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B. Bhaskar v/s State of Telangana, represented by the Prl.s Secretary (Home), Secretariat Buildings at Hyderabad & Others


Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

    Writ Petition No. 1805 of 2020

    Decided On, 20 March 2020

    At, High Court of for the State of Telangana

    By, THE HONOURABLE MR. JUSTICE P. NAVEEN RAO

    For the Petitioner: G.U.R.C. Prasad, Advocate. For the Respondents: Govt Pleader for Services-II.



Judgment Text


Oral Order:

1. Heard learned counsel for petitioner and learned Assistant Government Pleader for Services-II.

2. Petitioner is working as Police Constable and aspiring for promotion as Head Constable. This writ petition is filed alleging that he is not promoted to the next higher post, even though several of his batch-mates and juniors were promoted in the year 2018 and the same is arbitrary and unconstitutional and seeks promotion on par with his juniors.

3. From the averments made in the affidavit filed in support of the writ petition, it is apparent that several disciplinary proceedings were initiated against him resulting in ordering seven punishments. Each of the punishments imposed deals with different delinquency alleged against the employee. All the seven disciplinary proceedings deal with unauthorized absence for 21 days and more.

4. First order was passed on 6.1.2016 imposing punishment of ‘postponement of annual increment by two years with cumulative effect on his future pension and increments’; second order was passed on 18.1.2016 imposing punishment of ‘postponement of annual increments by two years “when next falls due” without cumulative effect’; third order was passed on 17/19-2-2016 imposing punishment of ‘postponement of annual increments for two years without having effect on future increments’; fourth order was passed on 13/16-5-2016 imposing punishment of ‘Postponement of increments for three years without effect’; fifth order was passed on 20.5.2016 imposing punishment of ‘postponement of annual grade increments for two years without cumulative effect on his future increments and pension’; sixth order D.O.No.1255/2017 was passed on 3.8.2017 imposing punishment of ‘Postponement of increment for one year without effect on future increments’ and on the same day i.e., 3.8.2017 seventh order D.O.No.1256/2017 was passed imposing punishment of ‘PPI for one year without effect on future increments. In all disciplinary proceedings, the period of absence was treated as leave without pay’.

5. On appeal preferred by the petitioner against the order dated 6.1.2016, punishment was reduced to one increment with cumulative effect instead of two increments with cumulative effect. On appeal preferred by petitioner against the order dated 18.1.2016, punishment was reduced to one increment without cumulative effect. On appeal against order dated 17/19-2-2016 punishment was reduced to one increment without cumulative effect instead of stoppage of two increments; in the appeal against order dated 13/16-5-2016 punishment was reduced to two increments without cumulative effect instead of stoppage of three increments with cumulative effect; against order dated 20.5.2016, punishment was reduced to one increment without cumulative effect against stoppage of two increments without cumulative effect; and appeal against order D.O.No.1256/2017 dated 3.8.2017 was dismissed.

6. The revisions preferred by the petitioner were dismissed.

7. Learned counsel for petitioner submits that as punishments were imposed in the year 2016-17, the currency of punishment was already over and he is entitled to be considered for promotion. He would further submit that denying promotion when due on the ground that punishments were imposed would be amounting to double jeopardy, and no employee can be penalized twice, i.e., punishment of withholding of increment and denial of promotion. He would further submit that in accordance with Fundamental Rule 24 whenever an employee completes 12 months of service satisfactorily, as a matter of course he is entitled to release of increment due on the date of increment and denial of increment would be amounting to violating the Fundamental Rule 24.

8. An employee is placed in scale of pay attached to the post which would have various stages. The pay of the employee increases from year to year by adding annual increment fixed for the pay scale of that post. On satisfactory completion of 12 months of service in that post one increment would be released. Every year, employee gets only one annual increment. In the above background, the contentions of learned counsel for petitioner require consideration.

9. According to Fundamental Rule 24, an employee is entitled to annual increment as a matter course. Rule also mandates withholding of increment if such employee has committed misconduct. Thus, if punishment of withholding of increment is imposed denial of increment does not offend Fundamental Rule 24.

