B.K. Mehta, J.
1. A short question which arises in this petition is, can a Government servant be refused to be promoted solely on the ground that a preliminary inquiry is pending against him? The question arises in the following circumstances:
2. The petitioner joined the Medical Department of the erstwhile State of Bombay on September 5, 1959 as B.C.G. Medical Officer and pursuant to the bifurcation of the State of Bombay, he was allotted to the State of Gujarat and absorbed on the said post. He was selected for the post of Medical Officer in Gujarat Public Service Commission Class II in June, 1964. This post was upgraded to Class I post. The petitioner claims that he was allowed to cross efficiency Bar and the grading about his performance was consistently good. He also claimed that no adverse remarks have been made till October, 1979 when the Reviewing Authority remarked that the petitioner was not sound in administrative procedure, though it is claimed by the petitioner that this remark was made without any report of the Reporting Officer. His representation against the said adverse remark is still lying undisposed of by the authorities concerned. The selection Committee for consideration of the promotion to the post of Assistant Director (Public Health) met on October 10, 1979, and after having considered the case of the petitioner his name was not included in the Select List since a preliminary inquiry was pending against him. The petitioner's 'grievance is that though he was fully qualified to be promoted to the post of Assistant Director (Public Health) according to the recruitment rules for the said post, he was not selected solely on the ground of the pending preliminary inquiry against him and persons junior to him have been selected. He has therefore, moved this Court for appropriate writs, orders and directions enjoining the State Government that the petitioner be considered for promotion without taking into account the alleged adverse remark and to grant a declaration treating him as if he was promoted and granting him all the benefits retrospectively as if he was promoted. The ground on which the decision of the State Government not to include the petitioner in the Select List has been, inter alia, assailed is that it is discriminatory, mala fide and violative of Articles 14 and 16 of the Constitution of India.
2. On the notice being issued by this Court, an appearance was entered into on behalf of the State Government as well as Director of Health Services, and the service of the Rule was waived. The State Government has filed an affidavit-in-reply of one Shri D.K. Patel, who is the Under Secretary to the Government in Health and Family Welfare Department. It was, inter alia, contended in this affidavit-in-reply that the Selection Committee considered the cases of about 10 officers including that of the petitioner for promotion to the post of Assistant Director (Public Health) on October 10, 1979. However, in view of two impending departmental inquiries against the petitioner, the Committee recommended not to include the petitioner's name in the Select List of District Health Officers fit for promotion to the post of Assistant Director (Public Health) Zonal Officer, and the Gujarat Public Service Commission also agreed to the exclusion of the petitioner's name from the Select List in view of the two impending inquiries. These inquiries, according to the State Government, related to recovery of unauthorised surgeon charges in connection with Vasectomy operations performed by the petitioner during the period from May 16, 1968 to June 29, 1970 and irregular purchases of equipment etc. when the petitioner was District Health Officer, Bulsar in 1975-76 at prices higher than the prevailing market rate. It is further stated in the affidavit-in-reply that a preliminary inquiry in the charges was made by the Deputy Director of Health, and on the receipt of his preliminary inquiry report, the opinion of the Director of Health Services was sought for. Before establishing regular departmental inquiry against the petitioner, the Government has to consult Vigilance Commission in that behalf, and in case if the petitioner is exonerated on completion of the inquiry, his case for promotion would be immedia'ely considered by the Select Committee. It is thereafter contended on behalf of the State Government in the said affidavit as under:
I submit that the charges which are the subject matter of the aforesaid inquiries are serious and, if proved, they amount to gross dereliction of duties and/or lack of integrity. I submit that there is a prima facie case in support of the said charges and such misconduct, when proved, is liable to be visited with a major penalty. 1 submit that in view of the above and in view of the Government Circular dated May 24, 1956 (Annex. G), the Selection Committee was justified in taking the aforesaid view when it met in October, 1979.
As regards the representation of the petitioner against the adverse remarks, it has been stated in the affidavit-in-reply that that representation has been disposed of and the decision thereof has been communicated to the petitioner vide Government letter dated 25th January, 1980, which would mean that at the time when the Select Committee met for consideration in October 1979 this representation was pending. The petitioner, in view of the reliance by the State Government on the aforesaid two Circulars in support of its decision for exclusion of the name of the petitioner from being included in the Select-List, sought amendment as sanctioned by this Court by its orders of February 26, 1980 and February 28, 1980. By the amendments, the petitioner has sought to challenge the two circulars as violative of Articles 14 and 16 of the Constitution, and also because they were violative of and contrary to the statutory rules contained in the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, inasmuch as the said Circulars virtually amounted to awarding minor penalty of withholding promotion without following the procedure prescribed in the said Rules.
