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PETITIONER: UNION OF INDIA ETC. ETC.

       Vs.

RESPONDENT: K.V. JANKIRAMAN ETC. ETC.

DATE OF JUDGMENT27/08/1991

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. MISRA, RANGNATH (CJ) KANIA, M.H.

CITATION:  1991 AIR 2010            1991 SCR  (3) 790  1991 SCC  (4) 109        JT 1991 (3)   527  1991 SCALE  (2)423

ACT:     Civil Services: Government of India (Deptt. of Personnel and  Training) Office Memorandum No.  22011/1/79  Estt.  (A) dated 30. 1.82--Promotion--Sealed cover procedure-When could be  resorted  to--Exoneration  from  all   charges--Notional promotion  from the date the juniors were  promoted--Arrears of  salary from date of notional  promotion--Grant  of--Pro- ceedings delayed because of the employee’s acts or acquitted on benefit of doubt or owing to non-availability of evidence due  to  employee’s acts--Entitlement to back  wages--To  be decided  by the authority concerned--Employee  visited  with penalty  in  disciplinary  proceedings or  found  guilty  by court--Findings  contained in sealed cover--not to be  acted upon--Consideration  for promotion-Whether  authority  could take  into  account past record  including  penalty  awarded earlier.     Constitution of India, 1950:Article 20(2)--Non-promotion of   employee   till  the  date  on  which   he   was   held guilty--Whether amounts to double jeopardy.     Fundamental Rules: Rule 17( 1)--No work no pay rule  Ap- plicability  of--Where employee willing but not  allowed  to work.

HEADNOTE:     When  an employee is due for promotion,  increment  etc. but  disciplinary/criminal proceedings are  pending  against him at the relevant time, the findings of his entitlement to such  benefit are kept in a sealed cover to be opened  after the proceedings in question are over.     According to this procedure, while the findings are kept in  the sealed cover, the vacancy which might have  gone  to the  officer  concerned  is filled only  on  an  officiating basis.  If on the conclusion of the departmental/court  pro- ceedings,  the officer concerned is  completely  exonerated, and  where he is under suspension it is also held  that  the suspension  was  wholly unjustified, the  sealed,  cover  is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is Idled on an 791

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officiating basis, the officiating arrangement being  termi- nated.  On  his promotion, the officer gets the  benefit  of seniority  and  fixation  of pay on a  notional  basis  with reference  to the date on which he would have been  promoted in    the    normal   course,   but   for    the    .pending disciplinary/court  proceedings.  However,  no  arrears   of salary. are paid in respect of the period prior to the  date of actual promotion.     Sometimes  the cases in the courts or  the  departmental proceedings  take unduly long time to come to  a  conclusion and  the officers undergo considerable hardship, even  where it was not intended to deprive. them of promotion for such a long  time.  The Government in consultation with  the  Union Public  Service Commission examined how the hardship  caused to  the  Government servant in such circumstances  could  be mitigated  and  laid down certain procedures  by  an  Office Memorandum No. 2201111179-Eatt. (A) dated January 30, 1982.     In  interpreting the Memorandum as to what is  the  date from  which it can be said that  disciplinary/criminal  pro- ceedings  are pending against an employee; as to what  would be the course to be adopted when the employee is held guilty in  such  proceedings if the guilt merits  punishment  other than that of dismissal; and as to what benefits an  employee who is completely or partially exonerated is entitled to and from  which date, different Benches of the Central  Adminis- trative Tribunal recorded their findings and while doing so, the Full Bench of the Tribunal struck down two provisions of the said Memorandum dated January 30, 1982, which related to a  prohibiton against acting upon the findings contained  in the sealed cover in case the officer was imposed penalty  as a result of disciplinary proceedings or found guilty in  the Court  proceedings against him and regarding arrears of  pay for the period of notional promotion.     Aggrieved by the decisions of the various Benches of the Tribunal, the Union of India and other authorities preferred the present appeals and special leave petitions. Disposing of them matters, this Court,     HELD: 1. The sealed cover procedure is to be resorted to only  after  the  charge-memo/charge-sheet  is  issued.  The pendency  of preliminary investigation prior to  that  stage will  not be sufficient to enable the authorities  to  adopt the  sealed cover procedure. The preliminary  investigations take  an inordinately long time and particularly  when  they are  initiated  at the instance of the  interested  persons, they are kept 792 pending  deliberately. Many times they never result  in  the issue  of any charge-memo/charge-sheet. If  the  allegations are  serious and the authorities are keen  in  investigating them ordinarily it should not take much time to collect  the relevant  evidence and finalise the charges. If the  charges are that serious, the authorities have the power to  suspend the  employees under the relevant rules, and the  suspension by  itself permits a resort to the sealed  cover  procedure. The  authorities  thus are not without  a  remedy.  [799F-H; 800A-B]     2.  When  an employee is completely  exonerated  meaning thereby  that he is not found blame worthy in the least  and is  not visited with the penalty even of censure, he has  to be given the benefit of the salary .of the higher post along with the other benefits from the date on which he would have normally  been  promoted but for  the  disciplinary/criminal proceedings. However, there may be cases. where the proceed- ings,  whether disciplinary or criminal, are delayed at  the instance  of the employee or the clearance in the  discipli-

