JUDGMENT 1. 1. In this writ petition the petitioner has challenged the vires of Circular dated 17.7.1989 as well as the order dated 7.11.1990 in so far as it relates to promotion of respondent No. 2 on the post of Superintending Engineer (Irrigation). He has also prayed for issuance of a direction for his promotion on the post of Superintending Engineer. The petitioner has also challenged the charge-sheets dated 11.3.1986, 18.10.1985,8.6.1987, and the order dated 22.12.1986/1.6.1987. 2. Facts which are necessary for decision of the writ petition are that the petitioner joined service as Demonstrator in Civil Engineering in Jodhpur Polytechnic in the year 1958. He was then transferred as Junior Engineer (Civil) in Rajasthan Canal Project. In November, 1963 he was promoted as Assistant Engineer and thereafter he was promoted as Executive Engineer in the month of November, 1975 on the basis of recommendations made by the Departmental Promotion Committee (for short 'DPC'). 3. One adverse entry in his Annual Confidential Report for the year 1972-73 was communicated to him but the same was empugned pursuant to a representation submitted by him against the said adverse remarks. A departmental enquiry was held against him under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 1958 Rules') on the basis of a memorandum dated 11.3.1986. The allegations of supervisory negligence and making of incorrect statements in the Court regarding preparation of accounts were levelled against him. These charges related to the period of his working between 26.1.1966 and 30.11.1967. After a detailed reply was submitted by the petitioner, an order dated 1.6.1987 was passed by the State Government imposing a penalty of withholding of one grade increment without cumulative effect. A second memorandum dated 8.6.1987 was issued against him under Rule 16 of 1958 Rules in respect of the allegations pertaining to the incident of the period between 19.3.1976 to 30.9.1976, while the petitioner was holding the . post of Executive Engineer, The allegations contained in the memorandum dated 8.6.1987 also relates to supervisory negligence of the petitioner, which allegedly led to misappropriation of tiles and bricks by some Junior Engineers. A detailed reply to the charge-sheet was submitted by the petitioner on 3.9.1987. post of Executive Engineer, The allegations contained in the memorandum dated 8.6.1987 also relates to supervisory negligence of the petitioner, which allegedly led to misappropriation of tiles and bricks by some Junior Engineers. A detailed reply to the charge-sheet was submitted by the petitioner on 3.9.1987. According to the petitioner, Chairman and Secretary of Indira Gandhi Nahar Pariyojna (for short 'IGNP') issued UD Note No. F. 2(14) RCDP/82/385 dated 3.10.1986 and observed that the charge-sheets for excess consumption of coal to be withdrawn and charge-sheet for difference of quality in tiles and bricks may be modified and issued under Rule 17 of 1958 Rules instead of Rule 16. This document has been placed on record as Annexure 6. Yet another charge-sheet dated 18.10.1985 came to be issued against the petitioner under Rule 17 of 1958 Rules vide memorandum dated 18.10.1985. A detailed reply was submitted by the petitioner in the year 1986 but no order has been passed. Incident with respect to which charges have been levelled against the petitioner vide memorandum dated 18.10.1985 related to the period between February 1981 to October, 1981. The charge-sheet has been issued after 41/2 years of the commission/omission of alleged acts of delinquency and the Government has failed to decide the matter for last more than 4 years after filing of reply. 4. The petitioner filed a writ petition before this court in the matter of his promotion to the post of Superintending Engineer. It was registered as S.B. Civil Writ Petition No. 3331/90 Het Ram Dudi v. State of Rajasthan and another . This writ petition was disposed of on 10.8.1990 (Annexure 10) with the observations that the petitioner's case will be considered as regards promotion to the next higher post on merits in accordance with the Rules. The DPC met sometime in the year 1990 and on its recommendations as many as 11 persons have been promoted. Respondent Not 2 has been promoted on the basis of merit. The petitioner's case is that Ids candidature has not been considered fairly and he has been denied promotion for no reason other than the pendency of enquiries and the minor punishment of stoppage of one grade increment without cumulative effect. The petitioner has challenged his non-promotion on the ground that pendency of departmental enquiries cannot be made basis for denying promotion. The petitioner has challenged his non-promotion on the ground that pendency of departmental enquiries cannot be made basis for denying promotion. The DPC and the Government have failed to take note of the fact that the enquiries have been initiated after almost 15 years, 11 years, and 41/2 years of the alleged incidents. The petitioner has filed replies and yet the enquiries have not been decided. The petitioner has challenged the vires of circular dated 17.7.1989 on various grounds set out in the writ petition. The petitioner has claimed that discretion of the DPC and the Government has been totally curbed by the impugned circular, and therefore indirectly the circular results in imposition of a penalty of withholding of promotion. The petitioner has also challenged the continuance of enquiries against him without passing of any final order.4-A. In reply to the writ petition respondent No. 1 has not disputed the facts regarding service particulars of the petitioners. It has, however, been stated that a penalty of stoppage of one grade increment, with cumulative effect was inflicted on the petitioner vide order dated 22.12.1986. In respect of memorandum dated 8.6.1987 it has been stated that the petitioner has filed reply and the matter is under active consideration of the disciplinary authority. Reply of one of the co-delinquents namely Shri B.R. Verma (Junior Engineer) is, still awaited as his name was detected in the year 1990 and there is no intention on the part of the State Government to delay the enquiry. Regarding Annexure 6 it has been stated that no recommendation has been made by the IGNP, so far as the petitioner is concerned and the case of the petitioner will be examined independently after receipt of the reply of co-delinquents. In respect of the memorandum dated 18.10.1985, it has been stated that the matter is under serious consideration of the government. The respondent has stated that it is quite conscious of the requirement of expeditious disposal of the departmental enquiries and that it is keen to finalise the matter at an early date. The petitioner's candidature was considered by the DPC but he was not found suitable by the DPC. His case has been examined by the DPC on the basis of the record and that decision has been taken not to promote him. The circular dated 17.7.1989 has been issued with the object of selecting suitable and efficient persons. The petitioner's candidature was considered by the DPC but he was not found suitable by the DPC. His case has been examined by the DPC on the basis of the record and that decision has been taken not to promote him. The circular dated 17.7.1989 has been issued with the object of selecting suitable and efficient persons. The DPC has to adjudge the suitability of the candidates on the basis of the record. The D.P.C. is entitled to look into the punishment imposed on the employees. The punishment constitutes a relevant material for the purpose of taking a decision on the question as to whether a person should be promoted or not. 5. In order to examine the question relating to validity of circular dated 17.7.1989 it will be proper to refer to Rule 24A (15) of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954: "The Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceeding is under progress, at the time promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings." 6. In almost all service rules similar provision can be found. Rule 24A (15) was in the first instance, inserted in 1954 rules by amendment notification dated 5.3.1976, when general amendments were made in the various service rules. By Notification dated 7.3.1978 Rule 24A was substituted. Even in the substituted rule 24A sub-rule (15) was maintained with identical language. 7. Circular dated 4.1.1977 was issued by the Government in the Department of Personnel under Rule 24A (15) as it stood by virtue of insertion vide Notification dated 5.3.1976. The circular dated 17.7.1989 has been issued in the exercise of the powers under Rule 24A (15) as it stands now and which has been quoted hereinabove. 8. Paragraphs 1, 2, 3, 4, 5 and 10 of the circular dated 4.1.1977 and paragraphs 2.0, 2.1, 2.2, 3.1, 5.0 and 6.0 of circular dated 17.7.1989 have of necessity to be quoted for the purpose of proper appreciation of the controversy involved in the-writ petition. These are: Circular dated 4.1.1977: 1. 