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Gujarat High Court · body

2007 DIGILAW 600 (GUJ)

V. G. PATEL v. STATE OF GUJARAT

2007-09-17

H.K.RATHOD

body2007
H. K. RATHOD, J. ( 1 ) HEARD the learned advocate Shri paresh Upadhyay on behalf of petitioner and learned AGP Prasant Markand appearing on behalf of respondent. ( 2 ) THE petitioner joined the services of the Government as Accounts Officer Class-II in the year 1982. In August, 1987, the petitioner was appointed direct recruit accounts Officer Class-I. On 17th July, 2001, persons junior to the petitioner are promoted on the post of Deputy Director (Accounts), including Shri V. M. Shah who is at Sr. No. 166 in the seniority list whereas the petitioner is at Sr. No. 163 in the said list. At the time of said promotion, one departmental inquiry was pending against the petitioner and therefore, recommendation of the Departmental promotion Committee was kept in sealed cover. On 25th February, 2004, more officers, junior to the petitioner, were promoted on the post of Deputy Director (Accounts ). At that time, one Shri s. V. Trivedi, who was at Sr. No. 205 in the seniority list, was also superseded because of pendency of departmental inquiry against him. The departmental inquiry against Shri s. V. Trivedi was concluded by imposing minor punishment of censure vide order dated 20th October, 2002. On 11th november, 2004. the departmental inquiry initiated against the petitioner was culminated into minor punishment of withholding of one increment without future effect. On 30th August, 2005, upon conclusion of the departmental inquiry against the petitioner as well as Shri trivedi, the Government released the promotion on both of them. On 30th september, 2005, the petitioner made representation that the petitioner is entitled to get deemed date since the departmental inquiry, which was the reason for not releasing promotion of the petitioner alongwith his junior, had culminated into minor punishment of withholding of one increment. Same representation is also made by Shri S. V. Trivedi claiming deemed date of promotion against his immediate junior with effect from 25th february, 2004. The claim of Shri Trivedi was accepted and deemed date promotion as claimed by him was granted. On 5th september, 2006, the claim of the petitioner for deemed date of promotion was rejected without assigning any reason by the State government. ( 3 ) LEARNED advocate Shri Paresh upadhyay submitted that such rejection of the claim of deemed date of the petitioner is absolutely illegal and discriminatory and. therefore, further representation was made by the petitioner. On 5th september, 2006, the claim of the petitioner for deemed date of promotion was rejected without assigning any reason by the State government. ( 3 ) LEARNED advocate Shri Paresh upadhyay submitted that such rejection of the claim of deemed date of the petitioner is absolutely illegal and discriminatory and. therefore, further representation was made by the petitioner. Finance Department has accepted the claim of the petitioner as just and legal and therefore, strong recommendations are also made to General administration Department that the petitioner should be granted deemed date promotion. However, on 31st July, 2007, the General Administration Department has rejected the claim of the petitioner. ( 4 ) LEARNED advocate Shri Upadhyay submitted that punishment of censure and punishment of stoppage of one increment without future effect are minor even though discrimination has been made by the State government accepting the representation of shri S. V. Trivedi and rejecting the representation of the petitioner. He also submitted that person junior to the petitioner as Accounts Officer Class-II and who are promoted in the cadre of Deputy director are already being considered for promotion on the post of Joint Director and the case of the petitioner is not being considered because of nongrant of deemed date. He relied upon Rule VI of Gujarat civil Services (Discipline and Appeal) Rules, 1971 and submitted that Part-Ill is provided where minor punishment including that of withholding of increment or promotion. He submitted that the State government has not imposed punishment of withholding promotion and therefore petitioner is entitled the deemed date, otherwise imposing punishment of withholding one increment without future effect does not arise. Meaning thereby, that though punishment provided under the rules to withhold the promotion but not imposing then natural consequences is that petitioner is entitled promotion from deemed date. He also submitted that during the pendency of inquiry when sealed cover procedure was adopted by Departmental promotion Committee same sealed cover was open after imposing punishment and on that result, the petitioner was promoted to the post of Deputy Director (Accounts) on 30th August, 2005. He also admitted that after the punishment the same sealed cover was acted upon by the respondent and no new Departmental Promotion Committee was met and his case was considered on the basis of sealed cover and then he was promoted. Therefore, first submission of shri Upadhyay is comparison with mr. He also admitted that after the punishment the same sealed cover was acted upon by the respondent and no new Departmental Promotion Committee was met and his case was