JUDGMENT 1. By way of this writ petition the petitioner has assailed judgment dt. 6.1.2000 of the Central Administrative Tribunal Bench at Jaipur rejecting his Org. Appl. No. 310/96, wherein relief sought for was that the respondents be directed to promote him from RAS to IAS for the year 1992 in substantive capacity on the basis of recommendations of the review selection board in view of directions of the Tribunal in earlier Org. Appl. No. 45/93 with all consequential benefits. 2. The dispute arose when a meeting of the selection committee was convened on 23, 24, & 25.3.1992, for recommending names of RAS Officers for promotion to IAS cadre of Rajasthan as per Regulation 5 of the IAS Appointment by Promotion) Regulations, 1955 (for short Promotion Regulations) for vacancy of the year 1991-92, where under the petitioner was albeit assessed as "Good" officer on overall assessment of his services but his name was not included in the Selected List despite the expungement of adverse ACR of 1985-86 upon his representation. Whereupon the petitioner preferred OA No.45/93 before the respondent Tribunal assailing his non-promotion to IAS for the year 1991-92 on 15.1.93. Even adverse remarks in ACR of 1986-87 were quashed by this Court under its order dt. 15.2.93 in SB Civil Writ Petition No. 2374/91. 3. However, vide order dt. 3.11.93 (Ann1) in his OA No. 45/93, the Tribunal directed the respondents "to hold a review meeting of the Selection Committee for considering the case of the applicant, in lieu of meeting held in March, 1992, after ignoring the adverse entries for the years 1985-86 and 1986-97. Further, in view of the pendency of the criminal proceedings against the applicant if he is included in the select list, such inclusion shall be provisional and the consequences of such provisional inclusion as provided in the Regulations of 1955 will follow. The respondents shall take necessary action within a period of six months from today." 4. Against order of the Tribunal (Ann.1), ibid, SCP No. 13754/94 was filed by the respondent State admittedly asserting that though subsequent promotions have already been made for IAS but it would be difficult to review the selection for the petitioner. However, the Apex Court did not consider the assertion (supra) as valid and dismissed the SLP by its order dt. 21.11.94 (Ann2). In the meantime, the petitioner was also acquitted in criminal case by judgment dt. However, the Apex Court did not consider the assertion (supra) as valid and dismissed the SLP by its order dt. 21.11.94 (Ann2). In the meantime, the petitioner was also acquitted in criminal case by judgment dt. 7.1.94 (Ann3) of the Special Judge (ACD Cases) Bikaner. Further a review selection committee met in deference to the Tribunal's order (Ann1), where under the petitioner was admittedly assessed as "Very Good" and his name was recommended for inclusion at S.No.19A below Shri P.C. Balai and above Shri J.P. Chandelia in select list of March, 1992 for promotion from RAS to IAS for vacancy of the year 1991-92. 5. As per petitioner's case, S/Shri P.C. Balai and J.P. Chandelia both were very much in IAS cadre for the years 1991-92 and 92-93 respectively, inasmuch as one person Shri S.S. Bhandari who was at S.No. 17 in select list of 1991-92 was withheld for promotion as he was under suspension which continued till his superannuation on 31.8.1994 i.e. before convening of the review selection committee, but despite there being vacancy of S.S. Bhandari (supra) again he was deprived of his promotion to IAS for the year 1991-92 and so on despite Tribunal's order (Ann1). Even subsequently the petitioner was exonerated by order dt. 24.7.95 (Ann4) in disciplinary inquiry upon charge sheet initiated on 20.3.93. And, the petitioner was thereupon promoted to IAS against vacancy of the year 1994-95 on 13.12.95 but not from earlier year 1991-92 in compliance of Tribunal's order (Ann1). 