JUDGMENT : Prayer: Writ Petitions has been filed Article 226 of the Constitution of India seeking a Writ of Certiorarified Mandamus, calling for the records made in letter No. 98411/554/G25/ G251/2010-1 dated 02.11.2010 and the consequential impugned rejection order made in memo No. 054020/483/G25/G252/2012-1 dated 19.07.2012 issued by the 1st respondent and quash the same as illegal and without jurisdiction and consequently direct the 1st respondent to promote the petitioner to the post of Inspector of Assessment from the date in which the petitioner's junior (S. No. 2360), the 3rd respondent herein was promoted and grant all further consequential benefits both service and monetary. 1. This writ petition has been filed, calling for the records made in letter No. 98411/554/ G25/G251/2010-1 dated 02.11.2010 and the consequential impugned rejection order made in memo No. 054020/483/G25/G252/2012-1 dated 19.07.2012 issued by the 1st respondent and quash the same as illegal and without jurisdiction and consequently direct the 1st respondent to promote the petitioner to the post of Inspector of Assessment from the date on which the petitioner's junior (S .No. 2360), i.e. the 3rd respondent herein was promoted and grant all further consequential benefits both service and monetary. 2. The petitioner was appointed as a Helper in 1991 and he was promoted as Assessor in the year 1994. The petitioner got married in 2005. A complaint was made against the petitioner by his wife before the All Women Police Station, Ranipet, alleging demand for dowry, harassment, etc. FIR was registered for an offences under Sections 498(A), 324, 323, 355, 406 of IPC and Section 4 of the Dowry Prohibition Act. The petitioner was arrested and remanded in judicial custody at Ranipet prison for six days. He was granted bail on 03.12.2007. The petitioner was kept under suspension. Suspension was revoked and he was posted in the Office of the Executive Engineer, Town East. The respondent No. 1, Chief Engineer, Personnel, Tamil Nadu Generation and Distribution, passed orders on 02.11.2010 for promotion to the post of Inspector of Assessment. The petitioner name was not included in this list. 3. The petitioner preferred an appeal for considering him for promotion to the post of Inspector of Assessment, but the same was not considered. The petitioner has stated that, a representation was submitted on 30.04.2012, for his name to be considered for promotion to the post of Inspector of Assessment. The petitioner name was not included in this list. 3. The petitioner preferred an appeal for considering him for promotion to the post of Inspector of Assessment, but the same was not considered. The petitioner has stated that, a representation was submitted on 30.04.2012, for his name to be considered for promotion to the post of Inspector of Assessment. The petitioner states that, his juniors have been promoted and that he had not been considered. The petitioner's representation was rejected by an order dated 19.07.2012. A perusal of the order dated 19.07.2012 shows that, the petitioner has not been considered for promotion only on the ground that a criminal case has been registered against him. The petitioner is challenging the impugned order. 4. The learned counsel for the writ petitioner contend that, mere pendency of the criminal case, that to a case which arises out of a troubled marriage cannot be a basis for denying promotion to him. The petitioner states that only when enquiry/criminal case is pending against an employee or for misconduct arising out of employment, then alone promotion of an employee can be stopped. He says that, he has been victimized by his wife and a criminal case has been registered on 26.10.2007 on the allegations of cruelty, harassment etc. levelled by his wife. 5. The petitioner relies on regulation 106 of the Tamil Nadu Electricity Board Service Regulations. The said regulations reads as under: "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. Where it is necessary to fill a short vacancy in a post and the appointment or promotion of the person who is entitled to such appointment or promotion, as the case maybe, would involve excessive expenditure on traveling allowance or exceptional administrative inconvenience. 2. Where it is necessary to fill a short vacancy in a post and the appointment or promotion of the person who is entitled to such appointment or promotion, as the case maybe, would involve excessive expenditure on traveling allowance or exceptional administrative inconvenience. Note: (i) No appointment or promotion shall ordinarily be made under the above clauses of a person who does not possess the Qualification, if any, prescribed for the post. Every person appointed or promoted under clause (a) (1) who does not possess the qualifications shall be replaced as soon as possible by a person possessing the prescribed qualifications. (ii) A person appointed or promoted under clause (a) (1) shall, whether or not he possesses the prescribed qualifications be replaced as soon as possible by an approved candidate qualified to hold the post or by a member of the service, who is entitled for promotion to the post. (b) Where general or special qualifications have been prescribed for holding a post in a category and no member of the lower category from which promotion is to be made to this category possesses the prescribed qualifications, a member of the lower category may be promoted temporarily to the higher category until a member qualified becomes available for promotion. (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) A person appointed or promoted temporarily under clause (a), (b) or (c) shall not be regarded as a probationer in such category or be entitled by reason of such appointment to any preferential claim to future appointment or promotion to such category. The service of such a person shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned. The service of such a person shall be liable to be terminated by the appointing authority at any time without notice and without any reason being assigned. (e) A person fully qualified under the rules to hold a post borne