considered on the basis of sealed cover and then he was promoted. Therefore, first submission of shri Upadhyay is comparison with mr. S. V. Trivedi, discrimination, secondly no punishment was imposed to withhold the promotion and punishment which imposed is minor that cannot be considered against the petitioner for denying the promotion and deemed date. He also emphasized that finance Department has strongly recommended the case of the petitioner for deemed date but Genera! Administration department has rejected the claim of the petitioner. He also submitted that there is no statutory rules which provide this detailed procedure but two resolutions of State government dated 19th February, 1994 and 18th March, 1998 which are annexed to the i petition and relied upon by learned advocate shri Upadhyay that had been relied upon and referred because the State Government rejected the case of the petitioner while considering the aforesaid resolutions. Not only that, but Mr. Trivedi was granted deemed date on the basis of said resolutions. Except that, no other submissions made by learned advocate Shri Upadhyay and no decision is cited by him in support of submissions made by him. ( 5 ) NOW the question is whether sealed cover procedure which is adopted by the state Government during pendency of inquiry, where finding of Departmental promotion Committee it is to be decided whether petitioner is suitable or not for the post of promotion at the stage of pending inquiry. Then after the completion of departmental inquiry it resulted into punishment then whether the same sealed cover can be open or acted upon for granting promotion or not is a legal question. The law recently examined by the apex Court in the light of the aforesaid aspect that whether after punishment same sealed cover is required to be acted or new departmental Promotion Committee is required to be met for considering the case of such employee who has been punished in result of pending departmental inquiry. The apex Court has recently considered the said aspect in case of Union of India and Ors. v. A. N. Mohnan reported in 2007 AIR SC weekly 2773. The head-note suggests that in case of promotion, when departmental inquiry pending against the respondent. The apex Court has recently considered the said aspect in case of Union of India and Ors. v. A. N. Mohnan reported in 2007 AIR SC weekly 2773. The head-note suggests that in case of promotion, when departmental inquiry pending against the respondent. Selection of candidates by Departmental promotion Committee adopting Sealed cover Procedure. Award of penalty of censure on respondent. Same amount to awarding of penalty. In terms of R. 3. 1. of office Memorandum, findings of Sealed cover are not to be acted upon in such cases. And promotion may be considered by next DPC. Claim for promotion by respondent from earlier date when selection made. Not acceptable. ( 6 ) IN light of aforesaid head-notes and considering the case of the petitioner in present petition when the departmental inquiry was pending on the basis of charge-sheet dated 30th October. 1999. Thereafter departmental Promotion Committee was met and case of the petitioner was considered by the Departmental Promotion committee and pending inquiry comes to an end on 11th November. 2004 when punishment was imposed as mentioned at annexure-C. The question is whether State government is right to act upon the finding of earlier Departmental Promotion committee or not. Or whether in such circumstances the next DPC is necessary or not. This aspect in detail examined by the apex Court as referred above. The Apex court has considered the earlier decision on the same point which is well-known decision in case of Union of India v. K. V. Jaankiraman reported in AIR 1991 SC 2010 . The relevant discussions made in paras : 8. 9 and 10 in decision reported in 2007 AIR SCW 2773 (supra) as referred above, which read as under:- "para : 8:- Few Rules as contained in the Office Memorandum need to be noted. Rules 3 and 3. 1 read as follows: rule 3: On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the government servant is completely exonerated, 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 date of promotion of his next junior on the basis of such position. In case the government servant is completely exonerated, 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 date of promotion of his next 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. However, whether the officer convened will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the appointing authority by taking into consideration all the facts and circumstances of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there may be cases where the proceedings, whether disciplinary or criminal, are. for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. , these are only some of the circumstances where such denial can be justified. Rule 3. 