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nary proceedings or acquittal in the criminal proceedings is with  benefit of doubt or on account of  nonavailability  of evidence  due to the acts attributable to the employee  etc. In  such  circumstances, the concerned authorities  must  be vested with the power to decide whether the employee at  all deserves  any  salary for the intervening period and  if  he does,  the extent to which he deserves it. Life. being  com- plex, it is not possible to anticipate and enumerate exhaus- tively all the circumstances under which such  consideration may become necessary..To ignore, however, such circumstances when  they  exist and lay down an inflexible  rule  that  in every    case   when   an   employee   is   exonerated    in disciplinary/criminal  proceedings he should be entitled  to all salary lot the intervening period is to undermine disci- pline in the administration and jeopardise public interests. The  Tribunal  was  not right in holding that  to  deny  the salary to an employee would in all circumstances be illegal. [802G-H; 803A-D]     3. The normal rule of "no work no pay" is not applicable to  cases where the employee although he is willing to  work is  kept away from work by the authorities for no  fault  of his. This is not a case where the employee remains away from work  for his own’ reasons, although the work is offered  to him.  It  is for this reason that F.R.  17(1).will  also  be inapplicable to such caseS. [802F-G]     4. The Tribunal erred in holding that when an officer is found  guilty in the discharge of his duties, an  imposition of  penalty is all that is necessary to improve his  conduct and to enforce discipline and ensure purity in the  adminis- tration. In the first instance, the penalty short of 793 dismissal  will vary from reduction in rank to censure.  The Tribunal has not intended that the promotion should be given to the officer from the original date even when the  penalty imparted is of reduction in rank. On principle, the  officer cannot  be rewarded by promotion as a matter of course  even if  the  penalty is other than that of  reduction  in  rank. [804F-G]     5. An employee has no right to promotion. He has only  a right  to  be considered for promotion. The promotion  to  a post 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 misconduct cannot 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. [804G-H; 805A]     6.  The least that is expected of any administration  is that  it does not reward an employee’with  promotion  retro- spectively from a date when for his conduct before that date he is penalised in presenti. 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 penalty on  that  account.  A denial  of promotion in such circumstances is not a  penalty but a necessary consequence of his conduct. [805B-C]     7. While considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration  and denies him the promotion, such denial  is not illegal and unjustified. If the. promoting authority can take into consideration the penalty or penalties awarded  to

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an employee in the past while considering his promotion  and deny him promotion on that ground, it will be irrational  to hold that it cannot take the penalty into consideration when it’  is imposed at a later date because of the  pendency  of the  proceedings, although it. is for conduct prior  to  the date the authority considers the promotion. [805C-D]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil "Appeals  Nos.  30 18-21 of 1987.     From  the Judgment and Orders dated 24.4.87,  2.3.87,  & 1.4.87 of the Central Administrative Tribunal, Hyderabad  in Original Applica- 794 tion  No.  121/86, T.A. Nos. 958& 180 of 1986 and  O.A.  No. 140of 1986. WITH     CA  Nos. 3016/88 & 51-55/90 with CA Nos. 3083 & 4379  of 1990 and S.L.P. (C) Nos. 1094, 2344/90, 11680 of 1991. Altar  Ahmed,  Additional Solicitor General,  V.C.  Mahajan, J.D. Jain,  C.V.S. Rao, Hemant Sharma, B. Parthasarthy, A.  Subba Rao, M.N.  Krishnamani, Pravir Choudhary, Ms. Indu Malhotra,  Ms. Shirin  Jain, T.V.S.N. Chari, Ms. Suruchi Aggarwal  and  Ms. Manjula Gupta for the appearing parties. The Judgment of the Court was delivered by     SAWANT,  J.  Civil  Appeals Nos.  3019/87,  3020/87  and 3016/88 arise out of the judgment dated March 2, 1987 deliv- ered by the Full Bench of the Central Administrative  Tribu- nal (hereinafter referred to as the ’Tribunal’).     Civil Appeals Nos. 3018/87 and 3021187 arise out of  the judgments dated April 24, 1987 and April 1, 1987 respective- ly of the Tribunal, Hyderabad Bench.     Civil Appeals Nos. 3083/90 and 4379/90 arise out of  the judgments dated March, 2, 1989 and September 15, 1989 of the Madras and Hyderabad Bench of the Tribunal respectively  and which are based on the aforesaid decision of the Full  Bench of the Tribunal.     Civil Appeals Nos. 51-55 of 1990 arise out of the  deci- sion dated July 12, 1989 of the Tribunal, Chandigarh Bench.     Special  Leave Petition (C) No. 1094 of 1990 arises  out of the decision dated June 29, 1989 of the Tribunal;  Bombay Bench.     SpeCial  Leave Petition (C) No. 2344 of 1990 arises  out of  the  decision dated 18th September, 1989  given  by  the Tribunal, Principal Bench, New Delhi.     Special Leave Petition (C) No. 11680 of 1991 arises  out of  the decision dated January 25, 1991 given by the  Tribu- nal, Principal Bench, New Delhi.     2,  The common questions involved in all  these  matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are:--(1)  what is the date from which it can be  said  that disciplinary/criminal proceedings are 795 pending  against an employee? (2) What is the course to  be, adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3)  To what benefits an employee who is completely or  par- tially  exonerated is entitled to and from which date?’  The ,’sealed cover procedure" is adopted when an employee is due for  promotion,  increment  etc.  but  disciplinary/criminal