8. Paragraphs 1, 2, 3, 4, 5 and 10 of the circular dated 4.1.1977 and paragraphs 2.0, 2.1, 2.2, 3.1, 5.0 and 6.0 of circular dated 17.7.1989 have of necessity to be quoted for the purpose of proper appreciation of the controversy involved in the-writ petition. These are: Circular dated 4.1.1977: 1. The Government have already amended the various Service Rules, vide this Department Notification No. E 10(1) Karmik/Ka-11/75-1 dated the 5th March, 1976 provided that "Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings are under progress at the time promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings." The whole matter has been reconsidered by the Government and in supersession of all previous orders noted in the margin, the following revised instructions to be adopted in such cases are laid down: No. F. 1(7) Appts (A-II)/65, dated, the 16th September, 1971. No. F. 1(7) Appts. (A-ll)68, dated, the 1st April, 1975. No. F. 10(1) Karmik/Ka-II/75 dated, 4th December, 1975. Scope of the Instructions : 2. These instructions shall apply to a Government servant (i) who is under suspension (ii) against whom disciplinary proceedings either under rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, have been initiated i.e. where a charge-sheet and statement of allegations have been issued under rule 16 and the disciplinary proceedings are pending at any stage or where a statement of allegations under rule 17, has been issued and the proceedings are pending and (iii) against whom disciplinary proceedings are proposed to be initiated Le. on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against him but where a charge-sheet and statement of allegations under rule 16 or a statement of allegations under rule 17 has been issued. Procedure to be followed in cases where a Government servant is under suspension at the time when promotion to higher posts is considered by the Departmental Promotion Committee or by the Appointing Authority, where there is no provision for holding Departmental Promotion Committee. 3. Procedure to be followed in cases where a Government servant is under suspension at the time when promotion to higher posts is considered by the Departmental Promotion Committee or by the Appointing Authority, where there is no provision for holding Departmental Promotion Committee. 3. In such a case the Government servant's suitability for promotion should be assessed by the Departmental Promotion Committee Or by the Appointing Authority, as the case may be, and a finding reached whether if the officer had not been suspended, he would have been recommended, selected for promotion. The Departmental Promotion Committee or the Appointing Authority as the case may be, should also take a view as to what the Government servant's position in the list of selected persons (select list) would have been but for his suspension. 4. The findings as to the suitability and the place in the select list of the Government servant should be recorded separately and attached to the proceedings of the Departmental Promotion, Committee in the sealed envelope superscribed 'Findings regarding suitability for promotion on the basis of merit/seniority-cum-merit in (Service/Grade/Post) in respect of Shri (Name of the Officer)" and "not to be opened till after the termination of the suspension of Shri (name of the Officer)". The proceedings of the Departmental Promotion Committee need only contain the note, "The finding are contained in the attached sealed envelope. Similarly, where there is - no provision for holding a Departmental Promotion Committee, the Appointing Authority will record a separate note and observe the procedure given above. The vacancy that could have gone to the Government servant but for his suspension should be filled only on an officiating basis by the next person in the select list. If later, the Government servant concerned is completely exonerated and it is held that the suspension was wholly unjustified, he should be promoted to the post filled on an officiating basis, the arrangement made previously being reversed. Where however, the post which could have gone to the officer but for his suspension ceases to exist before his reinstatement he can only be promoted to the first vacancy that may be available in future. In case where a Government servant is not exonerated, the Departmental Promotion Committee or the Appointing Authority, as the case may be, reconsider the case keeping in view the j findings of the disciplinary proceedings and the decision taken thereon. In case where a Government servant is not exonerated, the Departmental Promotion Committee or the Appointing Authority, as the case may be, reconsider the case keeping in view the j findings of the disciplinary proceedings and the decision taken thereon. Procedure to be followed in cases where a Government servant is not under suspension when promotions are considered by the Departmental Promotion Committee or by the Appointing Authority where there is no { provision for holding Departmental Promotion Committee but disciplinary proceedings are pending or are about to be initiated under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. 5. Where promotions are to be made on the recommendations of a Departmental Promotion Committee, ordinarily the sealed cover procedure as given in paras 3 and 4 should be followed. In exceptional cases, where the Departmental Promotion Committee after looking into the charge-sheet and the statement of allegation feels that the delinquency of the Government servant is of a technical or a minor nature i.e. supervisory negligence in a departmental enquiry or a joint Departmental enquiry etc. the Committee may, for reasons to be recorded in writing, recommend promotion provisionally till the next meeting of the Departmental Promotion Committee. Where the sealed cover procedure has been followed on conclusion of the disciplinary proceedings if the Government servant concerned is exonerated, the recommendations of the Departmental Promotion Committee in the sealed cover for his promotion shall be implemented and he shall be promoted on a regular basis. Similarly, where a Government servant has been promoted provisionally on the basis of the recommendation made by the Departmental Promotion Committee and where the said Government servant on conclusion of the disciplinary proceedings has been exonerated, he shall be promoted on a regular basis in respect of a Government servant in whose cases the sealed cover procedure has been followed to who has been promoted provisionally on the basis of the recommendations made by the Departmental Promotion Committee and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall then make suitable recommendations regarding the Government servants promotion or otherwise. 10. The Committee shall then make suitable recommendations regarding the Government servants promotion or otherwise. 10. Where in the case of a Government servant, the sealed cover procedure as given in para 3 and 4 has been followed for selection by promotion from the post on which he was regularly appointed, to the next higher post and who by virtue of his seniority becomes eligible for promotion to the second next higher post but the Departmental Inquiry has not been concluded by the Disciplinary Authority by the time the meeting of the Departmental Promotion Committee is held, such a person should be considered for promotion to the second next higher post purely on provisional basis by the Departmental Promotion Committee or the Appointing Authority, as the case may be, and the sealed cover procedure as given in para 3 and 4 should be followed in such cases. In respect of a Government servant in whose case the sealed cover procedure has been followed or who has been promoted provisionally on the basis of the recommendations made by the Departmental Promotion Committee, and who upon conclusion of the disciplinary proceedings has not been exonerated, his case should be reconsidered again by the Departmental Promotion Committee in the light of the decision taken by the disciplinary authority in the disciplinary proceedings. The Committee shall then make suitable recommendations regarding otherwise. Person not selected by the Departmental Promotion Committee without taking into account the Departmental Enquiry pending against them." Circular dated 17.7.1989. 2.0 Cases of Government servants to whom sealed cover procedure will be applicable: At the time of consideration of the cases of Government servants for promotion, details of Government servants coming in the zone of consideration for promotion falling, under the following categories should be specifically brought into the notice of Departmental Promotion Committee: (i) Government servants under suspension; (ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; (iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a -decision has been taken to accord sanction for prosecution; (iv) Government servants against whom an investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the A.C.D. or Lok Ayukta or any other agency departmental or otherwise. 2.1 Procedure to be followed by DPC in respect of Government servants under cloud: The DPC shall assess the suitability of Government servant coming within the purview of the circumstances mentioned above alongwith other eligible conditions without taking into consideration the disciplinary case or criminal prosecution pending or contemplated against them or where the investigation is in progress. The assessment of the DPC including f 'Unfit for promotion' and the place in the select list of the Government ? servants recorded separately by it will be kept in a sealed cover. The cover i will be superscribed 'Finding regarding suitability for promotion to the post of in respect of Shri (name of the Government servant). Not to be opened till the termination of the disciplinary case/criminal prosecution/investigation against Shri The proceedings of the DPC need only contain the note. "The findings are contained in the attached ; sealed cover." The authority competent to fill the vacancy should be separately advised to fill the vacancy in the higher grade only in an officiating capacity when the finding of the DPC in respect of the suitability of a Government servant for his promotion are kept in a sealed cover. 