ORDER : Heard the learned counsel for the petitioner and learned counsel for the respondents No.1 to 3. The respondents No.4 to 42 though served unrepresented. 2. The petitioner has sought for the following reliefs : “Issue a writ of certiorari for quashing the seniority list prepared by the Respondent No.1 dated 01.04.2011 which is at Annexure-D in so far as placing the petitioner below the respondent Nos.4 to 42 and issue a writ of mandamus to the respondent Nos.1 to 3 directing them to redo the seniority list dated 01.04.2011 which is at Annexure-D by placing the petitioner above the respondent Nos.4 to 42 in the interest of justice.” 3. The factual matrix of the case that is necessary for the disposal of the case is as follows: That the petitioner is a B.E. graduate, holding a degree in Electrical Engineering and that he was appointed in the services of the then Karnataka Electricity Board vide appointment order dated 25.10.1985. That he was promoted as an Assistant Executive Engineer and from the date of his appointment, he has been discharging his duties sincerely, honestly and to the fullest satisfaction of the respondents. 4. That during the year 2007 the respondents No.1 to 3 deemed it fit to issue two show cause notices to the petitioner. The said show cause notices are dated 16.04.2005 and 19.04.2005. It is the case of the petitioner that the notices were issued on trivial and vague allegations and made with the intent of victimizing the petitioner. That the petitioner got effected a detailed reply enclosing therewith the relevant documents in support of his contention. 5. It is contended that the respondents being dissatisfied with the reply effected, had passed an order for recovery of certain sums from his salary allegedly on account of the loss suffered by the respondents. That apart, the Disciplinary Authority was pleased to impose punishment of withholding of one annual increment. The petitioner being aggrieved by the same, preferred an appeal before the competent authority i.e. the Managing Director, KPTCL. 6. It is submitted that both the appeals came to be allowed vide Annexure-A and B to the writ petition and the order imposing punishment of withholding of one increment and recovery of sum came to be set-aside and the appellate authority further directed the restoration of the withheld increment and he came to be promoted as an Executive Engineer. 6. It is submitted that both the appeals came to be allowed vide Annexure-A and B to the writ petition and the order imposing punishment of withholding of one increment and recovery of sum came to be set-aside and the appellate authority further directed the restoration of the withheld increment and he came to be promoted as an Executive Engineer. It is contended that the appellate authority deemed it fit to dispose off the appeals by modifying the punishments i.e. punishment of recovery of amount and withholding of increment were modified to one of censure. 7. It is contended by the learned counsel for the petitioner that, the respondent No.1 prepared a list of Executive Engineers by notification dated 01.04.2011. By the said notification, the petitioner came to be placed at Sl.No.242. It is the case of the petitioner that the respondents No.4 to 42 in the present writ petition are all juniors to him having been appointed on subsequent dates and despite the said fact they have been placed at Sl.No.202 to 241 in the seniority list dated 01.04.2011. A copy of the seniority list is marked and produced at Annexure-D to the writ petition. It is submitted that, the petitioner submitted objections to the said seniority list as per Annexure-E to the writ petition. He would contend that he has got still eight more years of service left with the respondent and if justice is denied to him, he would loose out at least two promotions resulting in irreparable loss apart from the substantial monetary and pecuniary gains had his seniority not been fixed at the present level. 8. The writ petition is opposed by the respondents. The respondents have stoutly resisted the writ petition. It is contended that the seniority assigned to the petitioner is in accordance with law and hence, redoing the seniority list does not arise. The issuance of notices and the imposition of punishment and the imposition of the modified punishment by the appellate authority are not denied. The respondents have stoutly resisted the writ petition. It is contended that the seniority assigned to the petitioner is in accordance with law and hence, redoing the seniority list does not arise. The issuance of notices and the imposition of punishment and the imposition of the modified punishment by the appellate authority are not denied. It is contended by the respondents that the seniority so fixed is on account of the delayed action by the departmental promotion committee adopting the Sealed Cover Process, in view of the pending departmental proceedings and that immediately upon exoneration and pursuant to the orders of the appellate authority, the employer opened the Sealed Cover and promotion was granted to the employee from the date the junior most was promoted and not from the date his immediate junior was promoted. 