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proceedings are pending against him at the relevant time and hence,  the findings of his entitlement to the  benefit  are kept in a sealed cover to be opened after the proceedings in question  are over’. Hence. the relevance and importance  of the questions.     3.  The Union of India and the other  appellant-authori- ties have by these appeals challenged the findings  recorded by the different Benches of the Tribunal in reply to one  or the  other’ of or all the aforesaid three questions, in  the decisions  impugned therein. While recording  its  findings, the  Full  Bench of the Tribunal has also  struck  down  two provisions  of  the Central Government  Memorandum  of  30th January, 1982 on the subject. We may, therefore, first refer to the said memorandum.     4. The Government of India (Deptt. of Personnel & Train- ing)  issued an Office Memorandum No, 22011/1/79. Estt.  (A) dated January 30, 1982 on the subject of promotion of  offi- cers  in whose cases "the sealed cover procedure"  had  been followed  but  against whom  disciplinary/court  proceedings were  pending  for a long time. The Memorandum  stated  that according  to the existing instructions, cases  of  officers (a)  who are under suspension or (b) against whom  discipli- nary proceedings are pending or a decision has been taken by the  competent disciplinary authority to initiate  discipli- nary  proceedings or, (c) against whom prosecution has  been launched  in a court of law or sanction for prosecution  has been issued, are considered for promotion by the  Departmen- tal  Promotion  Committee (hereinafter referred  to  as  the ’DPC’)  at  the  appropriate time but the  findings  of  the Committee are kept in a sealed cover to be opened after  the conclusion of the disciplinary/court proceedings. While  the findings  are  kept in the sealed cover, the  vacancy  which might  have gone to the officer concerned is filled only  on an officiating basis. If on the conclusion of the departmen- tal/court  proceedings, the officer concerned is  completely exonerated, and where he is under suspension it is also held that the suspension was.wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If  the  officer  could have been promoted  earlier,  he  is promoted  to  the  post which is filled  on  an  officiating basis, the officiating arrangement being terminated. On his 796 promotion,  the  officer gets the benefit of  seniority  and fixation  of pay on a notional basis with reference  to  the date  on  which he would have been promoted  in  the  normal course, but for the pending disciplinary/ court proceedings. However,  no  arrears of salary are paid in respect  of  the period. prior to the date of actual promotion. The  Memoran- dum goes on to state further that it was noticed that  some- times  the cases in the courts or the departmental  proceed- ings  take unduly long time to come to a conclusion and  the officers undergo considerable hardship, even where it is not intended to deprive them of promotion for Such a long  time. The  Government, therefore, in consultation with  the  Union Public  Service Commission examined how the hardship  caused to  the  Government  servant in such  circumstances  can  be mitigated and has laid down the following procedure in  such cases:               "3. (i)(a) It may be ascertained whether there               is  any departmental  disciplinary-proceedings               or any case in a court of law pending  against               the individual under consideration, or               (b)  there is a prima-facie case on the  basis               of which a decision has been taken to  proceed               against the official either departmentally  or

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             in a court of law. ’               (ii) The facts may be brought to the notice of               the  Departmental PromOtion Committee who  may               then assess the suitability of the official(s)               for  promotion to the next grade/post and  for               the  purpose  of this assessment,  the  D.P.C.               shall not take into consideration the fact  of               the  pending case(s) against the official.  In               case  an official is found "unfit  for  promo-               tion’  on  the basis of  his  record,  without               taking into consideration, the case(s) pending               against him, the findings of the D.P.C.  shall               be recorded in the proceedings. In respect  of               any  other  kind of  assessment,  the  grading               awarded by the D.P.C. may be kept in a  sealed               cover.               (iii) After the findings are kept in a  sealed               cover by the Departmental Promotion  Committee               subsequent  D.P.Cs.,  if any, held  after  the               first  D.P.C. during the period the  discipli-               nary/court  proceedings may be  pending,  will               also  consider the officer’s case  and  record               their  findings. which will again be  kept  in               sealed cover in the above manner.               797                        In the normal course, on the  conclu-               sion  of the  disciplinary/court  proceedings,               the sealed cover or covers may be opened,  and               in  case the officer is completely  exonerated               i.e.  no statutory penalty, including that  of               censure,  is  imposed, the  earliest  possible               date of his promotion but for the pendency  of               the  disciplinary/court  proceedings   against               him,  may be determined with reference to  the               position(s) assigned to him in the findings in               the sealed cover/covers and with reference  to               the  date of promotion of his next  junior  on               the  basis of such position. The officer  con-               cerned  may then be promoted, if necessary  by               reverting  the juniormost officiating  person,               and he may be given a notional promotion  from               the  date  he  would have  been  promoted,  as               determined in the manner indicated above.  But               no arrears of pay shall be payable to him  for               the  period .of notional promotion  proceeding               the date of actual promotion.                        If  any  penalty is  imposed  on  the               officer  as a result of the disciplinary  pro-               ceedings or if he is found guilty in the court               proceedings  against him, the findings in  the               sealed  cover/covers shall not be acted  upon.               The  officer’s case for promotion may be  con-               sidered in the usual manner by the next D.P.C.               which  meets  in the normal course  after  the               conclusion of the disciplinary/court  proceed-               ings.  The existing instructions provide  that               in  a  case  where  departmental  disciplinary               proceedings have been held under the  relevant               disciplinary  rules, "warning" should  not  be               issued as a result of such proceedings. If  it               is  found as a result of the proceedings  that               some  blame attaches to the officer, then  the               penalty of censure at least should be imposed.               This  may be kept in view so that no  occasion               arises  for any doubt on the point whether  or