10. Rule 9 of T.S. CCS (CCA) Rules, 1991 (Rules, 1991) prescribes various punishments that can be imposed on an employee on a proved misconduct. The punishments range from dismissal from service to censure. The punishments are classified as major punishments and minor punishments depending on their impact. Rule 9 of the Rules 1991 also prescribes withholding of increment. There are two types of punishments of withholding of increments, viz., with cumulative effect, which is a major penalty as it would deny the employee increment for the entire service and also would impact quantum of pension; and without cumulative effect. In the case of withholding of increment without cumulative effect, after the period of punishment, employee would get back that increment also. An employee is entitled to draw one annual increment on rendering satisfactory service for twelve months. If more than one punishment of withholding of annual increment is imposed in the same year, to give effect to those punishments, increment due in successive years have to be withheld as more than one increment cannot be withheld in one year.

11. According to learned counsel for petitioner, the increment of the petitioner was due in August, 2016 i.e., later to 06.01.2016. In accordance with first of the punishments imposed, increment due immediately after the said order has to be withheld and as this punishment is with cumulative effect that increment will not be released to him for the rest of his service. During the operation of this punishment, six other orders imposing punishments of withholding of annual increment(s) were passed. To implement the second of the orders of punishment, the increment due in the year 2017, after undergoing the first punishment order, has to be withheld. In ordinary course, this increment would have to be released in the year 2018 along with 2018 annual increment. But, to give effect to third order one of them have to be deferred. For convenience, it may be said that increment of the year 2017 deferred in the year 2017, would be deferred again. The fourth order, as modified by appellate authority is deferment of two annual increments. To give effect to this order, the deferred increment of the year 2017 would have to be deferred again. In addition, annual increment due in the year 2019 also has to be deferred. In the year 2020, ordinarily petitioner is entitled to release of three increments, the deferred increments of the year 2017 and 2019 and regular increment of the year 2020. But, to give effect to 5th order, the deferred increment of the year 2017 has to be deferred again for one more year, i.e., till 2021. The other two increments would have to be released. There are two more punishment orders. To give effect to these two orders, the deferred increment of the year 2017 has to be deferred in the year 2021 and 2022. In other words, petitioner should get back his annual increment of the year 2017 only in the year 2023.

12. This would be the actual effect of enforcement of seven punishment orders. Thus, though, orders of punishments were imposed within a period of about one and half year, implementation of those punishment orders would have to be continued till 2022. Thus, petitioner is deemed to be under the currency of punishment till the increment of the year 2017 is released in the year 2023, subject of course, he is not favoured with further punishment order(s). It is not known, in practice, how competent authority understood the effect of these punishment orders and implemented, but the above assessment is to ascertain the currency period of punishment. In view of these punishment orders and their implementation, petitioner would continue to be under currency of punishment till 2023.

13. It is next to be considered what is the effect of these punishments on claim of petitioner for promotion. Before appreciating this issue, it is apt to note that an employee has right to be considered for promotion, but has no right to claim promotion to next higher post as a matter of course. Consideration and grant of promotion depends on basic eligibility such as educational qualification and qualifying service and record of service. Unless employee has good record of service, he cannot be promoted even to non-selection posts. By his conduct, dint of hard work he must earn promotion. Thus, while considering the employee for promotion his past conduct, present disciplinary action and punishment if any imposed all play important role.

14. In L.Rajaiah v. Inspector General of Registration & Stamps, Hyderabad (1996) 8 SCC 246), similar issue was considered by Apex Court. Apex Court held as under:

