Rajasthan Marudhara Gramin Bank @APPELLANT@Hash Rajesh Harsh

The respondent/writ petitioner was working on the post of Office Assistant in the erstwhile Jaipur Thar Gramin Bank, which was later on

amalgamated with the appellant/Bank. A chargesheet was served upon the respondent/writ petitioner on 03.12.2008 for certain acts of commission

and omission amounting to misconduct.

After holding a regular departmental enquiry, final order was passed by the disciplinary authority on 12.09.2012, whereby penalty of reduction of

basic pay by four stages was imposed upon the respondent/writ petitioner. However, it was further directed by the disciplinary authority that the

respondent/writ petitioner will earn his future annual increments falling due on the anniversary date.

In light of the fact that the respondent/writ petitioner had not challenged the punitive order dated 12.09.2012, the same attained finality.

Shri Jagdish Vyas, learned counsel for the appellant/Bank has submitted that a perusal of the aforesaid order dated 12.09.2012 would show that the

respondent/writ petitioner was held entitled for future annual increments on the anniversary date, and therefore, the rigor period of the aforesaid

penalty was four years, as it would take four years for the respondent/writ petitioner to reach the level of original salary, which the respondent/writ

petitioner was getting at the time of imposition of the aforesaid penalty.

Learned counsel for the appellant has further pointed out that after amalgamation of the other Regional Rural Banks and formation of the Rajasthan

Marudhara Gramin Bank, a circular dated 02.01.2015 adopting Debarment Policy was adopted by the appellant/Bank, and Clause 8 of the said

Debarment Policy reads as under:-

“8. In case, where the disciplinary proceedings end with imposition of a penalty of ‘withholding of promotion for specified period’ or

‘withholding of increments’ or ‘reduction to a lower stage in the time scale’, the concerned officer/employee will become eligible for

promotion only after expiry of the penalty.â€​

Learned counsel for the appellant/Bank has justified the exercise of promotion to the post of Officer Scale-I held in the years 2012 and 2013,

wherein the candidature of the respondent/writ petitioner was not considered during currency of the punishment order, in terms of the aforequoted

Clause 8 of the Debarment Policy.

Learned counsel for the appellant also submitted that the promotion exercise of the years 2013 and 2014 was not challenged by the respondent/writ

petitioner initially, but subsequently, another circular was brought in by the appellant/Bank on 28.01.2015, and it was highlighted in the said circular that

the candidates, who were suffering the punishment order shall not be considered for promotion during currency of the punishment order in terms of

the Debarment Policy dated 02.01.2015.

Learned counsel for the appellant further states that the respondent/writ petitioner, who participated in the said promotion process, was not

considered for promotion to the post of Officer Scale-I, in view of currency of the punishment order dated 12.09.2012 and the Debarment Policy as

adopted by the appellant/Bank vide circular dated 02.01.2015.

Learned counsel for the appellant states that learned Single Judge, while allowing the writ petition filed by the respondent/writ petitioner vide the

impugned judgment dated 01.06.2017, has held the aforementioned Debarment Policy to be contrary to Article 20(2) of the Constitution of India, and

accordingly, the debarment of the respondent/writ petitioner from the promotion exercise has been quashed, while a direction has been given to the

appellant/Bank to consider the respondent/writ petitioner for promotion to the post of Officer Scale-I from the date when persons immediately junior to

him have been promoted.

Learned counsel for the appellant further states that the impugned judgment of the learned Single Judge suffers from illegality, as it considers the

consequence of punishment, which is debarment from future promotion, as a double jeopardy, whereas the same is an established practice of law.

Learned counsel for the appellant also states that the Debarment Policy was a right and prerogative of the appellant/Bank, and therefore, the

learned Single Judge ought not to have quashed the same by declaring the said Debarment Policy to be contrary to Article 20(2) of the Constitution of

India.

Learned counsel for the appellant has further submitted that the judgment rendered by the Hon’ble Supreme Court in the case of Sarva UP

Gramin Bank & Ors. Vs. Manoj Kumar Chak, reported in AIR 2013 SC 2473 was not applicable in the present facts, as the Debarment Policy for

consideration before the Hon’ble Apex Court was pertaining to total debarment for a period of five years, irrespective of the nature of penalty

imposed upon the concerned employee.

Learned counsel for the appellant has thus justified that the Debarment Policy, as adopted by the appellant/Bank vide circular dated 02.01.2015 is

totally different, as it is in consonance with the punishment awarded and also the rigor period of the punishment is only for extension of the

nonconsideration/debarment.

Learned counsel for the appellant relied upon the judgment rendered in Union of India Vs. K.V. Jankiraman, reported in AIR 1991 SC 2010,

wherein the Hon’ble Apex Court has observed that the employee had no right of promotion, and his consideration remained subject to several

circumstances, including an unblemished record.

Learned counsel for the appellant has further harped upon the fact that the Debarment Policy is in consonance with law, and does not stand

contrary to Article 20(2) of the Constitution of India.

Learned counsel for the appellant has further stated that on the day, the punishment has been awarded and the misconduct has been proved, the

respondent/writ petitioner cannot be rewarded with the promotion, and until the punishment remains in currency, the Debarment Policy entitles the

appellant/Bank to withhold the consideration of the respondent/writ petitioner for promotion.

Learned counsel for the appellant has further submitted that the aforementioned penalty order only imposes a punishment of reduction of pay by

four stages of increment with cumulative effect from the date of such order, but the respondent/writ petitioner was to earn his future annual

increments falling due on the anniversary date, and therefore, the punishment period or the rigor period cannot be treated as four years, inasmuch as

the respondent/writ petitioner has been held entitled to the increments falling due immediately on the anniversary date.

