IMPORTANT POINT
An employee cannot claim promotion during disciplinary proceedings if the applicable rules and circulars permit withholding such promotion.

JUDGMENT :

Debangsu Basak, J.

1. Appellant has assailed the order dated March 5, 2024 passed by the learned Single Judge in WPO 1348 of 2023.

2. By the impugned order, learned single judge has dismissed the writ petition filed by the appellant assailing an order dated November 16, 2022 passed by the Chairman and Managing Director of the respondent No. 1 pursuant to the order dated September 27, 2022 passed in WPA 24815 of 2016.

3. Learned advocate appearing for the appellant has submitted that a disciplinary proceeding as against the appellant culminated into an order of censure. He has submitted that the appellant was entitled to a promotion during the pendency of the disciplinary proceedings. Appellant had been recommended for promotion but such promotion was kept in abeyance due to the pendency of the disciplinary proceeding. On the conclusion of the disciplinary proceeding appellant should have been granted the promotion to the post for which he was recommended to during the pendency of the disciplinary proceeding. However, appellant had been granted promotion subsequent to the conclusion of the disciplinary proceeding without being granted the promotion to which he was recommended, during the pendency of the disciplinary proceeding.

4. Learned advocate appearing for the appellant has drawn the attention of the Court to the circular dated October 5, 2007 on the basis of which, the authorities purported to deny promotion to the post which the appellant was entitled to during the pendency of the proceedings. He has submitted that the circular dated October 5, 2007 was not framed by the board of the respondent No. 1. Therefore, according to him, the circular dated October 5, 2007 cannot be mobilized for the purpose of denying promotion to the appellant during the pendency of the disciplinary proceeding.

5. Learned advocate appearing for the appellant has submitted that, the only punishment imposed as against the appellant in the disciplinary proceeding is one of censure. Respondent No. 1 is reading another punishment into the order of the disciplinary authority namely denial of promotion or withholding of promotion which cannot be done in law.

6. Learned advocate appearing for the appellant has drawn the attention of the Court to the Conduct Discipline and Appeal Rules, 1978 (CDA) of the respondent No. 1. He has submitted that, such rules enumerated the penalties that can be imposed in a disciplinary proceeding. Penalties that can be imposed have been divided into two parts, namely, minor and major penalties. Withholding of promotion has been enumerated in the list of minor penalties that may be imposed in a disciplinary proceeding. Appellant has suffered a disciplinary proceeding where, the disciplinary authority did not impose the punishment of withholding of promotion. Therefore, the circular dated October 5, 2007 cannot be deployed for the purpose of adding to the punishment that has been already imposed in the disciplinary proceeding.

7. Learned advocate appearing for the appellant has drawn the attention of the Court to the maxim “expression unius est exclusion alterius” and contended that, since CDA enumerates withholding of promotion as one of the minor penalties, with the imposition of the penalty of censure, no further punishment can be imposed on the appellant.

8. Relying upon 2012 (5) SCC 242 (Vijay Singh vs. State of Uttar Pradesh and Others) learned advocate appearing for the appellant has submitted that, withholding of promotion when the only punishment imposed is censure, will lead to imposition of un-prescribed punishment which is impermissible in law.

9. Learned advocate appearing for the respondent authorities has submitted that the appellant suffered a punishment of censure in a disciplinary proceeding. He has referred to the circular dated October 5, 2007 and contended that, such circular permits withholding of the promotion during the pendency of the disciplinary proceeding. He has referred to the contents of the