Jahangir Jamshed Munir, J.

1. The reliefs sought in this petition are so many and so much lavish in detail, that it would be wise to quote the prayer clause verbatim. The prayer clause (limited to the material reliefs alone here) reads:

"i) issue, a writ, order or direction in the nature of certiorari quashing the part of the impugned order 12.12.2014 whereby the benefits for which the Petitioner is entitled have been rejected.

ii) issue, a writ, order or direction in the nature of mandamus directing the respondents to pay the arrears of increment of July 2009 for the period July 2009 to November 2010 alongwith interest.

iii) issue, a writ, order or direction in the nature of mandamus directing the respondents to pay the arrears of increment of July 2010 for the period July 2010 to November 2010 alongwith interest.

iv) issue, a writ, order or direction in the nature of mandamus directing the respondents that the petitioner may be given the benefit of revised pay scale of Grade Pay of Rs. 5400/- with effect from 1.2.2010 alongwith interest.

v) issue, a writ, order or direction in the nature of mandamus directing the respondents that the petitioner may be provided the payment of difference of salary and subsistence allowance with effect from 1.04.2009 to 31.05.2010 alongwith interest.

vi) issue, a writ, order or direction in the nature of mandamus directing the respondents that the petitioner may be paid the salary with effect from 25.03.2009 to 31.03.2009 alongwith interest.

vii) issue, a writ, order or direction in the nature of mandamus directing the respondents that the salary of the strike period of 35 days (with effect from 16.01.1984 to 19.02.1984) may be paid to the petitioner alongwith interest.

viii) issue, a writ, order or direction in the nature of mandamus directing the respondents that a sum of Rs. 385/- of G.P.F. may be paid to the petitioner alongwith interest."

2. Out of these manifold reliefs, the learned Counsel for the petitioner in his wisdom has not pressed Relief Nos. (vii) and (viii) at the hearing.

3. In order to appreciate the petitioner's grievance, the redressal whereof he seeks, it would be apposite to refer to facts that have given rise to this petition. The Ram Prasad Bismil Higher Secondary School, Divnapur, District Bareilly is a recognized College under the Uttar Pradesh Intermediate Education Act, 1921 (for short, 'the Act of 1921'). The aforesaid intermediate college shall hereinafter be referred to as 'the College'. The College is in receipt of grant-in-aid from the State Government and salaries to its teachers and other employees are paid out of funds provided by the State Government under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. The said Act shall hereinafter be called as 'the Act of 1971'.

4. The petitioner was appointed as a teacher in the College in the B.T.C. Grade on 01.02.1973. After completion of five years' service in the B.T.C. Grade, the petitioner was appointed as an assistant teacher in the C.T. Grade. Upon the C.T. Grade being declared a dying cadre and the petitioner completing ten years' service in the C.T. Grade, he automatically became a teacher in the L.T. Grade. He was absorbed in the L.T. Grade w.e.f. 01.02.1988. Upon completion of ten years of regular service in the L.T. Grade, the petitioner was granted L.T. Selection Grade w.e.f. 01.02.1998. He was appointed as the ad hoc Principal vide order dated 06.01.2010 passed by the District Inspector of Schools, Bareilly and worked as such up to April, 2011. He retired from service on 30.06.2012 upon attaining the age of superannuation. At the time of his retirement, he was serving the College as an assistant teacher in the L.T. Grade (placed in the Selection Grade).

5. At this stage, it is necessary to look at some events that happened in the year 2009 and their cascading effect upon the petitioner's service record, emoluments and post retiral benefits. While the petitioner was the seniormost L.T. Grade Teacher in the College, he was given the charge of Centre Superintendent for the purpose of holding the Board Examinations, conducted by the U.P. Board of High School and Intermediate Education in the year 2009. On 19.03.2009, a Flying Squad of the Intermediate Education Board alighted on the College premises, just 10 minutes into the examinees commencing writing their scripts. No examinee was using or found to be using unfair means by the Flying Squad.

6. A First Information Report dated 24.03.2009, giving rise to Case Crime No. 209 of 2009, under Section 3/10 of the Uttar Pradesh Public Examination (Prevention of Unfair Means) Act, 1998 (for short, 'the Act of 1998'), Police Station Hafijganj, District Bareilly, was lodged against the petitioner at the behest of the Principal of the College, who is now the Manager, inasmuch as the Principal had not been entrusted with the assignment of the Centre Superintendent by the Board. The petitioner further asserts that no examinee was found using unfair means by the Board, in consequence whereof results of all the examinees were declared by the Board. Nevertheless, a charge sheet dated 26.05.2009 was filed against the petitioner in the crime under Section 3/10 of the Act of 1998.

7. The petitioner challenged this charge sheet before this Court through an application under Section 482 of the Code of Criminal Procedure. In the aforesaid case, being Application u/s. 482 No. 34506 of 2009, this Court vide order dated 04.01.2010 ordered issue of notice to the other side and directed that till the next date of listing, no coercive action shall be taken against the petitioner.

8. On account of the FIR, that was lodged against the petitioner, the petitioner points out that he was placed under suspension by the Management on 29.03.2009. Later on, by an order dated 29.05.2010 passed by the Committee of Management of the College, the suspension was revoked, subject to the following conditions:

"(1) Two increments shall be denied to the petitioner until time that the Court of competent jurisdiction delivers judgment. After judgment by the Court alone, the Management would consider reviewing its decision about withholding the two increments;

(2) The petitioner would not receive any emolument for the period that he remained under suspension in addition to the subsistence allowance; and,

(3) The petitioner would not be entrusted with any administrative work of the College."