3. At the time of hearing of this petition, Mr. N.J. Mehta, learned Advocate appearing for the petitioner, raised the following three contentions:
(1) The decision of the State Government for non-promotion of the petitioner on the ground of impending inquiries against him in view of the aforesaid two circulars virtually amounts to awarding a minor penalty without following the procedure prescribed in Rule 11 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971.
(2) The Circulars issued by the State Government in General Administration Department of May 24, 1966 and December 19, 1979 were ultra vires Rule 6 read with Explanation 3 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971, inasmuch as the administrative instructions contained in the said circulars are clearly inconsistant and contrary to the said Rule.
(3) In any case the said Circulars conferred on the authorities arbitrary and uncanalized powers to exclude a person from promotion without any rational basis or criterion and, therefore, violative of Articles 14 and 16 of the Constitution of India.
4. These contentions were sought to be repelled on behalf of the State Government by urging that the constitutional validity of the Circular of May 24, 1966 has been upheld by this Court in Jitendra Jayantilal Joshi v. State of Gujarat and Ors. : (1978)19GLR906 , and therefore, this contention is not open to the petitioner. According to the learned Assistant Government Pleader, the contention of the petitioner that the Circular being contrary to the statutory rules is misconceived because the petitioner is not excluded from consideration but his actual promotion is withheld in abeyance pending the result of the inquiry and, therefore, it cannot be urged successfully that it is contrary to Rule 6 read with Explanation 3 or Rule 11 of the Gujarat Civil Services (Discipline & Appeal) Rules. Before I deal with the contentions urged on behalf of the petitioner, it would be necessary for me to refer to the decision of this Court in Jitendra J. Joshi's case (supra) on which reliance has been placed on behalf of the State Government for urging that the question of constitutional validity of the Circular of May 24, 1966 has been up held by the Court. In Jitendra J. Joshi's case (supra), the learned single Judge was concerned with a situation where a directly recruited Mamlatdar was due for promotion to the higher post but was not considered for promotion in 1974. The aggrieved Mamlatdar, therefore, moved this Court for appropriate writs, orders and directions enjoining the Government to consider him for promotion to the post of Deputy Collector and for quashing and setting aside the inquires initiated against him. However, when the matter reached for hearing, the two inquiries pending against the said Mamlatdar were concluded in which he was found guilty. In one of the inquiries minor penalty of stoppage of one increment and censure, and in another inquiry penalty of stoppage of two increments were imposed against him. S.H. Sheth, J. dealing with the first contention urged on behalf of the petitioner that he could not have been denied consideration for promotion to the higher post merely on account of the pendency of inquiries against him, found himself unable to agree with the contention since the result of two inquiries could not be overlooked while deciding the petition even though the imposition of penalty was a subsequent event. The learned Single Judge did not think fit to refer to any of the decisions cited on behalf of the petitioner in support of his contention that pending inquiry cannot be made a ground for exclusion of a Government servant from consideration for promotion He observed that the principle which applied to the case of a pending inquiry does not necessarily apply to a case of a concluded inquiry. The learned Judge thereafter proceeded to observe as under:.. The difference between a pending enquiry and a concluded enquiry, in my opinion, is as follows: In case of a pending inquiry, the delinquent has equal chances of being found guilty or innocent. Therefore, during the pendency of an inquiry, no assumption that he will be found guilty can be made. Therefore, his consideration for promotion to a higher post cannot be withheld on any such express or implied assumption. If consideration for promotion to a higher post is denied to a delinquent at the material time, gross injustice will be done to him if ultimately he is exonerated of the charges levelled against him. In such a case, can he be made to suffer for no fault of his? Since we are wedded to the philosophy that an innocent person cannot be made to suffer directly or indirectly the pending enquiry is not considered to be a good ground for denial of the consideration of a delinquent for promotion to the higher post. In such a case, what is done is to consider him for promotion to the higher post, to record the decision in that behalf and if the decision is in his favour, to promote him to the higher post in case he is exonerated from the charges levelled against him with effect from the date on which he became due for promotion to the higher post. These considerations do not and cannot govern the case of a concluded enquiry in which a delinquent has been found to be guilty and has been punished. Such a situation has already ruled out his chances of exoneration from the charges levelled against him. He has been found positively guilty of something. To ignore this result and to issue a direction which Mr. Doshi on behalf of the petitioner has strenuously asked me to issue is to nullify the result of the departmental enquiry and to restore the delinquent to the position which obtained before the enquiry was instituted against him. To do so is to unduly disturb the public administration by judicial pronouncements, to introduce chaos in it, to bracket the guilty and the innocent together and to protect the inefficient, incompetent and corrupt. A court of law cannot lend its hand to such a situation.