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             not an officer has been completely  exonerated               in disciplinary proceedings held against him."     Clause  (iv) of Para 3 of the Memorandum then lays  down the procedure for ad hoc appointment of the concerned  offi- cer  when the disciplinary/court .proceedings are  not  con- cluded  even after the expiry of two years from the date  of the  DPC which first considered him for promotion and  whose findings are kept in the sealed cover, provided however that the officer is not under suspension. It is not necessary  to reproduce  that  clause in extenso here. Suffice it  to  say that  the Memorandum urges that in making the ad hoc  promo- tion in such cases, his case should be placed before the DPC which is held after the 798 expiry  of  the  said period of two years, and  the  ad  hoc promotion has to be made on the basis of the totality of the record of service etc.     Para  4  of the Memorandum states that  if  the  officer concerned  is  acquitted  in the court  proceedings  on  the merits  of the case or exonerated in departmental  discipli- nary  proceedings, the ad hoc promotion already made may  be confirmed  and the promotion treated as a regular  one  from the  date of the ad hoc promotion with all  attendant  bene- fits. In such cases, the sealed cover may be opened and  the official may be assigned his place in the seniority list  as he  would have got in accordance with the recommendation  of the DPC. Paras 5, 6 and 7 of the Memorandum then read as follows:                         "5.  Where the acquittal in a  court               case is’ not on merits but purely on technical               grounds, and the Government either proposes to               take  the matter to a higher court or to  pro-               ceed  against the officer departmentally,  the               appointing  authority may review  whether  the               ad-hoc promotion should be continued.                         6. Where the ’acquittal by court  is               on  technical grounds, if the Government  does               not propose to go in appeal to a higher  court               or to take further departmental action, action               should  be taken in the same manner as if  the               officer  had  been acquitted by the  court  on               merits.                        7.  If the officer concerned  is  not               acquitted/exonerated in the court  proceedings               or  the departmental proceedings,  the  ad-hoc               promotion already granted should be brought to               an  end  by the issue of the  "further  order"               contemplated in the order of ad-hoc  promotion               (Please see para 3(vi) above) and the  officer               concerned  reverted to the post from which  he               was  promoted  on  ad-hoc  basis.  After  such               reversion,  the officer may be considered  for               future  promotion in the usual course  by  the               next D.P.C." ,     5.  To bring the record uptodate, it may be pointed  out that in view of the decision of this Court in Union of India &  Anr.  v. Tajinder Singh, [ 1986] 2 Scale 860  decided  on September 26, 1986, the Government of India in the Deptt. of Personnel  & Training issued another’ Office Memorandum  No. 22011/2/86.  Estt. (A) dated January 12, 1988, in  superses- sion of all the earlier instructions on the subject 799 including  the  Office Memorandum dated 30th  January,  1982 referred  to above. There is no difference in  the  instruc- tions contained in this and the earlier aforesaid Memorandum

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of January 30, 1982, except that this Memorandum provides in paragraph 4 for a six-monthly review of the pending proceed- ings  against the Government servant where  the  proceedings are  still at the stage of investigation and if as a  result of the review, the appointing authority comes to the conclu- sion on the basis Of material and evidence collected in  the investigation  till that time, that there is no prima  facie case in initiating disciplinary action or sanctioning prose- cution,  the sealed cover is directed to be opened  and  the employee  is  directed to be given his  due  promotion  with reference to the position assigned to him by the the DPC.  A further  guideline contained in this Memorandum is that  the same sealed cover procedure is to be applied where a Govern- ment  servant is recommended for promotion by the  DPC,  but before  he is actually promoted, he is either  placed  under suspension or disciplinary proceedings are taken against him or  decision has been taken to initiate the  proceedings  or criminal prosecution is launched or sanction for such prose- cution  has been issued or decision to accord such  sanction is taken.     These  differences in the two Memoranda have no  bearing on the questions to be answered.     6.  On  the  first question, viz., as to  when  for  the purposes    of    the    sealed    cover    procedure    the disciplinary/criminal  proceedings can be said to have  com- menced,  the Full Bench of the Tribunal has held that it  is only  when a charge-memo in a disciplinary proceedings or  a chargesheet  in  a  criminal prosecution is  issued  to  the employee that it can be said that the departmental  proceed- ings/criminal prosecution is initiated against the employee. The  sealed cover procedure is to be resorted to only  after the  charge-memo/charge-sheet  is issued.  The  pendency  of preliminary  investigation prior to that stage will  not  be sufficient  to  enable the authorities to adopt  the  sealed cover  procedure. We are in agreement with the  Tribunal  on this  point. The contention advanced by the learned  counsel for  the appellant-authorities that when there  are  serious allegations and it takes time to collect necessary  evidence to prepare and issue charge-memo/charge-sheet, it would  not be in the interest of the purity of administration to reward the  employee  with  a promotion, increment  etc.  does  not impress  us. The acceptance of this contention would  result in injustice to the employees in many-cases. As has been the experience  so far, the preliminary investigations  take  an inordinately long time and particularly when they are initi- ated at the 800 instance  of the interested persons, they are  kept  pending deliberately.  Many times they never result in the issue  of any charge-memo/chargesheet. If the allegations are  serious and  the authorities are keen in investigating  them,  ordi- narily it slould not take much time to collect the  relevant evidence  and finalise the charges. What is further, if  the charges are that serious, the authorities have the power  to suspend  the  employee  under the relevant  rules,  and  the suspension  by itself permits a resort to the  sealed  cover procedure.  The authorities thus are not without a  ,remedy. It  was  then contended on behalf of  the  authorities  that conclusions  nos. 1 and 4 of the Full Bench of the  Tribunal are  inconsistent with each other. Those conclusions are  as follows:               "(1)  consideration for  promotion,  selection               grade,  crossing the efficiency bar or  higher               scale of pay cannot be withheld merely on  the               ground of pendency of a disciplinary or crimi-

