishment of CENSURE vide order dated 25.09.2018. This order of punishment has become final. On 28.06.2020 five juniors to petitioner were promoted as Deputy Range Officers by-passing the petitioner.
(iii) W.P.No.9974 of 2020 :
On 09.04.2018 charge-memo was drawn against petitioner alleging misconduct. The disciplinary proceedings resulted in imposing punishment of CENSURE vide order dated 25.09.2018. This order of punishment has become final. On 28.06.2020 two juniors to the petitioner were promoted as Deputy Range Officers by-passing the petitioner.
3. According to learned counsel for petitioners as the post of Deputy Range Officer is a non selection post, seniority alone is the criteria for consideration for promotion. Thus, the punishment of Censure does not come in the way of considering and granting promotion to petitioners. By placing reliance on the interim order of this Court in W.A.No.1158 of 2016 dated 21.11.2016, learned counsel submits that as observed by the Division Bench, after the currency of the punishment of Censure employee cannot be ignored for promotion.
PNR,J WP No.8639 of 2020 and batch 6
4. He would further submit that even assuming that currency of punishment is operative for a period of one year, by the time juniors were promoted, the period of punishment was over and therefore it is illegal to ignore them for promotion and promoting their juniors.
5. Learned Government Pleader would submit that it is consistent policy of the Government that an employee under currency of punishment cannot be considered for promotion. He would submit that as per Rule 6 of the Telangana State and Subordinate Service Rules, 1996, the eligibility of a person for promotion has to be assessed as on the commencement of panel year. The panel year commences on first of September of the year. Person has to be eligible and qualified to be promoted by 31st August of the panel year to be considered for promotion during the panel year. If an employee is under currency of punishment as on the date of commencement of the panel year, he cannot be considered for promotion during the panel year. As punishment was imposed on 13.2.2019, on 25-09-2018 and 25-09-2018 respectively and as per the Government policy, the currency of punishment is one year, on the date of commencement of the panel year 2019-20, i.e., 01.09.2019 since petitioners were under currency of punishment, they were rightly ignored while granting promotions to their juniors.
6. The issue for consideration is whether punishment of censure debar an employee for promotion and if so, what is the currency of such punishment?
7. To appreciate the issue, the relevant statutory provisions which require consideration are, Rules 51 & 62 of the Telangana State and 1 "5. Selection posts:- (a) All first appointments to a State Service and all promotions/appointment by transfer in that service shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, by the appointing authority as specified in sub-rule (a) of Rule 6 from the panel of candidates. Such panel shall be prepared as laid down in Rule 6 by the appointing authority or any other authority empowered in this behalf.
PNR,J WP No.8639 of 2020 and batch 7 Subordinate Service Rules, 1996 (for short, General Rules). Rule 9 of Telangana State Civil Services (Classification, Control & Appeal) Rules 1991 (for short, 1991 Rules).
8. The 'General Rules' deal with general conditions of service of all Government employees. Rule 5 deals with procedure for promotion to selection posts and non-selection posts. According to this Rule, non- gazetted posts are not treated as selection posts. According to sub-rule
(b) of Rule 5, for non-section posts, promotion/appointment by transfer to higher post be made in accordance with the seniority cum fitness.
9. Rule 6 deals with method of preparation of panels for selection and non-selection posts. As per Rule 6(i) for non-selection posts the appointing authority is required to prepare a list of 'eligible' employees every year i.e. from the 1st September of the year to 31st August of the succeeding year after considering the record sheet and qualifications prescribed for promotion to next higher category.
10. Rule 9 of The Telangana Civil Services (Classification, Control and Appeal) Rules 1991 (for short the Rules, 1991) prescribes various punishments that can be imposed on employees. Penalties are divided into two categories, minor penalties and major penalties. One of the minor penalties is "CENSURE" [Rule 9(i)3.
(b) Non-selection posts:- No Non-Gazetted post should be treated as selection post. Promotion and appointment by transfer to higher posts other than those mentioned in sub-rule (a) shall be made in accordance with seniority-cum-fitness, unless,-(i) such promotion or appointment by transfer of a member has been withheld as a penalty; or (ii) a member is given special promotion for conspicuous merit and ability. 2 "6. METHOD OF PREPARATION OF PANELS:- (a) The panel of approved candidates referred to in sub-rule (a) of rule 5 shall be prepared by the appointing authority or any other authority empowered in this behalf, in consultation with, the Departmental Promotion Committee in respect of posts outside the purview of the Telangana State Public Service Commission and Screening Committee in respect of the posts within the purview of the Telangana State Public Service Commission to recommend the names to the Commission. The appointing authority shall make appointments of candidates from such panel/list, in the order in which the candidates in such panel are arranged in their order of preference.
