JUDGMENT - DAUD S.M., J.:---A Senior Clerk in the Employment Exchange at Nagpur complains against the denial of promotion to him in the grade of Junior Employment Officer---the present post and the post to which the petitioner aspires, both being in the Class III service of the State of Maharashtra. 2. Petitioner joined the services of the Government of Maharashtra as a Junior Clerk in the Employment Exchange. In due course, he was promoted as a Senior Clerk. In the year 1977, some papers were tampered with and suspicion fell upon the petitioner. The matter was reported to the Police and after investigation, petitioner and 10 others were charge-sheeted in the Court of the Chief Judicial Magistrate at Bhandara. The resultant trial viz. Criminal Case No. 50 of 1981, culminated in an acquittal of the petitioner vide the learned CJM's judgment delivered on 7th May, 1986. Insofar as the petitioner is concerned, he was arraigned as accused No. 1 and this is what the learned CJM had to say in relation to him:--- "In this case there is no direct evidence that two sealed envelopes were given to accused 1 and accused 1 opened the envelopes, removed original page No. 8 and substituted another page 8 with different names, i.e. accused Nos. 2 to 11 in this case. I have discussed the evidence of alleged confession by accused No. 1 and held that the testimony of P.W. 3 Jaideo Parate in this respect is untrustworthy and unreliable. The other evidence against accused No. 1 is that he wrote registration cards. The prosecution and the police could not attach original X-90 register during investigation. The original X-90 register in which the registration number and name of candidates are mentioned were missing before the enquiry was started by the superior officers. In the absence of original register X-90 it would be difficult to hold that accused No. 1 wrongly and falsely wrote the registration numbers. .............In the absence of original X-90 register it would be totally unsafe to hold that accused No. 1 falsely wrote the registration cards Exhibits 120, 127 to 130. For all these reasons and in any case the prosecution has failed to bring the guilt against accused No. 1 beyond doubt. The suspicion, however, strong it may be, cannot take the place of proof. For all these reasons and in any case the prosecution has failed to bring the guilt against accused No. 1 beyond doubt. The suspicion, however, strong it may be, cannot take the place of proof. ..........I, therefore, acquit accused No. 1." The department had the option, but did not initiate a departmental enquiry against the petitioner. After the acquittal the petitioner was called back to duty and then came up the problem of deciding who should be promoted to the rank of Junior Employment Officer. So far as the petitioner was concerned, on 19th October, 1988 a Confidential Report for the year 1987-88 incorporating adverse remarks was sent to him. The said remarks read thus:- "Work ordinary; lacking integrity." Promotion to the post of Junior Employment Officers was decided upon by a Departmental Promotion Committee (D.P.C.). The said Committee did not consider him fit for promotion and petitioner's juniors were selected to man the higher post of Junior Employment Officers. Admittedly, the criterion for promotion was seniority-cum-suitability. 3. Petitioner complains of the supersession contending that he had been honourably acquitted and the adverse remarks appearing in C.R. No. 1987-88 should not have been utilised to deny promotion unto him. The acquittal by a component Court wiped out the suspicion that had been created against him. Having regard to the said evidence his juniors could not be allowed to supersede him. In the return filed by the respondents, it is contended that the petitioner's record was consistently bad. Adverse remarks appeared in his C.R.s ranging right from the 1980-81 to 1987-88. Adverse remarks for year 1987-88 had been communicated to the petitioner. Having regard to the adverse remarks, the petitioner could not be given precedence over his juniors. The acquittal relied upon by the petitioner was not a clean acquittal. He had been given the benefit of doubt because of want of sufficient evidence. Alternatively, petitioner was challenging the promotion of his juniors, who had not been impleaded to the petition and this rendered the petition bad for non-joinder of necessary parties. 4. Having heard learned Counsel, we formulate three points for decision. These are discussed below:--- 5. The first is whether the petition suffers from the vice of non-joinder of necessary parties. Petitioner takes exception to his succession by his juniors. 4. Having heard learned Counsel, we formulate three points for decision. These are discussed below:--- 5. The first is whether the petition suffers from the vice of non-joinder of necessary parties. Petitioner takes exception to his succession by his juniors. The basic requirement for this was that he should have impleaded his juniors who have been promoted over his head. Petitioner may not be able to get the supersession reversed insofar as the chosen ones are concerned. But that will not result in the complete failure of the petition. The relief admissible is that in case he is found to be deserving, he should be given a promotion in due course i.e. after those already working as Junior Employment Officers. 