1 : If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the finding of the sealed cover/covers shall not be acted upon. His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him. "para : 9. Though learned counsel for the respondent submitted that awarding of censure does not amount to awarding of penalty, the same is clearly untenable. In union of India etc. etc. v. K. V. Jankiraman etc. etc. ( AIR 1991 SC 2010 at page 2017 it was held as follows: we are. "para : 9. Though learned counsel for the respondent submitted that awarding of censure does not amount to awarding of penalty, the same is clearly untenable. In union of India etc. etc. v. K. V. Jankiraman etc. etc. ( AIR 1991 SC 2010 at page 2017 it was held as follows: we are. therefore, broadly in agreement with the finding of the Tribunal that 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 post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/ criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said memorandum, viz. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said memorandum, viz. , "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "however, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. " "para : 10:- Awarding of censure, therefore, is a blameworthy factor. A bare reading of Rule 3. 1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course. " ( 7 ) A bare reading of R. 3. 1 as noted above, makes the position clear that whether any penalty has been imposed, the findings i of the sealed cover are not to be acted upon and the case for promotion may be considered by the next Departmental promotion Committee in the normal course. Here, there is no statutory rules which can be enforced by the petitioner being a legal right. Administrative instructions, departmental instructions, resolutions or regulations are not having statutory flavour. As the instruction issued by the department while issuing resolution cannot be considered to be having statutory force and it cannot be considered to be a legal right of the petitioner which can be enforced by writ of mandamus. So in the absence of statutory rules claiming the benefit of deemed date on the basis of the aforesaid two government resolutions, according to my opinion, petitioner is not entitled for the benefit of claiming deemed date on the basis of findings given by Departmental promotion Committee on earlier occasion. So in the absence of statutory rules claiming the benefit of deemed date on the basis of the aforesaid two government resolutions, according to my opinion, petitioner is not entitled for the benefit of claiming deemed date on the basis of findings given by Departmental promotion Committee on earlier occasion. The two resolutions which are at page-41 i. e. resolution dated 19th February, 1994 where also the State Government has decided that while considering the case of promotion, the punishment which has been imposed by the Competent Authority in respect to the pending inquiry which is also to be considered the relevant factor for granting promotion but in case when censor or scolding being punished, it cannot be considered to be disqualify for promotion. Simultaneously, the State Government has also decided that in case when the confidential report are not proper or not upto the mark then Government can deny the promotion in such circumstances. Another Government Resolution which is at page-44 dated 18th March, 1998 according to the Government whenever sealed cover procedure was adopted by the State government while giving findings by departmental Promotion Committee and after completion of such departmental inquiry if the concerned employee is not fully exonerated by the Competent authority, then State Government shall have to reconsider the case of such employee who have been punished by concerned Competent Authority in next dpc for fresh consideration whether employee is entitled for promotion to the higher post or not? This is a resolution which suggests that in case when the punishment is imposed as a result of pending inquiry, his case was considered by departmental Promotion Committee then case of such employee for promotion requires reconsideration by next departmental Promotion Committee and not to acted upon the same sealed cover without any further application of mind to grant promotion to such employee. The process which has been pointed out in both the resolutions or object behind the same which is logical and rational to reconsider the case of concerned employee who was considered by Departmental Promotion committee when inquiry was pending and in result of same inquiry punishment was imposed then straightway because of minor punishment is imposed automatically he is not entitled as a matter of right promotion but his case is to be required to be reconsidered in light of the punishment imposed by competent authority whether employee is entitled for promotion or not. At that occasion while reconsidering the case of such employee by next DPC may consider the findings of earlier DPC but it cannot be presumed or it cannot be considered to be a legal right of the employees to get automatically promotion from deemed date because minor punishment is imposed and punishment is not of withholding promotion. Decision of apex Court as referred above and object behind both the resolutions according to my opinion, in such cases when the departmental inquiry was pending at that time when the DPC was met, case of such employee is considered to be in sealed cover and after the result of inquiry when punishment was imposed then concerned employee is not entitled automatically with deemed date promotion because minor punishment is imposed but State government or concerned authority must have to reconsider the case of promotion of such employee who has been