9. It is contended that the petitioner became eligible for promotion only in the 113th Departmental Promotion Committee held on 28.12.2017 and as the petitioner was not exonerated from the penalty imposed, that is, of withholding one increment, the decision was placed in a sealed cover by the Departmental Promotion Committee. It was further contended that in view of the imposition of the penalty by the Departmental Authority and subsequent modification of punishment, the petitioner is entitled for promotion immediately from the date of censure. It is further specifically contended that as per the policy of the respondent board, in the matter of regulating promotions, during the pendency of the enquiry, the employee is not entitled to be promoted. Hence, in the above scenario, the seniority of the petitioner was fixed from the date of passing of the order dated 24.05.2008 by the appellate authority and the seniority list was prepared and published on 01.04.2011. 10. In the above factual matrix the question for consideration is whether the action of the respondent board in withholding promotion during the pendency of the appeal preferred by the petitioner is justified by its regulations. In this context it is relevant to extract the relevant regulations i.e. KPTCL EMPLOYEES’ (CDC&A) REGULATION, 1987. The Regulation 9 reads as follows :- “PART – V – PENALTIES AND DISCIPLINARY AUTHORITIES. 9. NATURE OF PENALTIES : One or more of the following penalties for good and sufficient reasons and as hereinafter provided, may be imposed on Board/Corporation employees, namely, MINOR PENALTIES : (i) ‘Fine’ in the case of Board/Corporation employees (belonging to Group-D). The Regulation 9 reads as follows :- “PART – V – PENALTIES AND DISCIPLINARY AUTHORITIES. 9. NATURE OF PENALTIES : One or more of the following penalties for good and sufficient reasons and as hereinafter provided, may be imposed on Board/Corporation employees, namely, MINOR PENALTIES : (i) ‘Fine’ in the case of Board/Corporation employees (belonging to Group-D). (ii) Censure. (iii) Withholding of Increments, with or without cumulative effect. (iiia) Withholding of promotion. (emphasis supplied) (iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders to the Board/Corporation or to State Government, the Central Government, Any Person, Body or Authority, to whom services of the officer had been lent. (iv)(a) Reduction to a lower stage in the ‘Time Scale of Pay’ for a period with a specific direction as to whether or not the Board/Corporation employee will earn ‘Increments of Pay’ during the period of such reduction with reference to the ‘Reduced Pay’ or whether the Pay shall remain constant and with a further direction whether on the expiry of the period of penalty the reduction will or will not have the effect of postponing the future Increments of his pay.” 11. From the perusal of the above, it is seen that the fine, censure, withholding of increments with cumulative effect, withholding of promotion, recovery from pay and reduction to lower stage in time scale of pay are all described as minor penalties. The authority is empowered to visit the delinquent employee with any of the aforestated punishment or with one or more of the aforestated punishments. 12. This Court is not concerned with the Major Penalties as no such punishment has been imposed and does not call for any reference to the same. 13. It is contended by the learned counsel for the petitioner that the impugned action of the respondent in placing the petitioner below the respondents No.4 to 42 in the seniority list, though the said respondents are junior to the petitioner is illegal and unsustainable. He would contend that withholding of promotion apart from the punishment of censure imposed amounts to a double punishment. He would contend that withholding of promotion, is by itself one of the punishments proposed under the regulation. [emphasis by me]. He would contend that withholding of promotion apart from the punishment of censure imposed amounts to a double punishment. He would contend that withholding of promotion, is by itself one of the punishments proposed under the regulation. [emphasis by me]. He would contend that the Disciplinary Authority, pursuant to the Departmental Enquiry had imposed two punishments namely recovery of money from the salary towards the loss occasioned to the respondent and withholding of one increment with cumulative effect. He would submit that the Disciplinary Authority did not choose to impose the punishment of withholding of promotion. [emphasis by me]. Further elaborating on the said argument he would contend that the respondents have not appealed against the punishment imposed on the petitioner and the proceedings have attained finality as regards the respondents No.1 to 3 are concerned. 