The learned Judge thereafter proceeded to consider the next contention urged on behalf of the petitioner about the constitutional validity of the Circular of May 24, 1966. The material part of the Circular which was quoted and translated by the learned Judge read as under:
It is not correct to deny consideration to any employee for being placed on the select list merely because a preliminary or a departmental enquiry is pending against him. If the allegation against the employee relates to gross negligence of his duty or gross dereliction of duty or lack of integrity and if therefore he is liable to a major penalty, his case should not be considered at the time of preparing the select list and such employees should not be placed on the select list, if found proper, until the result of the enquiry is declared....
However, on behalf of the Government it was pointed out to the learned Judge that there was another Circular issued by the State Government in General Administration Department of March 30,1970. This subsequent Circular related to the Government servants who were either wrongly superseded earlier or whose dismissal or removal having been set aside on appeal or otherwise are reinstated in Government service with all benefits. In relation to such Government servants, the Circular of 1970 when translated read as under:
In the cases in which supersession of a Government Servant for promotion to a higher post is considered by higher authorities to be unjustified and such authorities having powers to set aside the orders of supersession do so, such Government servant should be deemed to have been promoted to the higher post from the date from which he would have been promoted but for his wrongful supersession i e. from the date from which his juniors were promoted. On restoration of his seniority, the period from such deemed supersession date till the date of his actual promotion should count for the purpose of pay fixation on the promotion post but no arrears of pay for that period on that account should be paid to him. He must also earn his increments on the promotion post only after the full incremental period is over, except where B.C.S. Rules provide otherwise or under the specific orders or rules governing pay fixation....
In the opinion of the learned Judge, on the conjoint reading of both the Circulars, it was clear that a Government servant against whom a departmental inquiry is pending would not be promoted to the higher post, if he is otherwise found suitable, during the pendency of such an inquiry, but he would be entitled to promotion to the higher post from the due date if ultimately he comes to be exonerated from the charges levelled against him. The learned Single Judge proceeded to examine the contention urged on behalf of the petitioner regarding the constitutional validity of the administrative instructions contained in the Circular of May 24, 1966 in view of the combined effect of both the circulars. The learned Judge upheld the constitutional validity of the said Circular while rejecting all the contentions urged in that behalf and held that withholding of consideration for promotion to a higher post during the pendency of an inquiry is not a punishment at all, and that it is only an off-shoot of the misdeed which is alleged to have been committed by him; because, if he is exonerated of the misdeed alleged, he would not suffer at all because the cumulative effect of the two circulars is to restore him to the position which prevailed before the departmental inquiry was instituted against him.
5. The learned Assistant Government Pleader in the present petition, therefore, urged before me that contentions Nos. 1 and 2 are not open to the petitioner as the position has been concluded by the decision of the learned Single Judge in Jitendra J. Joshi's case (supra) as confirmed in the Letters Patent Appeal No. 246 of 1978 which was dismissed by a Division Bench of this Court on November 7, 1978. I am afraid that this is too wide a contention which can be acceded to obviously for the reason that the material circular of the State Government issued in General Administration Department of December 19, 1979 Annexure 'H' to the petition was not before the learned Single Judge as it could not be because the learned Single Judge rejected the petition of Jitendra J. Joshi by his order of December 21, 1977. It is this second circular of December 19, 1979 which materially changes the position, because it prescribes certain consequences contrary to what was provided for in the Circular of March 30, 1970 on the basis of which the learned Single Judge was persuaded to hold that if a delinquent Government-servant due for promotion is exonerated in the inquiry, he would be restored to the position which was prevailing before the initiation of the said inquiry before him, and would not stand to loose any benefits which would have accrued to him, if he had been included in the select list. Now this position which impressed favourably the learned Single Judge, which emerged from the conjoint reading of the Circulars of May, 24 1966 and March 30, 1970, does not prevail and subsist in view of the latest circular of December 19, 1979 which also is under challenge in this petition. It would, therefore, be necessary to set out the material part of this circular which fundamentally alters the position of which the learned Single Judge proceeded in Jitendra J. Joshi's case (supra). The circular of December 19, 1979 when freely translated, reads as under:
Necessary instructions have been issued as to whether a Government servant or an officer against whom a departmental inquiry is pending should be included in the select list or not as prescribed in paragraph 4 of the circular of May 24, 1966 of this Department. However, uniformity is not maintained in this behalf by the different departments which adopt different standards. It is, therefore, decided to deal with, at the time of preparing select list in the following manner, cases of Government servant against whom departmental inquiry is pending.