9. In terms of the aforesaid order, the petitioner was reinstated in service on 01.06.2010.

10. It is emphasized by the learned Counsel for the petitioner that neither any disciplinary proceedings were initiated against him nor any charge sheet ever issued. Pursuant to the resolution to suspend the petitioner, no disciplinary proceedings were taken, but in terms of the order of reinstatement, the petitioner has been virtually punished without inquiry, with an order withholding two increments until the competent Criminal Court delivered judgment in the case. It is submitted by the learned Counsel for the petitioner that unless disciplinary proceedings were initiated and brought to their logical conclusion, the respondents never had the right to withhold two increments, which constitute one of the punishments envisaged under the regulations framed under the Act of 1921.

11. It is argued that in order to inflict punishment of any kind upon a teacher serving an institution governed by the Act of 1921, approval has to be obtained from the U.P. Secondary Education Service Selection Board constituted under the Uttar Pradesh Secondary Education (Services Selection Board) Act, 1982 (for short, 'the Act of 1982'). The aforesaid mandatory permission by the Board, before infliction of any of the penalties upon a teacher contemplated under Section 21 of the Act of 1982, is essential. If the requisite permission is not taken, the resolution of the Management inflicting any of the punishments envisaged under Section 21 of the Act of 1982 would be void. The learned Counsel for the petitioner has drawn the Court's attention to Section 21 of the Act of 1982, which reads:

"21. Restriction on dismissal etc. of teachers.-The Management shall not, except with the prior approval of the Board, dismiss any teacher or remove him from service, or serve on him any notice of removal from service, or reduce him in rank or reduce his emolumcnis or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval shall be void."

12. It is urged on behalf of the petitioner that upon reinstatement w.e.f. 01.06.2010, the petitioner is entitled to payment of the difference, between his salary for the period of his suspension and the subsistence allowance, that he received during the relevant period of time, in view of the provisions of Regulation 40 of Chapter III, framed under the Act of 1921. However, the petitioner was paid nothing beyond the subsistence allowance in enforcement of the order dated 29.05.2010 passed by the Management, which is manifestly illegal. It is next submitted that the petitioner is entitled to receive the promotion pay scale with the grade pay of Rs. 5400/- w.e.f. 01.02.2010 as he completed 12 years of service in the L.T. Selection Grade, reckoned with effect from 01.02.1998. It is pointed that this denial has come owing to the criminal case pending against him under Section 3/10 of the Act of 1998. It is urged that the pendency of the aforesaid case cannot be held against the petitioner to deny his due promotion pay scale.

13. The petitioner, aggrieved by the aforesaid myriad denials of his service dues, approached this Court by instituting Writ-A No. 67465 of 2012, seeking restoration of all the benefits due to him. The said petition was disposed of, granting liberty to the petitioner to represent his case before the District Inspector of Schools, Bareilly, who was directed to look into the petitioner's grievances and redress the same, in accordance with law, by means of a reasoned and speaking order, within two months next of the date of receipt of the petitioner's representation, accompanied by a certified copy of this Court's order dated 20.12.2012.

14. In order to avail of whatever relief this Court extended, the petitioner submitted a representation to the District Inspector of Schools, Bareilly, a copy whereof is annexed as Annexure No. 2 to the writ petition. All the legal and other infirmities pointed out hereinabove, vitiating the conditions imposed by the respondent Management while reinstating the petitioner, were set forth in the representation and pleaded to be illegal in view of the various statutory provisions above indicated, or the law generally applicable. It was, amongst other things, pointed out in the representation to the District Inspector of Schools that the petitioner was entitled to the promotion pay scale upon completion of 12 years' service in the L.T. Selection Grade w.e.f. 31.01.2010, but the said claim of the petitioner was rejected by the respondent Management on ground that his services were not satisfactory. It was pleaded in the representation addressed to the District Inspector of Schools that the petitioner had never been communicated with any adverse entry nor the service-book placed before him for signatures. The petitioner was not allowed to examine the service-book. The petitioner's representation was rejected by the District Inspector of Schools, Bareilly vide the order impugned dated 12.12.2014.

15. Disillusioned by the order impugned dated 12.12.2014, the petitioner has preferred the present writ petition.

16. Heard Mr. Santosh Kumar Mishra, learned Counsel for the petitioner, Mr. Sharad Chandra Upadhyay, learned State Law Officer appearing on behalf of respondent nos. 1 to 5 and Mr. Arun Kumar Gupta, learned Counsel appearing on behalf of respondent nos. 6 and 7.

17. The record has been perused, in particular, the petitioner's service-book that was produced before the Court in sealed cover, since opened and placed on record.

18. The most unusual feature of this case is that the petitioner stands punished in terms of the order dated 29.05.2010, by which he has been reinstated in service. There are apparently no disciplinary proceedings taken against the petitioner, for which there is an elaborate procedure provided under Regulations 31 to 45 of Chapter III of the Regulations framed under the Act of 1921. He has also not been convicted while in service by the Court of criminal jurisdiction, where a charge sheet has been filed against him. Thus, until his superannuation on 30.06.2012, the petitioner was neither held guilty in disciplinary proceedings nor by a Court of criminal jurisdiction for an offence involving moral turpitude. In the absence of either, it was not at all open to the respondents to punish the petitioner by stopping his increments until judgment by the Criminal Court, in connection with the charge on the basis of which he was placed under suspension. The respondents have called it a condition for the petitioner's reinstatement, but in substance the condition is virtually another name for the postulated penalty of stoppage of increments. The increment no doubt has been stopped until the happening of an event i.e. the judgment of the Criminal Court. It is not known when the Criminal Court would deliver judgment. Therefore, the jurisdiction exercised by the respondents to stop the petitioner's increments numbering two, is absolutely ultra vires the powers conferred upon them under Chapter III of the Regulations framed under the Act of 1921. The power to inflict any of the punishments, postulated under Regulations 32 and 33 of Chapter III, can be exercised at the end of disciplinary proceedings, duly drawn and concluded or taking cognizance of the judgment of a Court of criminal jurisdiction, convicting the employee on a charge involving moral turpitude. The exercise of the power to withhold the petitioner's increments, numbering two in this case, pending a decision of the relative criminal case by the Court is not a valid exercise of power by the respondents.