14. He would nextly contend that aggrieved by the penalty imposed, the petitioner approached the appellate authority as provided under the regulations. After hearing the parties the appellate authority was pleased to modify the punishment imposed. In both the appeals the appellate authority deemed it fit to modify the punishments to one of censure, which admittedly is a minor punishment provided under the regulations. He would further contend that the appellate authority did not deem it fit to impose the punishment of withholding of promotion. Hence, the contention that the board policy provides for withholding of promotion is unsustainable as it is settled law that any punishment that can be imposed is only such punishment i.e. those provided under the regulation and the punishment imposed is not a matter for inference. He would submit that it is an undisputed fact that the respondents No.4 to 42 are juniors to him. He would also contend that there was no embargo or prohibition for the Departmental Promotion Committee to consider the case of the petitioner for promotion and the omission is vitiated and unsustainable in law. He would contend that the orders of the Disciplinary Authority attained finality as against the respondents No.1 to 3 as early as on 18.05.2007 and the Departmental Promotion Committee was held much later thereafter i.e., on 28.12.2007. He would contend that as on the date of Departmental Promotion Committee, the respondents had not appealed against the findings and punishments imposed by the Disciplinary Authority. It is clarified that even thereafter no appeal was lodged against the proposed punishment. 15. He would contend that as on the date of Departmental Promotion Committee, the respondents had not appealed against the findings and punishments imposed by the Disciplinary Authority. It is clarified that even thereafter no appeal was lodged against the proposed punishment. 15. The learned counsel for the petitioner would rely on the ruling of the Hon’ble Apex Court rendered in the case of G. Muthuraj vs State of Tamil Nadu and another. He would draw the attention of the Court to paragraphs No.10 and 11 which reads as follows : “10. The pleadings of the parties show that the Appellant had been denied promotion to the post of Executive Engineer only on account of pendency of the departmental proceedings. Indeed, it is neither the pleaded case of the Respondents nor any material has been placed before this Court to show that he was passed over/superseded on account of adverse remarks recorded in the annual confidential records or any other adversity in the service record. Therefore, once the order of punishment was quashed by the learned Single Judge, the Appellant automatically became entitled to be considered for promotion with effect from the date persons junior to him were promoted to the post of Executive Engineer. However, that right of the Appellant has been stultified by the direction contained in the impugned judgment which, in our view, is legally unsustainable because the Division Bench has not assigned any reason for directing that the Appellant shall not be entitled to notional promotion or promotional benefits. (underlining by this court). 11. In Sulekh Chand and Salek Chand v. Commissioner of Police MANU/SC/1547/1994 : 1994 Supp (3) 674, this Court held that after his acquittal in the criminal case filed under the Prevention of Corruption Act the employee was entitled to be promoted with effect from the date his juniors were promoted because the factor which was responsible for his non-promotion had become non-existent.” (underlining by this court). 16. 16. He would further rely on a ruling of the Hon’ble Apex Court rendered in the case of Rasiklal Vaghajibhai Patel vs Ahmedabad Municipal Corporation and another to fortify his submission, that unless and until the standing orders or service regulations define an act or omission to be a misconduct, it is not open to the employer to fish out some ground and construe the same as misconduct and punish the workman even though the alleged misconduct would not be appended in any of the enumerated misconducts. He would submit that the present ruling is relevant to demonstrate his contention that withholding of promotion amounts to double punishment. 17. Nextly, he would rely on the ruling of the Hon’ble Apex Court rendered in the case of Sulekh Chand and Salek Chand vs Commissioner of Police and Others. He would contend that as per the law laid down by the Hon’ble Apex Court and as stated under the aforesaid ruling, an employee who has been absolved of all the charges was entitled to be promoted with effect from the date his immediate junior came to be promoted and he would submit that in view of the law laid down, the petitioner is required to be promoted rather accorded notional promotion from the date the respondent No.4 was promoted. 