Pranab Kr. Das Vs Assam Co-Operative Apex Bank Ltd. and 20 Ors.

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GAHC010189442023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/4964/2023

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PRANAB KR. DAS

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S/O LATE NABA KR. DAS, RESIDENT OF VILLAGE- GOPAL BAZAR (LACHIT NAGAR), P.O.- GOPAL BAZAR, DIST.- NALBARI, ASSAM, PIN- 781353

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VERSUS

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ASSAM CO-OPERATIVE APEX BANK LTD AND 20 ORS REPRESENTED BY THE MANAGING DIRECTOR, H.O. , PANBAZAR, GHY-01, ASSAM

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2:MANAGING DIRECTOR ASSAM CO-OPERATIVE BANK LTD REPRESENTED BY THE MANAGING DIRECTOR H.O. PANBAZR GHY-01 ASSAM

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3:GENERAL MANAGER ASSAM COOPERATIVE APEX BANK HEAD OFFICE PANBAZAR GUWAHATI-781001

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4:SMTI. PRIYADARSHINI TALUKDAR BRANCH MANAGER NOONMATI BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. NOONMATI GUWAHATI-781020

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5:DIPANKAR SARMA NEOG MANAGER

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I.T. DEPTT. H.O. PANBAZAR OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR GUWAHATI-781001 6:DEBAJIT DEORI BRANCH MANAGER LAKHIPUR BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. LAKHIPUR GOALPARA ASSAM-788103 7:SATYAJYOTI KASHYAP BRANCH MANAGER SARUPATHAR BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. SARUPATHAR ASSAM-785601 8:SMTI DIMPI KOTOKI H.O. (ADV. GEN. DEPT.) PANBAZAR OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR GUWAHATI-781001 9:DEBAJIT SAIKA BRANCH MANAGER SIVSAGAR BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. DIST. SIVSAGAR ASSAM 785640 10:BIPLOB DUTTA CHOUDHURY BRANCH MANAGER R.K. NAGAR OF ASSAM CO-OPERATIVE APEX BANK LTD. KARIMGANJ PIN-788166 ASSAM 11:NITUL DAS BRANCH MANAGER PATHSALA BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. DIST. BARPETA PIN-781325 ASSAM 12:SMTI JAYEETA CHOUDHURY MANAGER P AND D DEPTT. HEAD OFFICE OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR

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GHY-781001 ASSAM 13:GAGANJYOTI DEKA BRANCH MANAGER SILPUKHURI BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. SILPUKHURI GHY-781003 ASSAM 14:SMTI NILAKSHI DEKA BRANCH MANAGER BIJOYNAGAR BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. DIST.- KAMRUP-781122 ASSAM 15:BIKASH RANJAN DAS BRANCH MANAGER DISPUR BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. GHY-781005 ASSAM 16:CHAPALA HAZARIKA BRANCH MANAGER TANGLA BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. UDALGURI-784521 ASSAM 17:RITTIK TALUKDAR MANAGER ADMN DEPTT. HEAD OFFICE OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR GHY-781001 ASSAM 18:BIDYUT BIKASH BARUAH BRANCH MANAGER BARPETA BRANCH OF ASSAM CO-OPERATIVE APEX BANK LTD. PIN-781301 ASSAM

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19:SMTI ARPITA BHOWMICK MANAGER I.T. DEPTT. HEAD OFFICE OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR GHY-781001 ASSAM

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20:SMTI RITA KAKATI CHANGMAI MANAGER A/CS AND F.M. DEPTT. HEAD OFFICE OF ASSAM CO-OPERATIVE APEX BANK LTD. PANABAZAR GHY-781001 ASSAM

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21:SMTI AATREYEE BORTHAKUR MANAGER DAAA OF ASSAM CO-OPERATIVE APEX BANK LTD. PANBAZAR GHY-781001 ASSA

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Advocate for the Petitioner : MRS A K CHOUDHURY, MR M CHOUDHURY