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             nal proceedings against an official;               (               3               )                 ................................................               (4) the sealed cover procedure can be resorted               only  after  a charge memo is  served  on  the               concerned  official or the charge sheet  filed               before the criminal court and not               before . ’ ’     There’ is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be  reconciled with each other. The conclusion no. 1  should be  read to mean that the promotion etc. cannot be  withheld merely  because some disciplinary/criminal  proceedings  are pending against the employee. To deny the said benefit, they must  be  at  the relevant time pending at  the  stage  when charge-memo/charge-sheet  has  already been  issued  to  the employee.  Thus read, there is no inconsistency in  the  two conclusions.     We,  therefore,  repel the challenge of  the  appellant- authorities  to  the said finding of the Full Bench  of  the Tribunal.     7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January. 1982 has, among other things, held that the portion of paragraph 2 of the memoran- dum which says "but no arrears are allowed in respect of the period prior to the date of the 801 actual promotion" is violative of Articles 14 and 16 of  the Constitution because withholding of salary of the promotion- al  post for the perked during which the promotion has  been withheld while giving other benefits, is discriminatory when compared  with other employees’ who are not at the verge  of promotion when the disciplinary proceedings ’ were  intiated against them.      The Tribunal has, therefore, directed that. on exonera- tion.  full salary should be paid to such employee which  he would  have  on promotion if he had not  been  subjected  to disciplinary proceedings.      We  are afraid that the Tribunal’s reference  to  para- graph  2  of the Memorandum is incorrect. Paragraph  2  only recites the state of affairs as existed on January 30,  1982 and  the  portion  of the Memorandum which  deals  with  the relevant point is the ’last sentence of the first  sub-para- graph  after clause (iii) of paragraph 3 of  the  Memorandum which is reproduced above. That sentence reads as follows:               "But no arrears of pay shall be payable to him               for the period of notional promotion preceding               the date of actual promotion".      This sentence is preceded by the observation that  when the’ employee is completely exonerated on the conclusion  of the disciplinary/court proceedings, that is, when no  statu- tory  penalty, including that of censure, is imposed, he  is to be given a notional promotion from the date he would have been  promoted as determined by the  Departmental  Promotion Committee.  This direction in the Memorandum has also to  be read  along  with the other direction which follows  in  the next sub-paragraph and which states that if it is found as a result  of the proceedings that some blame attaches  to  the officer  then  the penalty of censure at  least,  should  be imposed.  This direction is in supersession of  the  earlier instructions which provided that in a case where  departmen- tal  disciplinary  proceedings  have  been  held,  "warning"

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should not be issued as a result of such proceedings.      There  is no doubt that when an employee is  completely exonerated  and  is  not visited with the  penalty  even  of censure  indicating thereby that he was not blame worthy  in the least, he should not be deprived of any benefits includ- ing  the  salary of the promotional post. It  was  urged  on behalf of the appellant-authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes  charge of the same. They relied on F.R.  17(1)’  of the Fundamental 802 Rules and Supplementary Rules which reads as follows:                         "F.R.  17(1) Subject to  any  excep-               tions specifically made in these rules and  to               the  provision  of sub-rule  (2),  an  officer               shall  begin  to draw the pay  and  allowances               attached  to his tenure of a post with  effect               from  the date when he assumes the  duties  of               that  post,  and shall cease to draw  them  as               soon as he ceases to discharge those duties:                         Provided  that  an  officer  who  is               absent  from duty without any authority  shall               not  be  entitled to any  pay  and  allowances               during the period of such absence."     It was further contended on their behalf that the normal rule  is "no work no pay". Hence a person cannot be  allowed to  draw the benefits of a post the duties of which  he  has not discharged. To allow him to do so is against the elemen- tary  rule that a person is to be paid only for the work  he bas  done and not for the work he has not done.  As  against this, it was pointed out on behalf of the concerned  employ- ees,  that on many occasions even frivolous proceedings  are instituted at the instance of interested persons,  sometimes with a specific object of denying the promotion due, and the employee  concerned is made to suffer both mental agony  and privations which are multiplied when he is also placed Under suspension. When, therefore, at the end of such  sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.     We are not much impressed by the contentions advanced on behalf  of the authorities. The normal rule of "no  work  no pay"  is  not applicable to cases such as  the  present  one where  the employee although he is willing to work  is  kept away from work by the authorities for no fault of his.  This is not a case where the employee remains away from work  for his own reasons, although the work is offered to him. It  is for this reason that F.R. 17(1) will also be inapplicable to such cases.     We are, therefore, broadly in agreement with the  -find- ing  of  the Tribunal that when an  employee  is  completely exonerated meaning thereby that he is not ’found blameworthy in  the  least and is not visited with the penalty  even  of censure, he has to be given the benefit of the salary of the higher  post along with the other benefits from the date  on which  he  would  have normally been promoted  but  for  the disciplinary/ 803 criminal proceedings. However, there may be cases’ where the pro  ceedings,  whether disciplinary or criminal,  are,  for example,  delayd  at  the instance of the  employee  or  the clearance  in the disciplinary proceedings or  acquittal  in the  criminal  proceedings is with benefit of  doubt  or  on account  of  non-availability of evidence due  to  the  acts attributable to the employee etc. In such circumstances, the concerned  authorities  must  be vested with  the  power  to

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decide  whether the employee at all deserves any salary  for the  intervening period and if he does, the extent to  which he  deserves it. Life being complex, it is not  possible  to anticipate and enumerate exhaustively all the  circumstances under  which  such consideration may  become  necessary.  To ignorehowever,  such circumstances when they exist  and  lay down’ an inflexi ble rule that in every case when an employ- ee  is exonerated in disciplinary/ criminal  proceedings  he should be entitled to all salary for the intervening  period is to undermine discipline in the administration and jeopar- dise  public interests. We are, therefore, unable  to  agree with  the  Tribunal that to deny the salary to  an  employee would in all circumstances  be illegal. While, therefore, we do  not  ap- prove  of the said last sentence in the first  sub-paragraph after  clause (iii) of paragraph 3 of the  said  Memorandum, viz.. "but no arrears of pay shall be payable to him for the period  of notional promotion preceding  the date of  actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:               "However,  whether the officer concerned  will               be  entitled  to any arrears of  pay  for  the               period  of  notional promotion  preceding  the               date  of actual promotion, and if so  to  what               extent,  will  be  decided  by  the  concerned               authority by taking into consideration all the               facts  and circumstances of  the  disciplinary               proceeding/criminal  prosecution.  Where   the               authority denies arrears of salary or part  of               it, it will record its reasons for doing so."     To this extent we set aside the conclusion of the Tribu- nal on the said point.     8.  The  Tribunal has also struck  down  the  ’following portion  in the second sub-paragraph after clause  (iii)  of paragraph  3  which  reads as follows: "If  any  penalty  is imposed  on  the  officer as a result  of  the  disciplinary proceedings  or if he is found guilty in the court  proceed- ings  against him, the findings in the  sealed  cover/covers shall  not be acted upon" and has directed that if the  pro- ceedings result in a penalty, the person concerned should be considered for promotion in a 804 Review  DPC  as  on the original date in the  light  of  the results of the scaled cover as also the imposition of penal- ty  and his claim for promotion cannot be deferred  for  the subsequent  DPCs as provided in the instructions. It may  be pointed  out that the said sub-paragraph directs  that  "the officer’s case for promotion may be considered in the  usual manner  by  the next DPC which meets in  the  normal  course after the conclusion of the disciplinary/court proceedings". The  Tribunal  has given the direction in  question  on  the ground that such deferment of the claim for promotion to the subsequent  DPCs amounts to a double penalty.  According  to the  Tribunal, "’it not only violates Articles 14 and 16  of the Constitution compared with other .employees who are  not at the verge of promotion when the disciplinary  proceedings are Initiated against them but also offends the rule against double leopardy contained in Article 20(2) of the  Constitu- tion".  The Tribunal has, therefore,.held that when  an  em- ployee  is visited with a penalty as a result of the  disci- plinary  proceedings there should be a Review DPC us on  the date  when the sealed cover procedure was followed  and  the review DPC should consider the findings in the sealed  cover as also the penalty imposed. It is not clear to us as to why the  Tribunal wants the review DPC to consider  the  penalty