(A) If the charges in the departmental inquiry pending against the Government servant or officer are of ordinary nature, his name should be included in the select list and there cannot be any objection to his promotion.
(B) In case of inquiry pending against a Government servant or an officer, if the charges are such that they would not result into major penalty, his name should be included in the select list, but his case should be decided at the time of actual promotion having regard to the result of the departmental inquiry.
(C) In case of a pending inquiry against a Government servant or an officer, if the charges are such that they may result into major penalty, the name of such officer or servant will not be included in the select list.
2. As stated above, the decision in case of a Government servant concerned at the time of his inclusion in the select list is to be taken having regard to the departmental inquiry proceeding.
If the Government Servant or an officer not so included in the select list is ultimately exonerated in the departmental inquiry, a fresh decision would be required to be taken in view of the changed circumstances at the end of the inquiry. However, it is not necessary to review the decision about the select list drawn earlier and the Government servant or an officer would be entitled to be included in the select list prospectively consequent to the decision in the departmental inquiry and it is not necessary to consider whether he would have found a place in the earlier select list.
3. The directions contained in paragraph 4 of Circular of 24th May 1966 subject to clarification as above should be strictly as here to.
The relevant part of para 4 of the Circular of May, 24, 1966 has been already set out above. The conjoint effect of these two circulars, namely of May 24, 1966 as clarified by the last circular of December 19, 1979 is that the Government Servant concerned, if exonerated in the inquiry, would not be restored to his original position and would be included in the select list prospectively only. The clarificatory circular of December 19,1979, clearly enjoins that it is not at all necessary to consider the position de now as if the exonerated Government servant is included in the original list retrospectively. In other words, the exonerated Government servant or officer would not be restored to the status-quo anti prevailing at the time of preparation of the select list. As a matter of fact this circular of December 19, 1979 impliedly supersedes the circular of March 30, 1970 so far as it operated qua Government servants and officers against whom departmental inquiries are pending and who are exonerated as a result thereof. The benefit which the learned Single Judge in Jitendra J. Joshi's case (supra) spelt from the conjoint reading of the two circulars of May 24, 1966 and March 30, 1970 would not be now possible in view of the latest circular of the Government of December 19, 1979 which, in effect and substance entitles an exonerated Government servant or an officer for being included in the select list prospectively only. The observation of the learned Single Judge in the earlier part of his judgment in para 2 in Jitendra J. Joshi's case (supra) applies in the situation which now emerges pursuant to the latest circular of the Government of December 19, 1979 since the effect and substance what the learned Single Judge has apprehended that gross injustice will result if promotion is denied to delinquent on the sole ground of pending inquiry materialises in view of the last circular on the subject. In my opinion, therefore, the decision of this Court in Jitendra J. Joshi's case (supra) would not be of much advantageous to the cause of the State in view of the position which emerges consequent to the circular of December 19, 1979 of the subject. I, therefore, do not agree with the learned Assistant Government Pleader that the 1st and 2nd contentions are not open to the petitioner.
6. I have, therefore, to examine whether the petitioner is entitled to the reliefs on basis of any one or all the contentions. In Guman Smgh v. State of Rajasthan and Ors. : (1971)2SCC452 , the Supreme Court has held that the administrative instructions for the guidance of Selection Committee and the Appointing Authority cannot provide contrary to what the statutory rules have provided for. The administrative instruction contained in the circular of May, 24, 1966 as clarified now by the circular of December 19, 1979 provides exactly contrary to what has been provided in Rule 6 read with Explanation 3 of the Discipline and Appeal Rules, 1971. Rule 6, inter alia, provides as under:
6. Nature of Penalties-without prejudice to the provision of any law for the time being in force, the following penalties may, for good and sufficient reasons, be imposed upon any member of the state, Subordinate or inferior Services, namely:
(1) xxx xxx xxx xxx xxx xxx
(2) withholding of increments or promotion.
(3) xxx xxx xxx xxx xxx xxx
(4) xxx xxx xxx xxx xxx xxx
(5) xxx xxx xxx xxx xxx xxx
(6) xxx xxx xxx xxx xxx xxx
(7) xxx xxx xxx xxx xxx xxx
(8) xxx xxx xxx xxx xxx xxx
Explanation: The following shall net amount to a penalty within the meaning of this rule:
(1) xxx xxx xxx xxx xxx xxx
(2) xxx xxx xxx xxx xxx xxx
(3) Non-promotion whether in a substantive or officiating capacity of a Government servant to a service, grade or post for promotion to which he is in ordinary coarse eligible, on administrative grounds and not as a measure of penalty on the ground of his misconduct.