18. He would place reliance on another ruling rendered by the learned Single Judge of this Court to demonstrate that it is well within the powers of this Court to direct the respondent to accord promotion, from the date the immediate junior of the petitioner was promoted. 19. Per contra the learned counsel for the respondents would contend that promotion of the petitioner was withheld on account of the pendency of proceedings and on account of the pendency, the Departmental Promotion Committee was constrained to adopt the Sealed Cover Procedure. 20. It is contended on behalf of the respondents No.1 to 3, that the appeal preferred by the petitioner came to be disposed off by an order dated 24.05.2008 whereas the promotions were accorded to respondents No.4 to 42 vide order dated 05.01.2008 and immediately after the disposal of the appeal, modifying the punishment to one of censure, the petitioner was accorded promotion with effect from 17.07.2008. 21. 21. He would contend that the respondents No.1 to 3 have committed no error or illegality and have acted in consonance with the Board Regulations and the action of the Board is in compliance with the law laid down by the Hon’ble Apex Court. He would contend that the petitioner cannot make a grievance on account of delay occasioned by the disposal of the appeal proceedings as the same is not within the powers of the Departmental Promotion Committee or the respondent’s. The respondents have acted in compliance with the regulations and the government notification. He would place on record the Regulation dated 11.04.1996 issued by the erstwhile Board whereby the erstwhile Board has accorded sanction for adoption of Government O.M.No.DPAR 5 SRC 84 dated 09.10.1985 and Government O.M.No.DPAR 22 SRR 93 dated 14.07.1993. The said official memorandums were issued by Government with regard to the procedure to be followed in respect of promotions, when Departmental Enquiry/Court proceedings are pending against any Board employee. He would draw the attention of this Court to Clause-7 of the O.M. dated 09.10.1985 and the same is reproduced herein below for the sake of convenience : “Departmental Enquiry and Promotion :- The mere fact that a departmental enquiry is pending against an official should not be a bar for promotion. An official against whom on enquiry pending should be considered for promotion without reference to the pending enquiries and if he is otherwise found to be eligible, he should be promoted subject to the condition that the promotion would be reviewed on the conclusion of the enquiry. Even where on official is under suspension, his case should be considered without reference to the pending enquiry. The proceedings of the Departmental Promotion Committee relating to the official under suspension should be placed in sealed cover. If he is reinstated in service at any stage of the enquiry or on conclusion thereof, the appointing authority should consider the recommendation of the Departmental Promotion Committee and the outcome of the enquiry and take a decision thereon. If the decision is to promote him, he should be given such promotion immediately in any of the available vacancies. If no vacancy is readily available and any of his juniors have been promoted already, he should be promoted in the vacancy that should be created by reverting, if need be, the junior most person among the promotees”. 22. If the decision is to promote him, he should be given such promotion immediately in any of the available vacancies. If no vacancy is readily available and any of his juniors have been promoted already, he should be promoted in the vacancy that should be created by reverting, if need be, the junior most person among the promotees”. 22. A perusal of the same would demonstrate that the policy of the Government, which came to be adopted by the Board, a mere pendency of the Departmental Enquiry, ought not to act as a bar to promoting an official and that the official against whom the enquiry is pending should be considered for promotion without reference to the pending enquiries, if he is otherwise found to be eligible and he should be promoted subject to the condition that the same could be reviewed after conclusion of the enquiry. It is further stated that, even in the case of an official who is under suspension, it ought to be considered, without reference to the pending enquiry. That the proceedings of the Departmental Promotion Committee relating to the official under suspension should be placed in a sealed cover. It is further clarified that if he is reinstated in service at any stage of the enquiry or on conclusion thereof, the appointing authority should consider the Departmental Promotion Committee and outcome of the enquiry and take a decision. It further lays down that if the decision is to promote the employee he should be given such promotion immediately in any of the available vacancies and if no such vacancy is readily available, then any of his junior, who is promoted already, should be promoted in the vacancy that should be created by reverting, the junior most personnel among the promotees. Relying on the above, the learned counsel for the respondent would contend that the petitioner has been immediately, on the completion of the appellate proceedings, accorded a promotion in the available vacancy. Hence, he would submit that there is no cause for sustaining the above writ petition and the writ petition deserves to be rejected. 