2.2 The same procedure outlined in para 2.1 above will be followed by the subsequent DPC convened till the disciplinary case/criminal prosecution/ investigation pending or contemplated against the Government servant concerned is concluded. 3.1 Action after completion of Disciplinary case/criminal prosecution/ investigation: On conclusion of the disciplinary case/criminal prosecution or an investigation which results in dropping of allegation or complaint against the Government servant is completely exonerated, the recommendations of ; the DPS shall be implemented. The due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the due date of promotion of his junior on the basis of such position. The Government servant may be promoted, if necessary by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of junior, but he will not be allowed any arrears of pay for the period preceding the date of actual promotion. The Government servant may be promoted, if necessary by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of junior, but he will not be allowed any arrears of pay for the period preceding the date of actual promotion. 5.0 Six monthly review of 'Sealed Cover' cases : It is necessary to ensure that the disciplinary case/criminal prosecution/investigation instituted against any Government servant is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of a Government servant in a sealed cover is limited, to the barest minimum. It has, therefore, been decided that the appointing authorities concerned should review comprehensively the cases of Government servants, whose suitability for promotion to a higher post/grade has been kept in a sealed cover on the expiry of six months from the date of convening the first DPC which had adjudged his suitability and kept its finding in the sealed cover. Such a review should be done subsequently also every six months. The review should interalia, cover the following aspects : (i) The progress made in the disciplinary proceedings/criminal prosecution and the further measures to be taken to expedite their completion; (ii) Security of. the material/evidence collected in the investigation to take a decision as to whether there is a prima facie case for initiating disciplinary action or sanction prosecution against the officer. If as a result of review, the appointing authority comes to a conclusion in respect of cases covered by item (ii) above that there is no case for taking action against the Government servant concerned, the sealed cover may be opened and he may be given his due promotion with reference to the position assigned to him by the DPC. 6.0 Sealed cover applicable to officers coming under cloud before promotion: The Government servant who is recommended for promotion by the DPC but in whose cases any of the circumstances mentioned in para 2 above, arise after the recommendations of the DPC are received but before he is actually promoted will be considered as if his case had been placed in a sealed cover by the DPC. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this circular order will be applicable in his ease also," 9. He shall not be promoted until he is completely exonerated of the charges against him and the provisions contained in this circular order will be applicable in his ease also," 9. The question which requires consideration is as to whether by issuing administrative instructions, the Government can curtail the power of appointing authority of making recommendations for promotion or can it completely shut out the discretion of the DPC. A perusal of the important clauses of the two circulars, which have been reproduced above, shows that the circular dated 4.1.1977, as. it was amended subsequently, vested a wide discretion on the DPC to make recommendations for provisional promotion of a person after taking note of the technical or minor nature of delinquency alleged against him. The DPC could make recommendation for provisional promotion even to the next higher post in favour of a person, who has earlier been recommended for provisional promotion. However, under the circular dated 17.7.1989 a total embargo has been imposed on the discretion of the DPC by virtue of Para 2.1 The only relaxation is in the form of para 5.0. It is Well known that the departmental enquiries against the Government servant are held in accordance with the provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (fop short 1958 Rules') and even though the Government has from time to time issued instructions for expeditious disposal of the departmental enquiries, such instructions issued by the Government have been followed more in their breach than in compliance. In the absence of any statutory period of limitation the Court cannot ordinarily quash enquiry proceedings only on the ground of delay or on the ground of non-compliance of the time schedule specified in the administrative instructions of the Government. At the same time, no statutory guidelines have been framed specifying the nature of cases in which enquiry under rule 17 of 1958 Rules can be initiated and cases in which enquiry under Rule 16 of 1958 Rules can be initiated. It is, therefore, by and large left to the discretion of the competent authority to initiate enquiry under Rule 16 or 17 of the 1958 Rules, It primarily depends on the discretion of the competent authority, as to under which rule an enquiry is to be initiated This discretion plays an important role for determining the fate and the career of a Government servant. It more or less depends on the notion of discipline which is entertained by a particular competent authority. Instead of being based on rationale or objective considerations it becomes by and large a matter of subjective satisfaction of the concerned competent authority as to under which rule the inquiry is to be initiated. A believer of strict discipline may view a minor lapse as serious and order initiation of enquiry under Rule 16 of 1958 Rules. Any officer of the coordinate rank, who may be liberal in his approach, may order initiation of enquiry under rule 17 of 1958 Rules in the same case. Likewise the point of time of initiation of inquiry, also depends on wholly uncertain and unpredictable factors. In large number of cases disciplinary enquiry is initiated after lapse of many years of the commission of the alleged delinquency. Preliminary enquiry/investigation takes years and after the completion of preliminary enquiry it again takes quite some years to the competent authority to make up its mind. Above all the actual conduct of the disciplinary enquiry depends on many factors. Sometimes delay is caused-on account of the delinquent himself. At the times the presenting officers in the department are responsible for the delay in the conduct and completion of departmental enquiry. It is thus clear that unpredictable and uncertain factors and subjective satisfaction of a particular officer plays important role, in the initiation, conduct and conclusion of the departmental proceedings. Therefore it is highly inequitable to indirectly punish a Government servant by denial of promotion, though temporarily, by application of the sealed cover procedure irrespective of point of time of alleged delinquency; irrespective of the point of time of initiation of enquiry and above all irrespective of the nature of allegations. Although placement of recommendation of a DPC in sealed cover in respect of a particular Government servant cannot strictly be termed as a punishment under rule 14 of 1958 Rules, nevertheless it cannot altogether be ignored that till the recommendations of the DPC remain in sealed cover, the Government servant cannot get his promotion whereas his juniors may get such promotion. "Every Government servant is basically careerist and he wants to enjoy higher status in the form of promotion and therefore denial of promotion to him is like imposing an indirect punishment on him." 10. "Every Government servant is basically careerist and he wants to enjoy higher status in the form of promotion and therefore denial of promotion to him is like imposing an indirect punishment on him." 10. That apart, a perusal of the scheme of the 1954 Rules shows that right to make recruitment by direct recruitment or promotion vests with the competent authority. In cases of the State Service the Government is the appointing authority. In cases of subordinate and ministerial services Head of the Department/Head of the Office is the competent authority. Recommendation of the DPC or any other agency merely provides material on the basis of which the competent authority is to take a final decision in the matter of appointment. Even when a .DPC makes recommendations for promotion of a person, an absolute right is not conferred in favour of a Government servant to be promoted. After the recommendation is made by the DPC under Rule 24A (11), the Commission is required to be consulted. The Commission has also a right to effect change in the list prepared by the DPC, in case Such change is considered necessary by the Commission. After the receipt of the list the appointing authority has to approve the list with such modifications, which