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Advocate for the Respondent : SC, THE ASSAM CO OPERATIVE APEX BANK LTD., MR D J BORO (R-17),MR. J BARMAN (R-4,5,6,7,8,10, 11,12,9,13,14,16,17,19,18,20,21)

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Date of hearing : 04.11.2025 Date of Judgment and Order : 04.11.2025

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BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. Dilip Choudhury, learned Senior Counsel for the petitioner. Also heard Mr. J.K. Goswami, learned Standing Counsel, Assam Co-operative Apex Bank Ltd. representing respondents No. 1, 2 and 3.

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2. The private respondents are not represented, although by order dated 01.03.2024, this Court directed to take steps for service of notice on respondent Nos.4 to 8 and 10 to 21 by publishing the notice in two local daily newspapers having wide circulation in the State of Assam (one in English and one in vernacular). The respondent No.9 is shown to be represented by Mr. J. Barman, learned counsel. As per Office Note dated 02.05.2024, it appears that the

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respondents No. 4 to 8, 10 to 14, 17 and 19 to 21 were represented by the learned counsel. Subsequently, by Office Note dated 16.07.2024, it is reflected that respondent Nos.9, 16 and 18 were also represented by counsel. Accordingly, all the respondents were represented by the learned counsel.

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3. The petitioner is serving as Assistant Branch Manager under the respondent bank. The petitioner was initially appointed as Probationary Officer in the respondent Bank on 16.12.2010. While the petitioner was serving in that capacity, the bank authorities proceeded to consider the officers similarly situated like the petitioner for promotion to the next higher Grade D. According to the petitioner, he was placed at a higher position in the seniority list which was published by the bank for the Grade of Assistant Manager/Assistant Branch Manager according to their date of birth. In the said list, the petitioner is placed in the third position. Thereafter, the Selection Committee proceeded to consider the cases of the petitioner and the private respondents. Subsequently, by order dated 05.07.2021, the private respondents were promoted to the next higher rank overlooking the claim of the petitioner.

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4. By the present proceedings the impugned order dated 05.07.2021 the petitioner has assailed the promotion of the private respondents to the next higher post overlooking the claim of the petitioner. There are however, two orders passed on 05.07.2021 whereby, officers were promoted in two different sets and in none of the orders, the name of the petitioner figured. The petitioner represented before the authorities concerned but the same was not responded to. Being aggrieved, the present writ petition has been filed seeking a direction in the nature of mandamus to the respondent authorities to consider

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his case for promoting him to the next higher post with all service benefits including seniority.

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5. The respondent bank has contested the writ petition by filing an affidavit. The learned counsel for the bank submits that on the day when the Selection Committee meeting was conducted for promotion of the candidates including the petitioner, the petitioner and two other officers were not considered, in view of contemplated departmental proceedings and accordingly, their cases were kept under sealed cover. It is submitted that since the petitioner's case was kept under sealed cover, his case was not considered, the private respondents’ cases were considered and promotion orders accordingly were issued.

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6. The learned counsel for the petitioner submits that on the date when the committee had evaluated the cases of the candidates including the petitioner, there was no departmental proceedings initiated nor was any charge sheet was issued to the respondent petitioner. Therefore, the claim of the respondent bank that his case was placed in sealed cover is contrary to the law laid down by the Apex Court in Union of India and Ors Vs. K. V. Jankiraman and Ors reported in (1991) 4 SCC 109. It is submitted that unless the charges are framed against the petitioner, departmental proceedings cannot be said to have been initiated and therefore, there is no requirement of keeping the case of such a candidate in sealed cover. The learned counsel for the petitioner also refers to the judgement of the Co-ordinate Bench of this Court rendered in Hiten Kalita Vs. The State of Assam and Ors., reported in 2023 Legal Eagle (GAU) 323 where the judgement of the Apex Court in K. V. Jankiraman (supra) were referred to and followed. It was held by the Court that unless the charges are framed, the

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case of the petitioner in the matters of selection for promotion cannot be kept under sealed cover. He also refers to, where the law laid down by the Apex Court in K. V. Jankiraman (supra) has been followed.

