JUDGMENT 1. - The petitioner who is serving as Junior Accountant in the office of respondent No. 2 viz. The Director, Treasury & Accounts, Rajasthan, Jaipur, has filed this writ petition e-challenging the denial of promotion on the grounds inter-alia that the Departmental Promotion Committee had not approved the candidature of the petitioner for the next promotional post of Accountant on the ground of recorded warning in his service record and also on the ground of adverse remarks in his A.C.Rs. and that the same should not be considered as a blanket ban for his future promotions. 2. The petitioner was initially appointed as Lower Division Clerk in the office of the Divisional Forest Officer, Bundi on 8-11-1958. The petitioner appeared for the Accounts Clerks' Examination in pursuance of Rule 27 of the Rajasthan Civil Services (Subordinate Accounts Service) Rules. 1963 (hereinafter to be referred to as the Rules') and the petitioner was appointed as Junior Accountant vide order dated 1-5-1977 passed by the Chief Accounts Officer, Rajasthan, Jaipur, in the Directorate of Agriculture, Jaipur. On 4-7-1977, the petitioner was transferred to the office of Divisional Forest Officer, Bundi. Since then the petitioner has been sent on deputation from one department to another. For some time he worked in the office of D. R.D.A. and thereafter in the office of District Industries Centre. Bundi, where the petitioner is continuing at present. 3. A seniority-list of substantive Junior Accountants was issued by the Chief Accounts Officer, Rajasthan vide order dated 25-8-1981 in which the name of the petitioner figures at serial No. 530. 4. The mode of recruitment to the senior post is envisaged in Part VI of the Rules of 1963. Rule 28(1) provides inter-alia as under:- "The post of Accountant shall be filled in by promotion from amongst substantive Junior Accountants strictly on the basis of merit and on the basis of seniority-cum-merit, in the proportion of 1:2. It has also been provided that if the Departmental Promotion Committee is satisfied that suitable persons are not available for selection, by promotion strictly on the basis of merit, in a particular year. It has also been provided that if the Departmental Promotion Committee is satisfied that suitable persons are not available for selection, by promotion strictly on the basis of merit, in a particular year. selection by promotion on the basis of seniority-rum-merit may be made in the same manner as specified in these Rules." The minimum experience prescribed for promotion to the post of Accountant under the Rules is 5 years service experience as Junior Accountant of a n minimum 12 years' experience in the ministerial service, after passing the Accounts Clerks' Examination (or an equivalent examination) including at least one year's experience as Junior Accountant. It has been further contended in the writ petition that the petitioner who was appointed substantively has become eligible for promotion to the post of Accountant w.e.f. 1-5-1982. It has been further contended that no further promotion took place in the years 1982-83. 1983-84 and 1984-85. The DPC met in the year 1985-86 for making promotions of the respective eligible candidates to the post of Accountants. No, whose grievance was raised by the petitioner at the relevant time since there were senior persons and the petitioner was not in the zone of consideration for being considered for promotion. Thereafter the DPC was again convened in the year 1987-88 and an order was passed on 30-12-1987 whereby 53 persons were promoted to the posts of Accountants. At that relevant time also the petitioner could not be considered for promotion since the candidates senior to the petitioner were available for being considered. The petitioner made a representation to the respondents on 9-1-1988 as he had not been considered for promotion to which a reply was sent by the respondents on 9-2-1988 stating therein that the.petitioner had not been selected by the DPC and hence not promoted. 5. The grievance of the petitioner is that since he had not been given a fair consideration by the DPC notwithstanding anything adverse against n1m and since his services were always found to be meritorious and satisfactory, there was no reason for denial of promotion to the petitioner for the post of Accountant. It has been further contended by the learned counsel for the petitioner that there was only one adverse entry which was communicated to the petitioner for the year 1984-85, as against which the petitioner had submitted a representation. It has been further contended by the learned counsel for the petitioner that there was only one adverse entry which was communicated to the petitioner for the year 1984-85, as against which the petitioner had submitted a representation. The said representation was rejected by respondent No. 2 on 15-4-1986. The reason for non-consideration . of the petitioner by the DPC was on the ground of the order dated 8-7-1988 in relation to the adverse entry for the year 1984-85 and also for the reason that certain departmental enquiries were pending against him. 6. It has been further contended by the petitioner that in absence of the charge-sheet which is mandatory under Rule 16 or Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short `the Rules of 1958') the denial of promotion to the petitioner was not justified. The petitioner has, at the same time, admitted in the writ petition that he was issued a memorandum on 7-5-1988 containing