The main legal point established in the judgment is that the penalty cannot be given retrospective effect from a period when the employee was not under a cloud, and promotion should be granted based on the employee's eligibility at the relevant time.

JUDGMENT

Jyoti Singh, J. (Oral)--Present writ petition has been filed by the Petitioner seeking the following reliefs:

"A. Issue a writ of Certiorar? for quashing of the impugned order dated 7.2.2019 passed by the respondent being violative of Article-14 & 16 of Constitution of India;

B. A writ of Mandamus directing the respondent to consider the petitioner for promotion to the post of Judicial Assistant w.e.f. 20.6.2008 as granted to the immediate junior namely Ravi Shanker with all consequential benefits;"

2. The factual matrix is in a narrow compass.

3. Petitioner was appointed as Ahlmad in the District Court on 25.06.2003 after due selection. On 19.06.2009, a charge sheet was served upon the Petitioner alleging that he had not consigned the decided files in the record room. A detailed reply was submitted by the Petitioner stating that the decided files could not be consigned due to shortage of staff and heavy workload of the routine work in the pending matters.

4. Thereafter, inquiry was initiated against the Petitioner, which culminated into a penalty of withholding of one increment without cumulative effect vide order dated 19.07.2011, which admittedly was not assailed by the Petitioner.

5. This Court vide judgment dated 02.05.2017 in W.P.(C) 5686/1998 decided certain issues pertaining to promotions of the District Court staff and the relevant part of the judgment is as follows:

"15. This petition therefore succeeds. The respondent GNCTD is directed to forthwith sanction the up-gradation of/upgrade the posts of LDCs to UDQs in terms of the office memorandums dated 1st October, 1979 and 20th March, 1994, of the staff working in the office of the District & Session Judge, Delhi, Judge Small Causes Court, Delhi and Administrative Civil Judge, Delhi save whose posts have already been upgraded pursuant to the orders in CWP No.907/1996. The same together with all consequential steps be done/taken within a period of eight weeks from today."

6. Pursuant to the said judgment, the Respondent convened a meeting of the Selection Committee on 19.08.2017 for filling up vacancies of Judicial Assistants Group `B' (Non-Gazetted), wherein the immediate junior of the Petitioner namely, Shri Ravi Shanker was recommended for promotion from 20.06.2008. Based on the recommendations of subsequent Selection Committee held on 08.11.2017 Petitioner was recommended for promotion and was placed at serial no. 24 of the list albeit promotion to the post of Judicial Assistant was made effective from 01.07.2013 and Petitioner was placed at serial no. 39 in the provisional seniority list.

7. Aggrieved by the fact that the Petitioner was given promotion from 01.07.2013 as against the actual promotion of his immediate junior from 20.06.2008 and notional promotion from 24.05.2008, Petitioner made a representation to the Respondent on 09.01.2018, seeking promotion from 24.05.2008. Reliance was placed by the Petitioner on a DOPT O.M. dated 02.11.2012 and the plea was that in 2008 the Petitioner was not under a cloud as no charge sheet had been issued and therefore, there was no reason for denying him promotion from the date of notional promotion of his immediate junior Shri Ravi Shanker. Petitioner made another representation dated 01.11.2018 reiterating his request and relying on the judgment of the Supreme Court in Shiv Kumar Sharma v. Haryana State Electrcity Board, Chandigarh and Others, 1988 Supp SCC 669.

8. Respondent rejected the representation of the Petitioner by order dated 07.02.2019 taking a stand that Petitioner was correctly promoted from 01.07.2013, when the currency of the penalty imposed on him expired and the action was in consonance with DoPT O.M. dated 28.04.2014. Petitioner thereafter filed the present writ petition seeking promotion from the date of grant of promotion of his immediate junior.

9. Contention on behalf of the Petitioner is that Petitioner was eligible to be considered for promotion to the post of Judicial Assistant in t