are in its opinion just and proper. List prepared after consultation with the Commission is to be sent to the appointing authority. Only after the approval of the list by the appointing authority, appointment by promotion can be made. The provisions of sub-rules (12) and (13) of Rule 24A clearly show that ultimate right to make appointment vests with appointing authority and the recommendations made by the DPC, is always not binding on the appointing authority. The appointing authority has been conferred with the discretion, by the Rule Making Authority, to make modifications in the list prepared by the DPC and which may have been approved even by the Commission. The only check on this discretion of the Government is that the Government can make modification only for good and sufficient reasons. The appointing authority has been conferred with the discretion, by the Rule Making Authority, to make modifications in the list prepared by the DPC and which may have been approved even by the Commission. The only check on this discretion of the Government is that the Government can make modification only for good and sufficient reasons. Thus, when it is clear that the ultimate authority to make appointment vests with the Government or other competent authority, by issuing administrative instructions, the Government cannot abdicate, abridge or curtail its own authority of making final selections nor can the Government place such restriction on the powers of other appointing authorities, who are vested with the discretion and authority of making appointment in accordance with the statutory Rules. The Government cannot by issuing administrative instructions completely shut out application of mind by a competent authority. 11. In Guman Singh v. State of Rajasthan : (1971) 2 SCC 452 , somewhat similar question arose before the Supreme Court in respect of circular issued by the Government of Rajasthan on 27.8.1966 in the matter of promotions to some State Services. While making a reference to the principle laid down in Sant Ram Sharma v. State of Rajasthan: AIR 1967 SC 1910 , their Lordships observed: "The Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed." 12. Their Lordships further held that the circular issued in that case by which marks were prescribed, completely restricted the power which was vested by the Rule in the Selection Committee and the appointing authority and therefore, the circular was ultra vires to the Rules. Their Lordships held: "The circular of August 27, 1966, contained administrative instructions for the guidance of Selection Committees and the Appointing Authorities and it was not left open to them to ignore these instructions or to go contrary to the directions contained in it. Their Lordships held: "The circular of August 27, 1966, contained administrative instructions for the guidance of Selection Committees and the Appointing Authorities and it was not left open to them to ignore these instructions or to go contrary to the directions contained in it. The instructions contained in the circular for marking system are so rigid that they curtail or restrict the powers conferred on the Selection Committees and the Appointing Authorities by the Rules and they are opposed to the selection to be made strictly on merit as provided under Rules 28-B and 32." In para 53 of the judgment their Lordships brought about the distinction between the two circulars and proceeded to observe : "The object of the circular may be to bring about uniformity in the award of marks. But the directions contained therein do offend the rules. There is not a case of the Government filling up the gaps or giving executive instructions on matters not provided for by or not inconsistent with the Rules. The learned Judges of the Division Bench of the High Court, have by and large, upheld the validity of the marking system as well as the other instructions contained in the circular of 1966 on the ground that the marking system as pointed out by the State has been in vogue from 1960, on the basis of a previous circular, dated August 31, 1960, issued by the State Government. Reliance placed upon this circular of 1960 by the High Court in our opinion, is not justified. We have gone through the circular of 1960 which is No. F. 1(6) Apptts. (d)/60, dated August 31, 1960. That circular was issued by the State to clarify the misapprehension that appears to have been caused in the application, for promotion of the principle of merit-cum-seniority or seniority-cum-merit. For the purposes of having uniformity, the State Government had laid down certain principles in the said circular to be borne in mind by the Promotion Committees. No doubt there is a marking system indicated therein. But there are two features which distinguish the circular of 1960 from that of the 1966 circular, it is specifically laid down that the principles mentioned therein are only in the nature of executive instructions to be kent in view by the Committees when making promotions. No doubt there is a marking system indicated therein. But there are two features which distinguish the circular of 1960 from that of the 1966 circular, it is specifically laid down that the principles mentioned therein are only in the nature of executive instructions to be kent in view by the Committees when making promotions. It is made clear that those committees should, however, exercise their own I discretion while applying the above principles in view of the fact that occasionally the Confidential Rolls may not have been written with full sense of responsibility. Moreover, some of the Rules permit interview before selection and in such cases the Selection Committee will have to assess suitability of the (officer as a result of the interview also." Under the circular of 1960, we have already indicated no such discretion is left to the Selection or Promotion fact it is emphasised that the Statutory Service Rules and the instructions contained in the circular are to be treated as a complete code by the Committees. Another point to be noted is that in 1960 the question of promotion on the basis of merit alone had no place. That principle was adopted Committee to adopt any method other than that indicated in the circular. In only, as pointed out by us earlier, in 1965 which led to the amendment of the rules. Therefore, the principles mentioned in the circular of 1960 cannot be relied on when considering the validity of the present circular, when promotion by merit alone has been recognised by the Rules from 1965. We have already indicated that the instructions in the 1966 circular contravene the Rules. Therefore, we are of the opinion that the circular dated August 27,1966, is bad and accordingly it is struck down. We make it clear that we express no opinion on the validity or otherwise of the circular of August 31, 1960. We have only referred to that circular to show that the High Court has committed an error in placing reliance on the same." [Underlining (emphasis) is mine]. What has been done by the impugned circular dated 17.7.1989 is to put a complete bar on exercise of discretion by the DPC or the competent appointing authority. Every possibility of application of mind by a competent appointing authority has been ruled out by virtue of circular dated 17.7.1989. What has been done by the impugned circular dated 17.7.1989 is to put a complete bar on exercise of discretion by the DPC or the competent appointing authority. Every possibility of application of mind by a competent appointing authority has been ruled out by virtue of circular dated 17.7.1989. In my considered opinion this is clearly impermissible under law. The power which has been conferred on the Government by Rule 24A (15) and similar provisions contained in other Rules to deal with the promotion of Government servants provisionally has in effect been used for completely obliterating the discretion of the DPC and the competent authorities and virtually stultifying the statutory discretion vested in them by the rules. Therefore, this part of the instructions cannot be treated as supplementing the rules. They are clearly contrary to the scheme of the rules relating to promotions. 13. There is yet another aspect of the matter which cannot altogether be ignored. In various Service Rules criteria for promotion is seniority-cum-merit. When criteria for promotion is seniority-cum-merit, ordinarily a person who does not have any adverse record during the period under consideration, has a right to be promoted. By virtue of circular dated 17.7.1989, the DPC cannot make recommendation for promotion even on seniority-cum-merit irrespective of the fact that otherwise a person might be suitable and irrespective of the fact that the delinquency for which he is being proceeded against may be of remote past and he may have been promoted on the higher post, in the meanwhile. Once the disciplinary enquiry has been initiated or has been proposed to be initiated sealed cover procedure will have to be followed as a matter of course in terms of the circular dated 17.7.1989. Thus the discretion of the competent authority is totally stultified by virtue of circular dated 17.7.1989. 14. The respondent No. 1 has specifically stated that the petitioner's candidature has been rejected by the DPC. According to the respondent No. 1 the petitioner was not found suitable by-the DPC and this was done on account of the punishment of stoppage of one grade increment without cumulative effect. 