6. The petitioner was constrained to prefer the present OA No. 310/96 assailing respondents' action in not granting promotion against vacancy of earlier year 91-92 while promoting his juniors S/Shri K.P. Singhal & Keshri Singh also for the year 1992-93, in compliance with an order dt. 10.6.96 directing the respondents to place them (K.P. Singhal & Keshri Singh) in select list of the year 93 at S.No. 7A and 7B upon their writ petitions being allowed by this Court as to their ACRs and seniority in RAS after reviewing their case, despite there being no such specific directions of the Apex Court for promoting officers against vacancies of earlier years, as is depicted from the decision in (1) K.P. Singhal v. State of Rajasthan (1995 Supp (3) SCC 549). But his OA No. 310/% was dismissed by the Tribunal by its order dt. 6.1.2000. Hence this writ petition. But his OA No. 310/% was dismissed by the Tribunal by its order dt. 6.1.2000. Hence this writ petition. Reply to it has been filed by the respondent No. 2 followed by rejoinder on behalf of the petitioner also. 7. Only contention canvassed by Shri S.P. Sharma learned counsel for the petitioner is that once adverse remarks in ACRs of the years 1985-86 & 1986-87 stood expunged inasmuch as such adverse remarks were directed to be ignored while considering his case for promotion in question in review selection committee meeting and moreover, criminal case ended in acquittal apart from culmination of imputed charges into exoneration in favour of the petitioner in disciplinary inquiry, and above all ultimately review selection committee having met (in deference of the judicial order which stood upheld by the Apex Court after having considered all these adverse material resulting in expungement & exoneration thereof, had found the petitioner by assessing him as "Very Good" officer thereby it recommended for inclusion of his name at S.No. 19A in select list of year 1991-92 but the respondents deprived of the promotion to the petitioner despite there being clear cut vacancy of S.S. Bhandari (who was not given promotion till superannuation on 31.8.94 and his death on 3.10.97) whereas his juniors were even awarded promotion with retrospective effect upon final verdict in their cases. To support aforesaid contention, Shri S.P. Sharma placed reliance upon the decision of the Apex Court in (2) Union of India v. KV Janakiraman ( 1991(4) SCC 109 , (3) R.K. Singh v. State of UP (1991 Supp(2) SCC 126) & K.P. Singhal v. State of Rajasthan (supra) . 8. To support aforesaid contention, Shri S.P. Sharma placed reliance upon the decision of the Apex Court in (2) Union of India v. KV Janakiraman ( 1991(4) SCC 109 , (3) R.K. Singh v. State of UP (1991 Supp(2) SCC 126) & K.P. Singhal v. State of Rajasthan (supra) . 8. Per contra, Shri N.K. Maloo and Shri Sanjay Pareek learned counsel for the respondents, supported the reasons assigned by the Tribunal in its impugned judgment, and much stress was laid that inclusion of name of the petitioner (G.L. Verma) in select list in question of 1991-92 was in fact made provisional as per proviso to Regulation 5(5) of the Promotion Regulations, subject to clearance of a departmental inquiry pending against him, and that apart, the selected RAS Officers upto S. No. 19 of select list of 1991-92 were only appointed to IAS and no juniors to the petitioner under that select list were appointed, because it was in force till next select list having been prepared by the selection committee in its meeting held on 26.10.93 for the year 1993-94 came into operation wherein also the petitioner was included at S.No. 8 provisionally subject to clearance in departmental inquiry. Further contention on behalf of the respondents is that name of the petitioner could not be made unconditional in select list of 1993-94 as in terms of first proviso to Regulation 7(4), such a list of 93-94 had already elapsed by virtue of preparation of next select list of 1994-95 by the selection committee in its meeting held on 23.1.95. 9. In sum and substance the assertion on behalf of the respondents is that since the State Government did not furnish a proposal to the Commission to make name of the petitioner as unconditional in select list of 1991-92 after disciplinary inquiry stood culminated into exoneration of the imputed charges in his favour, and that the State Government failed to locate a vacancy in promotional quota in State cadre for earlier year 1991-92 so as to appoint the petitioner from select list, besides the promotional quota stood completely utilised during relevant year in question, it was not feasible to create any supernumerary post in the State Cadre only for making appointment of the petitioner to IAS. 10. 10. As regards case of the petitioner as to one vacancy of S.S. Bhandari whose name stood at S.No. 17 in select list of 1991-92, the respondents contended that as per second proviso to Regulation 9(1) of the Promotion Regulations then applicable, one post had to be kept reserved for a provisionally included officer like S.S. Bhandari, which could not be diverted to the petitioner and that apart, there has been no provision in the Promotion Regulations, to appoint a person retrospectively after his exoneration in disciplinary inquiry as is made applicable to sealed cover procedure. 