Judgment : D. Murugesan, J. 1. The writ appeal is at the instance of the Tamil Nadu Electricity Board (hereinafter referred to as "the TNEB") questioning the order of the learned Judge made in W.P.No.9315 of 1996 dated 12. 2004. 2. The appeal arises on the following facts. The first respondent joined the services of the TNEB in the year 1971 and he belonged to RWE category. He was promoted to the post of Technical Assistant Grade-I in the year 1982. The next avenue of promotion is to the post of Junior Engineer Grade-II and further to the post of Junior Engineer Grade-I. When the panel for promotion to the post of Junior Engineer Grade-II was drawn on 212. 86, the first respondent was not included in the said panel; apparently an enquiry was pending against him on that date. Though the enquiry was pending, he was issued with an order dated 25. 86 imposing punishment of stoppage of increment, which would take effect from 4. 87. He also suffered a similar punishment of stoppage of increment by a subsequent order dated 287. Thereafter, by order dated 30.1.88, he was removed from service. It appears that the first respondent did not question both the orders dated 25. 86 and 212. 87 imposing the punishment of stoppage of increments and those orders of punishment have become final. However, he questioned the order of removal by filing W.P.No.13192 of 1988 and the said order was set aside by this Court vide order dated 93. Pursuant to the order in the writ petition, he was reinstated into service on 93. As he was reinstated into service, he made a representation to the TNEB that his name should be considered for promotion to the post of Junior Engineer Grade-II and thereafter to Junior Engineer Grade-I. His request was considered, but the promotion was given as Junior Engineer Grade-II only with effect from 9. 94. Therefore, he approached this Court by way of the writ petition seeking for a direction to the TNEB for promotion. By the order under appeal, the learned single Judge did not agree with the contention of the first respondent as to the promotion to the post of Junior Engineer Grade-I on the ground that for the said post, the first respondent should have passed the required test and as such he has not passed such a test. By the order under appeal, the learned single Judge did not agree with the contention of the first respondent as to the promotion to the post of Junior Engineer Grade-I on the ground that for the said post, the first respondent should have passed the required test and as such he has not passed such a test. However, so far as the claim for promotion to the post of Junior Engineer Grade-II is concerned, the learned Judge found that on the date when the seniority list was drawn i.e., on 212. 86, there was no punishment imposed on the first respondent since the punishment of stoppage of increment was given effect to from 4. 87. Therefore the learned Judge found that there cannot be any impediment for the TNEB to promote the first respondent to the post of Junior Engineer Grade-II by including his name in the panel for promotion drawn on 286. The above order is put in issue in this writ appeal. 3. We have heard Mr.M.Vaidyanathan, learned counsel for the appellants and Mr.G.Venkatraman, learned counsel for the first respondent. The appeal stood dismissed as against the second respondent by the order of this Court dated 9. 2008 for non-compliance of the defects. 4. It is the contention of the learned counsel for the appellants that on the date when the earlier panel for promotion to the post of Junior Engineer Grade- II was drawn on 212. 86, an enquiry was pending against the first respondent and the punishment was imposed by the order dated 25. 86, of course, giving effect to the stoppage of increment with effect from 4. 87. The promotion to the post of Junior Engineer Grade-II is on the basis of selection duly taking into consideration of merit and ability and when both merit and ability of the candidate are approximately equal, then the seniority would be taken into consideration. There cannot be an automatic right for promotion to the post of Junior Engineer Grade-II and therefore the non-inclusion of the name of the first respondent in the panel drawn for promotion to the post of Junior Engineer Grade-II was justified, as on that date an enquiry was pending against the first respondent. 5. There cannot be an automatic right for promotion to the post of Junior Engineer Grade-II and therefore the non-inclusion of the name of the first respondent in the panel drawn for promotion to the post of Junior Engineer Grade-II was justified, as on that date an enquiry was pending against the first respondent. 5. On the other hand, Mr.G.Venkatraman, learned counsel for the first respondent would submit that the promotions in the TNEB are not effected following merit–cum-ability, particularly Regulation 98 of the Tamil Nadu Electricity Board Service Regulations, and it has been the practice in the TNEB to effect promotions only in terms of Regulation 106 of the above Regulations. When promotions are effected under Regulation 106, such promotions are effected only on the basis of seniority without reference to the merit and ability. Therefore, the non-inclusion of the name of the first respondent in the panel drawn on 212. 