Hansaria, J.@mdashIf a Government servant is under suspension, or against whom a disciplinary proceeding is pending or contemplated when his promotion becomes due, what procedure has to be followed in dealing with his case is the question which requires determination in this petition. This aspect has been dealt with in a communication bearing No. ABP. 230/75/6 dated 6th July, 1976, issued by the Secretary to the Government of Assam, Appointment (B) Department, meant for all heads of departments. It is stated that the cases of above types of officers have to be taken up together with other eligible candidates while deciding the question of their promotion/confirmation. But then, findings of the Selection Committee with regard to their suitability for promotion/confirmation should be recorded separately and kept in a sealed cover. This finding should be released after the disciplinary proceedings are completed and final orders are passed thereon. If the officer is completely exonerated, or in the case of suspended officer, it is held that the suspension is wholly unjustified, the officer should be immediately/promoted/confirmed without loss of seniority if the Selection Committee''s findings are in his favour. Some incidental and consequential matters have also been dealt with in the aforesaid communication.
2. This procedure is in pari materia with those governing the Central Government employees or employees of other State Governments. The question is whether the nonpromotion of the officer concerned, despite his being found fit for promotion by the Selection Committee, can be regarded as withholding of promotion which is a punishment visualised by the concerned discipline rules. There has been a difference of opinion on this score among the different High Courts of this country. The Andhra Pradesh High Court has taken a view at least from 1973 (B. George vs. I.G.P., 19732 SLR 132) that as there is no knowing whether the officer would have been found guilty in the enquiry, nonpromotion is a penalty. The 1973 decision has been followed by that High Court in Jagadiswar Rao vs. Postmaster General, 1978 SLJ 201; K. Somaiah vs. General Manager, FCI, 1978 SLJ 295; Director of Postal Services vs. C. Nuneswars Rao, 1980 (2) SLR 662, and A. P. Naidu vs. General Manager, South Central Railway, 1982 (2) Andhra Weekly Report 376.
3. Shri Barua appearing for the petitioner has strongly relied on these decisions of the Andhra Pradesh High Court and in particular on Muneswara Rao (supra) which has even held a parallel circular by the Central Government providing keeping of recommendations of such officers in sealed cover as void inasmuch as the same amount to a penalty and as such violative of the concerned disciplinary Rules framed under the proviso to Article 309 of the Constitution.
4. There is no gainsaying that if such instructions were held to amount to withholding of promotion, the same would be void, because, though Executive Instructions can fill up the gaps in the service rules, the same cannot run against the rules. The important question is whether such instructions do amount to a punishment? Shri Roy for the respondents has contended, by relying on S. S. Karir vs. Delhi Administration, 1973 (1) SLR 961, that the aforesaid procedure is not a penalty at all, but is a device which takes care of public interest on one hand and the individual interest of the incumbent on the other. It has been urged that if a proceeding is pending against a person, he does not deserve to be promoted to a higher post until he is exonerated of the charge inasmuch a higher standard of character is essential for promotion in Government service. In the aforesaid decision, the relevant instructions were regarded to have struck a golden mean between maintaining of a high standard of honesty and possible injustice to an individual official. It was emphasised that public interest should not be allowed to be sacrificed for individual gain. Of course, it was accepted that the Government must expedite the investigation or enquiry as much as possible to avoid possible prejudice to an official who is placed in a state of uncertainty. Reference was made to a Division Bench decision of the Mysore High Court in Chandragupta vs. Chairman, Posts & Telegraphs Board, 1970 SLR 284.
5. In Jitendra Jayantialal vs. State of Gujarat, 1978 (2) SLR 728, it was held that it is inconceivable that the Government servant against whom a departmental enquiry is pending can claim to be promoted to a higher post. Withholding of consideration for promotion to higher post during the pendency of an enquiry was thought to be not a punishment at all, but was taken to be an offshoot of the misdeed which is alleged to have been committed by the concerned Government servant. A Division Bench of the Himachal Pradesh High Court also took a similar view in Ruplal vs. State, 1980 SLJ 348. It was held that if a person against whom serious charges are levelled and if the charges are such which may result in a major punishment it would not be in public interest or in the interest of administration to give him promotion simply because the enquiry in question is not completed. As, however, decayed completion of the enquiry in such matters may cause serious hardship to the Government servant, it was observed that right remedy in such cases would be for the department to expedite the enquiry.
5. We have considered the different view points on this aspect. It appears to us that the views expressed by Delhi, Mysore, Gujarat and Himachal Pradesh High Courts merit our acceptance with respect, in contradiction to what has been the stand of Andhra Pradesh High Court. It is more so because the aforesaid communication of the Appointment (B) Department of the Government of Assam does not debar consideration of the case of the involved Government servant, but only desires keeping of the recommendation in a sealed cover. It may be pointed out that in some of the aforesaid cases even nonconsideration of the case was not regarded as baneful. As the concerned officer is denied his promotion pending the completion of enquiry, the same cannot really be regarded as withholding of promotion as a permanent measure; that the procedure visualied is a stopgap arrangement. There is much grain of truth in the observation that if the efficiency or integrity of a person is doubted, it would not be in the public interest to promote him to a higher post carrying higher responsibility. An officer who is facing such a proceeding does not stand on an equal footing with those whose records have been clean. No question of discrimination therefore arises. Indeed, Shri Barua has not advanced this plea in this context. We would, however, observe that it is doubtful how far mere suspension of an officer or contemplated enquiry against him, would stand the scrutiny of the Courts in view of operation of even Article 21 in this field a as pointed out in Board of Trustees vs. Dilip Kumar, AIR 1983 SC 109 the virtual incorporation of ''due process'' clause in Article 21 having widened the sweep of this Article. We do not, however, propose to express any final opinion in this regard in this proceeding because we are concerned in the case at hand with pendency of a departmental proceeding against the petitioner. We may add another rider. The same is that we have our doubts if pendency of a proceeding even on a minor allegation would be regarded as just, proper and reasonable in this regard. As, however, the present is a case where the petitioner is facing a proceeding relating to misappropriation of a huge amount, the charge has to be regarded as serious in nature.
6. The only other grievance of Shri Barua is that though the petitioner was denied the promotion, respondent No. 24 against whom also a proceeding was pending was promoted on 27.10.79 though the proceeding against him came to be finalised on 23.1.80. As the promotion order relating to this respondent is not before us, it has become difficult to know as to whether his promotion was given retrospectively by passing an order after 23.1.80. This apart, as this respondent has not appeared, we are not in a position to know whether he was similarly situated to that of petitioner. In any case, as pointed out in S. S. Karir (Supra) to which reference was made by Shri Roy, the commission of one illegality cannot be a ground to commit another illegality, as two wrongs do not make one right.
7. In the aforesaid view of the matter, we are of the view that the only relief which the petitioner can get at our hand is to direct respondents to expedite the enquiry relating to him. Such a direction has already been given in petitioner''s another
application (Civil Rule 680/81 ), where we have even stated that if the enquiry would not be completed within a period of six month the entire proceeding would stand quashed. So we do not think if any further order is called for in this ease. If the case of the petitioner had not been considered, it would be done in accordance with the case.
8. The present petition is, therefore, dismissed subject to the observations made in Civil Rule 680/81.