“4. A reading thereof clearly indicates that notwithstanding anything contained in special ad hoc rules, all promotions to nonselection category or grade shall, subject to the provisions of Rule 16, may be made in accordance with seniority-cum-fitness unless promotion of a member has been withheld as a penalty. Though due to stoppage of increment, he is not ineligible for consideration for promotion, he is otherwise entitled to be considered in accordance with the rules, namely, seniority-cum-fitness. However, when seniority-cum-fitness is the criteria, the imposition of the penalties for one year on 1-3-1988 and in another enquiry, stoppage of increment for five years from 1-3- 1989, i.e., till 28-2-1994, disentitled him to be considered; so he did not regain fitness for consideration for promotion as he was under disability undergoing punishment. Consequently, when the promotion to the post of Senior Assistant is on the basis of merit and ability under special rules, fitness is one of the considerations for the purpose. Since he was undergoing punishment during the relevant period, he is not eligible for consideration for promotion. Therefore, his juniors have stolen march over the appellant as Senior Assistants. He cannot thereby have any grievance. However, he is entitled to be considered for promotion according to rules after 1-3-1994.”

15. According to the policy evolved by the Government, a person who is facing disciplinary proceedings and who is visited with punishment, is not considered for promotion, whether it is based on merit or seniority, during the currency of punishment.

16. In G.O.Ms.No.187 General Administration (Services-B) dated 25.4.1985, Government notified the policy on how to regulate promotions and guidelines for consideration of the claims for promotion to selection and non-selection posts, composition of departmental promotion committees and parameters that are required to be observed by departmental promotion committees/ appointing authorities while considering the claims of employees for promotion. Paragraph-11 of G.O.Ms.No.187 dated 25.04.1985 reads as under:

“11. Procedure to be followed to process the cases of persons who had undergone punishment:-- It has been decided that an individual, who is undergoing punishment, should not be recommended for promotion. In cases, where the period of punishment imposed is already over, each case has to be evaluated by Departmental Promotion Committee on merits.”

17. In continuation to the above policy, Government issued further instructions vide G.O.Ms.No.968, General Administration (Ser.-C) Department, dated 26.10.1995. Relevant provisions of G.O. are noted hereunder:

17.1. As per G.O.Ms.No.968, dated 26.10.1995, whenever any Government employee is awarded penalty of stoppage of 11 increment with cumulative effect (major penalty under CCA 1991 Rules), the cases of such employees shall not be recommended for promotion/appointment by transfer for twice the period for which the increment is stopped with cumulative effect, for both selection and non- selection posts and for without Cumulative effect; the penalty awarded shall be for promotion/appointment by transfer to a higher post during the period of subsistence of penalty which shall be indicated in the order subject to minimum period of one year.

17.2. Whether punishment of stoppage of increment with cumulative effect constitutes a permanent bar for promotion and also whether it is with or without cumulative effect, the punishment should be deemed to be subsisting to the extent of the number of annual grade increments stopped.

17.3. Where period of punishment is already over, each case has to be evaluated by DPC on merits and therefore the DPC or screening committees are instructed to take into account overall performance by Officer concerned which includes past punishments and not merely be guided by fact whether punishment is subsisting as on date of meeting of DPC/Screening Committee or on the qualifying date for preparation of panel.

18. If the punishment is withholding of increment with cumulative effect, the currency is twice the period of punishment. In other words, the effect of punishment of withholding of one increment with cumulative effect is, he would not be considered for promotion for two years from the due date of increment which was withheld. If withholding of increment is without cumulative effect, during the period of operation of punishment, he would not be considered for promotion.

19. In the instant case, on account of first order of punishment i.e., 6.1.2016, petitioner was not entitled for consideration for promotion for two years from the due date of increment after the said order. However, as noted above, within a short period, six other punishments were imposed. Therefore, the punishment order dated 6.1.2016 was overlapping with the subsequent orders of punishments. However, the net effect of the seven punishment cumulatively withholding eight increments, would be petitioner is in currency of punishment till 2023.

20. Having regard to the principle governing entitlement to consider for promotion and the policy of the Government, an employee is not entitled for consideration for promotion during subsistence of punishment of withholding of increment(s) with/ without cumulative effect. On account of seven punishment orders, petitioner continues to be under currency of punishments till 2024 and not entitled for promotion during the said currency.