15. Shri Paras Kuhad, learned counsel for the petitioner, has argued that denial of promotion to the petitioner is illegal and arbitrary. He urged that when criteria for promotion is seniority-cum-merit, there can be no justification whatsoever for superseding a person on the basis of minor punishment. 15. Shri Paras Kuhad, learned counsel for the petitioner, has argued that denial of promotion to the petitioner is illegal and arbitrary. He urged that when criteria for promotion is seniority-cum-merit, there can be no justification whatsoever for superseding a person on the basis of minor punishment. He further argued that the record of the petitioner has not been considered by the DPC. There has been a total lack of fairness in the consideration of the candidature of the petitioner by the DPC. 16. Shri Ashok Parihar, learned Additional Government Advocate, on the other hand, submitted that the petitioner's candidature has thoroughly been considered and thereafter promotion of the persons junior to him have been given. No illegality can be said to have been committed. 17. The question which needs determination is as to whether an employee can be denied promotion post on the criteria of seniority-cum-merit solely, on the basis of order of punishment of censure or withholding of increment. 18. Ordinarily, this petition could have been disposed of on the basis of the decisions of two Division Benches of the High Court in Prem Chand Kasliwal v. State of Rajasthan and another : (D.B. Civil Writ Petition No. 2151/86 decided on 10.7.1989) and Rameshwar Prasad Sharma v. State of Rajasthan and another: (D.B. Civil Special Appeal No. 7/90 decided on 23.3.1990) . However, it has been argued that on the question of interpretation of the phrase 'seniority-cum-merit' somewhat divergent views have been expressed by different benches of the Court. I have, therefore, considered it proper to deal with the issue at some greater length. 19. The service jurisprudence which has developed in this country during last 4 decades after coming into force of the Constitution is unique and perhaps it has no parallel in any country in the World. The wide interpretation given to the equality clause of Constitution in the context of the Acts and the Legislature enacted with reference to the substantive part of Article 309 of the Constitution and rules framed under the proviso to Article 309 of the Constitution has given rise to different types of cases relating to Government servants and employees of the agencies and instrumentality of the State. The equality clause contained in the Constitution guarantees equal opportunity of employment. The equality clause contained in the Constitution guarantees equal opportunity of employment. This guarantee extends to a right of fair consideration of all similarly situated persons for the purpose of recruitment to any public service or post. The term 'recruitment' includes appointment on the basis of competitive test and promotion made from amongst the departmental employees holding the posts in the lower cadre or service. 20. For the purpose of promotion the well recognised criterion are seniority, seniority-cum-merit, seniority- cum-suitability, seniority-cum-fitness or merit-cum-seniority or merit. Wherever the post is treated as a selection, the criteria for promotion is merit alone. The criteria of promotion posts on seniority does not create such problem. Likewise where the criteria for promotion is merit alone, not much difficulty is faced. Usually problems arise out' of application of criteria of seniority-cum-merit or merit-cum-seniority. The criteria of seniority-cum-merit or seniority-cum-fitness or seniority-cum-suitability has led to such debate and a lot of litigation had come before the courts on the interpretation as well as application of the criteria of seniority-cum-merit or seniority-cum-fitness or seniority-cum-suitability. 21. Leonard D. White has in his work 'Introduction to the Study of Public Administration' stated: "The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organisation. The main interest , to be served is the public interest, not the personal interest of members of the official group concerned. The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original requirement Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made and a determining factor, at any level, it is dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true." 22. If the criteria for promotion is seniority alone then the person who served longest in a particular lower cadre or service, he is entitled to be promoted. But when the criteria of seniority is applied in its absolute sense then merit factor is altogether ignored and total obliteration of merit results in heavy burden on public and a great strain on the efficiency of public service. The problem, therefore, is to ensure a reasonable prospectus of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man. Therefore, the question is as to how the balance is to be stuck between seniority and merit in a proper promotion policy. 23. While recognising the need for minimal opportunities of promotion, their Lordships of the Supreme Court in Raghunath Prasad Singh v. Secretary (Home) Police Department: 1988(Supple.) SCC 519 observed : "Reasonable promotional opportunity should be available in every wing of public service. That generates efficiency in service factors the appropriate attitude to great for achieving excellence in service. In the absence of promotional prospectus, the service is bound to degenerate and stagnation kills desire to serve properly." 24. Again in Council for Scientific Research v. K.G.S. Bhatt : AIR 1989 SC 1972 , their Lordships observed : "It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Management of Flipo Edwin B. Fourth Edn. p. 246). Every management must provide realistic opportunities for promising employees to move upward. "The Organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors." (See : Personnel Management by Dr. Udai Pareek p. 277). There cannot be any modern management much less and career planning, manpower development, management development etc., which is not related to a system of promotions. (See : Management of Personnel in Indian Enterprises by Prof, N.N. Chatterjee Chap. 12, p. 128)." 25. In the light of these observations made by the Apex Court the criteria of seniority-cum-merit or seniority-cum-fitness or seniority-cum-suitability deserves to be examined. 26. In N. Srinath, M.A. Somashekar, Assistant Director Industries v. The State of Mysore and others : 1972 SLR 449 , criteria of seniority-cum-merit was explained by a Division Bench of Mysore High Court in the following words : "Whether the promotion be on seniority-cum-merit basis or by selection, it is impossible to promote a junior without considering the case of a senior. In case of the first type of promotions, it is obvious that a senior must be considered first and that when he is found unfit, the case of the next junior may be considered. In the second category of promotions, the promoting authority must consider a sufficient number of persons in the lower cadre of a number which, a relation to promotional vacancies to be filled, is reasonably sufficient, at the top of the lower cadre for consideration. In the second category of promotions, the promoting authority must consider a sufficient number of persons in the lower cadre of a number which, a relation to promotional vacancies to be filled, is reasonably sufficient, at the top of the lower cadre for consideration. They should take the number from persons at the top, because both according to well known notions of merit in Government service and according to the express provisions of Rule 4 of the Mysore Civil Services (General Recruitment) Rules, seniority is an element in the assessment of merit and even in cases where promotion is by selection, due regard must be had for seniority also." 27. In Shri Shadi Lal v. The Deputy Commissioner, Gurgaon and Ors : 1974 (1) SLR 217 , a learned Single Judge of Punjab High Court observed that where selection is to be made on the basis of seniority-cum-merit if the senior eligible person has merit for promotion, he shall be selected irrespective of merit of his juniors. 28. In Shri Hari Datt Kainthla, Chief Judicial Magistrate and another v. The State of Himachal Pradesh & Ors. : 1974(1) SLR 208 , a full Bench of Himachal Pradesh High Court explained the criteria of seniority-cum-fitness and merit-cum-seniority by observing that: "A milder form of the principle of seniority should determine the order in which an order of a particular grade should be considered promotion, but those considered unfit may be passed over, and officers below them may be considered. This means the seniority-cum-fitness principle, and what it implies is that the senior person unless unfit should get the promotion. The principle has not been found satisfactory because it implies essentially that seniority should be given preponderating weight. The principle of seniority-cum-fitness has been generally applied at the lower levels of service where the duties are of a routine nature. It has also been applied in promotion's from a junior scale post to a senior scale post within the same service. But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from seniority-cum-fitness to merit-cum-seniority. The principle of merit determines that the most meritorious or best qualified person is selected for promotion." 