adverse remarks for the year 1984-85 against which he has submitted his explanation on 20-5-1988 denying all the allegations made therein. Ultimately a recorded warning came to be issued to the petitioner vide order dated 25-9-1989. The memorandum was also subject-matter of the complaint made by the Conservator of Forest under whom the petitioner was working at the relevant time. It has been further contended that the DPC again met to make the selection of the candidates for the year 1988-89 for which 75 candidates were promoted to the posts of Accountants but the petitioner's case was apparently not considered and the petitioner made a representation on 19-12-1988. On 28-11-1989 by another departmental order 109 candidates were promoted but the candidature of the petitioner was ignored. Thereafter petitioner again made a representation and the respondents vide letter dated 12-6-1990 informed the petitioner that since he was not found suitable by the DPC, he was not promoted. The petitioner has however, specifically, contended in the writ petition that he had also filed an appeal against the impugned order of the DPC before the competent authority with regard to the adverse entry recorded in the A.C.R. for the year 1984-85. The petitioner has however, specifically, contended in the writ petition that he had also filed an appeal against the impugned order of the DPC before the competent authority with regard to the adverse entry recorded in the A.C.R. for the year 1984-85. It has been contended by the petitioner that it pertains to the delay in preparing the muster-roll and that his work was found below average which can hardly be called adverse so as to dis-entitle the petitioner for being considered to be promoted for the post of Accountant even on merit.It has been further contended that the recorded warning cannot be construed as punishment either under Rule 16 or 17 of the CCA Rules, so also merely making adverse remark for rejection of the petitioner's candidature. It has been further contended the denial of promotion to the petitioner is not justified on the ground that adverse entry as well as the recorded warning could not have been considered for denial of promotion to the petitioner. Since the recorded warning is not a punishment either under Rule 16 or 17 of the CCA Rules nor an adverse remark can be construed to be a punishment for rejection of the petitioner's candidature for promotion. It has been further contended that adverse remarks for the year 1984-85 were not made by the reviewing officer but by the reporting officer and since the reviewing officer had no direct contact with the petitioner-for having assessed the petitioner's work, the said adverse remarks could not be considered for denial of promotion to the petitioner. 7. Apart from the above, the petitioner had also filed an appeal against the recorded warning arising out of the impugned order dated 25-9-1989 and hence the same could not be considered against the petitioner. 8. In the reply to show-cause notice filed on behalf of the respondents it has been contended inter-alia that after the amendment of Rule 28-A of the Rules, all promotional posts in subordinate services shall be filled in by way of seniority cum-merit, and the minimum period prescribed under the Rules for promotion from Jr. Accountant to that of Accountant is 5 years of service. Accountant to that of Accountant is 5 years of service. It has been further stated that for a period of 3 years w.e.f. 1-8-1979 to 31-7-1982 the relaxation was made in the rules providing that persons having 12 years' experience in ministerial service after passing the Accounts Clerks' Examination were also to be considered eligible including at least one year's experience as Jr. Accountant. In para 9 of the reply, it has been stated that one adverse entry was recorded against the petitioner in the A.P.A.R. for the year 1984-85 against which the petitioner submitted his representation and the same was rejected. An enquiry was also initiated against the petitioner under the provisions of Rule 17 of the CCA Rules for not maintaining the accounts and also for not making entries in the register in proper manner and also the petitioner remained negligent for not making M.R. without any reason. The dereliction of duty made by the petitioner was in respect of the year 1984. The petitioner had submitted his reply to the charges and, thereafter the order was passed on 25-9-1989 whereby it was held that the charges were partly established and thereafter the punishment of censure was also imposed upon the petitioner, as per Section 14(1) of the CCA Rules. In para 11 of the reply it has been specifically contended that the disciplinary authority after issuing charge-sheet under the provisions of Rule 17 of the CCA Rules to the petitioner issued a recorded warning to him. It is also relevant to mention that no appeal or revision or writ petition had been filed against punishment as awarded to the petitioner vide order dated 25-9-1989 and also against the rejection of the representation submitted by the petitioner. Consequently punishment thus awarded to the petitioner and adverse entries recorded in the A.P.A.R. attained the finality as the appeal filed by the petitioner had also been dismissed. It has further been stated that in view of the adverse entries against the petitioner for the year 1984-85 and also in .view of the departmental enquiry which was pending against the petitioner, therefore, the petitioner was not found fit for