21. The next issue is whether not granting promotion would amount to double jeopardy. The issue of double jeopardy is no more res integra as the issue stood settled by authoritative pronouncement of Supreme Court in Union of India Vs. K.V. Jankiraman (1991) 4 SCC 109). Paragraph-29 reads as under:

“29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, and 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 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 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

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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 sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.” 22. The same principle is reiterated in State of Tamilnadu Vs Thiru K.S. Murugesan (1995) 3 SCC 273), and in Collector of Tanjavur Distt. Vs S.Rajagopalan (2000) 9 SCC 145). 23. In the instant case, petitioner alleges that his juniors were promoted in the year 2018. By the time his juniors and batch-mates were promoted, petitioner was under currency of punishment on account of orders passed on 6.1.2016 which being with cumulative effect, operates for two years in accordance with Government policy decision notified vide G.O.Ms.No.187 dated 25.04.1985 read with G.O.Ms.No.968 dated 26.10.1995. In addition, he is having six other punishment orders, which are cumulatively in force till 2023. Therefore, petitioner is not entitled to promotion till he undergoes all punishments. Denial of promotion in the circumstances does not amount to double jeopardy. 24. Therefore, I see no merit in the writ petition, accordingly, same is dismissed. Pending miscellaneous petitions, if any, stand closed.
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07-05-2020 Asa Uma Farooq Versus Union of India, through its its Secrtary, Ministry of Home Afairs, Government of India, New Delhi & Others High Court of Judicature at Madras
05-05-2020 R. Sreedhar Versus The Principal Secretary, Government of Tamil Nadu, Home Department, Chief Secretariat, Chennai & Others High Court of Judicature at Madras
04-05-2020 A. Palanisamy @ Palaniappan Versus The Home Secretary (Prison IV) Home Department, Secretariat, Chennai & Others High Court of Judicature at Madras
29-04-2020 AM (Zimbabwe) Versus Secretary of State for the Home Department United Kingdom Supreme Court
28-04-2020 HRT Builders, rep. by its Managing Partner Thondepu Ratna Srinivas Versus State of A.P. rep by its Principal Secretary, Home Department, Velagapudi & Another High Court of Andhra Pradesh
21-04-2020 Deodutta Gangadhar Marathe Versus The State of Maharashtra through Secretary, Department of Home, Mantralaya & Others High Court of Judicature at Bombay
21-04-2020 A. Mallikarjuna Versus Government of India Ministry of Home Affairs, Disaster Management Division, Represented by its Secretary & Others High Court of Karnataka
17-04-2020 Santhosha Nanban Home for Boys, Rep by its Superintendent Dorothy Marry Versus Union of India, Rep by The Chief Secretary to Government, Government of Puducherry, Chief Secretariat, Puducherry & Others High Court of Judicature at Madras
09-04-2020 T. Ganesh Kumar Versus Union of India Represented by Secretary Ministry of Home Affairs New Delhi & Others High Court of Judicature at Madras
08-04-2020 V. Krishnamurthy Versus The State of Tamil Nadu, Represented by the Principal Secretary to Government, Home (Prison IV) Department, Chennai & Others High Court of Judicature at Madras
08-04-2020 M. Mohamed Saifulla (Advocate – Madras High Court) Versus The Principal Secretary to Government, Home (Prison- IV) Department, Fort St. George, Chennai & Others High Court of Judicature at Madras
07-04-2020 (The State) The National Investigation Agency, Ministry of Home Affairs, Government of India, Represented by the Superintendent of Police, Assam Versus Akhil Gogoi High Court of Gauhati
06-04-2020 N. Prakash Versus State of Kerala, Represented by its Secretary to Government of Kerala, Department of Home, Secretariat, Thiruvananthapuram & Another High Court of Kerala
25-03-2020 Elgizouli Versus Secretary of State for the Home Department United Kingdom Supreme Court
20-03-2020 V. Radha Versus State of Tamil Nadu, Rep. by the Additional Chief Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai & Others Before the Madurai Bench of Madras High Court
20-03-2020 Jangam Tilak Raj Versus State of Telangana, rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad & Others High Court of for the State of Telangana