punished by minor punishment whether he is entitled the promotion to the post or not and whether he is entitled the deemed date or not. but it cannot be considered to be legal right of the concerned employee to claim as a matter of right that he is entitled for promotion with deemed date because minor punishment is imposed and he also entitled the deemed date though punishment is imposed by the competent authority. If this may consider to be legal right of such employee then according to my humble opinion that order of imposing punishment become meaningless and result of inquiry become nugatory. Therefore, there is some impact of punishment must have to be reflected while reconsidering the case of such employee after the minor punishment that exercise is required to be carried out by the department after imposing minor punishment not to rely upon or not to act upon the findings of earlier DPC. Therefore, there is some impact of punishment must have to be reflected while reconsidering the case of such employee after the minor punishment that exercise is required to be carried out by the department after imposing minor punishment not to rely upon or not to act upon the findings of earlier DPC. A case which I rely upon, there is statutory rules r. 3. 1 and I compare that rules with aforesaid two Government Resolutions dated 19th February. 1994 and 18th March, 1998. The object behind both resolutions suggest the same procedure as considered by Apex Court in aforesaid decisions in r. 3. 1. The reason behind is obvious that a punished employee get promotion only on the ground of minor punishment is imposed against which case of employee remained without consideration of punishment while granting promotion with deemed date to such employee. Such kind of exercise is abnormal, illogical and contrary to service jurisprudence. Therefore after considering the basic facts of present case and also comparing the case of the petitioner with case of Mr. S. T. Trivedi who was punished by censure on 20th October, 2004 has rightly distinguished by respondent giving answer to petitioner as mentioned at page:39 dated 31st July, 2007. The reply given by respondent is perfectly legal and valid. There is no discrimination between mr. Trivedi and present petitioner because considering the aforesaid two resolutions the decision given by the respondents is perfectly confirmative with the decision as referred above given by Apex Court. The ratio of the decision is binding to this Court as well as to State Government. One thing is very clear that punishment is imposed to mr. Trivedi are not in similar in nature. One is censure and another is stoppage of one increment without future effect. ( 8 ) THE law on this subject decided in case of Union of India v. K. V. Jankiraman reported in AIR 1991 SC 2010 . Relevant head-Note:a and Head-Note:c are quoted as under:- " (A) Constitution of India, Articles 309. 311- Government of India (Deptt. of personnel and Training) - Office memorandum No. 2011/1/79 Estta (A)Dated 30-1-1982- Promotion - Sealed cover procedure- Is to be resorted to only after charge memo/charge-sheet is issued to employee - Pendency of preliminary investigation prior to that stage - Not sufficient to enable authorities to adopt said procedure. 311- Government of India (Deptt. of personnel and Training) - Office memorandum No. 2011/1/79 Estta (A)Dated 30-1-1982- Promotion - Sealed cover procedure- Is to be resorted to only after charge memo/charge-sheet is issued to employee - Pendency of preliminary investigation prior to that stage - Not sufficient to enable authorities to adopt said procedure. Promotion - Sealed cover procedure - Resort to - When permissible. " "it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/ charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. The plea that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. , would not be tenable. The preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested. persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the cahrges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits to resort to the sealed cover procedure. The authorities thus are not without a remedy. The promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. " " (C) Constitution of India, Articles 309, 311, 14 - Government of India (Department of Personnel Training) Office Memorandum no. 2011/1/79 Estta (A) dated 30-1-1982 -Promotion - Sealed cover procedure -Employee found guilty of misconduct -Cannot be placed on par with other employees - Treating his case differently -Not discriminatory. " " (C) Constitution of India, Articles 309, 311, 14 - Government of India (Department of Personnel Training) Office Memorandum no. 2011/1/79 Estta (A) dated 30-1-1982 -Promotion - Sealed cover procedure -Employee found guilty of misconduct -Cannot be placed on par with other employees - Treating his case differently -Not discriminatory. " "it cannot be said that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. " ( 9 ) IN case of Coal India Ltd. and Ors. v. Saroj Kumar Mishra reported in 2007 AIR scw 2662. The relevant paras 6 and 11 are quoted as under:- "para:6:- Before the Orrisa High Court as also before this Court, reliance has been placed by the appellants on Office memorandums dated 19/27th June, 1979. Upon making into consideration the said office Memorandum as also subsequent memorandums and in particular the one dated 8. 