RAM ASHISH DIXITversusCHAIRMAN PURVANCHAL GRAMIN BANK LIMITED AND ANR.

                        [201 ~~] 13 S.C.R. 332


A                       RAM ASHISH DIXIT
                                  v.
    CHAIRMAN PURVANCHAL GRAMIN BANK LIMITED AND
                             ANR.
              (Civil AppEtal No. 6072 of 2012)
B
                         AUGUST 22, 2012
     [SURINDER SINGH NllJJAR AND H.L. GOKHALE, JJ.]

        SERVICE LAW·
c
       Penalty - Effect of as regards promotion - Bank Officer
  awarded penalty of one increment for three years - Not found
  suitable for promotion - Held: Promotion from Junior
  Management Grade-I to Junior Management Grade-II is on
D the basis of seniority-cum-merit - Clearly, therefore, the fact
  that appellant has been punished for a misconduct would form
  part of his record of service and would be taken into
  consideration whilst adjudging his suitability on the criteria of
  seniority-cum-merit - If on such assessment of his record of
E service he is not promofod, it cannot be said to be by way of
  punishment - It is a non-promotion on account of appellant
  not reaching a suitable standard to be promoted on the basis
  of criteria.

      Union of India and Ors. vs. K. V. Jankiraman and Ors.
                       =
F 1991 (3) SCR 790 1991 (4) sec 109 - relied on.
                         Case Law Reference:
        1991 (3) SCR 790          relied on             para 7
G       CIVIL APPELLATE JURISDICTION: Civil Appeal No.
    6072 of 2012.

        From the Judgment & Order dated 15.06.2007 of the High
    Court of Judicature at Allahabad in CMWP No. 38084of1999.
H                                332
  RAM ASHISH DIXIT v. CHAIRMAN PURVANCHAL                  333
       GRAMIN BANK LIMITED AND ANR.
     Dhruv Mehta, Fakhruddin, Abhay Singh, Yasmin Zafar, Dr. A
Vipin Gupta, Rajesh Kumar, Yashraj Singh Deora, Sameer
Pradeep Abhyankar, Anupama Dhruv, Sarv Mitter (for Mitter &
Mitter Co.), K.T. Anantharam, Vasudevan Raghavan, Gopal
Krishna, M.K. Chaudhary, Raj Kishore, S.K. Verma for the
appearing parties.                                           B

    The following order of the Court was delivered by

                            ORDER

     1. Leave granted.                                             c
      2. The appellant herein was appointed as an officer in the
Gorakhpur Kshetriya Gramin Bank on 21.12.1981. He was
confirmed on the post of officer [later on designated as Junior
Management Grade Scale I (JMGS-1)] in the year 1983. On
18.12.1991, a charge sheet pertaining to the period from 1984      D
to 1990 was prepared against him. At that time he was posted
as Branch Manager, Gajpur Branch, District Gorakhpur. The
charge sheet alleges that while the appellant was posted at
Bhatpur Branch and Gajpur Branch as Branch Manager, he had
committed a serious irregularity in the acceptance/                E
disbursement of loan (of a particular account holder). The gist
of the charge was that he did not verify the genuineness of the
claim made by the account holder for the loan in various small
amounts. The loan amount was to be used by the account
holder, who was an agriculturist, for improving the agricultural   F
facilities on his farm. On the basis of those imputations it was
alleged that the appellant has violated, Rules 17 and 19 of the
Gorakhpur Kshetriya Gramin Bank (Employees) Service
Regulation, 1980. It is not disputed before us that the charge
sheet was served upon the appellant on January, 1982.              G
Thereafter a regular inquiry was held against him. The inquiry
officer held that the charge No.3 was proved. Subsequently, the
disciplinary authority differed with the finding recorded by the
inquiry officer. The charge Nos. 1 and 2 were also held to be
proved against the appellant. At the conclusion of the             H
    334      SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A   disciplinary proceedings on 29th August, 1998 the disciplinary
    authority imposed punishment of stoppage of one increment for
    three years and 50% recovery of the sanctioned loan amount
    in case the Bank fails to' recover the same from the farmer to
    whom the loan had been grated. It appears that in a
B   departmental appeal filed by the appellant, by Order dated 15th
    December, 1998, the appellate authority modified the order of
    punishment, by reducin~1 the amount of recovery from 50% to
    Rs.5,000/-. The aforesaid order was communicated to the
    appellant on 7.1.1999.
c        3. During the aforesaid interregnum, the appellant became
    eligible for promotion from the rank of Junior Management
    Grade-I to Middle Management Grade-II. He was duly
    considered for promotion by the departmental promotion
    committee, which was held in the year 1995. It is the pleaded
D   case of the respondent-Bank, in Paragraph 12 of the counter
    affidavit filed in the High Court (Annexure P-13 in the SLP), that
    the appellant was duly c:onsidered for promotion but he could
    not succeed on the basis of the criteria of seniority-cum-merit.
    It appears that another departmental selection committee was
E   constituted on 5th Sept.3mber, 1997 when the appellant was
    also duly considered but not approved for promotion. This fact
    is also alluded to by the appellant in his representation dated
    1.9.1999 sent to the Chairman of the Gramin Bank. In this
    representation, he categorically states that in the promotion
F   process held in the years 1995 and 1997 he was duly
    considered but not promoted.

