JUDGMENT : I.P. MUKERJI, J. The appellants are aggrieved by the judgment and order dated 5th December, 2012 passed by Mr. Justice Ashok Kumar Dasadhikari. 2. The proceeding before the learned Judge arose in the following way. 3. On 5th June, 1987 an order of suspension was passed by the appellant authority against the respondent on the charge of dishonesty and financial irregularities causing huge loss to it. He was suspended from 6th June, 1987 till 10th September, 1991. On 7th October, 1987 a charge-sheet was issued against him. The memorandum of charges was amended on 15th February, 1988. On 15th January, 1991 the enquiry proceeding was completed. 4. From 1991, it took the appellant authority five years to pronounce the final order in the disciplinary proceedings. This final order was pronounced on 18th September, 1996. The respondent was held guilty. One increment of the respondent was withheld for four years having the effect of postponing future increments. The period of suspension was treated as having been spent on duty by the respondent. 5. The respondent appealed before the appellate authority. 6. On 1st April, 1997 the authority more or less affirmed the order of the disciplinary authority with the modification that the next increment would be postponed by 4 years but without postponing the future increments. In other words, withholding of increments did not have any cumulative effect. Meanwhile the respondent who was working in the post of a lower division clerk, at the time of suspension, became eligible for promotion to the post of an Upper Division Clerk on 23rd September, 1993. It was a non-selection post. The respondent's promotion was withheld. 7. On 21st May, 1994 the written test was taken for selection and/or promotion to the post of Calculator, a selection post. On 8th June, 1994, the interview was taken. On 13th June, 1994, a panel of selected candidates for promotion to this post was published. As disciplinary proceedings against the respondent were pending his results were kept in a ‘Sealed Cover’ to be opened after they were over. 8. Finally on 9th January, 2001, the respondent was promoted to the post of Upper Division Clerk on completion of the punishment period or the period during which his increment was withheld, i.e. four years. 9. The respondent was aggrieved by this decision. He filed the instant writ application in this Court. 8. Finally on 9th January, 2001, the respondent was promoted to the post of Upper Division Clerk on completion of the punishment period or the period during which his increment was withheld, i.e. four years. 9. The respondent was aggrieved by this decision. He filed the instant writ application in this Court. The principal relief prayed for in this writ was as follows: (a) A writ of and/or in the nature of mandamus commanding the respondents concerned, each one of them, their servants and agents and/or subordinates and/or assigns to act and proceed in accordance with law and further commanding them to determine and/or fix the date of promotion of the petitioner to the post of Upper Division Clerk with effect from 23.09.1993 instead of 9.1.2001 by restoring his seniority over and above the respondent No. 3 and also directing them to open the sealed cover and thereafter appoint the petitioner to the post of Calculator on the basis of the merit position of the petitioner in the panel dated 13.6.1994 as contained in annexure ‘P/4’ to this petition within a specified time. 10. At this point of time, it is very necessary to know the law on the subject. The root case on the subject is Union of India v. K.V Jankiraman reported in (1991) 4 SCC 109 : AIR 1991 SC 2010 . 11. The law is this. An employee may be due for promotion when disciplinary proceedings are started or continuing against him. He is not considered for promotion till the conclusion of the disciplinary proceedings. This is so because the law discourages promotion and punishment at the same time. If the employee's promotion is to take place almost automatically, through a non-selection procedure, then that promotion is not granted to him. It is kept in abeyance. If the employee's promotion is through selection then he is allowed to write the written test and take part in the interview but the results are kept in a ‘Sealed Cover’ till the conclusion of the disciplinary proceedings. 12. If in the disciplinary proceedings that employee is exonerated on merits, his case for non-selection promotion may be considered right from the time he was due for promotion. In that event, upon promotion he gets the difference of pay for the entire period, that is, for the time he was due for promotion and when he actually gets it. 12. If in the disciplinary proceedings that employee is exonerated on merits, his case for non-selection promotion may be considered right from the time he was due for promotion. In that event, upon promotion he gets the difference of pay for the entire period, that is, for the time he was due for promotion and when he actually gets it. If the candidate succeeds in the selection process, upon opening of the ‘Sealed Box’ on conclusion of the disciplinary proceedings, examination of the answer scripts and assessment of his interview results, he is similarly considered for promotion. 13. Then there are cases when the employee may be exonerated on a technical ground. There may be an occasion when he may be exonerated from the heavier charges but found guilty of the lighter ones. Like the case of the respondent here. In that event the promotion committee considers his promotion, judiciously. In those cases, the employee does not get promotion with retrospective effect. Usually, his promotion from the date of conclusion of the disciplinary proceeding or its denial is considered. 