19. There is an averment to be found in Paragraph No. 17 of the counter affidavit filed on behalf of the respondent-Management to the effect that the petitioner is not entitled to arrears of the difference in salary and the subsistence allowance for the period 01.04.2009 to 31.05.2010, as the charges levelled against him in the departmental proceedings were found well proved and he was also punished, stopping two increments. Nothing has been brought to the notice of the Court during the hearing that any order of punishment was ever passed against the petitioner. The punishment, as the respondent-Management unwittingly concede in Paragraph No. 17 of the counter affidavit filed on their behalf, was imposed through the exercise of a most anomalous jurisdiction, besides being ultra vires, in the form of an order reinstating the petitioner in service subject to terms and conditions. It is the terms and conditions of reinstatement that carry the order of punishment, withholding two increments. This, as already said, could never have been done.

20. There is nothing said in the counter affidavit filed on behalf of respondent Nos. 1 to 5 or the State-respondents, that may show that any order of punishment was ever passed against the petitioner, and that too with the due approval of the competent Authority, an issue to which allusion would shortly be made. In Paragraph No. 8 of the counter affidavit filed on behalf of respondent Nos. 1 to 5, all that is said in defence of the order withholding increments is that since a final order has not been passed in the criminal case, some conditions to the petitioner's reinstatement have been imposed. This, as already said, more than once is not a valid ground to punish a teacher or an employee by withholding his increment, as done in the present case.

21. A perusal of the impugned order dated 12.12.2014 passed by the District Inspector of Schools shows that he has utterly failed to understand the deep flaw in punishing a teacher, without following the procedure envisaged in Regulations 32 and 33 of Chapter III of the Regulations, framed under the Act of 1921. There is nothing, for a fact, noticed in the impugned order passed by the District Inspector of Schools that an order of punishment has ever been passed against the petitioner. All that is said is that he was found involved by the Flying Squad in some activity, while acting as the Centre Superintendent, leading to the registration of an FIR against him under Section 3/10of the Act of 1998 and suspended from service-pending inquiry, investigation or prosecution, is not at all indicated by the District Inspector of Schools in the order impugned. It also does not appear anywhere from the records of the case, produced by the Management, as to what was the character of the order of suspension. The District Inspector of Schools in his order has also held it a valid exercise of power by the Management that as a condition for the petitioner's reinstatement, they could withhold two of his increments, pending decision of the Criminal Court. The District Inspector of Schools, untrained in law as he is, cannot be expected to understand the subtlety of the law about the valid exercise of power to punish an employee or a teacher, generally in disciplinary proceedings or in consequence of a conviction by a Court, and particularly, with reference to the provisions of Chapter III of the Regulations framed under the Act of 1921. The District Inspector of Schools has proceeded to uphold the validity of the order punishing the petitioner in an absolutely invalid exercise of jurisdiction, by withholding two of his increments by the Management while reinstating him in service, depending on vague reasoning and on irrelevant considerations. Thus, on this score alone, the impugned order, insofar it upholds the punishment of withholding two increments due to the petitioner, is vitiated.

22. The other reasoning, on the basis of which this part of the impugned order is criticized by the learned Counsel for the petitioner, is that no order of punishment can be validly passed, unless a prior approval thereof is granted by the Board, constituted under the Act of 1982, in terms of Section 21 of the said Act. This contention would proceed on the supposition that a valid order of punishment has been made against the petitioner. Here, we have found that there is no valid order of punishment made against the petitioner after following the procedure prescribed in Regulations 32 and 33 of Chapter III of the Regulations framed under the Act of 1921. The matter can, therefore, be left at that and the contention not examined at all.

23. Assuming, however, that the punishment of withholding two increments, has been inflicted in accordance with law, after following the procedure prescribed under the Regulations contained in Chapter III of the Regulations framed under the Act of 1921, the punishment would still be void, unless there was prior approval thereof by the Board constituted under the Act of 1982. This plea was raised by the petitioner in his representation to the District Inspector of Schools, Bareilly dated 08.01.2013, annexed as Annexure No. 2 to the writ petition, but does not find mention in the order impugned.