1. 1981, the High Court held: "15. Taking into consideration of the entire factual matrix of the case and keeping in view the ratio decided by the apex Court in different cases, so far as the present petitioner is concerned, the ratio decided in the case of Union of India v. K. V. Jankiraman and Union of India v. Dr. (Smt.) Sudha Salhan has to be followed and since the concerned employees in the cases of Delhi Development Authority v. H. C. Khurana ( AIR 1993 SC 1488 ); union of India v. Kewal Kumar ( AIR 1993 sc 1585 ) and Union of India v. R. S. Sharmna ( AIR 2000 SC 2337 ) stand on a different footing than the present petitioner, the ratio decided in those cases cannot be followed in the case of the present petitioner. In the case of R. S. Sharma the order of the Tribunal directing to open the sealed cover and giving effect to the recommendation made by the DPC on the ground of non-service of charge memo, was set aside keeping in view the Rules/ circulars/o. M. in force more particularly clause-iv of the O. M. wherein it is provided that during the pendency or "investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the cbi or any agency, departmental or otherwise", sealed cover procedure can be resorted to till the proceeding is over in all respect. But in the instant case on the basis of O. M. /circular/rules followed by the mcl/coal India, the sealed cover was opened and the petitioner was given promotion to next higher grade (Grade-4)since the so-called investigation was not completed within two years from the date the immediate junior to the petitioner was promoted. This particular office memorandum has been issued may be with the intention to check prolonged enquiry covering a period of more than two years in respect of certain allegations against an employee, so that the concerned employee shall not be harassed or debarred from getting benefit on the recommendation of dpc for an indefinite/prolonged period on the ground of pendency of such eqnuiry, without initiation of a departmental proceeding after service of charge memo. However once the sealed cover is opened and the petitioner is allowed the benefit of the recommendation of DPC by giving him promotion to the next higher grade, he shall be entitled for all consequential benefits from the date his immediate junior got the same. In this case, the petitioner had never been suspended during the period of the so-called preliminary enquiry nor during the period of departmental enquiry. As such, he shall be entitled for promotion notionally with effect from the date his immediate junior got the same along with all service and financial benefit. " "para : 11:- Both First Appellant as also Mahanadi Coalfields Ltd. are state within the meaning of Article 12 of the constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a state is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a state is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior court the extant rules operating in the field must necessarily be construed in the light of the constitutional scheme of equality. " ( 10 ) IN case of State of Gujarat v. Nareshkumar Shashikant Parekh, reported in 2003 (3) GCD 1829 . The relevant paras : 9 and 10 are quoted as under:- "para : 9 : It becomes, therefore, very clear that mere inclusion of a name in the select list prepared for the purpose of promotion in the higher cadre "ipso facto", does not constitute absolute right upon an incumbent or an employee of the government for the purpose of promotion as it could very well be visualized from the compound and conjoint reading of the aforesaid two paragraphs of the resolution which we have quoted that in certain contingencies, such person, though selected and placed in the select list for the promotion, hos promotion can be withheld and that is what precisely the appellant-original respondent State of Gujarat has done in the present case as before the release of the promotion on its due date. When the turn of the respondent-original petitioner came a conscious decision was taken by the State of Gujarat, the appellant before us for commencement and initiation of departmental and criminal proceedings against him on the serious imputation of bribery which came to be generated on account of a complaint received against the original petitioner, on 3. 2. 2000, which was referred to the Vigilance Commission. After preliminary inquiry report was prepared on 9. 3. 2001. On the basis of the recommendations and advice of the vigilance Commission, the appellant State of Gujarat had taken a conscious decision on 31. 3. 2. 2000, which was referred to the Vigilance Commission. After preliminary inquiry report was prepared on 9. 3. 2001. On the basis of the recommendations and advice of the vigilance Commission, the appellant State of Gujarat had taken a conscious decision on 31. 3. 2001 to initiate departmental action against the original petitioner respondent before us. The due date for the release of the promotion in case of the respondent-original petitioner was obviously on 11. 4. 