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imposed  while considering the findings in the sealed  cover if,  according  to the Tribunal, not giving  effect  to  the findings in the sealed cover even. when a penalty is imposed, amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred  once the  officer is visited with a penalty in  the  disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.     According to us, the Tribunal has erred in holding  that when  an  officer is found guilty in the  discharge  of  his duties, an imposition of penalty is all that is necessary to improve  his  conduct and to enforce discipline  and  ensure purity  in  the administration. In the first  instance,  the penalty short of dismissal will vary from reduction in  rank to  censure. We are sure that the Tribunal has not  intended that  the promotion should be given to the officer from  the original date even when the penalty imparted is of reduction in  rank.  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  and more  so, to a selection post, depends upon several  circum- stances. To qualify for promotion, the least that is expect- ed of an employee is to have an 805 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 be  placed on par with the other employees and his case  has to be treated differently. There is, therefore, no discrimi- nation  when in the matter of promotion, he is treated  dif- ferently.  The least that is expected of any  administration is that it does not reward an employee with promotion retro- spectively from a date when for his conduct before that date he  is  penalised  in presentii. 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 penalty  on  that account. A denial of promotion in such circumstances is  not a  penalty  but a necessary consequence of his  conduct.  In fact, while considering an employee for promotion his  whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration  and denies him the promotion, such denial  is not  illegal  and unjustified. If, ,further,  the  promoting authority can take into consideration the penalty or  penal- ties  awarded to an employee in the past  while  considering his promotion and deny him promotion on that ground, it will be  irrational to hold that it cannot take the penalty  into consideration when it is imposed at a later date because  of the pendency of the proceedings, although it is for  conduct prior to the date the authority considers the promotion. For these  reasons, we are of the view that the Tribunal is  not right  in striking down the said portion of the second  sub- paragraph  after  clause  iii) of paragraph 3  of  the  said Memorandum.  We, therefore, set aside the said  findings  of the Tribunal.     In the circumstances, the conclusions arrived at by  the Full  Bench of the Tribunal stand modified as above.  It  is needless  to add that the modifications which we  have  made above  will  equally  apply to  the  Memorandum  of  January 12,1988

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9.  In the result, in Civil Appeals Nos.  3019/87,  3020/87 and  30  16/88 which arise out of the decision of  the  Full Bench,  the  Division  Bench of the Tribunal  to  which  the matters are remanded by the Full Bench., will dispose of the cases of the employee/s involved in the appeals in the light of what we have held hereinabove. Civil Appeal No. 3018 of 1987     In this case, no charge-sheet was served on the  respon- dentemployee  when the DPC met to consider the  respondent’s promotion. 806 Yet,  the sealed cover procedure was adopted.  The  Tribunal has  rightly  directed the authorities to open  .the  sealed cover  and if the respondent was found fit for promotion  by the DPC, to give him the promotion from the date his immedi- ate  junior  Shri M. Raja Rao was promoted pursuant  to  the order  dated April 30, 1986. The Tribunal has also  directed the  authorities to grant to the respondent all  the  conse- quential  benefits. The Tribunal has further stated  in  the impugned order that its order would not mean that the disci- plinary  proceedings instituted against  the  respondent-em- ployee should not go on. We see no reason to interfere  with this order. The appeal, therefore, stands dismissed. In  the circumstances  of the case, however, there will be no  order as to costs. Civil Appeal No. 302 1 of 1987     In  this case, the DPC did not consider the case of  the respondent-employee for crossing efficiency bar w.e.f.  14th September, 1983 on the ground that disciplinary  proceedings were  contemplated  against him. We are, therefore,  of  the view  that the Tribunal’s direction that the DPC  should  be convened to consider the case of the respondent for crossing the efficiency bar w.e.f. 14th September, 1983 on the  basis of his confidential record at the relevant date and  without reference  to the contemplated disciplinary  proceedings  is both  proper and valid. In this case also the  Tribunal  has given  the said direction without prejudice to the right  of the appellant-authorities to take any disciplinary action as might  have  been  contemplated. This order  also  does  not require any interference from this Court. Hence, the  appeal stands dismissed. In the circumstances of the case, however, there will be no order as to costs. Civil Appeal No. 3083 of 1990 In this case, the respondent-employee’s case was  considered for promotion by the DPC in August 1982. However, the result was kept in     a  sealed  cover  in view of  the  pending  disciplinary proceedings  against  him.  According to  the  employee,  on October  11,  1985  the disciplinary  proceedings  ended  in complete exoneration. Thereafter, a DPC was again constitut- ed  in March 1986 which, after consideration of the  employ- ee’s  case,  recommended him for promotion w.e.f.  July  26, 1986.  this was obviously contrary even to the  instructions contained  in the Memorandum. He was entitled  to  promotion from the date his immediate junior was promoted in or  after August 1982 if he was in August 1982 found fit for promotion by the DPC, The Tribunal has, 807 therefore, rightly directed the appellant to open the sealed cover  and if the DPC in 1982 had found him fit  for  promo- tion,  to give him the promotion from the date on which  his immediate junior was promoted. However, while doing so,  the Tribunal has’ also directed arrears of salary to be paid for intervening  period along with all  consequential  benefits. Since we have held disagreeing with the decision of