promotion. It has further been contended that the case of the petitioner was also considered for promotion by the DPC for the year 1991 but the result was kept in sealed cover as the departmental enquiry was pending against the petitioner. It has further been contended that the case of the petitioner was also considered for promotion by the DPC for the year 1991 but the result was kept in sealed cover as the departmental enquiry was pending against the petitioner. The petitioner has also filed an appeal against the recorded warning issued to him but said the appeal was also dismissed. It has further been stated that the petitioner was not promoted on account of the recorded warning but also in view of the adverse entries against him. It has also been specifically contended by the respondents that the petitioner's result of promotion against the vacancies of the year 1991 has also been kept in sealed cover since the departmental enquiry under Rule 16 of the CCA Rules is pending against the petitioner. 9. During the course of hearing, it has been contended by the learned counsel for the petitioner that the recorded warning cannot be construed as a punishment in accordance with the CCA Rules. He has further contended at the bar that logically the punishment imposed as a result of the departmental enquiry cannot constitute the sole basis for declaring or treating an employee as unfit or unsuitable for promotion. He has further contended that the competent authority must record reasons to judge fairness of the decision. In support of his contentions, the learned counsel for the petitioner has placed reliance on the following judgments : 1. State of Gujarat v. S. Tripathy, (1986) 2 SCC 373 : (1986 Lab IC 1658) . 2. Het Ram Dudi v. State of Rajasthan, 1992 (3) WLC (Raj) 726 . 3. Suraj Mal Soni v. State of Rajasthan, 1992 (2) WLC (Raj) 1 . 4. Union of India v. K. Krishnan, AIR 1992 SC 1898 :(1992 Lab IC 1953) . 5. Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 . 6. Union of India v. E. G. Nambudiri, AIR 1991 SC 1216 : (1991 AIR SCW 1190) . 7. New Bank of India v. N. P. Sehgal. 1991 (1)JTSC498 . 10. In the matters of U.O.I. v. E. G. Nambudiri (supra). 5. Kumari Shrilekha Vidyarthi v. State of U.P., AIR 1991 SC 537 . 6. Union of India v. E. G. Nambudiri, AIR 1991 SC 1216 : (1991 AIR SCW 1190) . 7. New Bank of India v. N. P. Sehgal. 1991 (1)JTSC498 . 10. In the matters of U.O.I. v. E. G. Nambudiri (supra). Shrilekha Vidyarthi v. State of U.P. and in the matter of New Bank of India v. N. P. Sehgal (supra), it was held by the Apex Court that merely because the disciplinary proceeding pending against an employee was under consideration or in process is not a good ground for not considering the concerned employee for promotion provided he is in the zone of consideration or if he is otherwise found fit for promotion. It has been further observed by the Apex Court that it would not amount to condonation of earlier acts of misconduct of the employee. The only right given to the appellant in such a case is that in case such an officer is otherwise found fit for.promotion and selected for promotion that promotion can be with-held until the officer is exonerated from the charges. 11. In the matter of U.O.I. v. K. Krishnan (supra) the D.P.C. had not considered an employee for promotion in view of the currency of penalty in disciplinary proceedings. It was held that the petitioner was a Postman and he had appeared for the test for the purpose of promotion for Postal Assistant Cadre. He was successful at the test but before the order of promotion could be issued he was found guilty in disciplinary proceedings and was punished by with-holding of increments in salary for a period of one year and 6 months. As a result of this penalty the decision to promote him was not implemented. He made an application before the Central Administrative Tribunal for necessary relief of promotion. The learned Tribunal allowed his prayer that he was entitled to be promoted from due daft with all consequential benefits on the ground that denial of promotion amounts to second punishment which is not permissible. In appeal before the Apex Court, it was held that the view that the Government servant is suffering from a penalty on account of disciplinary proceedings for which he cannot be promoted to a higher grade is logical one and no exception can be taken to the same. In appeal before the Apex Court, it was held that the view that the Government servant is suffering from a penalty on account of disciplinary proceedings for which he cannot be promoted to a higher grade is logical one and no exception can be taken to the same. The Apex Court consequently found no justification or rationale behind the policy and held that the denial of promotion during the currency of the penalty may justifiably be termed as self-contradictory.11A. In my view the ratio of the aforesaid decision of the Apex Court is not applicable to this case because in the aforesaid case the question was regarding the imposition of double punishment for one misconduct to an employee which is not applicable in the present case because in this case there is no question of double jeopardy since the punishment had not been imposed twice. 