86 on the basis that an enquiry was pending is totally unsustainable. Further, the learned counsel would submit that on that date, the first respondent did not suffer any punishment and therefore the TNEB should have included his name in the said panel. Having regard to the above facts, the learned Judge has correctly appreciated the issue and had directed the promotion of the first respondent as Junior Engineer Grade-II with effect from the date when his junior was promoted. 6. We have carefully considered the rival submissions. For the disposal of the writ appeal, the following relevant Service Regulations of the TNEB can be extracted for better understanding:- "98.(1) Promotion:- (a) No employee shall be eligible for promotion to a higher post unless he is an approved probationer in the category from which promotion to the higher post is admissible. (b)(i) Promotion in all cases shall be made on grounds of merit and ability, seniority being considered where merit and ability are approximately equal. (ii) ..... (iii)..... .(c) to (g)..... 106. Temporary Appointments And Promotions: The appointing authority may appoint or promote temporarily a person otherwise than in accordance with the provisions of these regulations in the following cases until a person is appointed in accordance with regulations. (ii) ..... (iii)..... .(c) to (g)..... 106. Temporary Appointments And Promotions: The appointing authority may appoint or promote temporarily a person otherwise than in accordance with the provisions of these regulations in the following cases until a person is appointed in accordance with regulations. Provided that no employee shall under any circumstances be temporarily appointed or promoted for a continuous period exceeding 3 months:- (a) (1) Where it is necessary in the interest of the administration to fill up a vacancy immediately and there would be undue delay in making an appointment or promotion, as the case may be, in accordance with these regulations. (2)..... (b)..... .(c) Where it is necessary to appoint or promote an employee against whom an enquiry into allegations of corruption or misconduct is pending, the appointing authority may appoint or promote him temporarily pending enquiry into the charges against him. The competent authority shall have discretion to make regular appointments or promotions in suitable cases. .(d) to (g) ......" 7. Regulation 98 contemplates that no employee shall be eligible for promotion to higher post unless he is an approved probationer in the category from which promotion to the higher post is admissible and promotion in all cases shall be made on grounds of merit and ability, seniority being considered where the merit and ability are approximately equal. There is no dispute that this Regulation is also applicable for promotion to the post of Junior Engineer Grade-II from Technical Assistant Grade-I. Whenever promotions are made from the post of Technical Assistant Grade-I to Junior Engineer Grade-II, the TNEB is bound to follow Regulation 98 and a panel of eligible candidates should be drawn and thereafter promotions should be effected strictly on the basis of merit and ability and only when merit and ability are approximately equal, seniority should be taken into consideration. If Regulation 98 is applied, the non-inclusion of the name of the first respondent in the panel drawn on 212. 86 cannot be faulted, as on that date, admittedly, an enquiry was pending against the first respondent, for which punishment of stoppage of increment was imposed on 286. The challenge by the first respondent is that pendency of the enquiry cannot be a ground or a bar for denial of promotion. We are not inclined to accept the said submission. 86 cannot be faulted, as on that date, admittedly, an enquiry was pending against the first respondent, for which punishment of stoppage of increment was imposed on 286. The challenge by the first respondent is that pendency of the enquiry cannot be a ground or a bar for denial of promotion. We are not inclined to accept the said submission. It is now well settled by a catena of decisions of the Apex Court that in the event an enquiry is pending, the employer is entitled to deny promotion to an employee against whom such enquiry is pending. However, in the event the employee is exonerated from the charges, then he would be entitled to promotion as if no enquiry was initiated and was pending. The very question came up for consideration before the Apex Court in C.O.Arumugham and others v. The State of Tamil Nadu and others, 1990 (1) SLJ 185 = 1991 Supp.