ORDER

1. Leave granted.

2. While the respondent was working as Assistant Statistical Officer, the State had initiated proceedings against him for misconduct in the year 1978 and by order dated 6-12-1982 punishment of stoppage of three increments without cumulative effect was imposed. On appeal, it was set aside in August 1984 and re-inquiry was directed. On fresh inquiry, the same punishment was imposed by proceedings dated 6-9-1984. For consideration of promotions to the post of Deputy Director during the year 1983-84, the name of the respondent was not included in the approved list as required under Rule 8 of the Tamil Nadu Statistics Service Rules (for short "the Rules"). The respondent filed OA No. 138 of 1991 in the Administrative Tribunal, Madras. The Tribunal by the impugned order dated 16-6-1993 allowed the OA No. 138 of 1991, set aside the order and directed reconsideration with effect from 1983-84. It would appear that subsequently his case was considered and he was promoted with effect from 31-8-1988.

3. The only question is whether non-consideration of the respondents promotion for the year 1983-84 is in accordance with law. The Tribunal found that having imposed the penalty of punishment of stoppage of three increments, promotion cannot be withheld on that account which otherwise amounts to "double jeopardy" offending Article 21 of the Constitution and that, therefore, it is arbitrary exercise of power violating Article 14 read with Article 16 of the Constitution. We find the reasoning of the Tribunal to be not correct.

4. It is contended by Mr Pandey, learned counsel for the respondent, that under Rule 8 of the Rules, the relevant date to be considered for inclusion in the list of the approved candidates for promotion is 1st September of the year of consideration. In 1984 when the respondents claim was to be approved by the Government, there was no punishment in the eye of law and that, therefore, non-consideration of his case is vitiated by error of law.

5. We find no substance in the contentions. It is already seen that on 6-12-1982, the punishment of stoppage of two increments was imposed and it was in vogue on 6-11-1984, when the list was approved by the Government. The punishment was reiterated after fresh inquiry. Rule 3 of the Rules provides that "promotion to the posts of Director of Statistics, Deputy Director of Statistics shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal". In other words, the claim of Assistant Statistical Officer for promotion to Deputy Director shall be considered on grounds of merit and ability alone. Unless the seniority is approximately equal, seniority has no role to play and needs to be relegated to the background.

6. A Bench of three Judges of this Court in Union of India v. K. V. Jankiraman {(1991) 4 SCC considered thus: (SCC p. 123, para 29)

"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 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 p