         4. On 28th March, 1998, the Bank issued Circular No. 63
    prescribing certain new procedures and penalties for the officers
G   of the Bank. The aforesaid Circular notices the earlier
    procedure which provided that the officers against whom
    disciplinary proceedings, are pending or contemplated or an
    officer who has been punished in the recent past years or
    against whom there are any adverse remarks shall be unfit for
H   promotion. It is further noticed that inspite of the aforesaid
  RAM ASHISH DIXIT v. CHAIRMAN PURVANCHAL                      335
       GRAMIN BANK LIMITED AND ANR.
criteria, "at the time of deciding the competency of the              A
candidates, they had been called for interview, not keeping in
view the aforesaid facts. As per above, even last year, all
officers were called in interview".

      5. The Circular further provides that henceforth the B
departmental promotion committee shall follow the sealed
cover procedure which is applicable in the sponsor Bank. It is
clarified that "this procedure will be applicable to the earlier
sealed cover results and the results to be kept in sealed covers
in future." The Circular further provides that where on
completion of disciplinary proceedings, an officer is punished C
with stoppage of increments or promotions, in such cases,
officer will not be eligible to be considered for promotion till after
the rigor of punishment is over. As noticed earlier, the appellant
was duly considered for promotion in the year 1995 and he was
not found fit for promotion. In the year 1997, although he was D
considered for promotion but his result was kept in a sealed
cover. In the meantime, the appellant was punished by Order
dated 29th August, 1998. Apprehending that the Bank may not
consider him for promotion, the appellant submitted a
representation on 19th May, 1999. However, it is a matter of E
record that the appellant was actually considered for promotion
in the departmental promotion committee which was held on
31st August, 1999. The sealed cover procedure having been
opened and the appellant having been punished on the basis
of the charge sheet the appellant in view of the Circular No. F
63 dated 28.3.1998 was not promoted in the year 1999 also.
It was at that stage when the appellant filed Civil Misc. Writ
Petition No. 38084 of 1999 in the High Court of Judicature at
Allahabad against the action taken by the Bank.
                                                                       G
      6. In the writ petition, the appellant had claimed writ in the
nature of certiorari quashing the orders dated 31.8.1999 and
2.9.1999 whereby he was informed that he has not been
promoted. The appellant also sought a writ in the nature of
Mandamus directing the respondent to open the sealed cover H
    336      SUPREME COURT REPORTS                (2012] 13 S.C.R.


A   result adopted in the year 1997. He made an alternative prayer
    that the petitioner be considered for promotion in the
    departmental promotion committee which was to be held on 6th
    September, 1999. The aforesaid prayers, however, have been
    rejected by the High Court in the impugned judgment and order
B   dated 13th June, 2007.