14. In the case of Janakiraman it was held that when an employee was held guilty and penalised, at least till the date on which he was penalised his promotion could be withheld. He could not be said to have been subjected to a further penalty or double jeopardy on that account. The Supreme Court felt that denial of promotion was not another penalty but a necessary outcome of the employee's conduct. 15. This view of the Supreme Court was affirmed in its later decisions in the case of The Collector of Thanjavur Distt. v. S. Rajagopalan reported in JT 2000 (3) SC 376. In Sarva Uttar Pradesh Gramin Bank v. Manoj Kumar Chak along with connected matters reported in (2013) 6 SCC 287 the same Court reaffirmed its earlier view regarding the theoretical eligibility of an employee for promotion during the pendency of the disciplinary proceedings, if not barred by the rules. It observed that in that case it lay within the domain of the departmental promotion committee to refuse promotion on the ground that an employee had suffered punishment in disciplinary proceedings. However, this adverse order in the disciplinary proceedings or consequential adverse remarks in his service records did not make him ineligible for promotion after conclusion of the departmental proceedings. It observed that in that case it lay within the domain of the departmental promotion committee to refuse promotion on the ground that an employee had suffered punishment in disciplinary proceedings. However, this adverse order in the disciplinary proceedings or consequential adverse remarks in his service records did not make him ineligible for promotion after conclusion of the departmental proceedings. In Ram Ashish Dixit v. Chairman, Purvanchal Gramin Bank Limited reported in (2013) 6 SCC 309 the Court reiterated the same principle. 16. All these cases were cited by Mr. Ghosh for the appellant. 17. Jankiraman makes it absolutely plain that if an employee is exonerated without even censure then he has a right to claim all the benefits of the promotional post at the time promotion became due. 18. In our opinion, in interpreting Janakiraman, the respondent authority fell into an error in thinking that the respondent could not be granted any promotion or appointment till he served out the punishment. Note that the Supreme Court uses the expression “not promoted at least till the date on which he is penalised” in paragraph 8 of the report to indicate the period during which an employee is to be kept out of promotion. After punishment the employee can be considered for promotion, if permitted by the rules, by a departmental promotion committee. The disciplinary proceeding and the punishment suffered by the employee may be facts considered while considering his case for promotion. 19. Section 111 of the Major Port Trust Act, 1863, states, inter alia, that the appellant board shall in the discharge of its functions, act according to the directions of the Central Government. 20. In our opinion, the so called instruction of the Central Government dated 14th September, 1992, that an employee undergoing disciplinary proceedings shall not be promoted was not binding on the respondent. This is for the reason that it appears from the document at page 130 of the paper book that the Central Vigilance Commission, Government of India, by their communication dated 14th June, 2002 forwarded this notification to all the Chief Vigilance Officers. Nine years later, on 20th June, 2011, this memo was circulated within the Kolkata Port Trust. It is said on behalf of the respondent that he had no knowledge of this notification. Nine years later, on 20th June, 2011, this memo was circulated within the Kolkata Port Trust. It is said on behalf of the respondent that he had no knowledge of this notification. It is trite that a person likely to be affected by a government decision should know the contents thereof or at least the notification should be circulated properly before becoming effective. 21. Let us see the Kolkata Port Trust employees (Other Than Holdia Dock Complex) (Regulation, Seniority and Promotion) regulations 1985. “24. Procedure for promotion: (1) (a) Where promotion is to be made to a ‘non-selection’ post, the employee who is senior-most in terms of Regulation 10 of the cadre from which promotions are made shall be considered for promotion. (b) Where promotion is to a ‘selection post’, the field of selection as per seniority in terms of Regulation 10 shall not be less than three times and more than five times the number of vacancies subject to employees with necessary qualifications and experience being available. The Departmental Promotion Committee/Selection Committee may alter these limits to suit exceptional circumstances. Alteration of zone of consideration should be with the prior approval of the Chairman and not at the discretion of the Departmental Promotion Committee/Selection Committee. (2) The following principles and procedures shall normally be observed for making departmental promotion: (a) In case of promotion to a selection post: (i) In case of promotion to a selection post which involves promotion from a post in lower class to a post in higher class (i.e. promotion from Class III to Class II and so on), the Departmental Promotion Committee/Selection Committee shall assess the merit of the employees for the higher post by considering all relevant records concerning the employees (including his ACRs) and through test and/or interview as may be considered necessary and grade the employees concerned as ‘outstanding’, ‘very good’ and ‘good’ and arrange their names in a select list in such a way that all those graded ‘outstanding’ shall, be senior to those graded as ‘very good’ and those graded ‘very good’ shall be senior to those graded as good’ and so on. In case of promotion of an employee involving change of class from Class IV to Class III, no test/interview shall ordinarily be held. For such promotions the principle and procedure laid down in Clause (a) (ii) below shall be observed. In case of promotion of an employee involving change