(2) SCC 199 and the Apex Court has held as follows:- "5. As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn it is a guarantee flowing from Articles 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted." 8. We may also refer to the judgment of the Apex Court in Delhi Jal Board vs. Mahinder Singh, (2000) 7 SCC 210 and in paragraph 5, it is held as follows:- "..... The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Art.16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Art.16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fir for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench." 9. In view of the above law laid down by the Apex Court, the contention of the learned counsel for the first respondent that unless the first respondent suffered the punishment on the date when the seniority list was drawn, there cannot be any denial for inclusion of his name in the panel, cannot be accepted. Even when the enquiry is pending, on the basis of the charge memo issued, it would be a ground for the employer to refrain from including the name of such employee in the panel. Whether the enquiry is pending or punishment has been imposed makes no difference insofar as the non-inclusion of the name in the panel as, if an enquiry is pending on the specified charges, it is suffice for the employer not to include the employees name in the panel. 10. Mr. Whether the enquiry is pending or punishment has been imposed makes no difference insofar as the non-inclusion of the name in the panel as, if an enquiry is pending on the specified charges, it is suffice for the employer not to include the employees name in the panel. 10. Mr. G. Venkatraman, learned counsel for the first respondent had vehemently contended that hitherto the TNEB is following Regulation 106 for effecting promotions of the officers of the TNEB and the promotion given to the first respondent with effect from 4. 87 is in terms of Regulation 106 only. If Regulation 106 is taken into consideration, merit and ability has no role to play, and such promotion was effected only on the basis of seniority. Therefore, the learned counsel would submit that even the TNEB had not followed Regulation 98 for effecting promotions so far. Hence the request of the first respondent for promotion should be considered only with reference to Regulation 106. We are not inclined to accept the said submission. When the Regulations are so clear and as on today the Regulations are in force, the TNEB is bound to follow the Regulations in case of promotions. The promotion to the post of Junior Engineer Grade II shall be effected only in terms of Regulation 98 by drawing a panel of eligible candidates and effecting promotion based on merit and ability and taking seniority, in the event merit and ability are approximately equal. Merely because the TNEB has not followed Regulation 98 so far, and hitherto had been making promotions only under Regulation 106, this Court cannot give a seal of approval of such promotions which are made contrary to the very Regulation 98 as such. 11. That apart, a careful reading of Regulation 106 shows that it is provided to meet the immediate exigencies for filling up the higher post, as in the meantime the TNEB cannot wait for the process of selection, and therefore, the TNEB is entitled to effect promotions in terms of Regulation 106, whereby merit and ability are not the criteria and the seniority alone is taken into consideration. In fact, Regulation 106 is very clear. Such promotions made bypassing the Regulation 98 is only for a period of three months and the promotee cannot continue in the promoted post beyond a period of three months. In fact, Regulation 106 is very clear. Such promotions made bypassing the Regulation 98 is only for a period of three months and the promotee cannot continue in the promoted post beyond a period of three months. It appears that the TNEB, in exercise of the power under Regulation 106, is making promotions without reference to the above period prescribed and allowed the promotees to continue and makes further promotions as if the promotions are made in terms of Regulation 98 after considering the merit and ability. This practice, if followed by the TNEB, should be deprecated, as it would certainly give a go-by to the general Regulations for promotion to all the posts. 12. Be that as it may, even as per Regulation 106(c), no employee has got an automatic right for promotion, as discretion is vested in the TNEB to consider the claim of the employee for promotion impliedly taking into consideration whether the enquiry is pending on the date the consideration arose or whether the employee is eligible to be promoted or not. 13. Therefore, the first respondent cannot claim that his promotion was made under Regulation 106 and by virtue of such promotion, he is entitled to continue as such in the promoted post and is entitled to be considered for further promotions. Hence, for the above reasons, we are not inclined to accept the reasoning in the order under appeal and the consequential direction for promotion of the first respondent for inclusion of his name in the seniority list dated 212. 86 for the post of Junior Engineer Grade-II. Accordingly, the writ appeal is allowed and the order in the writ petition is set aside. No costs. Consequently, W.A.M.P.No.2753 of 2004 is closed.