On the other hand, learned counsel for the respondent/writ petitioner, Shri S.P. Sharma has shown to this Court the impugned judgment dated

01.06.2017, which has noted such argument raised on behalf of the appellant/Bank in last paragraph of internal page 8 thereof.

Learned counsel for the respondent/writ petitioner further states that the Debarment Policy in question, even if accepted as it is, would not apply in

the present facts of the case.

After hearing learned counsel for the parties and perusing the impugned judgment as well as record of the case, this Court finds that even if the

Debarment Policy as adopted by the appellant/Bank vide circular dated 02.01.2015 was to be made applicable as it is, then also the respondent/writ

petitioner shall become entitle for promotion, after expiry of the penalty period. 21. This Court has also noted the fact that the punishment order passed

on 12.09.2012, whereby the pay of the respondent/writ petitioner was reduced by four stages immediately thereafter, but simultaneously, the

respondents permitted the respondent/writ petitioner to gain the future annual increments from the first anniversary itself.

Learned Single Judge in this case has allowed the writ petition on the premise that Clause 8 of the Debarment Policy vide Circular dated

02.01.2015, cannot be relied upon in the light of Service Regulations, 2010 framed under Section 29 of the Act of 1976. Learned Single Judge held that

the Debarment Policy amounts to prescribing disqualification/ineligibility for promotion, and hence, touches upon the substantive rights of an employee.

Learned Single Judge, therefore, held that the policy amounts to supplanting instead of supplementing the rules of promotion, and hence, cannot be

relied upon.

In Sant Ram Sharma v. State of Rajasthan, reported in AIR 1967 SC 1910 (CB), the Hon’ble Supreme Court has observed that while

examining a dispute as to the promotion to the post of Inspector General of Police, Rajasthan, the Court was required to deal with an argument that

the administrative practice with regard to selection post laid down in Government of India letters dated July 31,1954 and August 3, 1954 cannot be

relied upon in the light of IPS (Regulation of Seniority) Rules 1954. The Constitution Bench dealing with the issue held in para 7 of the said judgment

as under:

“….It is true that there is no specific provision in the rules laying down the principle of promotion of Junior or Senior grade officers to selection

grade posts. But that does not mean that till statutory rules are framed in this behalf, the government cannot issue administrative instructions regarding

the principles to be followed in promotions of the officers concerned to selection grade posts. It is true that Govt. cannot amend or supersede statutory

rules by administrative instructions, but if rules are silent on any particular point, government can fill up the gaps and supplement the rules and issue

instructions not inconsistent with the rules already framedâ€​.

The Hon’ble Apex Court, in the said case, therefore observed that it will have to be examined whether the regulations in the said case, hold the

field for promotion. If yes, whether such regulations address an eventuality of a candidate undergoing punishment, becoming entitled to consideration

for promotion. If no, then the government can issue administrative instructions to fill this void unless such administrative order/policy offends any

specific provision of the statutory rules/regulations.

As read from the impugned judgment of learned Single Judge passed in the case of the respondent/writ petitioner, no such bar is evident in the

statutory regulations, and therefore, the appellant/Bank could prescribe a Debarment Policy by executive order/circular. Thus, the judgment in the

case of Sarva UP Gramin Bank Vs. Manoj Kumar Chak (supra) is of no help to the respondent/writ petitioner.

In State of Tamil Nadu v. K.S. Murugesan reported in 1995 (3) SCC 273, the Hon’ble Supreme Court, while following the judgment in

Union of India Vs. K.V. Janakiraman reported in 1991 (4) SCC 104, held that withholding of promotion on account of currency of punishment of

stoppage of increments neither amounts to double jeopardy nor to any arbitrariness in exercise of power. This view has been reiterated in Chairman

State Bank of India Vs. Golak Bihari Dehury reported in 1996 (7) SCC 63. Thus, the Debarment Policy in the present case, if meets the test as above,

can be enforced to deny consideration for promotion during currency of penalty/punishment.

As is clear from order of punishment in the present case, though the punishment of reduction of basic pay by four stages has been imposed, the

punishment order does not prescribe any duration for imposition of such punishment. Punishment order however clarifies the petitioner shall earn his

future increments falling due on anniversary date. This clearly evidences that the punishment of reduction by four stages has been imposed upon the

petitioner as one time punishment and reduction by stages merely denotes the quantum. This fact is not disputed that pay of the petitioner has been

reduced by four stages immediately on passing of the punishment order dated 12.09.2012. The petitioner in fact has even earned his annual increment

after imposition of aforesaid penalty. Therefore it cannot be said that at the time when the consideration for promotion was to take place, petitioner

was undergoing a penalty /punishment. Hence, the bar under the debarment policy would not apply in the present case.

Thus, this Court feels that though the respondent/writ petitioner is entitled to relief, but not on the ground, on which the learned Single Judge has

allowed his writ petition

In light of the aforesaid observations, the present special appeal is dismissed, while modifying the impugned judgment dated 01.06.2017 to the

extent that the Debarment Policy of 2015 as adopted by the appellant/Bank vide circular dated 02.01.2015 shall remain in currency, but the same

would not impact the outcome of the writ petition, as the punishment imposed upon the respondent/writ petitioner was a one time punishment, and the

reduction of pay by stages merely denotes the quantum. Thus, as per aforequoted clause 8 of the Debarment Policy, since the penalty shall stand

expire on the date of the punishment i.e. 12.09.2012, therefore, the respondent/writ petitioner shall be considered for promotion from that date i.e.

12.09.2012 onwards, when the penalty actually, while being imposed, expired, and any debarment in accordance with Clause 8 of the Debarment

Policy as adopted by the appellant/Bank vide circular dated 02.01.2015 thereafter, would not apply.