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the  Full  Bench of the Tribunal that the .benefit  of  the arrears  of  salary  will not flow  automatically  but  will depend  upon the circumstances in each case, we  modify  the said  order to the extent it directs the payment of  arrears of  salary, and direct the appellant-authority  to  consider whether  the employee in the circumstances of the  case  was entitled  to any arrears of salary and to what  extent.  The authority  will,  of course give reasons for denial  of  the whole or part of the arrears of salary The appeal is, there- fore, allowed partly with no order as to costs. Civil Appeal No. 4379 of 1990     In this case, the respondent-employee was not recommend- ed  for  promotion  by  the  DPC  in  its  meeting  held  on February-1, 1988 Instead, the DPC had kept the results in  a sealed  cover because of the pending dis.ciplinary  proceed- ings. Admittedly, no charge-memo was served.On the  employee till the date the DPC met on February 1, 1988 it was  issued only  in March 2, 1989. The Tribunal  has,-therefor  rightly directed  the authorities tO open the sealed cover. We  are, however, unable to understand the direction of the  Tribunal to convene a Review DPC for considering the employee’s  case as on February 1 1988. If the DPC had considered the case of the  employee  on February 1, 1988 and withheld  the  result because of the pending disciplinary proceedings, the  proper direction would have been to ask the appellant-authority  to open the sealed cover and if the employee was found fit  for promotion,  to direct the authority to promote him from  the date on which his immediate junior was promoted as a  result of  the  recommendation of the DPC on February 1,  1988.  In case  he is so found fit, he would be entitled to the  bene- fits of seniority etc. on a notional basis. However, whether he.  would  be  entitled to the arrears of  salary  for  the intervening period and to what extent will have to be decid- ed  by the appellant authority in the light of what we  have state  above. In case the authority denies to  the  employee the  salary in full or in part, it will, of  course,  record its  reasons for doing so. The appeal is therefore,  allowed partly as above with no order as to costs. .. Civil Appeals Nos. 51-55 of 1990 These  appeals are filed against five  respondent-employees. Dis 808 ciplinary  proceedings as well as criminal prosecution  were launched against each of them for lodging false Leave Travel Concession claims and for using forged documents to  support them. The employees were suspended from service on 15th July , 1983. They admitted guilt and pleaded revocation of  their suspension  on depositing the amount of Rs. 1600. They  were reinstated in service in November, 1983. Keeping in view the deposit of the amount voluntarily in October 1983, a lenient view  was taken and the criminal. prosecutions against  them were  dropped by the Administration by an order  of  January 14,  1985. However, this was done without prejudice  to  the departmental  proceedings which were subsequently  initiated and  the formal chargesheet was issued to the  employees  on December 24, 1987.     The Departmental Promotion Committee met in July 1986 to consider  the cases of the employees for promotion  but  re- sorted to sealed cover procedure in view of the pendency  of the  disciplinary  proceedings  against them.  There  is  no dispute  that  the formal chargesheet was issued  either  on August  or December 24, 1987. Conflicting months  have  been mentioned in the decision of the Tribunal.     However, we find that the Tribunal has taken a  mechani-

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cal  view  and applied the decision of the  Full  Bench  and directed the promotions to be given to the employees on  the basis  of  the recommendations, if any, of the DPC  of  July 1986.  We are of the view that in the present case when  the DPC met in July 1986, the Committee had before it the record of the refund of the amount by the respondent-employ- ees and the consequent withdrawal of the prosecutions  with- out prejudice to the authorities’ right to institute depart- mental proceedings.     In  view of the aforesaid peculiar facts of the  present case,  the DPC which met in July 1986 was justified  in  re- sorting to the .sealed cover procedure, notwithstanding  the fact  that the charge-sheet in the departmental  proceedings was  issued  in  August/December, 1987.  The  Tribunal  was, therefore, not justified in mechanically applying the  deci- sion of the Full Bench to the facts of the present case  and also in directing all benefits to be given to the  employees including  payment of arrears of salary. We are of the  view that  even ’if the results in the sealed cover  entitle  the employees to promotion from the date their immediate juniors were promoted and they are, therefore, so promoted and given notional  ’benefits of seniority etc., the. employees in  no case  should be given any arrears of salary. The  denial  of the benefit of salary will, of course, be in addition to the penalty,.if any,. imposed on the employees at the end of the disciplinary proceedings. We, 809 therefore, allow these appeals as above with no order as  to costs.  S.L.P. (Civil) No. 1094 of 1990 Special leavegranted.     The respondent-employee in this case was a Sepoy in  the Department  of  Central Excise and Customs.  He  passed  his Departmental  examination  for the post  of  Lower  Division Clerk  against  10% vacancies and by letter of  October  14, 1981, he was informed about his selection for the said  post against the said vacancies reserved for educationally quali- fied  Group-D  staff.  However, he was  informed  that.  his appointment order as L.D.C. would be issued if he was  exon- erated  from  the disciplinary proceedings which  were  then pending  against him. In the Departmental Inquiry, .he,  was exonerated  of  all the charges and by an order.of  June  6, 1985 he was appointed to officiate as Lower Division  Clerk. By a subsequent order of July 3, 1985, the earlier order  of June 6, 1985 was made effective from September 25, 1981.  By yet  another  order of July 29, 1985, his pay was  fixed  by giving  him  increment from September 25, 1981  but  he  was denied arrears of pay from that date till June 2, 1985.  The employee  did not challenge the said order denying  him  ar- rears of pay till he made his representation on February 18, 1988.  To his representation a reply was sent that since  he had  not  worked as LDC during the said period  he  was  not entitled to the arrears of salary. By the impugned decision, the  Tribunal has directed the authorities to grant  to  the respondent-employee  his pay and allowances  from  September 25, 1981 to June 2, 1985.     In  view of what we have held above, the appeal  is  al- lowed,  the impugned order is hereby set aside  and  instead the appellant-authorities are directed to examine the  ques- tion  whether  the respondentemployee was  entitled  to  any salary  and  if so to what extent in the light of  the  view taken by us. The appellant-authorities will, of course, have to  record reasons if the arrears of salary in its  entirety or in part are denied to the employee. In the  circumstances of the case, however, there will be no order as to costs.

