Avadh Behari Rohatgi, J.
(1) Yesterday I decided a writ petition of this petitioner. That was C.W.P. No. 462 of 1970. There I quashed the charge dated January 7, 1970 which was brought against him. This is another writ petition filed by him. Here he claims promotion. The relevant facts are stated in C.W.P. No. 462 of 1970. These facts will have to be repeated once more so far as they are relevant to this petition.
(2) On January 7, 1956, the petitioner was appointed as secretary of the Notified Area Committee Narela. On April 7, 1958, the Municipal Corporation of Delhi was established under the Delhi Municipal Corporation Act 1957 (66 of 1957) (the Act). The functions of the Notified Area Committee Narela were taken over by the Corporation. As a result the petitioner became an employee of the Corporation. On October 14, 1960, he was appointed as superintendent in the scale of Rs. 350-475.
(3) On October 14, 1965, he was suspended. On October 15, 1965, a charge sheet was served on him. This is the first charge sheet. The complaint against him in this charge sheet was that he failed to comply with the order of transfer of a certain clerk. Inquiry started against him. He submitted his defense. On September 19, 1968, pending the inquiry, he was reinstated
(4) In 1967 and 1968 respondents 3 to 15 were promoted to the higher posts of Assistant Assessor and Collector etc. on an ad hoc basis. The petitioner was left out since he was facing a charge and an inquiry.
(5) On April 18, 1969, a departmental promotion committee met under the U.P.S.C. for making regular appointments to the higher posts. The petitioner's case for promotion was also placed before it. The committee considered his case. He was not found fit.
(6) Later on September 16, 1970, the Commissioner informed the Corporation that the petitioner's case was reviewed and the result of the review has been put in a sealed cover. On review the departmental promotion committee found the petitioner fit. They decided that he will have his seniority from April 18, 1969, and his proper place will be after Aziz Khan and before Mohd. Rafi. Since the petitioner was facing an inquiry this decision of the Committee could not be implemented forthwith. The decision was to be given effect to only if the petitioner was exonerated of the charge. This was done in accordance with the procedure laid down by the Ministry of Home Affairs in their two Office Memos. dated November 3, 1958 and August 31. 1960 to which I will return a little later.
(7) To continue the sequence of facts, on June 20, 1970 the petitioner was exonerated of the charge. On Septemer 10, 1970, an order was made by the Corporation vide F.R. No. 54 that the period of suspension, that is, from October 14, 1965 till September 19, 1968 shall be treated as having been spent on duty for all purposes. This meant that the petitioner became entitled to salary of the period of suspension. The arrears of pay were given to him. He was cleared off the charge. As regards this charge sheet nothing remained.
(8) While inquiry on the first charge was pending, a second charge sheet was given to the petitioner on January 7, 1970. This was a new charge. The complaint this time was that the petitioner had been engaged in founding, promoting and managing a co-operative society. Inquiry on the second charge was started. This second charge I have quashed in the other connected writ on August 23, 1976.
(9) On April 28, 1971, the petitioner brought this petition under Art. 226 of the Constitution. He claimed in the main that since he had been exonerated of the first charge on June 20, 1970 he should now be promoted-
(10) The Corporation filed a return. Their defense was that though it is true that the petitioner had been exonerated of the first charge since he now facing an inquiry under the second charge sheet dated January 7, 1970, he cannot be promoted. They refused to issue an 'integrity certificate' to him on this ground. The petitioner's main complaint is that the Corporation have no right to withhold his promotion after his exoneration of the first charge on June 20, 1970. The second charge sheet served upon him on January 7, 1970. he says, docs not entitle the Corporation to deny him his promotion which has become due lo him under the Office Memorandum of the Ministry of Home Affairs. The short question that falls for decision in Ms writ petition is: Is the Corporation entitled to hold back the promotion of the petitioner on the ground of the second charge sheet dated January 7, 1970?
(11) Cases like the petitioner's had arisen even earlier. There were many instances of employees of the Government of India who had been under suspension and whose conduct was under investigation at the time the question of their promotion arose before the departmental promotion committees. The practice was not to consider their cases at all. These employees made representations to the Ministry of Home Affairs on the ground that this procedure was detrimental to their interests as they lose their seniority once they are passed over by reason of suspension and inquiry. The Ministry thereforee took a decision on November 3, 1958. They were impressed by the hardship caused to the suspended employees. They felt that if the employee is completely exonerated later on his future prospects are affected as he loses his seniority. thereforee, they decided that :
'IF the employee is completely exonerated and it is held that the suspension was wholly unjustified, he should be promoted thereafter in the first vacancy that can be made available for that purpose and his seniority in higher grade fixed as if he had been promoted in accordance with his position in the selection list as given in his personal file.'