2001 before which the decision had been taken. Obviously, therefore, the fact situation we have articulated and narrated from the record of the present case would attract the provisions of both the paragraphs quoted hereinbefore. In this set of circumstances, how could it be said for a moment that withholding of the promotion to the respondent-original petitioner before us though selected and found empanelled in the select list could be granted and that too, in a case where serious charge of bribery is under investigation after the recommendation of the Vigilance Commission of the State of gujarat. With due respect, the learned single Judge has taken a perception and has assigned reasons in support of the impugned judgment, are not, in our opinion, sustainable, and, therefore, we are left with no alternative but to make a departure and take a view that the ultimate conclusion recorded by the learned Single judge is unsustainable and without proper evaluation and appreciation of the factual profile coupled with the legal settings. "para : 10 :- Be it also noted that in a service jurisprudence, one of the basic and important facets and concepts has been, irrespective of any statutory or contractual provisions between master and the servant a person though already placed in the select list and under any departmental action, had been initiated at the time of holding and resultant decision of the departmental promotion committee, could not be promoted "ipso facto" or as a matter of right for the release and issuance of promotion or recruitment order. In a case like one on hand, when subsequently such an employed officer or incumbent is shrouded with clouds or has some clout and clout which need to be investigated upon before the employment or promotion order is issued. Undoubtedly, this is a basic principle of service jurisprudence. It may happen in a given case that at the time of selection, even out of recruitment process. Undoubtedly, this is a basic principle of service jurisprudence. It may happen in a given case that at the time of selection, even out of recruitment process. nothing has been found or spelt out against the incumbent or an individual whose selection is made for the purpose of recruitment and likewise even in the case of selection and resultant empanelment for the purpose of promotion to the higher cadre or post, but subsequent circumstances leading to a stage where the conduct or any act or omission of such a person needs to be investigated before, the actual release of the appointment order or promotion order, as the case may be is passed, undoubtedly, it is always open for the management, master or employer to consider this aspect and he cannot be oblivious to the subsequent event, conduct or circumstances which puts incumbent or an employee or an officer in a shroud of clouds, more so, when it is a serious charge of bribery. This proposition is very well expounded and very well enunciated and, therefore, it would not detain us any further to divulge on this dimension of the service jurisprudence. Of course, this is highlighted even in a case where specifically such a provision is not found, whereas the present case stands on a higher footing where two provisions of the resolution referred hereinabove clearly provide a launching pad for initiation of departmental inquiry and/or prosecution on a charge or misconduct based on some inquiry or preliminary inquiry and resultant withholding of the promotion. " ( 11 ) IN decision reported in 2007 10 scale 321 in case of The Chief commercial Manager, South Central railway, Secunderabad and Ors. v. G. Ratnam and Ors. , Paras:20 and 21 are quoted as under:- "para : 20 :- We have carefully gone through the contents of various chapters of the Vigilance Manual. Chapters II, III, VIII, ix and Chapter XIII deal with Railway vigilance organization and its role, Central vigilance Commission, Central Bureau of investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance wort etc. Chapters II, III, VIII, ix and Chapter XIII deal with Railway vigilance organization and its role, Central vigilance Commission, Central Bureau of investigation, Investigation of Complaints by Railway Vigilance, processing of vigilance cases in Railway Board, suspension and relevant aspects of Railway servants (Discipline and Appeal) Rules, 1968 as relevant to vigilance wort etc. Paragraphs 704 and 705, as noticed earlier, cover the procedures and guidelines to be followed by the investigating officers, who are entrusted with the task of investigation of trap cases and departmental trap cases against the railway officials. Broadly speaking, the administrative rules, regulations and instructions, which have no statutory force, do not give rise to any legal right in favour of the aggrieved party and cannot be enforced in a court of law against the administration. The executive orders appropriately so-called do not confer any legally enforceable rights on any persons and impose no legal obligation on the subordinate authorities for whose guidance they are issued. Such an order would confer no legal and enforceable rights on the delinquent even if any of the directions is ignored, no right would lie. Their breach may expose the subordinate authorities to disciplinary or other appropriate action, but they cannot be said to be in the nature of statutory rules having the force of law, subject to the jurisdiction of certiorari. "para : 21 :- It is well-settled that the central Government or the State government can give administrative instructions to its servants how to act in certain circumstances, but