SHARMA, J. - (1.) THE question which has been referred to the larger Bench & which is to be decided may be extracted and it reads as under : - "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. "
(2.) THE necessity of reference of the aforesaid question arose because A Division Bench of this Court in the case of Prem Chand Kasliwal V. State of Rajasthan and others, (1) took a view that consideration of the minor penalty while considering the case for promotion and denying the promotion will amount to double jeopardy. In other words, in the case of Prem Chand Kasliwal (supra), a view has been taken that if on the basis of minor penalty of stoppage of annual grade increments without cumulative effect the promotion is with-held, it will mean that the Government servant has been punished twice, firstly by stoppage of annual grade increments without cumulative effect and secondly by with holding his promotion to the higher post. Rule 14 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, the CCA, Rules) enumerate the penalties which can be imposed on a government servant in the disciplinary proceedings. It appears from a reading of the aforesaid rule 14 that the penalties which can be imposed on a government servant are : - (i) Censure; (ii) with-holding of increments 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 future employment. Whereas the penalties mentioned in clauses (i) to (iii) of rule 14, are minor penalties, the penalties in clause (iv) to (vii) are major. The procedure for imposing minor penalty is provided in rule 17 and the procedure for imposing major penalty is provided in rule 16 of the CCA Rules. The law is settled that an employee has no vested right for promotion and the only right in a government servant is that he is entitled to be considered for promotion to the higher post when he becomes due and eligible for it in accordance with the rules which govern the conditions of his service. While considering the case for promotion of a government servant, the entire service record i. e. the Annual Performance Appraisal Reports and other record, if any, is to be considered, though no doubt as a result of the decisions of various courts weight age is given to the record of last 5 to 10 years, has to be examined objectively and not subjectively. Therefore, even if any minor penalty including stoppage of annual grade increments without cumulative effect, is inflicted on a government servant, the Departmental Promotion Committee (DPC) or any other competent authority has to consider the entire record including the penalties inflicted on a government servant in any disciplinary proceedings and for that matter even the minor penalty of stoppage of annual grade increments has also to be looked into and considered. In the case of Prem Cl. and Kasliwal (supra) a Division Bench of this Court placed reliance on the case of Shiv Kumar Sharma vs. Haryana State Electricity Board, Chandigarh and others, It was not a case of promotion but the Apex Court was considering the case of Shiv Kumar who had been appointed on probation and completed the probationary period on June 10, 1965. There were disciplinary proceedings in which a penalty of stoppage of an increment for one year was inflicted on him and he was confirmed from the date after his juniors had been confirmed. The said confirmation was alleged to have been made on the ground that the aforesaid minor penalty had been inflicted on Shiv Kumar. The Apex Court said in the case of Shiv Kumar that the question of seniority has nothing to do with the penalty that was imposed upon Shiv Kumar. There was nothing on record that during the period of probation his work was not satisfactory and rather he had been confirmed after satisfactorily completion of the probationary period of two years. We are of the opinion that a minor penalty can have no effect in so far as the seniority of a government servant is concerned, but as said earlier, the entire service record of a government servant has to be considered as and when he becomes due for consideration for promotion and even the minor penalty will have to be considered. The question of attracting the doctrine of double jeopardy will only arise in a case where denial of promotion can be said to be a punishment, which in our opinion, is not and as said earlier no government servant has any vested right of promotion and the only right is for consideration for promotion in accordance with the rules as and when he becomes due for promotion. No doubt in the case of Shiv Kumar (supra) there were some observations of the Apex Court, but those observations will have to be read in the context of the facts of that case and not out of the context. The observations of the Apex Court by which the Division Bench appears to have been governed in the case of Prem Chand Kasliwal (Supra) are: "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. " We have already said that immediately preceding the aforesaid extracted observations, the Apex Court had said that the question of seniority has nothing to do with the penalty that was imposed upon the appellant Shiv Kumar. We are of the opinion that in the aforesaid case of Prem Chand Kasliwal (supra) the Division Bench of this Court wrongly applied the ratio of the case of Shiv Kumar (supra ). As and when a Government servant is due for consideration for promotion and is eligible and on the basis of the record and on examining his case subjectively, the DPC or the competent authority does not promote him, in our opinion, it will not be a case of denial of promotion by way of penalty under rule 14 (ii) of the CCA Rules and therefore the doctrine of double jeopardy cannot be attracted. In the case of Devi Dass V. Excise and Taxation Commissioner and others, (3) , in para 9 it has been said that if one has been penalised for misconduct under the CCA Rules the penalty visited on him can be considered while assessing his fitness and suitability for promotion and the competent authority has to make an over-all assessment of his record of service during the relevant period, including acts of omission & commission, if any, for which he may already have been penalised, and the doctrine of double jeopardy will not be attracted in such cases. The Apex Court in the case of Union of India V. K. V. Jankiraman, (4), in para 8, page 2018, was dealing with the order of Central Administrative Tribunal, wherein the Tribunal had directed that if any penalty is imposed as a result of disciplinary proceedings and if he is found guilty of misconduct the finding in sealed cover shall not be acted upon and directed that if the proceedings result in the penalty, the person concerned should be considered for promotion in the review DPC and his claim for promotion cannot be deferred for subsequent DPC. The Apex Court said that the directions of the Tribunal were given on the ground that such deferment of claim for promotion will amount to double jeopardy. The Apex Court said - "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. . . . . 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. " The Court further said - "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. " It will therefore be clear that all the penalties inflicted on an employee while considering his case for promotion have to be considered by the DPC. Therefore, even a penalty of censure or stoppage of grade increment without cumulative effect inflicted on a government servant within the period which is generally considered by the promotion committee while examining the case for promotion as and when a government servant becomes due for promotion, if is considered it cannot be said that it amounts to punishment and attracts the doctrine of double jeopardy. We are therefore, of the view that if a government servant is denied promotion as a result of a minor penalty, it will not amount to with-holding of promotion as a measure of penalty as provided under rule 14. We are, therefore, of the opinion that the view taken in the aforesaid case of Prem Chand Kasliwal (supra) is not correct and our answer to the question referred to us is as under : - "while considering the case for promotion the minor penalty of stoppage of annual grade increments, or for that matter any other minor penalty, -shall be considered by the DPC and if as a result of consideration as aforesaid a government servant is not found fit for promotion it cannot be said that a penalty has been imposed and the doctrine of double jeopardy will not be attracted. " We have already said that the promotion committee has to examine the service record objectively and therefore while examining the case for promotion and considering the minor penalty, if any, the promotion committee, if it thinks proper, may see as to what was the nature of allegations on which the minor penalty was inflicted on the government servant.
(3.) WE answer the question referred to us as aforesaid. The case will now go to the Single Bench for decision in accordance with this order. .;