on the cadre of a service, class or category, who has rendered continuous temporary service shall be eligible to draw annual increment, in the scale of pay for the post, subject to the conditions that the rules do not prescribe any special qualification to be acquired or test to be passed as a condition precedent to the crawal of such increments or the increment is not denied as a measure of specific punishment. In the case of unqualified persons, the temporary service rendered by them shall be allowed to count for increment from the date on which they become fully qualified to hold that post. (ee) A person who is riot covered by the Standing Orders framed by the Board and fully qualified under the Rules to hold a post borne on the cadre of a Service, class, Division, Category, who has rendered temporary service for a continuous period of three years, whose pay is regulated under Sub-Regulation (e) above shall be eligible for the first increment in the scale of pay for the post on completion of duty period of one year reckoned from the day following the Completion of three years of temporary service and subsequent increments on completion of the requisite periods for earning such increments, subject to the conditions that the Regulations do not prescribe any special qualification to be acquired as a condition precedent to the drawal of such increments. The increments so drawn shall be adjusted if and when the person is subsequently appointed in accordance with the Regulations. Explanation-1: Continuous temporary service rendered prior to the 26th May 1962 shall also be taken into account for the purpose of this clause. Explanation II: Leave other than extraordinary leave taken on or after the 8th June 1962 shall be treated as service for the purpose of this clause. Leave taken prior to the 8th June 1962 shall he treated as service in accordance with the provisions of rules as it stood prior to the 8th June 1962. Explanation-III: Increments sanctioned under this clause shall not be ordered with effect from a date prior to the 26th May 1962. Leave taken prior to the 8th June 1962 shall he treated as service in accordance with the provisions of rules as it stood prior to the 8th June 1962. Explanation-III: Increments sanctioned under this clause shall not be ordered with effect from a date prior to the 26th May 1962. (f) If a temporary appointee or promote is subsequently appointed or promoted to the higher category in accordance with the Regulations, he shall commence his probation in that category from the date of such subsequent appointment or promotion or from such earlier date as the appointing authority may determine. He shall be eligible to draw increments in the time-scale of pay applicable to him from the date of commencement of probation, but shall not be entitled to arrears of pay unless otherwise ordered by the Board.” 6. The petitioner states that, even in case of a person who is facing any allegation of corruption or misconduct, that person can be promoted temporarily, pending enquiry into the charges against him. The petitioner states that, no disciplinary proceedings is pending against him. The petitioner states that, even a charge sheet has not been filed against him. The Personnel and Administrative and Reforms (S) Department of the Tamil Nadu Electricity Board, has issued a regulation for preparation of panels to higher post. Proceeding dated 20.10.1997, reads as under:- "T.N.E.B. - Establishment - Preparation of panels for promotion to higher posts - Consolidated guidelines issued by the Government - Adoption in Tamil Nadu Electricity Board - Orders - Issued. (Per.) BP (FB) No. 38 (Secretariat Branch) Dated the 11th October, 2010 Puratasi 25, Vikruthi Varudam Thiruvalluvar Aandu-2041 Read: Government's letter Ms. No. 248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997 Proceedings: In the letter read above, the Government have issued certain important consolidated guidelines in respect of the effect of Vigilance enquiries/charges, effect of punishment and currency of punishments on inclusion of a person in the panel for considering promotion to higher posts. Now a question has arisen as to whether the said guidelines and amendments issued by the Government may be adopted in the Board, so that it would be very useful to the Departmental Promotion Committee for preparation of panel. The said proposal has been approved by the Board. Now a question has arisen as to whether the said guidelines and amendments issued by the Government may be adopted in the Board, so that it would be very useful to the Departmental Promotion Committee for preparation of panel. The said proposal has been approved by the Board. Accordingly, the Tamil Nadu Electricity Board hereby issues the following guide lines to all the members of the Departmental Promotion Committees for strict adherence:- 1. EFFECT OF PENDENCY OF VIGILANCE ENQUIRY/CHARGES ON INCLUSION IN A PANEL FOR PROMTION S. No. Nature of Enquiry/Charge Effect 1 Preliminary of detailed enquiry undertaken by DV & AC Other D.P. authority. Need not be held against the Officer/employee for inclusion in the panel. 2 Regular cases/Registered cases by the DV & AC Mere registration of cases in courts need not be held against the officer/employee. But, if charge sheet has been filed in the Criminal case, it should be held against the officer/employee. 3 Trap and Arrest made under the Prevention of Corruption Act by the DV&AC. It should be treated as a serious offence and held against the Officer/employee. 4 Enquiry on the recommendation of the Vigilance Commission/the Vigilance Cell/TNEB This will be equivalent to charges framed under Reg.8(b) of TNEB Employees’ D&A Regulations and charges framed to impose major penalties for the employees covered under both the sets of Standing Orders. Hence, it should be held against the officer/employee. 