(b) The panel of candidates for appointment by transfer to a service or a class of service in any case, where the Commission is not consulted on the suitability of candidate for such appointment under sub-clause (b) of Clause (3) of Article 320 of the Constitution of India or for promotion, shall be prepared ordinarily during the month of September every year on the basis of estimate of vacancies sent in terms of sub-rule (d). First September of the year shall be reckoned as the qualifying date to determine the eligibility of a candidate for such appointment, which shall cease to be in force on the afternoon of the 31st December of the succeeding year or till the next panel is prepared whichever is earlier and for the purpose of preparing the said panel, the zone of consideration shall be in the ratio of 1:3. The period from 1stSeptember of the year to the 31st August of the succeeding year shall be reckoned for purpose of determining the number of vacancies during the panel. No panel shall be prepared for a particular panel year, after the date of expiry of such panel year, for any reasons, except review of panels already prepared:
xxxxxx
(i) Non Selection Posts:- For non selection posts referred to in sub rule (b) of rule 5 the appointing authority shall prepare a list of eligible employees every year i.e. from 1st September of the year to 31stAugust of the succeeding year after considering the record sheet and the qualifications prescribed for the said post in the relevant Special Rules for promotion to next higher category of non-selection post."
3Rule 9. Penalties : The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:-
Minor Penalties: (i) Censure; ..............Major Penalties: ..............
PNR,J WP No.8639 of 2020 and batch 8
11. Though enough guidance is provided in General Rules 5 & 6, the General Rules and 1991 Rules are silent on effect of punishment of "CENSURE" and currency of such punishment on claim for promotion, more specifically for non-selection posts, leaving the field open to State to exercise its executive power. Power is also traceable to employer's competence to regulate conditions of service of employees if field is not occupied by Legislation and Rules made in exercise of power under proviso to Article 309 of the Constitution of India. Accordingly, Government issued orders from time to time prescribing guidelines on when to draw panels for promotion; how to consider; whom to consider;
the effect of punishment imposed; pending disciplinary proceedings/ criminal proceedings, what is meant by CENSURE and its effect, etc.
12. Vide G.O.Ms.No.187 General Administration (Services-B) Department dated 25.4.1985, Government notified detailed instructions/ guidelines regarding consideration of employees by departmental promotion committees to various categories of posts, procedure required to be followed by such committees and appointing authorities for such consideration. According to paragraph-114, an employee who is undergoing punishment should not be recommended for promotion. If the period of punishment imposed is already over, his case has to be evaluated by Departmental Promotion Committee on merits.
13. There was some ambiguity on effect of 'Censure' and its scope. Government opined that penalty of Censure has bearing on assessment of the Government servant about his merit or suitability for promotion and necessity to specify the time limit during which the said penalty of Censure is effective, besides defining 'CENSURE'. Accordingly, G.O.Ms 4"11. Procedure to be followed to process the cases of persons who had undergone punishment:-- It has been decided that an individual, who is undergoing punishment, should not be recommended for promotion. In cases, where the period of punishment imposed is already over, each case has to be evaluated by Departmental Promotion Committee on merits."
PNR,J WP No.8639 of 2020 and batch 9 No. 53 General Administration (Service C) Department dated 4.2.19975 was issued.
14. Having realized that there is need to issue comprehensive instructions on currency of punishment and its effect on claims to consider for promotion, vis-à-vis orders in G.O.Ms.No.187, dated 25.04.1985, in G.O.Ms.No.342 General Administration (Ser.C) Department, dated 04.08.1997, consolidated earlier orders and specified the currency of various punishments provided in Rule 9 of the Rules, 1991 and their effect. Sub-paragraph (i) deals with "CENSURE". It reads as under:
(i) Censure In terms of orders issued in G.O.Ms No. 53 Genl.Admn (Ser.C) Dept., dt 4.2.1997 "every Censure awarded shall debar a Govt. employee for promotion / appointment by transfer for one year to both selection and non selection posts."
15. The power to issue Government orders are traceable to Article 1626 of the Constitution of India. Under Article 162 the executive power of the State is co-terminus with legislative power. State can step in, to formulate policies to regulate conditions of service in exercise of executive power. It can fill the void created by statute or rules made in exercise of power under proviso to Article 309 of the Constitution. Only restriction on this power is, it cannot trench into area covered by legislation or subordinate legislation. It can supplement a legislation/subordinate legislation but cannot supplant. As noted above on scope of consideration for promotion of an employee who is visited with punishment of 'CENSURE' field is not covered by any Act of State Legislature and the Rules made in exercise of power under proviso to Article 309 of the Constitution.