24. The necessity of obtaining prior permission of the Board constituted under the Act of 1982, before the valid imposition of any punishment, fell for consideration of a Division Bench of this Court in Ramesh Chandra Mishra v. U.P. Secondary Education Services Commission, Allahabad and others, (1990) 1 UPLBEC 488. In Ramesh Chandra Mishra (supra), it was held:

"13. In the year 1982 U.P. Secondary Education Services Commission and Selection Boards Act, 1982 (U.P. Act No. V of 1982) was promulgated by the Uttar Pradesh Legislature. This Act shall hereinafter be referred to as the 'Commission Act'. The object of this Act was to establish Secondary Education Services Commission and Selection Board for the selection of teachers in the institution recognised under the Education Act. Section 21 of the Act provides for restriction on dismissal removal or reduction in rank of teachers. Section 21 provides that no teacher specified in the schedule shall be dismissed or removed from service or reduced in rank and neither his emoluments may be reduced nor he may be given notice of removal from service by the Management unless prior approval of the Commission has been obtained. Section 21 came into force with effect from January 1, 1984 by notification issued by the State Government on 27th December, 1983. The resultant effect was that on or after 1st January, 1984 if any action of dismissal, removal or reduction in rank of teacher, Head master or Principal is taken then such action can only be taken after obtaining prior approval of the Commission in accordance with the Scheme of the Education Act, Regulations framed thereunder and the Commission Act. The action for dismissal, removal or reduction in rank against a teacher, Headmaster or Principal can only be taken in the manner prescribed viz. holding an enquiry under Regulation 35 and thereafter following the procedure as required in Regulations 36 and 37 and subsequent thereto taking prior approval of the Commission. If any of the steps which are condition precedent for taking action are not followed, the action in our opinion would be vitiated in law and would be void. Section 21(3) of the Commission Act also specifically provides that after the order of dismissal, removal or reduction in rank of removal from service or reduction in emoluments of a teacher in contravention of the provisions of sub-section (1) or sub-section (2) shall be void."

25. There being nothing to show that the punishment of withholding two increments, if at all there be any punishment validly imposed, was inflicted with the prior approval of the Board, under the Act of 1982, would vitiate the order directing withholding of the petitioner's increments, in any case. Though, this question, as already noticed, does not arise in the present case, because there is indeed no order of punishment passed in accordance with Chapter III of Regulations, the validity of the order passed by the Management and upheld by the District Inspector of Schools, directing withholding of increments, has been examined on all possible scores. It must be recorded that the learned Counsel for the parties elaborately addressed this Court on this point. Hence, these remarks.

26. This Court is, therefore, of opinion that the order withholding the petitioner's increments cannot be countenanced at all.

27. The next facet of the petitioner's grievance is that he has been denied his promotion pay scale in the L.T. Grade that fell due w.e.f. 01.02.2010. The said denial has come in the wake of the petitioner being involved allegedly in aiding candidates using unfair means during the High School and Intermediate Education Board Examination, 2009, where he was functioning as the Centre Superintendent. The aforesaid misdemeanour attributed to the petitioner led to the registration of Case Crime No. 209 of 2009, under Section 3/10 of the Act of 1998 against him and a charge sheet being filed in Court. The petitioner is facing trial in the said case. No disciplinary proceedings have been initiated against the petitioner on the basis of the aforesaid misconduct. He was placed under suspension, though as said earlier, it is not clear if the suspension was pending investigation, trial or disciplinary proceedings. Certainly, no disciplinary proceedings were initiated against the petitioner, but the criminal case is pending. He has been reinstated in service subject to certain conditions, one of which about infliction of the penalty or withholding two increments, has been found invalid by this Court in terms of the findings recorded hereinabove.

28. Now, there could be two sources to deny the petitioner's promotion pay scale. One is the award of adverse entries in his Annual Confidential Report (for short, 'the A.C.R.') and the other could be just the fact that a criminal case is pending against him in the Court, where judgment is still awaited. The objection to the latter limb of the obstacle to the grant of promotion pay scale, is based upon the principle that so long as a person is facing disciplinary proceedings, i.e., post the issue of a departmental charge-sheet or a criminal case, subsequent to filing of a charge-sheet in the Criminal Court, he/she is not to be denied consideration for promotion or the grant of selection grade, crossing the efficiency bar or award of a higher scale of pay, but implementation of the decision is to be postponed until the outcome of the disciplinary proceedings or the criminal case, as the case may be. In case of promotion, properly so called 'sealed cover procedure' is to be adopted, but not a denial of consideration for promotion.

29. Before this Court, the award of promotion pay scale was resisted by the respondents taking up a plea that the petitioner is not entitled, because his services were not satisfactory, during the relevant period of time. This submission came forth on behalf of the State through the supplementary counter affidavit dated 14.09.2021 filed on behalf of the District Inspector of Schools, Bareilly. In the said affidavit, a photostat copy the petitioner's service-book was annexed, and it was averred that under a Government Order dated 20.12.2001, a copy whereof is annexed to the supplementary counter affidavit under reference as Annexure No. SCA-1, the grant of selection grade and promotion pay scale to teachers working in secondary institutions depends upon 12 years of satisfactory service in the selection grade. Though not much is said in the affidavit itself about the petitioner's service record, the relevant ACR entries in the photostat copy of the service-book were brought to the Court's notice by Mr. Upadhyay, learned State Law Officer and Mr. Arun Kumar Gupta, learned Counsel appearing on behalf of respondent Nos. 6 and 7 to submit that the petitioner's service record has not been satisfactory.

30. The learned Counsel for the respondents have drawn the attention of the Court to the character roll of the petitioner and the adverse entries awarded to him for the years 2000-01, 2001-02, 2002-03 and 2003-04. A reading of the character roll for the aforesaid years do show that the petitioner was awarded adverse entries. Learned Counsel for the respondents submits that it was for these service entries that the petitioner's services for the period of 12 years in the selection grade were not found satisfactory, so as to entitle him to award of promotion pay scale.