29. But when the question arises of appointment to a higher service consisting of posts carrying superior responsibility the emphasis shifts from seniority-cum-fitness to merit-cum-seniority. The principle of merit determines that the most meritorious or best qualified person is selected for promotion." 29. This matter came to examined by the Supreme Court in State of Kerala v. f N.M. Thomas : 1976(1) SLR 805 , the Apex Court was considering the provisions i contained in Kerala State Subordinate Service Rules, 1958 which contained criteria of seniority-cum-merit. Ray, C.J., who spoke for the majority observed: "The principle of equality is applicable to implement at ail stages and in all respects, namely, initial recruitment, promotion, retirement, payment of pension and gratuity. With regard to promotion the normal principles are either merit-cum-seniority or seniority-cum-merit. Seniority-cum-merit means that giving minimum necessary merit requisite for efficiency of administration, the senior though less meritorious shall be priority. This will not violate Articles 14, 16(1) and 16(2).." 30. In the State of Rajasthan all the service Rules lay down the criteria of seniority-cum-merit or merit as the basis for making promotions to different cadres. The criteria of seniority-cum-merit has consistently been applied by according promotion to persons who do not have adverse record. The seniority is given preponderance of weight and an otherwise suitable person is ordinarily not deprived of promotion only on the ground that much more meritorious person is available. 31. S.C. Agrawal, J. (as he then was) considered the criteria of seniority-cum-merit in Ram Kumar Singh v. State of Rajasthan : 1986(2) Judicial Surveyor P. 196 . After making reference to different decisions of the Courts Agrawal, J., proceeded to observe:- "In, my opinion, a promotion on the basis of merit and suitability stands on a different footing from promotion on the basis of seniority-cum-merit. As pointed out by Ray C.J., in State of Kerala and others v. N.M. Thomas and others ( AIR 1976 SC 490 ) , "seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior, though less meritorious, shall have priority." In other words, for the purpose of making a promotion on the basis of seniority-cum-merit, what has to be seen is whether the person who ranks senior possesses the minimum necessary merit requisite for efficiency of administration, and there is no question of assessing the comparative merits between two persons. The considerations which weigh for making promotions on the basis of seniority-cum-merit, what has to be seen is whether the person who ranks senior possesses the minimum necessary merit requisite for efficiency of administration, and there is no question of assessing the comparative merits between two persons. The consideration which weigh for making promotions on the basis of merit and suitability and the considerations which weigh for making promotions on the basis of seniority-cum-merit, are thus not the same. In so far as promotion on the basis of seniority-cum-merit is concerned, it is more akin to allowing a person to cross the efficiency bar or confirming a person holding a post on an officiating basis, because unless a person possesses the merit requisite for efficiency of administration he cannot be permitted to cross the efficiency bar and he can also not be confirmed on the post held by him on officiating basis. This would mean that person who posseses the requisite merit and efficiency for crossing the efficiency bar or for the purpose of confirmation, should also be treated to have the minimum necessary merit requisite for efficiency of administration for promotion to the higher post on the basis of seniority-cum-merit. In my view, therefore, the decisions of the Full Benches of Orissa High Court in Venkatrao's case (supra) and Ram (Sic. Ramesh) Prasad's case (supra) as well as the decision of the Punjab & Haryana High Court in Ram Singh Kalson v. State of Haryana (supra) and that of the Bombay High Court in Govind Sadasiv v. State of Maharashtra (supra), which have been given with reference to promotions on the basis of merit-cum-suitability cannot be applied to a case of promotion on the basis of seniority- cum-merit and the principles laid down by the Supreme Court in State of Punjab v. Dewan Chunnilal (supra) would govern such a case." (Underlining emphasis is mine.) 32. This decision has been upheld by a Division Bench which dismissed the appeal filed by the State of Rajasthan against the judgment of Agrawal J. 33. On the basis of these judgments the principle which can be deduced is that the condition of service of employment should be so formulated by the employer so as to maintain the balance between the assertion of career of individual employee and the efficiency of public service. On the basis of these judgments the principle which can be deduced is that the condition of service of employment should be so formulated by the employer so as to maintain the balance between the assertion of career of individual employee and the efficiency of public service. This is necessary to avoid frustration amongst the employees which otherwise leads to demoralisation of the service and is ultimately counter productive. While at the lower levels of the service, criteria for promotion should be seniority-cum-merit or seniority-cum-fitness or seniority-cum-suitability, at the higher levels merit and merit alone should be the yardstick. The criteria of seniority-cum-fitness or seniority-cum-merit has to be so applied that if a senior person possesses that element of merit which makes him efficient for discharge of duties, his seniority must over-weigh better merit of a junior person. Element of comparative assessment of merit is absent when promotion is required to be made on the basis of seniority-cum-merit. At the same time by adopting the criteria of merit or merit-cum-seniority for higher promotion, better and best can be chosen to serve the larger public interest. Even those who are in the lower cadre will then strive for achieving excellence so as to fall within the zone of merit and become eligible for out of turn promotion. 34. A learned Single Judge of this Court has however given a different meaning to the word 'seniority-cum-merit' in O.P. Mishra v. State of Rajasthan (S.B. Civil Writ Petition No. 519/1991 Decided on 2nd May, 1991) . Learned Single Judge interpreted the criteria of seniority-cum-merit appearing in the Rajasthan Subordinate Offices Ministerial Staff Rules, 1957 and observed: "To deal with the average officers, we will have to consider the words 'suitability', 'fitness' and 'merit' and the seniority-cum-merit stands on a higher pedestal. It cannot be placed at par with seniority-cum-fitness or seniority-cum-suitability. Merit always stands on higher pedestal. The Rule Making Authority, in its wisdom has rightly used the word 'seniority-cum-merit' instead of word 'seniority-cum-suitability'. The intention of the Rule Making Authority is that even in the case of seniority-cum-merit due weightage should be given to the merit and it should not be equated with seniority-cum- fitness or seniority-cum-suitability. Merit always stands on higher pedestal. The Rule Making Authority, in its wisdom has rightly used the word 'seniority-cum-merit' instead of word 'seniority-cum-suitability'. The intention of the Rule Making Authority is that even in the case of seniority-cum-merit due weightage should be given to the merit and it should not be equated with seniority-cum- fitness or seniority-cum-suitability. The thinking of Rule Making Authority, is that the norms and criteria must be fixed and how much weightage should be given to the word 'merit' and by awarding the marks, the person who gets higher marks may get promotion. Marking should be regular feature every year and there will not be necessity to consider the case in detail at the time of promotion. However, negative marking system is also necessary." He further said: "I have gone through the judgments cited by Mr. Lodha, learned counsel for the petitioner. In the case of State of Kerala v. N.M. Thomas (supra) and particularly, in para 38 of the judgment, it nowhere says that what should be the norms in the matter of seniority-cum-merit but it is a case in which the question was about the applicability of Articles 14 and 16 of the Constitution of India, so while interpreting the Articles 14 and 16, their Lordships have said that the person, who is senior though less meritorious shall be given promotion. Thus their Lordships used the word 'less meritorious' and had not given good bye to the word 'meritorious'. Mr. Lodha submits that the merit should be equated with the word 'suitability' and the merit stands on higher pedestal and cannot be equated with suitability and that the word 'seniority-cum-merit' is akin to the (efficiency bar. In the matter of EB, the considerations are altogether different 'and it is a question of giving grade increments and here the question is altogether different by giving a promotion on higher post so with due respect I am not of the view, that the seniority-cum-merit can be considered akin to the efficiency bar cases. I agree with the view taken by this court in the case of Mrs. Pratibha Jain v. the University of Rajasthan (supra)." 35. The learned Single Judge specifically made observations which are apparently contrary to the decision of S.C. Agrawal, J. in Ram Kumar Singh's case. I agree with the view taken by this court in the case of Mrs. Pratibha Jain v. the University of Rajasthan (supra)." 