that will not make such Instructions Statutory Rules which are justiciable in certain circumstances. In order that such executive instructions have the force of Statutory rules, it must be shown that they have been issued either under the authority conferred on the Central Government or the State Government by some statute or under some provision of the Constitution providing therefor. Therefore, even if there has been any breach of such executive instructions that does not confer any right on any member of the public to ask for a writ against Government by a petition under Article 226 of the Constitution of India. " ( 12 ) THE petitioner was promoted on the finding of earlier DPC after result of departmental inquiry. The sealed cover was opened. There is no statutory Rules framed by State Government as admitted by learned Advocate Mr. Upadhyay. " ( 12 ) THE petitioner was promoted on the finding of earlier DPC after result of departmental inquiry. The sealed cover was opened. There is no statutory Rules framed by State Government as admitted by learned Advocate Mr. Upadhyay. So in absence of statutory Rules, petitioner is not entitled for promotion as a matter of legal right. Even though after minor punishment he was promoted but, petitioner wants deemed date as parity with Mr. Trivedi. Two Government Resolutions suggest reconsideration for promotion while opening sealed cover. The petitioner was not exonerated, but punished by authority which proved involvement of petitioner in misconduct alleging against him. That order of punishment not challenged by petitioner to higher forum and petitioner accepted the same. The punishment of withholding promotion was not imposed, therefore, petitioner is entitled for promotion, cannot be natural result. The punishment of withholding promotion is one kind of punishment provided in Rule 6 of 1971. But, due to that, petitioner is not entitled the promotion even though he was punished by authority, may be minor punishment. In case of full exoneration, sealed cover can be opened, but in case of punishment even minor punishment, there is no statutory Rules to open sealed cover and acted on the resolutions as referred above no statutory force. Then in case of punishment when finding of DPC put in sealed cover, it cannot be acted upon but it can be considered by next DPC for promotion which amounts to reconsideration of the case of promotion after punishment. Otherwise if the punished employee, by way of automatic promotion, would get premium over punishment after opening sealed cover, then punishment imposed in pending inquiry upon the employee, is to be totally ignored. Such method is contrary to common sense. After punishment in pending eqnuiry, sealed cover cannot be opened but his case is to be considered by next DPC. Till then employee is not entitled the promotion though juniors to him must have to be promoted. Minor punishment is not the permission to promote such punished employee. Minor or major punishment is the punishment proves involvement of the employee in misconduct. Therefore submissions made by Learned Advocate mr. Upadhyay cannot be accepted and same are hereby rejected. Both the resolutions also suggest same approach after punishment. Minor punishment is not the permission to promote such punished employee. Minor or major punishment is the punishment proves involvement of the employee in misconduct. Therefore submissions made by Learned Advocate mr. Upadhyay cannot be accepted and same are hereby rejected. Both the resolutions also suggest same approach after punishment. It is not necessary to consider only punishment but it is also necessary to consider charges alleged against employee when question of reconsideration arises after punishment. Both resolutions suggest reconsideration after punishment in pending enquiry and not suggest to merely act upon sealed cover. So after punishment reconsideration by next DPC for promotion is necessary. ( 13 ) IN view of aforesaid observations made by this Court while keeping in mind the basic principles behind giving promotion to such employee normally they are not claiming as a matter of right because of pendency of inquiry irrespective of result of such inquiry, a sealed cover procedure is adopted normally in State government employees. Thereafter in minor punishment claiming the promotion opening the sealed cover is not legal right and it cannot consider to be a legal right but it requires to be reconsidered by State government or concerned department by next DPC independently after punishment whether concerned employee is entitled the promotion or not one thing and second thing whether he is entitled the retrospective effect or deemed date or not. This procedure must have to be followed by the State Government without following such procedure on the findings of earlier dpc if promotion is given, it is contrary to decision rendered by Apex Court as stated above. Therefore, according to my opinion in this present case, the decision taken by respondent State Government is perfectly legal and valid. No error is committed by respondent Department, and, therefore, according to my opinion there is no substance in the petition and hence, the same is dismissed. The Registry is directed to send the copies of this order to all the respondents immediately without any delay. Petition dismissed.