SHARMA, J. - (1.) THIS court in the case of Prem Chand Kasliwal vs. State of Rajasthan & Ors (1), took a view that if minor penalty of stoppage of two increments without cummulative effect is imposed on a Government servant, then such Government servant is deprived of monetary benefit of two increments and such penalty could not have any effect in the matter of promotion of the petitioner. Denial of promotion to the petitioner on the basis of the said penalty in substance amounts to imposition of penalty of with-holding of promotion on the petitioner and that would mean that the petitioner has been punished twice, first by stoppage of increment for two years and the second, by withholding of promotion on the post of Office Assistant in 1983. With due respect to the learned Bench who decided the case, in my opinion the aforesaid view needs reconsideration by a larger Bench of more then two Judges. The reasons are as under:-
(2.) UNDER Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short the 'c. C. A. Rules'), the nature of penalties have been enumerated and they are; (i) censure; (ii) withholding of increments of (or) promotion; (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order; (iv) reduction to a lower service, grade or post, or to a lower time scale or to a lower stage in the time scale or in the case of pension to an amount lower than that due under the rules; (v) compulsory retirement on proportionate pension; (vi) removal from service which shall not be a disqualification for further employment. (vii) dismissal from service which shall ordinarily be a disqualification for further employment. Any of the aforesaid penalties can be imposed after the procedure prescribed in the CCA. Rules is gone through. When considering the case for promotion the entire service record of a Government servant is to be looked into and importance is given to the record as last 5-10 years and if any minor or major penalty which has been inflicted on the Government Servant during the aforesaid period, the Departmental Promotion Committee is bound to consider the service record including the punishment, if any, inflicted, and if on consideration of the same, the D. P. C is of the opinion that the Government servant should not be promoted, it will not be a case of denial of promotion by way of penalty. Therefore, the view taken by the Division Bench of this court in the case of Prem Chand Kasliwal (supra) that consideration of minor penalty and as a result thereof denial of promotion will amount to double jeopardy, in my opinion is not correct. Take a case where during last 5-10 years, a Government servant is inflicted say 4-5 minor penalties each of which may be withholding increments without cummulative effect and if one penalty of the aforesaid kind cannot be considered in view of the Division Bench, it will amount to double jeopardy, the promotion is denied, then 4-5 penalties will also not have to be considered and with due respect to the learned Judges of this Bench because as said earlier while considering the record of the case, penalties are also to be considered and promotion is denied, it cannot be said that thereby a penalty as provided under Rule 14, denial of promotion is visited on the Government Servant. The Division Bench in the aforesaid case of Prem Chand Kasliwal (supra) has considered the case of Shiv Kumar Sharma vs. Haryana State Electricity Board, Chandigarh and others (2)A look at the aforesaid case will show that it was a case where Shiv Kumar has been appointed as Assistant Engineer on probation. While he was on probation, disciplinary proceedings were initiated against him and a minor penalty of stoppage of one increment without future effect was imposed on him. In view of the pendency of the disciplinary proceedings Shiv Kumar was not confirmed although he had completed the probationary period on June 10,1965 and after completion of the disciplinary proceedings he was confirmed with effect from December 1, 1969 and as a result of the delayed confirmation his seniority was adversely affected. The Supreme Court held that the seniority of Shiv Kumar could not be adversely affected on account of the disciplinary proceedings in which the punishment of stoppage of one increment without future effect was imposed on Shiv Kumar. The Supreme Court observed as under: - "the penalty was imposed on April 15, 1968 and, as a result of which, he was deprived of the monetary benefit of one increment for one year only. The penalty by way of stoppage of one increment for one year was without any future effect. In other words, the appellant's increment for one year was stopped and such stoppage of increment will have no effect what-so-ever on his seniority. Accordingly, the Board acted illegally and most arbitrarily in placing the juniors of the appellant above him in the seniority list and/or confirming the appellant in the post w. e. f. December 1, 1969, that is long after the date of confirmation of the said respondent Nos. 2 to 9. The question of seniority has nothing to do with the penalty that was imposed upon the appellant. It is apparent that for the same act of misconduct, the appellant has been punished twice, that is, first by the stoppage of one increment for one year and, second, by placing him below his juniors in the seniority list. " It will be clear from the aforesaid extracted portion of the judgment of the Supreme Court that it was a case where the question was as to whether the seniority was to be effected or not. The Supreme Court was not considering a case as to whether in case of consideration of promotion, government servant on whom a penalty of stoppage of annual grade increment without cummulative effect, a minor penalty is visited, that minor penalty can be considered or not. While considering the case of a government servant for promotion, even the penalty of stoppage of one or two annual grade increments without cummulative effect will have to be considered and by forming an opinion as to whether he should be promoted or not and in such a case it cannot be said that the promotion is denied as a result of service record, as a result of the minor penalty as aforesaid and it will amount to double jeopardy. I will, therefore, refer this question of larger importance to the larger bench of more than two Judges and I request the Hon'ble Chief Justice to constitute bench of more than two Judges to decide the following question: - "whether while considering the case for promotion the minor penalty of stoppage of annual grade increments of one or more than one shall not be considered by the D. P. C. and if considered as a result of which a Government servant is not found fit to be promoted, it will amount to double jeopardy. "
(3.) SO far as the petitioner is concerned, the writ petition has already been admitted and the apprehension of the petitioner is that he had already suffered once as a result of minor penalty and in future also he may suffer. As long as aforesaid view of Division Bench of this court is that all authorities are bound to obey and apprehensions of the petitioner cannot be said to be well founded in view of the aforesaid case of this court. So far as present case is concerned, the respondent is directed not to consider any departmental enquiry pending under Rule 17 of the CCA. Rules, if any, against the petitioner in the D. P.C.;