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7. The learned counsel for the parties have been heard and the pleadings available on record have been carefully perused. The short point which arises before the Court for consideration is whether the case of the petitioner was required to be kept under sealed cover and whether any charges were framed against the petitioner on a date prior thereto, when the petitioner's case was considered for promotion along with other similarly situated persons including the private respondents.

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8. On a direction by the Court, the learned Standing Counsel has placed before the Court the proceedings of the Board Level Selection Committee meeting which was held on 11.02.2021. The minutes which reflect that cases of the petitioner and the private respondents inter alia were considered by the appropriate committee for recommendation for promotion to the next higher post. Under “Resolution 2” the name of the petitioner is shown at Serial No.4. It appears that the names of the other private respondents are below the writ petitioner. In so far as the petitioner is concerned, against his candidature there is a remark “DP contemplated”.

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9. The Committee had also recorded the findings that the Managing Director of the Bank had informed that a disciplinary action is contemplated against the petitioner relating to some major irregularities in respect of house building loan availed by the petitioner. The committee further resolved that the case of the

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petitioner along with two others be kept under the sealed cover. A perusal of the said minutes reveal that on a date when the Selection Committee meeting was held on 11.02.2021, there appears to be no departmental proceedings initiated and/or charges framed against the writ petitioner. The case of the writ petitioner was recommended to be kept under the sealed cover only on the information by the Bank authorities that a departmental action is contemplated against the petitioner.

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10. Whether a departmental proceeding is initiated by issuance of a show cause or only when charges are required to be framed has been elaborately discussed by the Apex Court in the case of Union of India and Ors Vs. K. V. Jankiraman and Ors reported in (1991) 4 SCC 109. Reference in this regard is required to be made in paragraph Nos. 25, 26 and 29 which are as follows:

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“ 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.

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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

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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:

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“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.”

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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

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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 subparagraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.”

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11. The judgement has been consistently followed by the Apex Court. One of the judgments referred to by the petitioner is Union of India and Ors. Vs. Anil Kumar Sarkar reported (2013) 4 SCC 161 where in a similar matter, the principle culled out by K.V. Jankiraman (supra) has been followed.

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12. The Co-ordinate Bench of this Court has also referred to and relied upon the principle culled out in K.V. Jankiraman (supra) as followed in other judgments of the Apex Court that a sealed cover procedure is called for only when the charges are framed in a departmental proceeding. Reference in this regard may also be added to the judgement of Hiten Kalita (supra). A careful consideration of the law culled out by the Apex Court, it is clear that a sealed cover procedure by the department is resorted to only when the charges are framed against a Delinquent Officer. Mere contemplation of the departmental proceeding would not be sufficient to the case of any officer under the sealed cover during the process of selection, unless the rules of the organization specify in this regard. It is not in dispute that the Bank Rules do not specify any provision that contemplation of departmental proceeding is sufficient to keep the Delinquent Officer’s case under the sealed cover during the time of selection by the Selection Committee.

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13. The case laws referred to by the petitioner more particularly the Judgment of the Apex Court in K.V Jankiraman (Supra), is an authority for the interpretation of the Government of India Office Memorandum No. 22011/1/79. Estt.(A) dated January 30, 1982 and Office Memorandum No. 22011/2/86. Estt. (A) dated January 12, 1988. By these Office Memorandums, the Government of India in the Department of Personnel and Training only subject of promotion of

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Officers in whose cases “sealed cover procedure” have been followed but against whom disciplinary/Court proceedings are pending for a long time. The memorandum stated that according to the existing instructions, cases of officers in the following categories, namely,

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“(a) who are under suspension or

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(b) against whom disciplinary proceedings are pending or a decision has been taken by the competent disciplinary authority to initiate disciplinary proceedings or,

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(c) against whom prosecution has been launched in a court of law or sanction for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee at the appropriate time but the findings of the Committee are kept in a sealed cover to be opened after the conclusion of the disciplinary/court proceedings.”