12. In the matter of Het Ram Dudi V. State of Rajasthan (supra) this Court while dealing with a writ petition pertaining to an employees of the Rajasthan Engineering Services (Irrigation Branch) on consideration of the vires of the Rules of 1954 held that it is highly inequitable to indirectly punish a Government servant by denial of promotion though temporarily by application of sealed cover procedure irrespective of the point of time of initiation of enquiry and above all irrespective of nature of allegations. It was further held that by issuing administrative instruction, Government cannot abdicate. abridge or curtail its own authority of making final selection nor can Government place such restrictions on powers of other appointing authorities who are vested with discretion and authority of making appointments in accordance with statutory rules. 13. The ratio of the aforesaid decision is not attracted to this case for the reason that the DPC for the earlier year had duly considered the petitioner's case for promotion but since the petitioner was not found fit in view of the adverse entries in the A.P A.R. for the years 1984-85 to 1988-89 and also in view of the departmental enquiry pending against him, the petitioner was, therefore, not found fit for promotion. 14. 14. In the matter of Suraj Mal Soni v. State of Rajasthan (supra), the matter had come up on a reference before the Full Bench of this Court and the proposition at issue before the Full Bench was as to whether the minor penalty of stoppage of annual grade increment of one or more than one considered by the D.P.C. for with-holding promotion of a Government servant would amount to double jeopardy? The learned Full Bench while answering the question in negative held that in the matters of promotion, service record of prospective promote has to be considered including all penalties major or minor imposed on a Government servant in order to have an overall assessment of his fitness but with holding of promotion as a result thereof does not attract the rules of double jeopardy for promotion being neither vested right nor denial of promotion being punishment. It was further he d that minor penalty does not effect the seniority of the Government servant and the denial of promotion as a result of minor penalty would not tantamount to with-holding of promotion as a measure of penalty under Rule 14 of the CCA Rules 1958. 15. In my opinion the ratio of the aforesaid decision helps in advancing the case of the respondents rather than that of the petitioner since the DPC has to examine the entire service record of the petitioner objectively and since while examining the service record of the petitioner, the DPC did not recommend the petitioner for promotion on the ground of the imposition of the penalties as referred to above as also in view of the pendency of the departmental enquiry it is not for this Court to substitute its own wisdom over the well reasoned findings of the DPC. 16. 16. The above contentions advanced by the learned counsel for the petitioner have been strongly controverted at the bar by the learned counsel for the respondents on the ground that the petitioner has not approached this Court with clean hands in as much as since the material aspects of the case have been suppressed by the petitioner since he has not disclosed in the writ petition that penalty of censure was awarded to him and his appeal against the imposition of penalty was also dismissed by the appellate Court and the penalty of censure is a punishment within the ambit of Rule 14(1) of the CCA Rules. Learned counsel for the respondents has further contended at the bar that on objective consideration of the material on the record, the DPC did not find the petitioner suitable for promotion and accordingly the candidature of the petitioner was not considered for promotion to the post of Accountant.16A. In support of his contentions the learned counsel for the respondent has placed reliance upon the following judgments: 1. N. B. Kanungo v. Union of India, 1975 Raj LW 234 2. Dr. J. N. Mishra v. State of Bihar. AIR 1971 SC 1318 : (1971 Lab IC 833) 3. Rajendra Singh v. State of Rajasthan, 1994 (3) SLR (Raj) 412 4. N. S. Yadav v. Union of India, 1994 (3) SLR (Delhi) 568 5. Major General IPS Dewan v. Union of India, 1995 (2) JT (SC) 654 16B. In the matter of Major General IPS Dewan v. Union of India (supra) the Apex Court while dealing with the question of adverse remarks in the matter of denial of promotion to the appellant held that adverse remarks as is well-known, can be made by the appropriate superior officer on the basis of mere assessment of the performance of the officer and no enquiry or proper opportunity to represent need to be provided before making such remarks, unless, of course, the rules so provide. The remedy available to the officer in such a case is to make a representation against such remarks to the appropriate authority or to adopt such other remedies as are available to him in law. The remedy available to the officer in such a case is to make a representation against such remarks to the appropriate authority or to adopt such other remedies as are available to him in law. It was held that in absence of a contrary provision in the relevant rules, conducting of a proper enquiry or affording a proper opportunity was held not necessary and such procedure is not violative of the principles of natural justice since remedy of representation is available. It was further held that the Apex Court cannot act as appellate authority over the Selection Board particularly where the criteria for promotion is based on merit of the candidate concerned. In my opinion, the ratio of the aforesaid decision is fully attracted to the facts of the present case and since the denial of promotion to the petitioner has been on account of the adverse remarks of his superior authority, no particular reason need be assigned for not selecting the petitioner for promotion to the post of Accountant by the D.P.C. It is not for this Court to substitute its finding over that of the DPC since neither any mala fides have been attributed against the DPC nor any arbitrariness has been alleged. 