Judgment Vijender Jain, J. 1. Present letters patent appeal has been filed by the State of Punjab impugning the judgment dated 24.1.2003 passed by the learned Single Judge vide which the writ petition filed by respondent-petitioner, a Sub Divisional Engineer, was allowed and he was directed to have been deemed to be promoted as to S.S.E. Class-I (Public Health) Service with effect from 1.1.1977, when his juniors were promoted with all consequential benefits. 2. Broadly, the facts are that the petitioner was initially recruited as Sectional Officer in the P. W. D (Public Health) Department of Punjab on 12.8.1955 and he was promoted as Sub Divisional Engineer (S.D.E.) on ad hoc basis in 1968 and thereafter on regular basis in 1971. The petitioner while being posted at Muktsar in the year 1971 was detailed along with other officers to construct an underground storage tank and during its construction, it was found that the cost was likely to exceed the original estimates because of the shifting of the original site of the tank to a new site, which needed to be developed. The authorities, however, took a view that the cost was being enhanced for extraneous consideration and accordingly sent the case to Vigilance Department for investigation. During the pendency of the Vigilance Department to investigation inquiry, the appellant-State of Punjab promoted 77 Sub Drvisional Engineers as Executive Engineers with effect from 1.1.1977 while ignoring the petitioner because of the pending vigilance investigation inquiry although he was found fit for promotion by the Appellant-Punjab Public Service Commission (for short the PPSC) on account of his otherwise unblemished record. The Vigilance Department, Punjab after five years of investigation served a charge-sheet dated 6.12.1979 upon the petitioner for having allegedly supplied incorrect data for construction of a storage tank, which led to preparation of wrong estimates. Upon consideration of the reply dated 2.3.1979 to the said charge-sheet, an inquiry officer was appointed vide order dated 10.3.1980. The petitioner was confirmed as Sub Divisional Engineer vide order dated 26.2.1981, with effect from 8.6.1976. In the vigilance inquiry report dated 14.6.1982 (Annexure P.1), the petitioner was exonerated of the charged against him. Upon consideration of the reply dated 2.3.1979 to the said charge-sheet, an inquiry officer was appointed vide order dated 10.3.1980. The petitioner was confirmed as Sub Divisional Engineer vide order dated 26.2.1981, with effect from 8.6.1976. In the vigilance inquiry report dated 14.6.1982 (Annexure P.1), the petitioner was exonerated of the charged against him. However, the Deputy Secretary, Vigilance did not agree with the conclusion arrived at in the vigilance inquiry and proceeded to issue a show cause for imposing a minor penalty under the Punjab Civil Services (Punishment and Appeal) Rules, 1970 and after receipt of the reply, order dated 26.11.1982 (Annexure P.4) of punishment of censure was passed against the respondent- petitioner. Thereafter, vide orders dated 31.5.1983 (Annexure P-5) and 9.9.1981 (Annexure P.6) he was allowed to cross the first efficiency in the pay scale of Rs 400-1100/- and the second efficiency in the pay scale of Rs. 940-1850/- with effec: from 1.2.1977 and 1.2.1980 respectively and further he was also promoted as Executive Engineer on Adhoc basis vide order dated 27.5..1983 (Annexure P.7 Respondent-Petitioner represented for his promotion with effect from 1977 anc 1980 when his juniors had been promoted on regular basis. Goverment of Punjab sent his case to the PPSC, which did not accede to the claim of the petitioner as conveyed to the appellant-State vide order dated 7.5.1984. Thereafter, appellant- State of Punjab vide its letter dated 28.6.1984 (Annexure P.9) requested the PPSC for re-consideration of the case of the respondent-petitioner on the ground that the minor punishment of censure could not be a bar for promotion as also other juniors with similar punishment of censure had been recommended for promotion. The case of the respondent-petitioner was rejected by the PPSC vide its letter datec 17.12.1984 (Annexure P.10). In pursuance of the letter Annexure P. 10. Government of Punjab passed an order dated 31.5.1985 (Annexure P. 12) reverting the petitioner to the post of Sub Divisional Engineer. Hence the respondent- petitioner filed CWP No. 3719 of 1985. 3. The case of the respondent-petitioner was rejected by the PPSC vide its letter datec 17.12.1984 (Annexure P.10). In pursuance of the letter Annexure P. 10. Government of Punjab passed an order dated 31.5.1985 (Annexure P. 12) reverting the petitioner to the post of Sub Divisional Engineer. Hence the respondent- petitioner filed CWP No. 3719 of 1985. 3. Learned Single Judge vide impugned judgment dated 24.1.2003 has allowed the writ petition and directed that the petitioner be deemed to be promoted as Executive Engineer with effect from 1.1.1977, the date his juniors were promoted, with al consequential benefits primarily on the ground that the respondent-petitioner had been discriminated inasmuch as other Sub Divisional Engineers despite similar minor punishments had been promoted while the respondent-petitioner had beer ignored. 4. We have heard learned counsel for the parties. 5. The appellants have tried to justify that the case of other Sub Divisiona Engineers namely Sh. B.B. Sood, Sh. Ram Parkash and Sh. D.D. Bhuteja, whc were promoted as Executive Engineers despite minor punishments awarded to them was different because the cause of action for the punishment awarded to the saic officers arose more than five years prior to the date of promotion and hence the punishments in their cases could not be a bar to their promotion. 