31. The learned Counsel for the petitioner has submitted that this contention of the respondents was the outcome of mala fides on the Management's part. The relevant entries in the service record that the Xerox copy of the service-book showed, were never communicated to him, as required by Regulation 72 of Chapter III of the Regulations framed under the Act of 1921. He submits that if the entries had been communicated, he would have made a representation against the relevant entries in his character roll to the Committee of Management. It is argued that since these entries were not communicated, they cannot be relied upon to hold that the petitioner's services were not satisfactory during the entire period of 12 years while functioning in the selection grade. It was further pointed out by the learned Counsel for the petitioner, during the course of hearing, that the service-book, a xerox copy whereof was annexed to the supplementary counter affidavit filed on behalf of the District Inspector of Schools, was a duplicate copy, as appeared from its face. It was not his original service-book. The Management has deliberately removed his original service-book and substituted it by a duplicate and interpolated entries in his character roll, adverse to him.

32. It was, particularly, pointed out that the adverse entries were not there up to the year 1999-00, but suddenly appeared in the year 2000-01. The respondent Management had not obtained the petitioner's signatures of acknowledgement on the relative adverse entries in his character roll, as required by Regulation 72. This clearly proved that the service-book was an interpolated document and the adverse entries made there, apart from being fabricated, were never communicated to the petitioner. In the circumstances, this Court summoned the petitioner's original service-book vide order dated 25.08.2021. It was after some adjournment that the service-book was produced before the Court on 14.09.2021 by Mr. Sharad Chandra Upadhyay, learned State Law Officer. It was retained in a sealed cover and ordered to be kept in the safe custody of the Registrar General. During the hearing, the petitioner's service-book has been produced in Court and perused, opening the sealed cover.

33. At the hearing, the learned Counsel for the petitioner pointed out that the service-book was duplicate and not the original, when it was opened on 30.09.2021 and the parties inspected it on the said day. The Court also found that it was indeed duplicate. This Court then directed the State to produce the original service-book, duplicate whereof had been produced. The District Inspector of Schools was required to file his personal affidavit, indicating why a duplicate service-book has been produced. The duplicate service-book that was produced before the Court was inspected by the Court and indeed in the confidential roll up to the year 1999-00, there are no entries; neither adverse nor favourable to the petitioner. However, for the years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05, there are stringing adverse entries, but none appears to be communicated. There are no signatures of acknowledgement by the petitioner in accordance with the mandate of Regulation 72 of the Regulations framed under Chapter III.

34. In compliance with the Court's order dated 30.09.2021, the District Inspector of Schools filed his personal affidavit dated 07.10.2021. This Court must remark that the personal affidavit of the District Inspector of Schools, Dr. Amar Kant Singh, is a candid disclosure of all relevant facts. It has been explained there, on the basis of information received from Dr. Saudan Singh Shakya, the Principal of the institution, that after being transferred and taking over the Krishak Samaj Inter College, Ghughli, Tabibpur, District Bijnore, he found that the institution had a duplicate service-book of the petitioner alone. The said book was handed over to the District Inspector of Schools for production before this Court. Upon inquiry by the District Inspector of Schools as to why a duplicate service-book alone was available, it was brought to his notice that the first page of the duplicate service-book had been signed by the then Manager, Dushyant Kumar, the Principal, Ayodhya Lal and the petitioner. The petitioner did not deny his signatures on the first page of the service-book. It was also pointed out that the entries on the first page of the duplicate service-book were made in the petitioner's handwriting. The District Inspector of Schools asserted that the petitioner was fully aware about the circumstances attending the preparation of a duplicate service-book. It is then said further in his affidavit that the petitioner's service-book, along with that of four other employees, was lost. An FIR in this regard was lodged by the then Clerk, the late Tek Chand on 20.11.1998 at P.S. Hafijganj, Nawabganj, District Bareilly. It was, thereafter, that the duplicate service-book was constructed under the directions of the then Manager, Dushyant Kumar Gangwar. A copy of the written information given to the S.O., P.S. Hafijganj, Bareilly by the Institution's Clerk is annexed as Annexure No. 3 to the District Inspector of Schools' personal affidavit.

35. It, thus, appears that the duplicate service-book that has been constructed is well within the petitioner's knowledge. It was not seriously disputed before this Court that the entries on the first page of the service-book were signed by the petitioner or in his hand. There are fingerprints of the petitioner too on the second page, attested by the then Principal on 23.11.1998. Still, what baffles one is that if the duplicate service-book was reconstructed in the year 1998, as the information to the Police also would corroborate, what would be the material on the basis of which entries in the service-book were made for the period 01.02.1973 to 31.03.1998. It is no matter of surprise that the service-book does not carry any remarks for the period 01.02.1973 to 31.03.1998. Possibly, there was no material left with the institution to post those entries in the service-book, after the original was lost. Nevertheless, it is true that there is no adverse entry against the petitioner for the period 01.04.1998 to 31.03.1999 and 01.04.1999 to 31.03.2000. In fact, there is no entry of any kind for the said period. These two years relate to the period of time when the current duplicate service-book was in use. It is only for the period 01.04.2000 to 31.03.2001, and thereafter, that adverse entries have suddenly cropped up. As said earlier, none of these entries have been got acknowledged by the petitioner.

36. The position of the law that uncommunicated service entries cannot be made the basis of denying promotion or promotion pay scale would be dealt with a little later.

