RBE No. 180/1991: Promotion – Staff Undergoing the Penalty of Withholding of Increments
No.E(D&A)91 RG6-68, dated 22.10.1991
Sub: Promotion of staff undergoing the penalty of withholding of increments.
1. Reference your Railway’s Confdl. letter No.52E/10/26/E(D&A)91/Pt-1, dated 08.07.1991 on the above subject.
2. In the judgment dated 11.02.1991 of the Central Administrative Tribunal, Principal Bench in TA No.777/1986 in the case of Shri Om Prakash v. UOI, the CAT had held that withholding of promotion in itself being a penalty under the rules, non-promotion, on the ground that he is already undergoing punishment of a minor penalty of withholding of increment amounts to imposition of two penalties. The CAT had accordingly, ordered promotion of the applicant if he was found fit.
3. The implication of the above-mentioned judgment was examined in consultation with the Department of Personnel & Training. They have indicated that in a recent case of UOI v. K.V. Janakiraman, the Supreme Court held that when an employee is held guilty and is penalized and consequently not promoted at least till the date on which he is penalized, 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. The Supreme Court had, therefore, struck down a finding of the full bench of the CAT in Jankiraman’s case. An extract from the judgment of the Supreme Court in Janakiraman’s case is enclosed.
4. It is noted that in the instant case of Shri Om Prakash, your Railway have decided to implement the judgment of the CAT. It is, however, desired that whenever similar judgments are delivered by CATs in future, the Board should invariably be approached for filing SLPs in the Supreme Court. In cases of similar nature pending before CATs, if any, defence should be sought from the judgment of the Supreme Court in Janakiraman’s case.
Extract of para 29 of Supreme Court judgment in the case of
Union of India v. K.V. Jankiraman
[JT 1991(3) S 537]
“29. 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 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 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 promotion retrospectively from a date when for his conduct before that date he is penalized in presentii. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, 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 penalties 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 subparagraph after clause (iii) of paragraph 3 of the said Memorandum [DoP&T’s O.M. No.22011/1/79. Estt. (A), dated January 30, 1982]. We, therefore, set aside the said findings of the Tribunal.”
Download Railway Board Circular RBE No. 180/1991
Forward reference⇒RBE No.