5 Remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action on receipt of the report. Unless specific charges have been framed under Reg. 8(b) TNEB Employees’ D&A Regulations and charges framed impose major charges framed to impose major penalties for the employees covered under both the sets of Standing Orders, the remittal orders issued by the Government need not be held against the officer/employee. If charges are framed under Reg. 8(b) of Tamil Nadu Electricity Board Employees D&A Regulations and charges framed to impose major penalties for the employees covered under both the sets of Standing Orders as a result of remittal orders, the name need not be included in the panel. Even if the name has been included in the panel, the name should be deleted from such a panel if charges under Reg. 8(b) and charges to impose major penalties for the employees covered under Doth the sets of Standing Orders are framed before actual promotion. Even if the name has been included in the panel, the name should be deleted from such a panel if charges under Reg. 8(b) and charges to impose major penalties for the employees covered under Doth the sets of Standing Orders are framed before actual promotion. 6 Pendency of charges framed under Reg. 8(a) of TNEB Employees’ D&A Regulations and charges framed to impose minor penalties for the employees covered under both the sets of Standing Orders. Need not be held against the officer/employee, irrespective of the seriousness of the delinquency. 7 Pendency of charges framed under Reg. 6(b) of Employees’ D&A Regulations and charges framed to impose major penalties for the employees covered under both the sets of Standing Orders. It should be held against the officer/employee and inclusion deferred until finalization of the Disciplinary Proceedings. 8 Suspension. If the officer/employee is placed under suspension on the date of consideration, inclusion may be deferred till finalization of Disciplinary Proceedings. 7. A perusal of regulations 106 (C) of the consolidated guidelines would show that the petitioner cannot be denied promotion on the ground that an FIR has been filed against him for an offence relating to marriage. The petitioner has placed reliance on the judgment of the Hon'ble Supreme Court of India in the case of Union of India and Others vs. K.V. Jankiraman an Others, AIR 1991 SC 2010 , where the Hon'ble Supreme Court of India has observed as under: "10. The Government of India (Deptt. of Personnel & Training) issued an Office Memorandum No. 22011/1/79. Estt. (A) dated January 30, 1982 on the subject of promotion of officers in whose cases “the sealed cover procedure” had been followed but against whom disciplinary/court proceedings were pending for a long time. The Memorandum stated that according to the existing instructions, cases of officers (a) who are under suspension or (b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or (c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee (hereinafter referred to as the ‘DPC’) at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings. While the findings are kept in the sealed cover, the vacancy which might have gone to the officer concerned is filled only on an officiating basis. If on the conclusion of the departmental/court proceedings, the officer concerned is completely exonerated, and where he is under suspension it is also held that the suspension was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer gets the benefit of seniority and fixation of pay on a notional basis with reference to the date on which he would have been promoted in the normal course, but for the pending disciplinary/court proceedings. However, no arrears of salary are paid in respect of the period prior to the date of actual promotion. The Memorandum goes on to state further that it was noticed that sometimes the cases in the courts or the departmental proceedings take unduly long time to come to a conclusion and the officers undergo considerable hardship, even where it is not intended to deprive them of promotion for such a long time. The Government, therefore, in consultation with the Union Public Service Commission examined how the hardship caused to the Government servant in such circumstances can be mitigated and has laid down the following procedure in such cases: “3. (i)(a) It may be ascertained whether there is any departmental disciplinary proceedings or any case in a court of law pending against the individual under consideration, or (b) there is a prima-facie case on the basis of which a decision has been taken to proceed against the official either departmentally or in a court of law. (ii) The facts may be brought to the notice of the Departmental Promotion Committee who may then assess the suitability of the officials for promotion to the next grade/post and for the purpose of this assessment, the D.P.C. shall not take into consideration the fact of the pending cases against the official. In case an official is found ‘unfit for promotion’ on the basis of his record, without taking into consideration, the cases pending against him, the findings of the D.P.C. shall be recorded in the proceedings. In case an official is found ‘unfit for promotion’ on the basis of his record, without taking into consideration, the cases pending against him, the findings of the D.P.C. shall be recorded in the proceedings. In respect of any other kind of assessment, the grading awarded by the D.P.C. may be kept in a sealed cover. (iii) After the findings are kept in a sealed cover by the Departmental Promotion Committee subsequent D.P.Cs. if any, held after the first D.P.C. during the period the disciplinary/court proceedings may be pending, will also consider the officer's case and record their findings which will again be kept in sealed cover in the above manner. In the normal course, on the conclusion of the disciplinary/court proceedings, the sealed cover or covers may be opened, and in case the officer is completely exonerated i.e. no statutory penalty, including that of censure, is imposed, the earliest possible date of his promotion but for the pendency of the disciplinary/court proceedings against him, may be determined with reference to the positions assigned to him in the findings in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The officer concerned may then be promoted, if necessary by reverting the junior-most officiating person, and he may be given a notional