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S.L.P. (Civil) No. 11680of1991 Special leave granted’.     The  order  impugned in this appeal is  an  interim  one whereby  the  Tribunal has directed the  appellant-Union  of India to open the sealed 810 cover  and  if the result shows that the DPC has  found  the respondentemployee fit for promotion to the post of  Commis- sioner of Incometax, to give effect to the said  recommenda- tions. The admitted facts are that the DPC which met in 1988 had  considered the respondentemployee’s case for  promotion to  the post of Commissioner of Income-tax.  However,  since some  departmental proceedings were pending against him,  he was not given the ,said promotion. It was for the first time in  1990,  that the appellants served on  him  a  memorandum asking his explanation in respect of certain alleged acts of misconduct  to which he sent a reply on May 18,  1990.  Till the  date  of  the ’impugned order of  the  Tribunal,  i.e., January  1,  1991, no charge-sheet was served upon  the  re- spondent-employee.  However, 12 persons. junior to him  were promoted by an order dated April 16, 1990. The Tribunal has, as  stated above, therefore, made the impugned order.  There is  .no  direction in the order to pay him  the  arrears  of salary  for  the interregnum. In the  circumstances  of  the case,  we  do not think it necessary to interfere  with  the impugned order. The appeal, therefore, stands dismissed.  In the  circumstances  of the case, however, there will  be  no Order as to costs. S.L.P. (Civil) No. 2344 of 1990 Special leave granted.     The peculiar facts in this case are that at the relevant time  the respondent-employee was working as  Superintending Engineer  since  July 1986. When earlier he was  working  as Garrison  Engineer in Bikaner Division, there was a fire  in the Stores in April 1984 and there were also deficiencies in the  Stores  held by: the Store-keeper  during  the  ’period between 1982 and 1985. Hence, disciplinary proceedings  were commenced  in  February 1988 and the respondent  was  served with  a  charge-sheet on February 22, 1988. By an  order  of August  19, 1988 a penalty of withholding of  increment  for one  year was imposed on the respondent as a result  of  the said disciplinary proceedings.     On June 3, 1988, the DPC met for considering ’the promo- tion’to the Selection Grade. Pursuant to this meeting, by an order of July 28, 1988 some juniors were given the Selection Grade  with  retrospective effect from July  30,  1986.  The respondent-employee’s  name was kept in a sealed  cover  and was,  therefore,  not included in the list of  the  promotee officers. The Tribunal has found fault With the authorities on two 811 grounds.  The Tribunal has observed that although  when  the DPC met in June 1988, the employee was already served with a charge-sheet on February 22, 1988 and, therefore, the sealed cover  procedure could not be faulted, since admittedly  his juniors were given promotion with retrospective effect  from July  30,  1986,. the DPC should not have excluded  the  re- spondent’s  name from consideration when it met on  June  3, 1988. The second fault which the Tribunal has found is  that since  the penalty of stoppage of increment was  imposed  at the end of the disciplinary proceedings, it was not open for the  authorities  to deny the ’respondent his  promotion  to the.  Selection Grade as that amounted to  ’double  penalty. Having  taken  this view, the Tribunal has directed  that  a Review DPC should consider the ’respondent’s case for promo-

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tion w.e.f. July 1986 when his juniors were given  promotion taking into account his performance and confidential records up to 1986. We are afraid the Tribunal has taken an  errone- ous view of the matter. Admittedly, the DPC met in June 1988 when  the employee was already served with the  charge-sheet on  February 22, 1988. The charge-sheet was  for  misconduct for  the period between 1982 and 1985.  Admittedly  further, the employee was punished by an order of August 19, 1988 and his  one  increment was withheld. Although,  therefore,  the promotions  to  his juniors were  given  with  retrospective effect  from, July 30, 1986, the denial of promotion to  the employee  was  not unjustified. The DPC had  for  the  first time.  met on June 3, 1988 for considering promotion to  the Selection Grade. It is in this meeting that his juniors were given  Selection Grade with retrospective effect  from  July 30, 1986, and the sealed cover procedure was adopted in  his case.  If no disciplinary .proceedings were pending  against him  and if he was. otherwise selected by the DPC  he  Would have  got the Selection Grade w.e.f. July 30, 1986,  but  in that case the. disciplinary proceedings against him for  his misconduct  for the earlier period, viz., between  1982  and 1985 would have been meaningless. If the Tribunal’s  finding is ’accepted it would mean that by giving him the  Selection Grade w.e.f. July 30, 1986 he would stand rewarded  notwith- standing  his misconduct for the .earlier period  for  which disciplinary  proceedings  were pending at the time  of  the meeting of the DPC and for which again he was visited with a penalty. We, therefore, allow the appeal and set aside.  the finding of the Tribunal. There will, however, be no order as to costs.     Before we part with these appeals, we make it clear that if  any  of  the respondent-employees in any  of  the  above appeals  has/have been given any benefits the same will  not be disturbed. G.N.                                        Appeals disposed of. 812