7. In R. L Butail v. Union of India and Ors. : (1970)IILLJ514SC , the Court held that under Rule 11 of the Central Services Rules, 1955, although withholding promotion is one of the penalties which can be imposed on a Government servant, the explanation thereto expressly provides that non-promotion of a Government servant after consideration of his case does not constitute a penalty, and no question of breach of the principles of natural justice arises in such a situation. In the present set up of the Rules before me, only those non-promotions on administrative ground are not to be considered a penalty. The clear admission of the State Government in its affidavit-in-reply that the name of the petitioner was not included in the select list though he was found fit for promotion on consideration, because there were two impending inquiries against him, would virtually amount, as rightly contended by the learned Advocate for the petitioner, a penalty; because, it is not the case of non-promotion on the ground of administrative convenience. The non-promotion of the petitioner on the ground of the two impending inquiries against him would, in my opinion, amount to a penalty because it cannot be urged without violence of the language that it was justified or imposed on the ground of any administrative reason or convenience, and it would be violative of Article 36 of the Constitution of India. Same view has been taken by Andhra Pradesh High Court in Sri B. George v. 1. G. of Police and Anr. 1973 (2) S.L.R. 131.
8. The second contention of the learned Advocate for the petitioner is also wellfounded that the impugned circulars in so far as they enjoin the Select Committee or the Appointing Authority from excluding Government servant or officer from being included in the select list or from being promoted on the ground of pending inquiry and even in case of their exoneration at the end of the inquiry, would not entitle them to be restored to all the benefits which would have accrued to them, if they had been included in the select list or for that matter promoted, are clearly violative of Rule 11 of the Discipline and Appeal Rules, 1971, because a penalty is virtually directed to be imposed without following the procedure prescribed for imposition of minor penalty. In the view which I am taking on the first and second contentions urged on behalf of the petitioner, it is not necessary for me to decide the third contention urged by Mr. Mehta that the impugned circulars are violative of Article 14 of the Constitution inasmuch as they provide arbitrary and uncanalised power.
9. The impugned circulars in so far as they issue administrative instructions in the matter of inclusion or otherwise of the names of the Government servants or officers against whom preliminary or regular disciplinary inquiries are pending, must be held to be ultra vires Rule 6 read with Explanation (3) and Rule 11 of the Discipline and Appeal Rules, 1971 and, therefore, they are void and ineffective and the name of the petitioner cannot, therefore, be excluded from the select list in view of these two circulars which are non est for all intents and purposes.
10. The result is that the State Government ought to have included the petitioner for being promoted in the select list and the decision of the State Government should be kept in a sealed envelope in abeyance till the completion of the departmental inquiries pending against him, and in case he is exonerated, he should be promoted as if his name was included in the select list drawn by the select Committee of October 10, 1979. This is precisely the procedure prescribed in Rule 13 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and the State Government should adopt and apply the procedure prescribed in said Rule 13 of the aforesaid Rules in future in such cases. The petitioner has also challenged his non-promotion on his apprehension that the select Committee might have been influenced by the fact of entry of adverse remarks in his confidential report against which his representation was pending at the relevant time. In my opinion, however, this apprehension is not justified because it is the Government's case in terms that the reason of non-promotion of the petitioner was the two inquiries which were in contemplation of the Government at the time when the Select List was drawn. Admittedly it is not the case of the Government that the existence of adverse remarks in the confidential report of the petitioner has gone into consideration of the decision of non-promotion. It should be also noted that the case of the Government is that the Select Committee considered the case of the petitioner, but did not recommend his name for inclusion in the select list in view of the two impending inquiries. Therefore, the two circulars of May 24, 1966 in so far as it issued directions in para 4 as to whether names of delinquent Government servants or officers against whom departmental or preliminary inquiries are pending, should be included in the select list or not and the clarification made in the latest circular of December 19, 1979, Annexures 'G' and 'H' respectively, are to that extent quashed and set aside and the State Government shall include the petitioner in the select list retrospectively and promote the petitioner retrospectively as if he was included in the select list drawn by the Select Committee in October, 1979 and grant him all the consequential benefits as if he was promoted from that date in case the petitioner is exonerated in the inquiries pending against him.
The result is that the petition is allowed and the rule is made absolute accordingly. However, having regard to the facts of the case there should be no order as to costs.