11. The main thrust of the arguments on behalf of the respondents is to interpret Regulation 9 of the Promotion Regulations which provide for appointment of such officers during currency of select list only after their names are made unconditional by the Commission on receipt of a proposal from the State Government and since in the case of the present petitioner, his name was included in select list provisionally and not unconditionally in terms of Regulation 9(1), and further select list of the year 1991-92 stood lapsed resulting into no vacancy in promotion quota of the State cadre, the petitioner could not have been given promotion retrospectively. 12. Having heard the rival contentions and considered the reasons assigned in the impugned judgment of the Tribunal, the fateful question is, on the expunction of adverse remarks & exoneration of the imputed charges in disciplinary inquiry besides acquittal in criminal case in favour of the petitioner and above all recommendations of the review selection committee for inclusion of his name in select list of 1991-92 at S.No.19A, does consequent promotion date back to the date when it was due notwithstanding Regulation 9 of the Promotion Regulations ? 13. As expounded by the Apex Court in Union of India v. K.V. Janakiraman (supra) , when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher most along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. The Apex Court held as under : "There is no doubt that when an employee is completely exonerated and is not visited with the penalty even o censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post." 14. In R.K. Singh v. State of UP (supra) , adverse entries were since expunged during the pendency of appeal before the Apex Court, the State Government granted selection grade to the appellant with effect from the date he took over charge. However, the Apex Court held that once the adverse entries awarded to the appellant were expunged, he is entitled to selection grade with effect from the date on which he was eligible for grant of such grade. 15. Regulation 9(1) of the Promotion Regulations reads as under: "9. Appointments to the Service from the Select List. - (1) Appointments of members of the State Civil Service to the Service shall be made by the Central Government on the recommendation of the State Government in the order in which the names of members of the State Civil Service appear in the Select list for the time being in force : Provided that the appointment of members of the State Civil Service shall be made in accordance with the agreement arrived at under clause (b) of sub-rule (3) of Rule 8 of the Recruitment Rules in the order in which the names of the members of the State Civil Service occur in the relevant parts of the select list for the time being in force : Provided further that the appointment of an officer, whose name has been included in the select list provisionally under proviso to sub-regulation (5) of Regulation 5 or under proviso to sub-regulation (3) of Regulation 7 as the case may be, shall be made after the name is made unconditional by the Commission on the recommendations of the State Government during the period the select list remains in force. While making appointment of an officer junior to the Select List Officer whose name has been included or deemed to be included provisionally in the Select List one post will have to be kept vacant for such a provisionally included officer". 16. While making appointment of an officer junior to the Select List Officer whose name has been included or deemed to be included provisionally in the Select List one post will have to be kept vacant for such a provisionally included officer". 16. Regulation 7 deals with select list and under which, the Commission (UPSC) is required to consider and approve the list prepared by the selection Committee under Regulation 5. As per Regulation 7(3) the list as finally approved by the Commission shall form the select list of the members of the State Civil Service, and under Regulation 7(4) the select list remains in force until its review and revision effected under Sub-regulation (4) of Regulation 5 is approved under sub-regulation.