of class from Class IV to Class III, no test/interview shall ordinarily be held. For such promotions the principle and procedure laid down in Clause (a) (ii) below shall be observed. No employee shall be recommended for promotion to a higher post unless the Departmental Promotion Committee/Selection Committee satisfy themselves that the candidate possesses necessary aptitude and traits required for such higher post such as personality, educational qualifications, experience, initiative, strength of character, integrity and readiness to assume individual responsibility. In assessing the merits of employees on comparative basis the ability, energy, initiative, temperament, quality of work, sense of responsibility, integrity etc. of the employee concerned shall be taken into consideration for a period of time, normally for a period not less than three years, for which over and above the ACRs of the concerned employees the reports of three different superior officers on the items mentioned above may also be taken into account, if necessary. In case of promotion to ‘Selection post’ other than those mentioned above, the same procedure shall be followed. (ii) In case of promotion to Selection posts other than mentioned in Clause (i) above, the Departmental Promotion Committee/Selection Committee shall assess the merit of the employee for the higher post on considering all relevant records concerning the employee including his ACRs and grade the employees concerned as ‘outstanding’, ‘very good’ and ‘good’ and arrange their names in a select list in order of their seniority in such a way that all those graded ‘outstanding’ shall be senior on the select list to those graded as ‘very good’ and those graded ‘very good’ shall be senior to those graded ‘good’ and so on. No employee shall be recommended for promotion to a higher post unless the Departmental Promotion Committee/Selection Committee satisfy themselves that the candidate possesses the necessary aptitude for the higher post such as personality, educational qualification, experience, initiative, strength of character, integrity and readiness to assume individual responsibility. In assessing the merits of employees on comparative basis the ability, energy, initiative, temperament, quality of work, sense of responsibility, integrity etc. In assessing the merits of employees on comparative basis the ability, energy, initiative, temperament, quality of work, sense of responsibility, integrity etc. of the employee concerned shall be taken into consideration for a period of time (normally for a period not less than 3 years) for which over and above the ACRs of the concerned employee, reports of three different superior officers on the items mentioned above may also be taken into account, if necessary. (b) In case of promotion to a non-selection post:— (i) The Departmental Promotion Committee/Selection Committee shall consider all relevant records for preceding three years concerning the employee, including his ACRs and he shall be recommended for promotion to a higher post provided his records show that he possesses the necessary aptitude and traits required for the higher post such as personality, educational qualification, experience, initiative, strength of character, integrity and readiness to assume individual responsibilities and is suitable for promotion to such higher post. (ii) No senior employee who possesses the aptitude and the necessary traits referred to in clause (i) above allowed to be superseded by a person junior to him. (c) The Departmental Promotion Committee/Selection Committee shall, from time to time, prepare in respect of posts which are required to be filled by promotion, select list of eligible employees from the cadre from which promotions are to be made. (d) The select list shall be prepared having regard to the provisions contained in Clauses (a) and (b) of this Regulation. (e) With a view to providing for unforeseen vacancies, the number of employees on such select list shall normally be slightly more than the number of vacancies which are likely to arise in the higher posts during the following twelve months. (f) When the passing of a test is specified as a condition precedent to appointment to another post on promotion or otherwise, no employee shall be considered for such appointment until he passes the prescribed test.” 22. Therefore promotion to a non-selection post is considered for an employee who is senior most in the cadre from which promotion is made. In this type of promotion first importance is not attached to the merit or to the ACR of an employee. 23. In the case of promotion to a selection post the merit of the candidate assumes paramount importance. The departmental promotion committee/selection committee plays a pivotal role. In this type of promotion first importance is not attached to the merit or to the ACR of an employee. 23. In the case of promotion to a selection post the merit of the candidate assumes paramount importance. The departmental promotion committee/selection committee plays a pivotal role. A field or zone of consideration is created so that the candidates selected as against the candidates considered bear a determined ratio. The merit or character or past record of the candidate is very carefully considered before promotion is granted. 24. It is clearly spelt out in the case of Jankiraman that an employee would not be eligible for promotion during pendency of the disciplinary proceedings. But, he could be considered for the same immediately after conclusion of the disciplinary proceedings. 25. The appellant authority made a mistake by considering the promotion of the respondent after the penalty imposed of the disciplinary authority as reduced by the appellant authority ceased to be operative. Therefore, they deferred the promotion of the respondent by almost four years. 