Effect:-- Every censure awarded shall debar a Government servant for promotion/ appointment by transfer for one year to both Selection and Non Selection posts. 5 6 "Article 162. Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof."
PNR,J WP No.8639 of 2020 and batch 10
16. On Scope of power of the Executive under Article 162 of the Constitution, we are not in virgin territory. There is enough precedential guidance in the pronouncements by the Hon'ble Supreme Court. The path is well laid and illuminated. Briefly noted hereunder few landmark decisions on the issue:
16.1. In Rai Sahib Ram Jawaya Kapur v. State of Punjab7, Constitution Bench of Supreme Court held,
"7. ..... Thus under this article the executive authority of the State is exclusive in respect to matters enumerated in List II of Seventh Schedule. The authority also extends to the Concurrent List except as provided in the Constitution itself or in any law passed by Parliament. Similarly, Article 73 provides that the executive powers of the Union shall extend to matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement. The proviso engrafted on clause (1) further lays down that although with regard to the matters in the Concurrent List the executive authority shall be ordinarily left to the State it would be open to Parliament to provide that in exceptional cases the executive power of the Union shall extend to these matters also. Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr Pathak seems to suggest, that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 172 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr Pathak's contention." [emphasis supplied] 16.2. In State of Andhra Pradesh and another v. Lavu Narendranath and others8, four learned Judges of Supreme Court held, "7. ...... Under Article 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make laws but this is subject to the provisions of the Constitution." [emphasis supplied] 16.3. In Bishambhar Dayal Chandra Mohan v. State of U.P.,9 following the decision in Rai Sahib Ram Jawaya Kapur (supra), Supreme Court held, 7 AIR 1955 SC 549 8 (1971) 1 SCC 607 PNR,J WP No.8639 of 2020 and batch 11 "20. Even assuming that the impugned teleprinter message is not relatable to the two Control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check-posts on the border and place restrictions on inter-district movement of wheat by traders on private account within the State. The executive power of a modern State is not capable of any precise definition. In Ram Jawaya Kapur v. State of Punjab [AIR 1955 SC 549 : (1955) 2 SCR 225 : 1955 SCJ 504] Mukherjea, C.J., dealt with the scope of Articles 73 and 162 of the Constitution. The learned Chief Justice observed that neither of the two Articles contains any definition as to what the executive function is or gives an exhaustive enumeration of the activities which would legitimately come within its scope. It was observed: "Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away." It is neither necessary nor possible to give an exhaustive enumeration of the kinds and categories of executive functions which may comprise both the formulation of the policy as well as its execution. In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill."
[emphasis supplied] 16.4. In P.H.Paul Manoj Pandian v. P.Velduri10, Supreme Court delineated the scope of Article 162 as under:
"46. Under Article 162 of the Constitution, the executive power of the State extends to matters with respect to which the State Legislature has power to make laws. Yet the limitations on the exercise of such executive power by the Government are twofold; first, if any Act or law has been made by the State Legislature conferring any function on any other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power nor can the Governor exercise such power in regard to that matter through officers subordinate to him. Secondly, the vesting in the Governor with the executive power of the State Government does not create any embargo for the legislature of the State from making and/or enacting any law conferring functions on any authority subordinate to the Governor. xxxx
48. The powers of the executive are not limited merely to the carrying out of the laws. In a welfare State the functions of the executive are ever widening, which cover within their ambit various aspects of social and economic activities. Therefore, the executive exercises power to fill gaps by issuing various departmental orders. The executive power of the State is coterminous with the legislative power of the State Legislature. In other words, if the State Legislature has jurisdiction to make law with respect to a subject, the State executive can make regulations and issue government orders with respect to it, subject, however, to the constitutional limitations. Such administrative rules and/or orders shall be inoperative if the legislature has enacted a law with respect to the subject. Thus, the High 9 (1982) 1 SCC 39 10 (2011) 5 SCC 214 PNR,J WP No.8639 of 2020 and batch 12 Court was not justified in brushing aside the Government Order dated 16-11-1951 on the ground that it contained administrative instructions."
[emphasis supplied]
17. These decisions make it amply clear that power to notify policy guidelines regulating conditions of service of it's employees, in exercise of power under Article 162 of the Constitution is available to the executive of the State.