(1) or, as the case may be, finally approved under sub-regulation (2); provided that no appointment to the service under regulation 9 shall be made after the meeting of fresh committee to draw up a fresh list under regulation 5 is held. 17. Proviso to Regulation 5(5) contemplates provisional inclusion of name of an officer in select list in three of circumstances namely if (i) the State Government withholds the integrity certificate of such provisionally included officer, or (ii) any proceedings are contemplated or pending against him, or (iii) anything adverse against him has come to the notice of the State Government. Regulation 5(6) makes it explicit that the list so prepared shall be reviewed and revised every year. 18. Regulation 5(6) makes it explicit that the list so prepared shall be reviewed and revised every year. 18. In our considered view, if a harmonious construction is put to interpret provisions contained in Regulation 7(4) (relevant for the enforcement of select list prepared under sub-regulation (5) to Regulation 5), it stands crystally patent that select list prepared under Regulation 5(5) has a life till its review and revision irrespective of the provisions contained in proviso to sub-regulation (4) to Regulation 7 of the Promotion Regulations and that apart revision and review has to be made in cases of provisional inclusion of officers in select list in terms of proviso to sub-regulation (5) to Regulation 5 especially upon release of the integrity certificate, or criminal and/or disciplinary proceedings culminates into acquittal of criminal offence, or exoneration of imputed charges, or expunction of adverse remarks, subsequent to the preparation of select list, as has incidentally happened in the case of the present petitioner, who admittedly has been not only acquitted in criminal case under the Prevention of Corruption Act by criminal court, but also exonerated of the imputed charges in disciplinary inquiry, subsequent to the provisional inclusion of his name in the select list of 1991-92. 19. The facts and circumstances of the petitioner's case are peculiar as is evident from the fact that he has been fighting legal battle since 1992 for his right on consideration & consequential promotion, right from the day when his. ACRs for the year 1986-86 & 86-87 were put adversely; and criminal as also disciplinary proceedings were initiated, which ultimately failed culminating into clear cut expunction of adverse remarks and exoneration of the charges thereunder, but curiously enough despite having won over the legal battle, it is his bad luck obviously because of admancy on the part of the respondents Mighty State functionaries by not allowing him to enjoy the fruits of judicial verdict by interpreting their own statutory provisions at its whims and caprice resulting into throwing the petitioner from pillar to post. 20. Adamancy on the part of the respondents has patently shocked the judicial conscience. 20. Adamancy on the part of the respondents has patently shocked the judicial conscience. Be that as it may, once it is imperative upon the State Government by virtue of 2nd proviso to Regulation 9(1) to recommend the Commission (UPSC) for making provisionally included officer as unconditional inclusion of his name in the select list, so as to appoint him to IAS, but in case of the present petitioner whose name was included in select list of 1991-92 at S.No.19A provisionally admittedly by review selection committee in deference to the Tribunal's judgment which stood upheld by the Apex Court also, the State Government failed to exercise its legal duty under 2nd proviso to Regulation 9(1) for making provisional inclusion of name of the petitioner in selection as unconditional by way of recommendation to the UPSC and for this fault, the petitioner cannot be saddled with fault by denial of promotion for the year when it was entitled and due to him. 21. Further wrongs on the part of the respondents were that once admittedly factum of pendency of criminal case or disciplinary inquiry against the petitioner was within their knowledge right from the inception of preparation of the select list in question and when the review selection committee with regard to consideration of his case had met (whereby his name was provisionally included in the select list by indicating his name at S.No.19A) obviously pursuant to the judicial verdict on or about 25.1.95, (by then, two subsequent years' (1992-93, 1993-94) selection committee had already met resulting in preparation of fresh select list after that of 1991-92) but again the respondents failed to exercise statutory obligation under 2nd proviso to Regulation 9(1) because they failed to keep one vacant post for the present petitioner (who was provisionally included officer as per review selection committee) while making appointment of Shri J.P. Chandelia (who was admittedly junior to the petitioner and was very much in IAS of the year 1992-93 as whose name was at S.No. 20 in select list of 1991-92 by virtue of recommendation of the review selection committee met on 25.1.95). 