       7. Learned counsel for the appellant submitted that the
  appellant ought to have been promoted firstly in the year 1995
  as at that time, sealed cover procedure was not even followed
  by the Bank. In any event, the appellant ought to have been
C promoted in the year 199"7 when the Bank kept his result in a
  sealed cover without any legal justification. Even if the appellant
  was not to be promoted in the year 1995 or 1997, the name of
  the petitioner could not have been ignored in the year 1998 as
  by that time, the Bank had itself decided to impose only minor
D punishment of "stoppage of one increment" though it was for a
  period of three years. Having chosen to punish the appellant
  by imposition of a minor penalty of stoppage of one increment,
  the stoppage of promotion of the appellant amounts to double
  punishment. Consequently, the action of the respondents is
E violative of Article 14/Article 16 of the Constitution of India.
  Learned counsel further submitted that the petitioner is entitled
  to promotion from the back date i.e. 1997 when the result of
  the consideration of the departmental promotion committee
  was illegally kept in a sealed cover. Mr. Dhruv Mehta, learned
F senior counsel and Mr. Rajesh Kumar, learned counsel
  appearing for the respondent Bank have submitted that the
  appellant was all along facing the departmental proceedings
  whilst his case for promotion, along with other eligible officers
  In his category, was being considered for promotion in the
G years 1995, 1997 and 199'9. The appellant having been duly
  considered in the years 1995 and 1997 can have no legitimate
  grievance to complain of any departmental action by the
  respondent Bank. It is further submitted that subsequently, the
  appellant having been found guilty by the inquiry officer and
H having been punished, t~e appellant cannot complain that his
  RAM ASHISH DIXIT v. CHAIRMAN PURVANCHAL                       337
       GRAMIN BANK LIMITED AND ANR.

non-promotion would amount to a double'punishment. The                  A
respondent places reliance on the judgment of this Court in the
case of Union of India and Others versus K. V. Jankiraman
and Others reported in 1991 (4) SCC 109, wherein it is clearly
held that non promotion of an officer on the basis of the record,
by taking into consideration the punishments imposed for a              B
misconduct, cannot be described/categorized as a second
punishment.

     8. We have considered the submissions made by the
learned counsel.
                                                                        c
      9. In the facts of this case, it would not be possible to agree
with the appellant that the action of the Bank is either arbitrary
or without legal sanction. The appellant did not have any right
to be promoted automatically on completion of minimum length
of service. He had to be declared suitable for promotion on the         D
criteria applicable. At this stage, we may usefully refer to the
observations made by this Court in Paragraph 29 of the
judgment in Union of India and others versus K. V. Jankiraman
and Others (supra) wherein it is observed as follows:
                                                                        E
     "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
                                                                        F
     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 public
     interests. An employee found guilty of a misconduct cannot         G
     be placed on par with the other employees and his case
     has to be treated differently. There is, therefore, no
     discrimination when in the matter of promotion, he is
     treated differently. The least that is expected of any
     administration is that it does not reward an employee with         H
    338        SUPREME COURT REPORTS                [2012] 13 S.C.R.


A          promotion retrospectively from a date when for his conduct
           before that date he is penalised in praesenti. When an
           employee is held guilty and penalised and is, therefore, not
           promoted at least till the date on which he is penalised,
           he cannot be said to have been subjected to a further
B          penalty on that account. A denial of promotion in such
           circumstances is not a penalty but a necessary
           consequence of his conduct."

       In our opinion, the aforesaid observations are fully
C applicable to the facts and circumstances of this case.

       10. The criteria for promotion from Junior Management
  Grade-I to Middle Management Grade-II is on the basis of the
  seniority cum-merit. Clearly therefore, the fact that the appellant
  has been punished for a misconduct, the same would form a
D part of his record of service which would be taken into
  consideration whilst adjudging his suitability on the criteria of
  senioritycum-merit. If on such assessment of his record of
  service the appellant is not promoted, it cannot be said to be
  by way of punishment. It is a non-promotion on account of the
E appellant not reaching a suitable standard to be promoted on
  the basis of the criteria. In v,iew of the above, we find no merit
  in the civil appeal. The same is, accordingly, dismissed.

    R.P.                                          Appeal dismissed.