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Considering the hardship faced by such officers, the Government issued a subsequent memorandum to examine the hardships faced by such officers due to long disciplinary/court proceedings initiated against them. Before the Apex Court the common questions involved which were raised are:

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1) What was the date from which it can be said that disciplinary/criminal proceedings are pending against an employee?

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(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?

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(3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?

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The Apex Court was examining the correctness of the Judgments of the Tribunal in relation to the interpretation in respect of the date of initiation of the disciplinary proceedings as was interpreted by the Tribunal in the face of the Office Memorandum issued by the Government of India. The conclusions of the Tribunal were put to challenge before the Apex Court. The Apex Court after examining the matter repelled the challenge made by the appellants against the Judgment of the Tribunal by holding that it was broadly in agreement with the finding the Tribunal that when an employee is completely exonerated meaning thereby that he was 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, the Apex Court held that where disciplinary or criminal proceedings are 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. The Apex Court however, declined to accept the conclusions of the Tribunal that to deny salary to an employee in all circumstances would be illegal and therefore did not approve of this conclusion in the Tribunal’s Judgment and to that extent the conclusion of the Tribunal was set aside.

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The Apex Court also held that the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty

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is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. The Apex Court held that an employee has not right to promotion but the only has a right to be considered for promotion. It was held that the promotion to a post and more so, 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. The Apex Court held that an employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently and therefore there is no discrimination when in the matter of promotion, he is treated differently. It was further held that 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. It was held that 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 and 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. The Apex Court therefore held that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause ( ii i) of paragraph 3 of the said Memorandum and consequently such findings of the Tribunal have been set

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aside.

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14. Coming to the facts of the present case, t his Court unequivocally has come to conclusion that the process undertaken by the bank authority in respect of the writ petitioner was not pursuant to any proceedings initiated against the petitioner. On the date when the selection committee was considering the claims of the writ petitioner there was admittedly no charge sheet issued or charges framed against the writ petitioner. Only departmental proceedings were contemplated. Under such circumstances the conclusion of the Selection Committee to keep the petitioner's case under the sealed cover and thereby, not considering the eligibility of the petitioner for being recommended for promotion to the next higher post is clearly contrary to the law. The Bank authorities have also not been able to place any Rule or internal memos or notifications issued by the Bank or adopted by the Bank which is contrary to the position on facts as discussed above.

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15. In that view of the matter, this writ petition is allowed. The mandamus is issued to the respondents to forthwith constitute a Review of Departmental Promotional Committee or Selection Committee and to place the case of the writ petitioner for consideration as it stood on 11.02.2021. The bank authorities shall place all the relevant documents including the APARs or ACRs, if required as per the norms of the bank and other relevant documents before the Selection Committee. The Selection Committee will thereafter consider the case and as it appears from the records placed before the Court that there is no dispute that there is no departmental proceeding pending or charges framed against the petitioner as on 11.02.2021, the bank authorities will pass appropriate order

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giving retrospective promotion to the petitioner with all financial and service benefits with effect from the date his immediate junior as per the select list dated 22.01.2020. Let this exercise be completed within a period of 30 days from the date of receipt of certified copy of this order.

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16. With the above observations, this writ petition stands disposed of.

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17. Interim order, if any stands merged. Pending Interlocutory Application, if any is also disposed of.

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JUDGE

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Comparing Assistant

Pranab Kr. Das v. Assam Co-Operative Apex Bank Ltd. and 20 Ors.

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Pranab Kr. Das v. Assam Co-Operative Apex Bank Ltd. and 20 Ors.

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