26. He was promoted as Upper Division Clerk on completion of the punishment period of four years on 9th January, 2001. In view of our reasoning above his date of promotion is to be treated as from 2nd April, 1997. 27. In view of the ratio in the case of Jankiraman the promotion of the respondent to the post of Calculator could not be automatic. The case of the respondent had to be referred to the departmental promotion committee/selection committee immediately. It is hereby directed to take a decision regarding the promotion of the respondent to the post of calculator on the basis of his inclusion in the panel on 13th June, 1994 and the subsequent developments, within four weeks communication of this order. The respondent retired from service on 1st May, 2013. 28. It was argued on behalf of the appellants that the rules of service considered in the case of Jankiraman were also applicable to the instant case by virtue of Section 111 of the Major Port Trust Act, 1958, according to which the directions of the Central Government governed services in major ports. Hence, the appellate authority was justified in keeping the answer scripts, viva voce results and other papers concerning the promotion of the respondent to the post of calculator in a ‘sealed cover’ pending conclusion of the disciplinary proceedings. 29. Hence, the appellate authority was justified in keeping the answer scripts, viva voce results and other papers concerning the promotion of the respondent to the post of calculator in a ‘sealed cover’ pending conclusion of the disciplinary proceedings. 29. However, the impugned judgment and order dated 5th December, 2012 can only be partly supported. The learned Judge observed that the penalty of withholding of increments of pay of the respondent employee was a minor penalty. Nevertheless, he opined that this respondent was entitled to promotion to the post of Upper Division Clerk on the basis of his seniority with effect from 23rd September, 1993. That is to say from the very day the promotion was due to him. This reasoning is not correct. In Jankiraman, the Supreme Court has said that when an employee is fully exonerated without even being censured he is entitled to promotion from the date he would have normally got it had the disciplinary proceeding not intervened. However, this Rule is also not inflexible. These observations of the Supreme Court are noteworthy:— “(7) ………………..There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereof that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post…………….. we are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R 17(1) will also be inapplicable to such cases. 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 in 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…………………. The promotion to a post and more so, to a selection post, depends upon several circum-stances. 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 a 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 the at 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 a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a 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 penal-ties 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.” 30. Thus, the learned Judge was not right when he said that the respondent was entitled to promotion to the post of Upper Division Clerk from 23rd September, 1993. The learned Judge had also fallen into error by directing the arrear benefits to be given to the respondent from 23rd September, 1993. 31. The learned Judge was also not right in holding that the respondent was entitled to automatic appointment as calculator on the basis of panel on 13th June, 1994 with all benefits. 32. Considering the ratio in the case of Jankiraman the respondent on suffering a minor punishment could not be disentitled to the almost automatic promotion to the post of Upper Division Clerk which was due to him on 23rd September, 1993. But, since he was not fully exonerated and his promoted him, the promotion in his case could only be granted after conclusion of the disciplinary proceedings w.e.f 2nd April, 1997 and not from 9th January, 2001. 33. Since he was not fully exonerated, on the basis of this ratio, it cannot be said that promotion to the post of calculator which is a selection post could be granted to the respondent from 1994. He may have qualified and may have been in the panel. We think it should be left to the respondent authority to consider by a reasoned decision, whether the promotion of the respondent to the post of calculator, should be granted inasmuch as the Supreme Court has opined that the initiation and the result of the disciplinary proceeding are also factors to be considered in the matter of promotion to a selection post. 34. 34. Since, the respondent has not been completely exonerated, following the ratio of the said Supreme Court case the arrear which is to be paid to him is to be computed by the appellant authority on the basis of their reasoned decision. 35. Hence, the summary of our order is as follows:— (a) The respondent shall be granted promotion to the post of Upper Division Clerk with effect from 2nd April, 1997, (b) His case for promotion to the post of calculator will be considered by the departmental promotion committee or selection authority within four weeks of communication of this order, (c) The pay and allowances of the respondent till his retirement will be recomputed within this period of four weeks, (d) The differential pay and allowances upto his date of retirement will be paid to him within a further period of three months. (e) The respondent's pension will be recomputed within the period in (C). He should be paid his recomputed pension latest from 1st May, 2018. (f) The arrear pension should be paid by 31st December, 2018. 36. This appeal is accordingly disposed of by modifying the impugned judgment and order dated 5th December, 2012. 37. Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Md. Mumtaz Khan, J.:— I agree.