Point of Law: Penalty of stoppage of one increment without cumulative effect - Promotion - Retrospective effect - Petitioner shall be entitled to promotion to post of Judicial Assistant w.e.f. July 05, 2008 with all consequential benefits but with 50% back wages.

JUDGMENT :

V. KAMESWAR RAO, J.

1. This petition has been filed by the petitioner seeking his promotion to the post of Judicial Assistant w.e.f. July 05, 2008.

2. Some of the brief facts are, on July 05, 2003, the petitioner was appointed as Lower Division Clerk in the Office of the District and Sessions Judge (HQs). While working on the post of Ahlmad, in the Court of the then learned Additional Sessions Judge, Patiala House Courts, New Delhi, he was charge-sheeted for illegally supplying uncertified copies of an order dated July 28, 2009. The said charge-sheet resulted in a penalty of stoppage of two increments without cumulative effect vide order dated September 02, 2014. On an appeal filed by the petitioner against the order of the penalty, the same was modified to the extent it was converted as withholding of one increment without cumulative effect vide order dated August 02, 2016.

3. On August 23, 2017, an order was issued by the respondent promoting 838 Junior Judicial Assistants (LDCs) to the post of Judicial Assistants (UDCs) from different dates.

4. The case of the respondent is, the petitioner has been given promotion to the post of Judicial Assistant w.e.f. July 01, 2016 on the petitioner serving the penalty period.

5. It is the submission of Mr. Rajat Aneja, that the petitioner had completed five years of service as Junior Judicial Assistant (LDC) for being promoted as Judicial Assistant (UDC) on July 05, 2008 and many of his colleagues have been granted promotion from that date. His submission was also that, as there was no charge-sheet issued/pending on July 05, 2008, there was no impediment for the petitioner to be appointed as Judicial Assistant. In support of his submission, he has relied upon the instructions issued by DoP&T annexed at Page 71 of the paper book to contend that a penalty is not an impediment for the respondent to promote the petitioner with effect from July 05, 2008. He would rely upon the Judgment in the case of Sushant vs. The District and Sessions Judge, W.P. (C) No. 2894/2019 decided on January 30, 2020. He also relied upon Pradeep Kumar vs. The District and Sessions Judge, W.P. (C) No. 2219/2018, decided on March 09, 2018, N.K. Sood vs. Food Corporation of India and Others, C.W.P. No. 6543/1992 of the Punjab and Haryana High Court decided on April 03, 2012 and Union of India vs. K. Krishnan, Civil Appeal No. 4718/1991 decided on November 20, 1991.

6. On the other hand, Mrs. Avnish Ahlawat, learned counsel appearing for the respondent would justify the action of the respondent by contending that the petitioner has been rightly given promotion w.e.f. July 01, 2016 when the penalty ceased to operate.

7. Having considered the submissions made by the learned counsel for the parties, the only issue which arises for consideration is whether the petitioner is entitled to promotion w.e.f. July 05, 2008 or July 01, 2016 as has been given to him.

8. The promotion in this case was given in the year 2017 with retrospective effect. Concedingly, the charge-sheet which has been issued to the petitioner was in the year 2009. The eligibility for promotion from the post of Junior Judicial Assistant to Judicial Assistant is five years. The petitioner had completed five years on July 05, 2008. The promotion not only depends upon the eligibility, it also depends upon the availability of a vacancy. I find from the promotion order, that persons have been promoted till 2014. There cannot be any contest that there were vacancies available for promoting the petitioner on July 05, 2008. The petitioner has stated that many of his colleagues have been promoted on completion of five years, the only case of the respondent is, that the petitioner has been granted promotion from July 01, 2016 as the penalty was in vogue till June 30, 2016. The issue in this regard has to be seen from the perspective, whether on July 05, 2008, was there any impediment that would disentitle the petitioner, promotion as Judicial Assistant. In normal