35. The learned Single Judge specifically made observations which are apparently contrary to the decision of S.C. Agrawal, J. in Ram Kumar Singh's case. In his judgment learned Single Judge further expressed that equal meaning should be given to both the words 'seniority' and 'merit.' Both should be given equal weightage. Thus it is more than apparent that in O.P. Mishra's case a learned Single Judge has taken a view which is contrary to the view expressed in Ram Kumar Singh's case (supra). However, the fact that judgment in Ram Kumar Singh's case (supra) has been affirmed by a Division Bench was apparently not brought to the notice of the learned Judge, who decided O.P. Mishra's case. Otherwise there could have been no occasion for a single Judge to have ignored the decision of the Division Bench. That apart, even if the judgment of Ram Kumar Singh's case (supra) had not been upheld by Division Bench, it was not justified for the learned Judge to have taken a contrary view and at the same time to have not referred the matter to a larger bench for consideration. Although, in our country there is no statutory provision that a Bench is bound by a decision of coordinate Bench or a larger Bench, but the well established practice which has grown over a number of years is that a law pronounced by a Bench is binding on a coordinate Bench or a Bench of similar number of judges. This practice has been evolved in order of guard against the possibility of inconsistent decisions on points of law by different Benches. It is true that the law cannot remain static and the judgments rendered decades ago cannot be applied and followed blind folded without regard to the realities of life and it is equally true that the law must develop with the development in the society so, that it may continue to be an instrument of service of society, nevertheless if coordinate Benches of a court render inconsistent decisions, the worst would happen. Predictability and certainty of decisions are matters of immense public importance. If law is uncertain and if the judgments are inconsistent credibility of the judicial system is shaken. Predictability and certainty of decisions are matters of immense public importance. If law is uncertain and if the judgments are inconsistent credibility of the judicial system is shaken. Public faith in the system of dispensation of justice is sine qua non for the survival of the system itself. Precisely this is the factor which is responsible for development of well established practice that a Bench of the Court feels bound by the decision of a co-ordinate Bench and refers it to a larger Bench if it feels that principle of law laid down in a particular case by another Bench is not correct or requires reconsideration. The very notion in the. mind of a judge that only he is correct and all others are wrong sounds extremely dangerous for the whole system. All those who have assigned with the pious duty of dispensation of justice are under a constitutional and moral obligation to see that public confidence and faith are not shaken in the existing judicial system by their uncanny approach of ignoring the decision of coordinate and larger Benches. 36. As early as in I960 Das Gupta J., in Mahadev Lal Kanodia v. Administrator General of West Bengal: AIR 1960 SC 936 observed : "We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin case, was cited before the learned Judges who heard the present appeal they took-on themselves to say that previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision." 37. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision." 37. In Lala Shri Bhagwan v. Ram Chand : AIR 1967 SC 1767 , Gajendragadkar C.J., said: "It is hardly necessary to emphasise that consideration of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself." 38. In Union of India v. Raghuvir Singh : (1989) 2 SCC 754 , Phatak C.J., reiterated the doctrine of precedent in the following words "The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court." 39. In Sunderdas Kanyalal Bhatija and others v. Collector, Thane Maharashtra and others (1989) 3 SCC 396 , K.J. Shetty, J., who spoke for the court observed: "In our system judicial review which is a part of our constitutional scheme, we hold it to be the duty of Judges of superior Courts and Tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their client. Subordinate Courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute." 40. Benjamin N Cardozo in his work 'The Nature of Judicial Process' emphasised the need of certainty in judicial pronouncements in the following words:- "I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly be some consideration of history or custom or policy or justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another." 41. Judge Learned Hand referred to the tendency of some judges 'who win the ,game by sweeping all the chessmen off the table'. The Supreme Court deprecated this tendency in Sunderdas Kanyalal's case (supra). 42. Thus, if at all the learned single Judge, who decided O.P. Mishra's case, wanted to take a view which is contrary to the decision of S.C. Agrawal, J. in Ram Kumar Singh's case, the only course open to the learned Judge, was to make a reference to the larger Bench for consideration of the question relating to the interpretation of the phrase "seniority-cum-merit". As for as I am concerned, in my opinion Ram Kumar Singh's case which is based on the Supreme Court's decision in State of Kerala v. N.M. Thomas (supra) has to be followed and there is no reason or justification for taking a different view. 43. The case of Mrs. Pratibha Jain is of little relevance in interpreting the phrase 'seniority-cum-merit' used in service rules framed under proviso to Article 309 of Constitution of India. 43. The case of Mrs. Pratibha Jain is of little relevance in interpreting the phrase 'seniority-cum-merit' used in service rules framed under proviso to Article 309 of Constitution of India. That was a case in which the provisions contained in Section 11 of Rajasthan Universities Teachers' and Officers' (Selection for Appointment) Act, 1974 were interpreted by this Court. Section 11 specified the method of determining the merit in the matter of promotions of Lecturer to the post of Reader in the services of the University. Factors like research work, publications, teaching experience etc. have all been specified as relevant considerations for application of the criteria of seniority-cum-merit. No such provisions exist in the service Rules applicable to the Government servants. Therefore, while interpreting these rules, the principles laid down in N.M. Thomas's case (supra) which have been followed in Ram Kumar Singh's case (supra) will have to be appropriately applied. Thus there cannot be a comparative assessment of merit, when promotion is to be made on the basis of seniority-cum-merit. Seniority is to be given preponderance of weightage and if a person is otherwise fit he cannot be denied promotion and he cannot be superseded merely because more meritorious person is available for promotion. 44. The next question which needs determination is as to whether punishment imposed on an employee can be the sole basis for declaring him or treating him unsuitable or unfit for promotion. While deciding this question one has to bear in mind that so far as the service rules are concerned they do not specify the material which can be taken into consideration for the purpose of judging the suitability/fitness/merit. However, administrative instructions issued by the Government do provide that the service record of a specified period is to be looked into by the departmental promotion committee or the Government or any other competent appointing authority for the purpose. Service record consists of annual confidential reports/annual performance appraisal reports, awards/commendation certificates, entries relating to punishments or pending departmental enquiries etc. All these factors have, therefore, necessarily to be considered at the time of promotion of an employee. Logically, the punishment imposed as a result of departmental inquiry cannot constitute the sole basis for declaring/treating an employee unfit/unsuitable for promotion. 45. It cannot also be ignored that punishment is imposed on an employee for a particular lapse or apt of delinquency. All these factors have, therefore, necessarily to be considered at the time of promotion of an employee. Logically, the punishment imposed as a result of departmental inquiry cannot constitute the sole basis for declaring/treating an employee unfit/unsuitable for promotion. 45. It cannot also be ignored that punishment is imposed on an employee for a particular lapse or apt of delinquency. Such act of delinquency may or may not have any impact on or relevance to the efficiency of the employee for the period under consideration. The punishment itself may relate to a delinquency committed in the remote past having no direct nexus or relation with his performance for the period under consideration. An employee may have performed well or may have been rated as outstanding during the relevant period for which his record is to be looked into and at the same time may have earned a punishment for an act or omission of remote past or may have received a very minor punishment. There may be case of punishment imposed in relation to an act or omission of distant past and in the meantime, the employee may have received promotion because the competent authority could not decide as whether it should hold a departmental inquiry at all or not. There may be cases where departmental inquiry has been prolonged for years not on account of fault on the part of the employee but on account of reasons for which he is least responsible. All these factors will have to be objectively considered while taking into consideration punishment imposed on an employee at the time of consideration of his promotion. Efficiency and misconduct are two distinct concepts in service jurisprudence and this distinction will have always to be kept in mind while judging the suitability/fitness/merit of an employee to shoulder the responsibility of a higher post. This distinction has lucidly been brought out in Union of India v. S J. Ahmed : 1979 SLJ 308 . 