promotion from the date he would have been promoted, as determined in the manner indicated above. But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion. If any penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings in the sealed cover/covers shall not be acted upon. The officer's case for promotion may be considered in the usual manner by the next D.P.C. which meets in the normal course after the conclusion of the disciplinary/court proceedings. The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, ‘warning’ should not be issued as a result of such proceedings. If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed. The existing instructions provide that in a case where departmental disciplinary proceedings have been held under the relevant disciplinary rules, ‘warning’ should not be issued as a result of such proceedings. If it is found as a result of the proceedings that some blame attaches to the officer, then the penalty of censure at least should be imposed. This may be kept in view so that no occasion arises for any doubt on the point whether or not an officer has been completely exonerated in disciplinary proceedings held against him.” 11. Clause (iv) of Para 3 of the Memorandum then lays down the procedure for ad hoc appointment of the concerned officer when the disciplinary/court proceedings are not concluded even after the expiry of two years from the date of the DPC which first considered him for promotion and whose findings are kept in the sealed cover, provided however that the officer is not under suspension. It is not necessary to reproduce that clause in extenso here. Suffice it to say that the Memorandum urges that in making the ad hoc promotion in such cases, his case should be placed before the DPC which is held after the expiry of the said period of two years, and the ad hoc promotion has to be made on the basis of the totality of the record of service etc. 12. Para 4 of the Memorandum states that if the officer concerned is acquitted in the court proceedings on the merits of the case or exonerated in departmental disciplinary proceedings, the ad hoc promotion already made may be confirmed and the promotion treated as a regular one from the date of the ad hoc promotion with all attendant benefits. In such cases, the sealed cover may be opened and the official may be assigned his place in the seniority list as he would have got in accordance with the recommendation of the DPC. 13. Paras 5, 6 and 7 of the Memorandum then read as follows: “5. Where the acquittal in a court case is not on merits but purely on technical grounds, and the Government either proposes to take the matter to a higher court or to proceed against the officer departmentally, the appointing authority may review whether the ad hoc promotion should be continued. 6. Where the acquittal in a court case is not on merits but purely on technical grounds, and the Government either proposes to take the matter to a higher court or to proceed against the officer departmentally, the appointing authority may review whether the ad hoc promotion should be continued. 6. Where the acquittal by court is on technical grounds, if the Government does not propose to go in appeal to a higher court or to take further departmental action, action should be taken in the same manner as if the officer had been acquitted by the court on merits. 7. If the officer concerned is not acquitted/exonerated in the court proceedings or the departmental proceedings, the ad hoc promotion already granted should be brought to an end by the issue of the ‘further order’ contemplated in the order of ad hoc promotion [Please see para 3(vi) above] and the officer concerned reverted to the post from which he was promoted on ad hoc basis. After such reversion, the officer may be considered for future promotion in the usual course by the next D.P.C.” 16. On the first question, viz. as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that 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. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities 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. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, 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 finalise the charges. 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 a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: (ATC p. 196, para 39) “(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official: (2) *** (3) *** (4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed before the criminal court and not before.” 17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that 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. Thus read, there is no inconsistency in the two conclusions. 18. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. 29. 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. Thus read, there is no inconsistency in the two conclusions. 18. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. 29. According to us, the Tribunal has erred in holding 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. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the 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 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 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. 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. 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. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal." It was contended that sealed cover procedure should have been adopted in the present case. 8. The fact is that even a charge sheet has not been filed against the petitioner. The regulations are not a bar against the petitioner to be considered for the promotion to the post of Inspector of Assessment. The petitioner has to be considered for promotion to the post of Inspector of Assessment. The respondents are directed to consider the petitioner for the promotion to the post of Inspector of Assessment and pass orders within a period of eight weeks from the date of receipt of a copy of this order. The writ petition is allowed. No Costs. Consequently, connected miscellaneous petitions are closed.