6. On close examination of record, we find this plea of the appellants to be wholly fallacious. A perusal of letter dated 9.6.1984 (Annexure P,9) from the Financia Commissioner-cum-Secretary, Public Works Department (Public Health) Punjat addressed to the Chairman, PPSC, Patiala clearly discloses that the other aforesaic officers were cleared for promotion by the PPSC and accordingly promoted as XEN despite adverse remarks and minor punishments. The extract of para No. 2 of the letter are reproduced as under: "On the basis of eligibility as on 1.1.1977 Sh. S.S. Kaushal, was screenec by the screening committee for appointment to P.S.E. Class I in December 1977 and was cleared by the Committee subject to decision of a pending Vigilance Enquiry. On the conclusion of the enquiry, he was awarded punishment of Censure and despite this he was promoted to Class I, on ad hoc basis, as minor punishment could not stand in the way of promotion to Class 1. On the conclusion of the enquiry, he was awarded punishment of Censure and despite this he was promoted to Class I, on ad hoc basis, as minor punishment could not stand in the way of promotion to Class 1. His case for regular appointment has since been referred to the commission for according approval as in some other case officers have been recommended for promotion, despite adverse remarks and minor punishment. In this connection, I would draw your kind attention to the proceedings of the screening committee held on 29.12.1983 (Proceedings thereof conveyed to Govt vide letter No. P.R 500/81 /10736 dated 15.5.1984) which contain cases in which clearance has been accorded despite the award of punishments. For instance Shri B.B. Sood was awarded punishment of stoppage of one increment without cumulative effect but was found fit for promotion by the committee. Similarly, Shri Ram Parkash whose three grade increments were stopped with cumulative effect has also been found fit for promotion to Class I Further, Shri D.D. Bhuteja, who was awarded the punishment of censure has also been found fit for promotion to Class I. The punishment of "censure" (as in case of Sh. Kaushal) and warning with a copy of personal file (as in case of Shri Kailay) are not as serious as stoppage of increment with cumulative effect. If the appointment of Sarvshri Kaushal and Kailay are not regularized and they are reverted on account of having earned minor punishments, an impression would be created that the rationals adopted is not uniform in all cases. In the aforesaid context may I request you to please consider reviewing the matter and advising Govt as early as possible." 7. In response to the above letter Annexure P.9, the Secretary, P.P.S.C. stated vide its dated 17.12.1994 (Annexure P. 10) that in the case of the aforesaid officers, who had adverse reports/punishments and who had been recommended for promotions as Executive Engineers, "cause of action for those reports/punishment" arose more than five years prior to the date of promotion and hence could not a bar to their promotion. 8. 8. We find that going by this reasoning, even the case of the petitioner was required to be favourably considered for promotion as XEN because in his case also, the punishment of censure in the year 1982 has been imposed on account of act of misconduct in the year 1971 i.e. more than five years with effect from 1977, when nis juniors were promoted. Therefore, in his case also the cause of action for the punishment had arisen more than 5 years prior to the date of promotion being sought. Hence, the action of the appellant-State of Punjab in denying promotion to the respondent-petitioner as XEN with effect from 1.1.1977, when his juniors were promoted, is arbitrary and discriminatory. 9. Learned counsel for the respondent-petitioner has further drawn our attention the fact that in the vigilance inquiry conducted against him, relating to construction of a storage tank, alleged to be not as per approved estimates, he had been exonerated. In this regard, he has made reference to findings recorded by the Inquiry Officer (Vigilance) at page 43 of the paper book on charge No. 1 regarding submission of a wrong field data to the Head Office, which is to the following effect: "So this portion of the charge that no levelling was taken before submitting to the higher authorities on the basis of which final estimate was prepared and sanctioned is not proved against the respondent Shri M.S. Kaushal." 10. It has further been pointed out that so far as charge No. 2, that no provision for lead was provided and the depth was not correct, is concerned, that to was also not proved and in this regard, reference was made to the findings recorded on page No. 47 of the paper book, which is to the following effect: "The charge against the respondent Shri M.S. Kaushal is, therefore, not proved." 11. It was further submitted that he Enquiry Officer (Vigilance), Punjab. Chandigarh while concluding the enquiry proceedings also observed as under: "In the case of M.S. Kaushal, respondent, this omission is not of a very serious nature and if during the execution of the work found the same has been omitted from the original estimate due to over sight, provision for the same can be made in the revised estimate, a practice which is quite prevalent in the department." 12. Learned counsel for the respondent-petitioner has also submitted that on the basis of the aforesaid findings recorded by the Inquiry Officer (Vigilance), Punjab, the Deputy Secretary to Government of Punjab, Vigilance Department had no jurisdiction to issue the show cause notice of imposition of minor penalty and pass the punishment of censure vide order dated 26.11.1982 under Rule 5(1) of Punjab Civil Services (Punishment and Appeal) Rules, 1970, not being the competent authority. 13. On query from the Court, Mr. Amol Rattan Singh, Addl. A.G. Punjab has very fairly conceded that punishment of censure could not have been awarded by the Deputy Secretary to Govt Punjab, Vigilance Department since the Administrative Department relating to the service of the petitioner was/is P.W.D. (Public Health) Department, Punjab. 14. In view of the above, we find no legal infirmity in the order passed by the learned Single Judge. Hence the appeal is dismissed.