46. Efficiency and misconduct are two distinct concepts in service jurisprudence and this distinction will have always to be kept in mind while judging the suitability/fitness/merit of an employee to shoulder the responsibility of a higher post. This distinction has lucidly been brought out in Union of India v. S J. Ahmed : 1979 SLJ 308 . 46. In Prakash Chand Kasliwal's case (supra) this Court had after making reference to the decision of the Supreme Court in Shiv Kumar v. H.S.E.B.: 1988(3) SLR 524 observed: "The principle laid down by the Supreme Court in the aforesaid decision is applicable to the present case because here also as a result of the imposition of penalty of withholding of two increments without cumulative effect the petitioner was deprived of the monetary benefit of two increments only. The said penalty of stoppage of two increments was without any future effect. It could not have any effect in the matter of promotion of the petitioner. Denial of promotion to the petitioner on the basis of the said penalty in substance amounts to imposition of penalty of withholding promotion on the petitioner and that would mean that the petitioner has been punished twice, first by stoppage of increments for two years and the second, by withholding of promotion on the post of Office Assistant in 1983." 47. In Rameshwar Prasad v. State of Rajasthan (supra) the Court held: "It is true that the DPC can take notice of the minor penalties imposed but on the basis of the imposition of minor penalties if the petitioner is otherwise fit for promotion, promotion cannot be denied to him. In the light of the decision rendered by this Court in Shiv Kumar's case and in Prem Chand Kasliwal's case, in our opinion, the minor penalties imposed on the petitioner would not come in his way for promotion to the post of Executive Engineer." 48. The proposition which emerges from these decisions is that while considering the case of an employee for promotion and although the competent authority is entitled to take into consideration punishment imposed on such employee alongwith other relevant record, promotion cannot be denied to him solely on the basis of Punishment. The competent authority is bound to objectively consider the review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen. The competent authority is bound to objectively consider the review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen. It is, therefore, desirable that reasons should be stated. If any challenge is made to the validity of an order on the ground of it being arbitrary or mala fide, it is always open to the authority concerned to place reasons before the court which may have persuaded it to pass the orders. Such reasons must already exist on records as it is not permissible to the authority to support the order by reasons not contained in the records." 49. A similar view has been expressed by the Apex Court recently in Srilekha Vidyarthi v. State of U.P. : AIR 1991 SC 537 . That was a case in which all district Government counsel's were removed by one order of the Government of U.P. While striking down the order of the Government on the ground of arbitrariness, their Lordships observed thus: "No doubt, it is for the person alleging arbitrariness who has to prove it. This can be done by showing in the first instance that the impugned State action is uninformed by reason inasmuch as there is no discernible principle on which it is based or it is contrary to the prescribed mode of exercise of the power or is unreasonable. If this is shown, then the burden is shifted to the State to repel the attack by disclosing the material and reasons which led to the action being taken in order to show that it was an informed decision which was reasonable. If after a prima facie case of arbitrariness is made out, the State is unable to show that the decision is an informed action which is reasonable, the State action must perish as arbitrary." The principles laid down in these decisions are in my opinion applicable and must be followed by various public bodies which are involved in the process of making selection of employees. It is necessary for such bodies to record reasons in their proceedings which constitute the basis for superseding a senior man in the matter of promotion based on seniority-cum-merit. Such reasons need not be communicated to the employee. It is necessary for such bodies to record reasons in their proceedings which constitute the basis for superseding a senior man in the matter of promotion based on seniority-cum-merit. Such reasons need not be communicated to the employee. But if a challenge is made by the employee to his supersession in a court of law and the court calls upon the respondent to answer the charge of arbitrariness, the respondents must place record before the court and satisfy the court that there exist good -reasons for superseding a senior person. The court will then be entitled to appreciate in a correct perspective the basis of the action taken by the employer for superseding a senior person. 50. As far as present case is concerned, no material has been placed before the Court to justify the supersession of the petitioner. It has not been shown as to how the record of the petitioner has been considered and what weightage has been given to the punishment of stoppage of one grade increment without cumulative effect because the punishment was imposed for the alleged supervisory negligence of the petitioner. No material has been placed on record to show that the petitioner is otherwise unsuitable for promotion to the post of Superintending Engineer. 51. As far as enquiries are concerned there is some justification in the argument of the learned counsel for the petitioner that the inquiries have been initiated after considerable delay and even after initiation, the Government has failed to complete the same expeditiously. This question has been examined in State of Madhya Pradesh v. Bani Singh : AIR 1990 SC 1308 and also by this Court in the following cases : (1) S.B. Civil Writ Petition No. 4609/89 P.C. Tripathi v. State of Rajasthan decided on 3.1.1991 . (2) D.B. Civil Writ Petition No. 460/91 H.P. Kuchhal v. State of Rajasthan decided on 23.5.1991 . (3) S.B. Civil Writ Petition No. 206/90 C.L. Rassawat v. State of Rajasthan decided on 10.2.1992 . (4) S.B. Civil Writ Petition No. 4662/89 Chand Behari v. State of Rajasthan decided on 13.11.1991 . 52. In all these writ petitions the Apex Court as well as this Court declared that delayed initiation of enquiry and continued pendency of enquiry without any explanation for delay may offer a good ground for quashing of the proceedings. 53. There has certainly been an abnormal delay in the. 52. In all these writ petitions the Apex Court as well as this Court declared that delayed initiation of enquiry and continued pendency of enquiry without any explanation for delay may offer a good ground for quashing of the proceedings. 53. There has certainly been an abnormal delay in the. proceedings of the enquiries. The respondents have not explained the delay in initiation of the enquiries except that in some cases the enquiries are held jointly. Having regard to the overall circumstances of the case I consider it proper to direct the respondent State Government to take a decision expeditiously on the replies filed by the petitioner in respect of enquiries pending under Rule 17 of 1958 Rules. If a decision is not taken within four months of submission of certified copy of this order, the petitioner will be entitled to seek quashing of the charge-sheets. In respect of enquiries pending under Rule 16 of 1958 Rules, the Government must take a decision within four months to proceed or not to proceed with the further enquiry. If such a decision is not taken within this period, the petitioner will be entitled to seek quashing of the proceedings. 54. The writ petition of the petitioner is, therefore, allowed. The rejection of the petitioner's candidature for promotion to the post of Superintending Engineer is declared to be illegal. Para 2.1 of the circular dated 17.7.1989 is declared as ultra vires to Article 24A (12), Rule 24A (13) and Rule 24A (14) of the Rajasthan Service of Engineers (Irrigation Branch) Rules, 1954 and similar other Rules in so far as it completely takes away the discretion of the DPC as also of the appointing authority including the Government. The respondent Government is directed to reconsider the case of the petitioner for promotion to the post of Superintending Engineer in the light of the observations made above. The Government should take decisions regarding the enquiries pending against the petitioner in the light of the observations made hereinabove. Costs made easy.Writ petition allowed. *******