37. At this stage, it is of the prime importance to notice the stand of the District Inspector of Schools about the adverse entries awarded to the petitioner during the years 2001-02, 2002-03, 2003-04 and 2004-05. The stand of the District Inspector of Schools in this regard is disclosed in Paragraph Nos. 17 and 18 of his personal affidavit dated 07.10.2021. The said paragraphs read:

17. That bare perusal of the duplicate service book of the petitioner it clearly transpires that uptill 2000 there was no any adverse entry against him and in the year 2001-02, 2002-03, 2003-04, 2004-05 adverse remarks were made against the service of the petitioner as the same was not found satisfactory and even his integrity was also found doubtful as such warning as well as adverse entry, withholding of increment as well as deduction from salary, such type of orders were found but there was not a single whisper about this respect that whether prior to awarding the aforesaid punishment due procedure was followed or not and even the petitioner was whether provided opportunity of hearing or not and bare perusal of the said orders it clearly transpires that the then manager and Principal done the alleged proceedings against the petitioner without following any procedure with ill intention as such the said entries are itself void and on the basis of the same no benefit of the petitioner can be stopped on the basis of said illegal entries.

18. That bare perusal of the aforesaid service book it also clearly transpires that vide order dated 29.03.2009 a decision was taken by the respondent No. 6 to suspend the petitioners and the approval of the same was also alleged to be granted by the then D.I.O.S. on 26.05.2009 and later on vide final order dated 28.05.2010 passed by the respondent no. 6 two increment of the petitioner was directed to withheld and even the salary during the suspension period was also directed to be forfeited except the subsistence allowance and later on the petitioner was reinstated in service but as provided under Regulation 21 no approval of the said order was ever done by Secondary Education Service Selection Board as such the said punishment order is also illegal and void."

38. Indeed, the act of the Manager in recording adverse entries behind the petitioner's back, which were never communicated to him, contrary to the provisions of Regulation 72, cast a shadow of grave doubt about the authenticity and the resultant validity of the adverse entries, on which the respondents rely. If statutory regulations require a particular thing to be done in a specified manner, it has to be done in that manner, is a principle too well-known. If a mandatory provision in a statutory regulation, that has adverse civil consequences on the rights of an employee, is observed in breach, there is a clear case of mala fides in law. Here, the District Inspector of Schools has opined breach of the regulation in failing to communicate the adverse entries and getting them signed by the petitioner to be an instance of mala fide in fact. The circumstances, indeed, indicate that the non-communication was mala fide. The mala fides were clearly on the Management's part in not getting the adverse entries duly acknowledged by the petitioner under his signatures on the service-book, which would be due notice to him. The petitioner could then represent against those adverse entries in the manner provided under Regulation 73. All this has not all been done. Apart from the provisions of Regulations 72 and 73, the law is clear on the point that the remarks entered in the ACRs must be communicated to the employee concerned within a reasonable period of time, as held by the Supreme Court in Sukhdev Singh v. Union of India and others, (2013) 9 SCC 566. In Sukhdev Singh (supra), it was held:

3. Subsequent to the above two decisions, in Dev Dutt v. Union of India [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771], this Court had an occasion to consider the question about the communication of the entry in the ACR of a public servant (other than military service). A two-Judge Bench [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] on elaborate and detailed consideration of the matter and also after taking into consideration the decision of this Court in U.P. Jal Nigam [U.P. Jal Nigam v. Prabhat Chandra Jain, (1996) 2 SCC 363 : 1996 SCC (L&S) 519 : (1996) 33 ATC 217] and principles of natural justice exposited by this Court from time to time particularly in A.K. Kraipak v. Union of India [(1969) 2 SCC 262]; Maneka Gandhi v. Union of India [(1978) 1 SCC 248]; Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672]; Canara Bank v. V.K. Awasthy [(2005) 6 SCC 321: 2005 SCC (L&S) 833] and State of Maharashtra v. Public Concern for Governance Trust [(2007) 3 SCC 587] concluded that every entry in the ACR of a public servant must be communicated to him within a reasonable period whether it is poor, fair, average, good or very good entry. This is what this Court observed in paras 17 and 18 of the Report in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] at SCC p. 733:

"17. In our opinion, every entry in the ACR of a public servant must be communicated to him within a reasonable period, whether it is a poor, fair, average, good or very good entry. This is because non-communication of such an entry may adversely affect the employee in two ways: (1) had the entry been communicated to him he would know about the assessment of his work and conduct by his superiors, which would enable him to improve his work in future; (2) he would have an opportunity of making a representation against the entry if he feels it is unjustified, and pray for its upgradation. Hence non-communication of an entry is arbitrary, and it has been held by the Constitution Bench decision of this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that arbitrariness violates Article 14 of the Constitution.

18. Thus, it is not only when there is a benchmark but in all cases that an entry (whether it is poor, fair, average, good or very good) must be communicated to a public servant, otherwise there is violation of the principle of fairness, which is the soul of natural justice. Even an outstanding entry should be communicated since that would boost the morale of the employee and make him work harder."

(emphasis in original)

4. Then in para 22 at SCC p. 734 of the Report this Court in Dev Dutt case [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] made the following weighty observations:

"22. It may be mentioned that communication of entries and giving opportunity to represent against them is particularly important on higher posts which are in a pyramidical structure where often the principle of elimination is followed in selection for promotion, and even a single entry can destroy the career of an officer which has otherwise been outstanding throughout. This often results in grave injustice and heart-burning, and may shatter the morale of many good officers who are superseded due to this arbitrariness, while officers of inferior merit may be promoted."

5. In paras 37 and 41 of the Report this Court then observed as follows: (Dev Dutt case [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771], SCC pp. 737-38)

"37. We further hold that when the entry is communicated to him the public servant should have a right to make a representation against the entry to the authority concerned, and the authority concerned must decide the representation in a fair manner and within a reasonable period. We also hold that the representation must be decided by an authority higher than the one who gave the entry, otherwise the likelihood is that the representation will be summarily rejected without adequate consideration as it would be an appeal from Caesar to Caesar. All this would be conducive to fairness and transparency in public administration, and would result in fairness to public servants. The State must be a model employer, and must act fairly towards its employees. Only then would good governance be possible.