18. At this stage it is necessary to consider the decision relied by the learned counsel for petitioner, albeit an interlocutory order passed by the Division Bench of this Court on 21.11.2016 in W.A.No.1158 of 2016. In the said case, Division Bench directed consideration of the claim of the petitioner therein for promotion as he has already undergone the punishment of withholding of increments and not with reference to currency of punishment. In support of the said directions, the Division Bench placed reliance on Full Bench decision of Madras High Court in Deputy Inspector General of Police, Thanjavur Range, Thanjavur and another Vs. V.Rani11.
19. I have carefully gone through the judgment of the Full Bench of the Madras High Court. Before the Full Bench of the Madras High Court the issue for consideration was 'how long an employee visited with punishment of withholding increments for two years without cumulative effect, can be ignored for promotion?' 19.1. From the judgment of the Full Bench, it is seen that the Government of Tamilnadu issued orders on consideration of the claims of persons who were visited with punishments. Contrary to the said orders, on 7.10.2005, Secretary to Government issued letter containing consolidated instructions explaining about the scope of government 11 2011 (3) CTC 129 = PNR,J WP No.8639 of 2020 and batch 13 orders and on preparation of the estimation of vacancies and panels. This is not an order issued by the Government in exercise of power under Article 162 of the Constitution of India.
19.2. Full Bench observed that Government order No. 368 dated 4.2.1997 can be correlated to an administrative instruction given by the Government under Article 162 of the Constitution of India and the Government order and the subsequent letter cannot be said as steps taken to fill the gaps and it cannot substitute the statutory Rule. Having said so, the Full Bench rejected the contention that a person can be ignored for promotion only if punishment of withholding of promotion is imposed but not otherwise. The Full Bench held that pendency of punishment can certainly be a ground to deny promotion till the completion of the period of punishment. Full Bench declared that during the currency of minor punishment an employee cannot claim as a matter of right to be promoted to the next category merely because he is otherwise fit for promotion.
20. The legality of the policy decision of the government in G.O.Ms.No.342 dated 4.8.1997 to deny promotion against employee imposed with punishment, during the currency of the punishment and currency period was considered by the Division Bench of this Court in State of Andhra Pradesh and Ors Vs. K. Abhimanyudu12. In the said case, the employee was visited with punishment of withholding three annual grade increments with cumulative effect. As per G.O.Ms.No.342 dated 4.8.1997 said employee was not to be considered for promotion for twice the period. The Division Bench considered the validity of such policy decision and also circular instructions issued contrary to the 12 MANU/AP/0521/2009 PNR,J WP No.8639 of 2020 and batch 14 policy notified in G.O.Ms.No.342, dated 4.8.1997. The Division Bench declared that G.O.Ms.No.342 dated 4.8.1997 has the effect of law and is binding. It is useful to extract the relevant paragraph of the judgment of the Division Bench.
"17..We have considered the effect of both the circulars and are of the opinion that the Government, in exercise of its power under Article162 of the Constitution of India, issued G.O.Ms.No.342, dated 04- 08-1997, which has the effect of law. The Government is entitled to conduct its business by issuing appropriate orders in the name of Governor, which shall be specified under the Rules. C.C.A. Rules have been specifically enacted in exercise of powers of the State under proviso to Article 309 of the Constitution of India. As the Rules made under the A.P. Civil Services (Classification, Control and Appeal) Rules do not provide the effect of penalty, the Government issuedG.O.Ms.No.342 under executive power. Therefore, the order of the Government, issued in the name of Governor of Andhra Pradesh, under Article 162 of the Constitution of India has an effect of law. As the aforesaid G.O. issued by the Government in exercise of its executive power under Article 154/162 of the Constitution of India is having force of law, as the effect of penalty is not covered by any statutory Rules, both the memos, dated 04-11-1999 and 09-02-2009 are issued by the Secretary to the Government..............." (emphasis supplied)
21. This decision of the Division Bench was not brought to the notice of the subsequent Division Bench, when interim order was made on 21.11.2016 in W A No. 1158 of 2016. In view of the declaration given by the Division Bench, G.O. Ms No. 342 dated 4.8.1997 has force of law.
22. From these Government orders, the policy of the government is clearly discernible. Government does not intend to grant promotion to an employee who is visited with punishment of CENSURE for a period of one year and while assessing suitability the same would be taken into consideration.
23. The next aspect requires consideration is whether petitioners were eligible for promotion during the panel year 2019-20. As per the above Government Orders read with Rules 5 and 6 of the General Rules, a person seeking promotion even to a non-selection post must be 'eligible' and was not 'debarred' for consideration for promotion and being included in the list of candidates for promotion drawn and operative for PNR,J WP No.8639 of 2020 and batch 15 the year commencing from 1st September and such eligibility should be assessed as on First September of the panel year.