6. The second question to be considered is whether the petitioner has been discriminated against in the matter of promotion. The contention is that the acquittal wiped out the stain cast upon his standing by the event which culminated in his prosecution for the offence punishable under section 468 of the Indian Penal Code. We have set out the observations made by the learned CJM in his judgment vis a vis the petitioner. Therefrom it cannot be said that the petitioner has escaped totally unscathed or secured a clean acquittal. At the same time a verdict of not guilty has been recorded against the petitioner and there is no reason to continue suspecting that he was somehow guilty of tampering with official documents. It was open to the department to initiate a departmental enquiry against the petitioner. It is not enough to say that the petitioner secured an acquittal because of lack of sufficient evidence. The departmental enquiry process could have been used to ascertain the guilt or innocence of the petitioner. This not having been done, the department cannot on the one hand honour the Criminal Court's verdict by reinstating him in service, and, on the other continuing to doubt his integrity. Therefore, it has to be held that the petitioner stood exonerated honourably or as the result of benefit of doubt being a factor of no relevance. Petitioner was under suspension for a period of one year during 1977-78. The adverse remarks in the C.Rs. of 1980-81 to 1986-87 are not on record and parties differ as to whether there was communication thereof or not. Petitioner was under suspension for a period of one year during 1977-78. The adverse remarks in the C.Rs. of 1980-81 to 1986-87 are not on record and parties differ as to whether there was communication thereof or not. Petitioner contends that there was no such communication, while the respondents assert the contrary. If there was communication, the respondents could not have found it difficult to establish this fact by clinching evidence. In the absence of such evidence, we are compelled to hold that there was no communication of the alleged adverse remarks appearing in the C.Rs. for the years 1980-81 to 1986-87. So far as the adverse remarks communicated to the petitioner from the C.R. of 1987-88 are concerned, the first remark about his work being 'ordinary' cannot be treated as a disqualification. This is because the criterion for promotion is not seniority-cum-merit, but seniority-cum-suitability. If the petitioner was capable of managing the post---and that is not disputed--- he was entitled to be promoted. What seems to have come in the way of the petitioner was the remark in relation to his integrity being doubtful. This was based almost exclusively on the event which led to the prosecution of the petitioner for the offence punishable under section 468, Indian Penal Code. Having regard to the acquittal of the petitioner in the Criminal Case and the failure of the respondents to initiate a departmental enquiry, the remark about lack of integrity was unwarranted. The same is therefore to be ignored. The DPC should have assessed the petitioner's deserts without being influenced by the adverse remarks contained in the C.R. of 1987-88. Had that been done, petitioner would have been promoted. Having regard to the fact that the petitioner has not impleaded the juniors who have superseded him and also having regard to the possibility of a number of other promotions having taken place since the filing of the petition, we do not intend to interfere with those persons. All that we can do is to direct the respondents to promote the petitioner to the post of Junior Employment Officer, as, and when the next vacancy occurs. 7. The third point to be ruled upon is the eligibility of the petitioner for balance of pay and allowance during the period of suspension which ranged from 25th May, 1977 to 1st March, 1987. 7. The third point to be ruled upon is the eligibility of the petitioner for balance of pay and allowance during the period of suspension which ranged from 25th May, 1977 to 1st March, 1987. Annexure 'A' which is the order passed on 8th December, 1986 on this subject recites that the period of suspension shall be treated as leave due and admissible. This is virtually punishing the petitioner though he has been exonerated. Having regard to what we have said on the second point, the petitioner would be entitled to the full pay and allowances. Having received subsistence allowance, what remains to be paid to him is the difference. That cannot be denied to him and hence the order:- ORDER Petitioner be promoted to the post of Junior Employment Officer as and when a vacancy in the post occurs. The period of suspension i.e. 25th May, 1977 to 1st March, 1978 shall be treated as period spent on duty for the purposes of pay and allowances. The difference between the subsistence allowance and the full pay and allowances be paid unto the petitioner within three months from today. Rule in the above terms is made absolute, with parties being left to bear their own costs. Order accordingly. -----