***

41. In our opinion, non-communication of entries in the annual confidential report of a public servant, whether he is in civil, judicial, police or any other service (other than the military), certainly has civil consequences because it may affect his chances for promotion or get other benefits (as already discussed above). Hence, such non-communication would be arbitrary, and as such violative of Article 14 of the Constitution."

6. We are in complete agreement with the view in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] particularly paras 17, 18, 22, 37 and 41 as quoted above. We approve the same.

7. A three-Judge Bench of this Court in Abhijit Ghosh Dastidar v. Union of India [(2009) 16 SCC 146 : (2010) 1 SCC (L&S) 959] followed Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771]. In para 8 of the Report this Court with reference to the case under consideration held as under: (Abhijit Ghosh Dastidar case [(2009) 16 SCC 146 : (2010) 1 SCC (L&S) 959], SCC p. 148).

"8. Coming to the second aspect, that though the benchmark 'very good' is required for being considered for promotion, admittedly the entry of 'good' was not communicated to the appellant. The entry of 'good' should have been communicated to him as he was having 'very good' in the previous year. In those circumstances, in our opinion, noncommunication of entries in the ACR of a public servant whether he is in civil, judicial, police or any other service (other than the armed forces), it has civil consequences because it may affect his chances for promotion or getting other benefits. Hence, such noncommunication would be arbitrary, and as such violative of Article 14 of the Constitution. The same view has been reiterated in the above referred decision (Dev Dutt case [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771], SCC p. 738, para 41) relied on by the appellant. Therefore, the entries 'good' if at all granted to the appellant, the same should not have been taken into consideration for being considered for promotion to the higher grade. The respondent has no case that the appellant had ever been informed of the nature of the grading given to him."

8. In our opinion, the view taken in Dev Dutt [Dev Dutt v. Union of India, (2008) 8 SCC 725 : (2008) 2 SCC (L&S) 771] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period."

39. The precise point, that uncommunicated adverse ACRs/entries cannot be relied upon for the purpose of consideration for promotion, was subject matter of consideration before the Supreme Court in Rukhsana Shaheen Khan v. Union of India and others, (2018) 18 SCC 640. Their Lordships in Rukhsana Shaheen Khan (supra) held:

"1. The sole issue involved in this appeal is whether the uncommunicated Annual Confidential Reports (ACRs), which are adverse to the appellant, should have been relied upon for the purpose of consideration of the appellant for promotion.

2. In view of the decision of this Court in Sukhdev Singh v. Union of India [Sukhdev Singh v. Union of India, (2013) 9 SCC 566 : (2014) 1 SCC (L&S) 279], there cannot be any dispute on this aspect. This Court has settled the law that uncommunicated and adverse ACRs cannot be relied upon in the process.

3. This appeal is, accordingly, allowed and the impugned judgment [Rukhsana Shaheen Khan v. Union of India] is set aside with the following directions:

(a) The competent authority is directed to ignore the uncommunicated adverse ACRs and take a fresh decision in accordance with law.

(b) The appellant shall be afforded an opportunity of hearing in the process.

4. It will be open to the appellant to make all available submissions, including the reference to the judgment of this Court in Prabhu Dayal Khandelwal v. UPSC [Prabhu Dayal Khandelwal v. UPSC, (2015) 14 SCC 427 : (2016) 1 SCC (L&S) 825]."

40. The legal position being clear that uncommunicated adverse entries cannot form the basis to deny promotion and a fortiori denial of promotion pay scale to an employee, the action of the respondents in seeking to deny consideration for grant of promotion pay scale to the petitioner on the basis of uncommunicated ACRs/entries for the years 2000-01, 2001-02, 2002-03, 2003-04 and 2004-05, cannot be countenanced. The District Inspector of Schools in his affidavit has, on larger grounds, opined those entries to be inherently vitiated.

41. Be that as it may, this Court is of the firm opinion that the adverse ACRs/entries in the petitioner's service-book cannot be made the basis of denying him consideration for the grant of promotion pay scale. It is, accordingly, held.

42. The other ground, on the basis of which the petitioner's right to be granted, or so to speak, considered for grant of promotion pay scale, has been denied by the respondents, is that a criminal case is pending against him under Section 3/10 of the Act of 1998. During the course of hearing, it has not been disputed before this Court that the aforesaid criminal prosecution is pending and during its pendency, the petitioner has retired from service. The law relating to promotion, grant of promotion pay scale etc. against an employee, who is facing disciplinary proceedings or criminal charges, is not that such an employee is not to be considered for the grant of promotion or promotion pay scale at all. A distinction has been drawn in such cases based on the stage of proceedings against an employee, be these departmental or criminal. If departmental proceedings are in contemplation, say pending consideration at the stage of a preliminary inquiry or a fact finding inquiry, the employee concerned is to be considered for promotion like any other. Similarly, if there is just an FIR lodged against an employee, his case for promotion is to be considered on merits and the process remains unaffected. However, in both cases, that is to say, disciplinary proceedings or criminal charges, the decisive point is the issue of a departmental charge-sheet in the former and the submission of a police report (charge-sheet) in Court in the latter.