24. It is significant to note the word 'debar' used in paragraph under heading "Effect" in G O Ms NO. 53 dated 4.2.1997 and in the table in paragraph 3 of G.O.Ms No. 342 dated 4.8.1997. Word 'debar' literally means "exclude", "prohibit", "disqualify", "declare ineligible a person", in the present contest from seeking promotion. As per Rule 6
(i) of the General Rules, one of the requirements to include a person in the list of employees for promotion to a non-selection post is, that employee should be "eligible". The word "eligible" literally means "legally qualified", "worthy of choice", "suitable", "fit to be chosen". The word "qualified" means "a condition or status of an officer, the performance by such person of things which are required to be performed to be eligible, endowed with equities which fit the person" in the instant case "to aspire for promotion".
25. A cumulative reading of terms employed in Government policy decisions read with Rule 6 (i) of the General Rules, it is beyond pale of doubt that if person is debarred for consideration for promotion for certain period, he cannot be treated as eligible for promotion during that period. Thus, the punishment of 'CENSURE' has the effect of declaring an employee as ineligible during the currency of punishment and if currency of one year is not completed by 1st September of the panel year, for that panel year. It is appropriate to note that even to non-selection posts promotion is not automatic based on seniority but is subject to assessment of 'fitness and eligibility'.
26. The next aspect is whether 'debarring' the petitioners from being included in the eligibility list for promotion in the panel year 2019-20, PNR,J WP No.8639 of 2020 and batch 16 promoting their juniors by treating that the petitioners are under currency of punishment would offend their right for promotion. An employee has a right for consideration for promotion and that cannot be deprived, but has no right to be promoted as a matter of course. Conduct of the employee prior to coming within the zone of consideration and becoming eligible for promotion is crucial for granting elevation of status. Employee has to earn promotion by dint of hard work, good conduct and obedience. Good conduct is an essential concomitant to bestow promotion and if conduct in the present post is not up to the mark and resulted in imposing punishment he can be ignored/ superseded. This is also necessary for purity of administration and is in larger public interest. It is all the more necessary in the present context of falling standards and accountability of bureaucracy.
27. I am guided in my view by the opinion expressed by the Hon'ble Supreme Court in Union of India and others v. K.V.Jankiraman and others13. It is held, "29. ........On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct." 13 (1991) 4 SCC 109 PNR,J WP No.8639 of 2020 and batch 17
28. The Government policy noted above only emphasizes this requirement. An employee whose conduct was not satisfactory and disciplinary action resulted in punishment cannot stand on par with employee whose conduct is good. It would be anti-thesis to the very objective of elevation of status of an employee. The requirement of 'fitness' provided in Rule 6(i) of the General Rules takes in its component this aspect. The State as an employer is competent to deny him promotion during the currency of the punishment and as the punishment of CENSURE forms part of the service record it is also a factor in assessing the suitability of a person while he comes up for consideration for promotion. Such course does not amount to double punishment and the doctrine of 'double jeopardy' is not attracted. On a cumulative reading of the Rules and the policy documents of the Government noted above, it is evident that if the employee is under currency of punishment as on the date of commencement of the panel year, he can be ignored even to non-selection post and his junior can be promoted.
29. In cases on had, petitioners were imposed with punishment of 'CENSURE' on 13.02.2019, 25.09.2018 and 25.09.2018 respectively. As per the Government Orders referred to above and Rule 6 (i) of the General Rules, the currency of punishment is one year which would expire on 12.02.2020, 24.09.2019 and 24.09.2019 respectively. Thus, all the petitioners were under the currency of punishment and were 'debarred' and were thus 'ineligible' for consideration for promotion on the date of commencement of panel year 2019-20, i.e., 01.09.2019. Thus, there was no illegality in excluding them for promotion while promoting their juniors on 10.06.2020, which promotions were effected during the said panel year.
PNR,J WP No.8639 of 2020 and batch 18
30. I, therefore, see no merit in the claims of petitioners. Writ Petitions are accordingly dismissed. Pending miscellaneous petitions, if any, stand closed.
__________________________ JUSTICE P.NAVEEN RAO Date: 04.09.2020 Tvk/kkm PNR,J WP No.8639 of 2020 and batch 19 HON'BLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.8639, 9958 & 9974 OF 2020 Date: 04.09.2020 Tvk/kkm