Honble SHETHNA, J.–The petitioner has challenged in this petition the impugned order of promotion dated 19.4.82 passed by the respondent Board whereby as many as 70 LDCs were promoted to the post of UDC. (2). Learned counsel Shri P.C. Sharma appearing for the petitioner vehemently submitted that the criteria for promotion was only seniority cum merit. He submit- ted that number of juniors were promoted but the petitioner was not Shri G.M. Bhandari appearing for the respondent Board submitted that the case of the petitioner was considered. For that promotion for last five years record of the petitioner was seen. He further submitted that against the petitioner departmental enquiry was initiated for the serious charge of temporary mis-appropriation where- in he was found guilty on his admission and also warned by an order dated 19.4.82 (Annexure/2).Therefore, he submitted that under the circumstances he was rightly not considered. (3). Learned counsel Shri Sharma for the petitioner submitted that warning is not a penalty as defined under Regulation 5 of the Employees (Classification, Control and Appeal) Regulations,1962. He submitted that the employer took lenient view regarding misconduct committed in the past and for which he was already warned, therefore, he cannot be denied promotion later on this ground. It would amount to double punishment. He therefore submitted that the petitioner should also be given promotion from 19.4.82 the date on which his immediate juniors were promoted to the post of UDC. (4). It is true that warning is not one of the penalties as mentioned in Regulation 5, however, it cannot be said that the petitioners record was unblemished. Charge of temporary mis- appropriation is also a serious charge. Considering the age and other circumstances if the employer had taken lenient view of the matter and let go the petitioner by simple "warning "to him then it cannot be said that no penalty was imposed. If the record of five years was taken into consideration for the purpose of promotion to the higher post then certainly this aspect of the matter has to be considered and in my opinion the employer has already taken into consideration this fact and not promoted the petitioner in 1982 because the petitioner was given warning on 17.2.78. (5). If the record of five years was taken into consideration for the purpose of promotion to the higher post then certainly this aspect of the matter has to be considered and in my opinion the employer has already taken into consideration this fact and not promoted the petitioner in 1982 because the petitioner was given warning on 17.2.78. (5). At this stage it may be stated that in 1984 when the promotion of the petitioner and others were considered on the basis of last five years record, the pe- titioner was found fit to be promoted and in fact, he was already promoted to the post of UDC on 25.2.84, therefore, it cannot be said that the petitioner was wrongly not considered for promotion to the post of UDC in 1982. (6). In view of the above discussions, I do not find any substance or merit in this petition. It fails and is dismissed.