On August 31, 1960, this decision was further amplified. The Ministry decided that:
'IF the officer concerned is completely exonerated and it is held that the suspension was wholly 'unjustified, he should be promoted thereafter to the post filled on an officiating basis, the appointment made previously being reversed.'
(12) This means that another person who was acting in the officiating post will be reverted and the officer entitled after exoneration will get his seniority as originally determined for him by the departmental promotion committee. The procedure which was devised for this purpose was that the departmental promotion committee should make the recommendation at the relevant time in a sealed cover superscribed 'finding regarding merit and suitability for promotion to/confirmation in (Service/graded/post) in respect of Shri (nams of the officer) ''and' this envelop was not to be opened till after the termination of the suspension of disciplinary proceedings against Shri (name of the officer)'.
(13) Following these memoranda of the Ministry of Home Affairs the departmental promotion committee found the petitioner fit and put their recommendation in a sealed cover. This sealed cover was opened in 1973. It is not now in dispute before me that the departmental promotion committee had recommended that the petitioner be promoted to the senior post of Assistant Assessor Collector as from April 18,1969.
(14) Counsel for the Corporation says that the petitioner is not entitled to promotion in view of the second charge sheet dated January 7. 1970- So long as an employee is under a cloud he should not be promoted. This was the burden of his argument.
(15) I cannot accept this submission for two reasons. Firstly the memoranda of the Home Ministry clearly say that what has to be taken into account for purposes of promotion is the pending charge against the employee. The pending charge in this case was the first charge sheet dated October 15, 1965. That was the charge with which the departmental promotion committee was concerned. They were not concerned with any subsequent charge which may be brought in future or with such one as was actually brought against the petitioner on January 7, 1970. The point of time is relevant. At that particular time when the employee is considered for promotion the question is: Is he facing a charge If so the employer has to refrain from granting him promotion till the employee is absolved of that charge. As soon as the employees is exonerated of the charge pending at the time the departmental promotion committee meets he is entitled to promotion in terms of their recommendation and the office memoranda of the Ministry of Home Affairs. His promotion cannot be kept back for the simple reason that the second charge sheet and an inquiry concerning the second charge sheet was not in contemplation. The inquiry will again take time. It may be years before the employee is cleared off the second charge. His accusers may bring one charge after another. This means that the man will never get promotion till the end of time. It will not be reasonable to hold that the promotion to which the employee has become entitled on the exoneration of the first charge should be held up for an indefinite time.
(16) In Anand Kumar v. Union of India (1973) 1 S.L.R. .343, Rajindar Sachar J. has taken the same view. In that case the first charge sheet was brought against the government servant on June 8. 1965. An order of promotion was made in his favor on January 30, 1967 while the inquiry was pending. This was done by mistake. The judge also held it to be wrong. During inquiry of the first charge the employee was not entitled to promotion. The first charge sheet was cancelled on March 2, 1968. But before this was done the employer gave a second charge sheet to the employee on August 3. 1967, and then a third charge sheet on March 6, 1968. The employee claimed that the second and third charge sheets should not be considered for denying him promotion. He claimed that he was entitled to promotion as soon as the first charge sheet was cancelled on March 2, 1968. Sachar J. upheld the claim of the employee and directed the Government to give effect to the promotion order dated January 30,1967.
(17) The present case is in no way different in principle from the case before Sachar J. I am in respectful agreement with him. I would, thereforee, hold that the second charge sheet dated January 7, 1970 ought not to be a ground for the Corporation to hold up the petitioner's promotion.
(18) There is another good reason for taking this view. The hands of the employer are not tied down. If as a result of the inquiry on the second charge sheet he comes to the conclusion that the employee is guilty of the charge then he can inflict an appropriate penalty on him. It can be removal from service or dismissal- But to hold up his promotion in the meanwhile will not be just or reasonable.
(19) The second reason is that in C.W.P. No. 462 of 1970 I have already quashed the second charge dated January 7, 1970. thereforee, there is no reason now to withhold the promotion which had been denied to the petitioner all these 7 years. This was the only impediment in his way. That has now been removed. Nothing now stands in his way. The path is clear.
(20) For these reasons I would allow the writ petition and direct the Corporation to give effect to the promotion order with effect from April 18, 1969- The petitioner will be promoted as Assistant Assessor and Collector. His place will be after Aziz Khan and Mohd. Rafi in a regular appointment. The petitioner will also be entitled to his costs.