An employee is eligible for promotion after conclusion of disciplinary proceedings, and penalties may be considered in promotion decisions.

I.P. MUKERJI, J.

The appellants are aggrieved by the judgment and order dated 5th December, 2012 passed by Mr. Justice Ashok Kumar Dasadhikari.

2. The proceeding before the learned Judge arose in the following way.

3. On 5th June, 1987 an order of suspension was passed by the appellant authority against the respondent on the charge of dishonesty and financial irregularities causing huge loss to it. He was suspended from 6th June, 1987 till 10th September, 1991. On 7th October, 1987 a charge-sheet was issued against him. The memorandum of charges was amended on 15th February, 1988. On 15th January, 1991 the enquiry proceeding was completed.

4. From 1991, it took the appellant authority five years to pronounce the final order in the disciplinary proceedings. This final order was pronounced on 18th September, 1996. The respondent was held guilty. One increment of the respondent was withheld for four years having the effect of postponing future increments. The period of suspension was treated as having been spent on duty by the respondent.

5. The respondent appealed before the appellate authority.

6. On 1st April, 1997 the authority more or less affirmed the order of the disciplinary authority with the modification that the next increment would be postponed by 4 years but without postponing the future increments. In other words, withholding of increments did not have any cumulative effect. Meanwhile the respondent who was working in the post of a lower division clerk, at the time of suspension, became eligible for promotion to the post of an Upper Division Clerk on 23rd September, 1993. It was a non-selection post. The respondent's promotion was withheld.

7. On 21st May, 1994 the written test was taken for selection and/or promotion to the post of Calculator, a selection post. On 8th June, 1994, the interview was taken. On 13th June, 1994, a panel of selected candidates for promotion to this post was published. As disciplinary proceedings against the respondent were pending his results were kept in a ‘Sealed Cover’ to be opened after they were over.

8. Finally on 9th January, 2001, the respondent was promoted to the post of Upper Division Clerk on completion of the punishment period or the period during which his increment was withheld, i.e. four years.

9. The respondent was aggrieved by this decision. He filed the instant writ application in this Court. The principal relief prayed for in this writ was as follows:

(a) A writ of and/or in the nature of mandamus commanding the respondents concerned, each one of them, their servants and agents and/or subordinates and/or assigns to act and proceed in accordance with law and further commanding them to determine and/or fix the date of promotion of the petitioner to the post of Upper Division Clerk with effect from 23.09.1993 instead of 9.1.2001 by restoring his seniority over and above the respondent No. 3 and also directing them to open the sealed cover and thereafter appoint the petitioner to the post of Calculator on the basis of the merit position of the petitioner in the panel dated 13.6.1994 as contained in annexure ‘P/4’ to this petition within a specified time.

10. At this point of time, it is very necessary to know the law on the subject. The root case on the subject is Union of India v. K.V Jankiraman reported in (1991) 4 SCC 109 : AIR 1991 SC 2010.

11. The law is this. An employee may be due for promotion when disciplinary proceedings are started or continuing against him. He is not considered for promotion till the conclusion of the disciplinary proceedings. This is so because the law discourages promotion and punishment at the same time. If the employee's promotion is to take place almost automatically, through a non-selection procedure, then that promotion is not granted to him. It is kept in abeyance. If the employee's promotion is through selection then he is allowed to write the written test and take part in the interview but the results are kept in a ‘Sealed Cover’ till