22. 22. Whereas in case of S.S. Bhandari (who was under suspension since 1990 by virtue of contemplation of disciplinary inquiry or other adverse things having come to the notice of the State Government but his name was recommended for being included provisionally in the select list of 1991-92, and who further continued to remain suspended till his superannuation on 31.8.94) one post was admittedly kept vacant while awarding promotion to his junior Shri P.C. Balai whose name was included at S.No.18 in select list of 1991-92, so also to next further junior Shri J.P. Chandelia (whose name was included at S.No.19 initially but revised later on by putting him just below and next junior to the present petitioner by the review selection committee met on 25.1.95, as referred to above). Even otherwise right from the inception in RAS cadre, J.P. Chandelia was junior but while promoting him, no procedure of keeping one vacant post reserved for the present petitioner as provided in 2nd proviso to Regulation 9(1) was adopted which has resulted in discrimination qua the petitioner and offended to constitutional mandate besides violative of statutory provisions of the Promotion Regulation. Had one post been kept reserved for the petitioner keeping in view his candidature on the date when his junior Shri J.P. Chandelia was promoted to IAS, such a situation as has arisen presently in case of the petitioner would not have arisen resulting into ordeal and avoidable litigation by him. 23. Even otherwise by virtue of judicial verdict in favour of the petitioner, he was entitled to the benefit of promotion consequent upon not only the acquittal in criminal case but also exoneration of the imputed charges in disciplinary inquiry for which he was withheld for promotion by making his inclusion provisional in the select list for the year 1991-92, so also by virtue of Tribunal's verdict which stood upheld by the Apex Court. 24. It has never been the case of the respondents that similar procedure in respect of the petitioner as provided in 2nd proviso to Regulation 9(1) has been adopted by keeping one vacancy reserved, whereas such a course has been adopted in respect of S.S. Bhandari. 24. It has never been the case of the respondents that similar procedure in respect of the petitioner as provided in 2nd proviso to Regulation 9(1) has been adopted by keeping one vacancy reserved, whereas such a course has been adopted in respect of S.S. Bhandari. Thus it is admitted by the respondents (as is conclusion arrived at by the Tribunal in its judgment under challenge) that vacancy of the year 91-92 kept reserved for S.S. Bhandari (S.No.17 in select list in question) was not filled up as he was under suspension till his superannuation on 31.8.94 and was never given appointment to IAS against that reserved vacancy till his death on 3.10.97. Therefore, it stands established that notwithstanding the proviso to Regulation 7(4) (which puts restriction, that no appointment to the service under Regulation 9 shall be made after the meeting of fresh Committee to draw up a fresh list under regulation 5), one post kept reserved for provisionally included officer in terms of 2nd proviso to Regulation 9(1) will continue in existence till it is filled up pursuant to expunement of adverse remarks and/or exoneration of the imputed charges in disciplinary inquiry, in favour of the delinquent like petitioner. However, in the peculiar facts of the present case, the petitioner could have been appointed to IAS for the year 1991-92 against unfilled vacancy of S.S. Bhandari and obviously even otherwise the petitioner has a strong case for creation of a supernumerary post as to entitle him to the retrospective promotion to IAS by virtue of judicial verdict in the circumstances referred to above, with effect from the year 1991-92 when his junior J. P. Chandelia was promoted and he will be entitled to all other consequential benefits with effect from that date including the arrears of salary and seniority with further consequential promotion. Ordered accordingly. Therefore, the distinction drawn by the Tribunal in the impugned judgment does not seem to be real.In the result, this writ petition - succeeds. The decision rendered by the Tribunal (Ann5) is set aside. The benefit of this interpretation will be worked out by the respondents within one month. Accordingly, this writ petition as well as Org. Appl. No.310/96 are allowed in to, as referred to above. No order as to costs.Petition Allowed. *******