43. In cases, where either a charge-sheet has been issued in departmental proceedings or a police report (charge-sheet) filed in Court after investigation by the Police/other competent Investigating Agency, the employee's case for promotion is still to be considered; but not disposed of like that of any other employee. Post consideration, the recommendations of the Departmental Promotion Committee (DPC) or the other body or Authority competent to consider promotion or the grant of promotion pay scale are to be kept in a sealed cover, awaiting outcome of the disciplinary proceedings or the criminal trial, as the case may be. The question fell for consideration before the Supreme Court in Union of India and others v. K.V. Jankiraman and others, (1991) 4 SCC 109, where broad principles were laid down that have been since followed. The questions that fell for consideration in K.V. Jankiraman (supra) are set out in Paragraph No. 8 of the report, which reads:

8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are: (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date The "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Hence, the relevance and importance of the questions.

44. The questions were dealt with in K.V. Jankiraman with their Lordships holding thus:

"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. 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.

19. The Full Bench of the Tribunal, while considering the earlier Memorandum dated January 30, 1982 has, among other things, held [Ed.: See (1987) 3 ATC 174, 195 in para 36] that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them.

20. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings.

21. We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows:

"But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion."

22. This sentence is preceded by the observation that when the employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that 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 direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.

23. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which reads as follows:

"F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties:

Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."

24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.

25. 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.

26. 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. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

27. To this extent we set aside the conclusion of the Tribunal on the said point.

28. The Tribunal has also struck down the following portion in the second sub-paragraph after clause (iii) of paragraph 3 which reads as follows: "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" and has directed that if the proceedings result in a penalty, the person concerned should be considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty, and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said sub-paragraph directs that "the officer's case for promotion may be considered in the usual manner by the next DPC which meets in the normal course after the conclusion of the disciplinary/court proceedings". The Tribunal has given the direction in question on the ground that such deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, "it not only violates Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution". The Tribunal has, therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the date when the sealed cover procedure was followed and the Review DPC should consider the findings in the sealed cover as also the penalty imposed. It is not clear to us as to why the Tribunal wants the Review DPC to consider the penalty imposed while considering the findings in the sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even when a penalty is imposed, amounts to double jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion as per the findings in the sealed cover.

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. 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."

45. The principles laid down in K.V. Jankiraman have been followed in Union of India and others v. Anil Kumar Sarkar, (2013) 4 SCC 161. Though, both in K.V. Jankiraman and Anil Kumar Sarkar, the Court before it had office memoranda issued by the Government dealing with the issue as to in what manner cases for promotion are to be considered in the case of employees, against whom disciplinary proceedings or criminal cases are pending, which is not the case here, the broad principles laid down in K.V. Jankiraman and subsequently followed, would apply to the case of any employee governed by a statutorily protected tenure, where the rules provide for promotion or the grant of a selection grade or promotion pay scale.

46. In the circumstances, this Court is of opinion that the petitioner's case for the grant of promotion pay scale is to be considered by the Management and the District Inspector of Schools w.e.f. the date the petitioner became entitled to such consideration, that is to say, 12 years service as an Assistant Teacher in the selection grade. The consideration of the petitioner's case for the grant of promotion pay scale shall not take into account the uncommunicated adverse entries entered in his ACR and shall receive requisite consideration ignoring those adverse entries. In assessing the satisfactory service of 12 years in the selection grade for the purpose of grant of promotion pay scale, the adverse entries shall be ignored. The result of the consideration shall, however, be kept in a sealed cover or in abeyance through some other suitable mode, as may be in practice or sanctioned by rules, until such time that the judgment in the criminal case is pronounced. Depending on the outcome of the decision of the criminal Court, the result of the consideration for the grant of promotion pay scale shall be implemented by the respondents.

47. So far as the question of payment of the difference in salary and the subsistence allowance for the period of suspension is concerned, the same shall also abide by the outcome of the decision that the criminal Court renders. In case, the petitioner is acquitted in the criminal case honourably, he will be entitled to payment of the difference between the salary and the subsistence allowance for the period 01.04.2009 to 31.05.2010, without reservation and promptly so.

48. In the above conspectus of facts, this petition succeeds and is allowed in part. The impugned order dated 12.12.2014 passed by the District Inspector of Schools, Bareilly is hereby quashed. A mandamus is issued to the respondents to grant the petitioner's two increments withheld i.e. for the period July, 2009 to November, 2010. The petitioner's salary, by adding those increments, shall be revised and the arrears paid within two months of the date of receipt of a copy of this order together with simple interest @ 6% per annum from the date it fell due until payment. The petitioner shall be entitled to consideration for the grant of promotion pay scale without reference to the adverse entries made in his ACRs for the years 2000-01, 2001-02, 2002-03 and 2003-04, the result whereof shall be kept in a sealed cover, or otherwise in abeyance as the rules or the practice may permit until delivery of judgment by the Criminal Court in Case Crime No. 209 of 2009, under Section 3/10 of the Act of 1998, Police Station Hafijganj, District Bareilly. Depending on the outcome of the criminal case, the result of the consideration for the grant of promotion pay scale shall be implemented, within six weeks of the delivery of the Criminal Court's judgment. Likewise, the petitioner's entitlement to subsistence allowance shall depend on the outcome of the judgment in Case Crime No. 209 of 2009, under Section 3/10 of the Act of 1998, Police Station Hafijganj, District Bareilly, which too shall be decided by the respondent Management and the Authorities within six weeks of the delivery of that judgment. It is made clear that the respondent Management and the respondent Authorities shall carry out all directions in this judgment, strictly in point of time and in the terms made, without delay. Considering the circumstances of the case, there shall be no order as to costs.

49. Let the petitioner's service-book be returned to the Registrar General for its onward and secure transmission to the District Inspector of Schools, Bareilly.