17. In the matter of Rajendra Singh v. State of Rajasthan (DB case) (supra), the question which had arisen before the learned D.B. of this Court on a reference being made by the learned single Judge on the question as to what should be the criteria for promotion of a candidate who was not taken into consideration by the learned Appellate Tribunal, it was held that well recognised for the purpose of promotion or seniority, seniority-cum-merit, seniority-cum-suitability, seniority-cum-fitness and merit-cum-seniority, where a post is treated as selection post, the criteria for promotion is merit alone. When promotion is based on pure seniority, the other factors cannot be looked into by the selecting authority. 18. In the matter of Dr. When promotion is based on pure seniority, the other factors cannot be looked into by the selecting authority. 18. In the matter of Dr. J. N. Mishra v. State of Bihar (supra), in an appeal before the Apex Court, the question which had arisen for consideration of interpretation of the rules and regulations of the Bihar and Orissa Agricultural Service Rules for Class-I and Class-II posts, it was held that where the State Government had recommended appointment of a candidate to a selection post on the basis of merit, the High Court was not justified when there was no allegation of mala fides by either side in interfering with the selection actually made or in calling for the records from the Public Service Commission or from the State Government. 19. In the matter of M. S. Yadav v. Union of India (supra), the learned single Bench of Delhi High Court while dismissing the writ petition observed that it was not necessary that the procedure evolved by the earlier DPC while adjudging the merits and suitability of a candidate for promotion should confine the consideration to A.C. Rs. of preceding 5 years only since several factors have to be considered to select a suitable/ merited person for the post. Hence the procedure adopted by the DPC in this regard was held not to be arbitrary or irrelevant. 20. In the matter of N. B. Kanungo v. Union of India (supra), the question which had arisen for consideration of this Court was as to whether it was proper for the Court to examine the proceedings of the DPC to evaluate adverse remarks on records of the eligible persons. It was held that it was not proper for this Court to examine the proceedings of the DPC to go into the question of evaluation of adverse remarks recorded by the DPC against a particular candidate for adjudging their suitability for promotion. It was held that a proper evaluation of comparative merits of the candidates is a matter which lies solely within the jurisdiction of the Promotion or Selection Committee and this Court cannot enter into an assessment of the comparative fitness or merit of the various candidates. One single adverse entry relating to the integrity of an employee may be sufficient to outweigh a far larger number or adverse entries of minor nature in the case of other employees. 21. One single adverse entry relating to the integrity of an employee may be sufficient to outweigh a far larger number or adverse entries of minor nature in the case of other employees. 21. In my opinion the ratio of the aforesaid decisions of the Supreme Court, of this Court as well as of the Delhi High Court are fully attracted to this case and it will not be proper for this Court to act in a manner so as to appellate authority over the findings of the DPC for not considering the candidature of the petitioner for promotion to the post of Accountant. 22. I have heard the learned counsel for the parties and also perused their rival claims and contentions as well as the legal position on the subject. In my considered opinion the petitioner does not deserve any indulgence from this Court in view of the suppression of the material aspect from this Court that penalty of censure was awarded to him and also an appeal was preferred by him against the said penalty which too was dismissed by the appellate authority. I am further of the opinion that it is not appropriate for this Court to substitute its judgment over the well reasoned findings of the DPC and it is always open to the DPC to suitably assess merits or demerits of the candidates in giving or denying promotions and if the candidate is found fit for promotion to give or deny the same to him in accordance with the rules. I have been informed by the learned counsel for the respondents that the enquiry was initiated against the petitioner on the basis of a report received from the Forest Department dated 29-7-89 received on 4-8-89, on the basis of which a case was registered against the petitioner under S. 409, IPC and the enquiry has not yet been completed. 23. In view of the above discussion, this writ petition is consequently dismissed with the observation that if the petitioner is exonerated and not found guilty as a result of the enquiry which is pending against him by the Disciplinary Authority, then he may be considered for promotion keeping in view the criteria of seniority-cum-merit. There will be no order as to costs.Petition dismissed. *******