23. He would further draw the attention of the Court to the order of the respondent dated 21.12.2001 whereby the Board has resolved to adopt the Sealed Cover Procedure as mandated by the Government O.M. dated 09.10.1985 therefor supra. 23. He would further draw the attention of the Court to the order of the respondent dated 21.12.2001 whereby the Board has resolved to adopt the Sealed Cover Procedure as mandated by the Government O.M. dated 09.10.1985 therefor supra. He would contend that the petitioner has also not protested the seniority list which was published way back on 01.04.2011 and hence, he would contend that the writ proceedings initiated in the year 2012 is vitiated by delay and laches. He would further contend that the writ petition is not maintainable on account of the fact that petitioner has not sought for overturning or setting aside the orders of promotion in respect of respondents No.4 to 42. On these grounds he would pray for dismissal of the writ petition. 24. In this regard the learned counsel for the respondent would place reliance on two rulings of the Hon’ble Apex Court reported in (1991) 4 S.C.C. 109 and (2007) 5 S.C.C. 425 . The learned counsel for the respondent would place heavy reliance on the ruling of the Hon’ble Apex Court reported in (2007) 5 S.C.C. 425 . He would draw the attention of the Court to para No.9 and would contend that the Hon’ble Apex Court has upheld the delayed promotion accorded to the delinquent. He would further rely on the ruling reported in AIR (1991) 4 S.C.C. 109 to draw sustenance for his contention that withholding of punishment does not amount to double punishment. This Court is of the considered opinion that the reliance on the said rulings is of no avail to the respondents not only on account of the variance in the facts but the disparities in the regulations/Govt. orders, which are critical for adjudication of the lis between the parties. 25. This Court has given its anxious consideration to the various contentions canvassed by the learned counsels and after adverting to their submissions this Court is of the opinion that the question for consideration in the present writ petition is :- 1. Whether any Disciplinary Proceedings was pending as on the date of constitution of Departmental Promotion Committee and on the date proceedings were drawn up by the Departmental Promotion Committee? 2. Whether Departmental Promotion Committee was right in adopting the Sealed Cover Procedure? 26. The above points could be answered with reference to few dates which are undisputed. Whether any Disciplinary Proceedings was pending as on the date of constitution of Departmental Promotion Committee and on the date proceedings were drawn up by the Departmental Promotion Committee? 2. Whether Departmental Promotion Committee was right in adopting the Sealed Cover Procedure? 26. The above points could be answered with reference to few dates which are undisputed. It is not in dispute that the show cause notices were issued on 16.04.2005 and 19.04.2005 and punishment came to be imposed on 18.05.2007 pursuant to the two show cause notices. By the imposition of the punishments the respondents culminated the proceedings as against the petitioner. 27. It is not in dispute that the respondent did not appeal against the punishment imposed as against the petitioner and have accepted the said punishments. 28. It is also not in dispute that the punishment of withholding of one increment is a minor penalty as per board regulations. 29. It is not in dispute that one of the other minor penalties which is provided under the board regulations is, withholding of promotion. It is also not in dispute that no punishment of withholding promotion has been imposed on the petitioner. 30. This being the undisputed facts this Court is unable to appreciate the contention that the Departmental Promotion Committee was justified in adopting the Sealed Cover Procedure as regards the petitioner. 31. Even as per Clause-7 of the Government O.M., upon which much reliance was placed, it visualizes and provides for the adoption of a Sealed Cover Procedure by Departmental Promotion Committee, only in the instance of cases where proceedings either in the form of Disciplinary Enquiries or court proceedings are pending or as on the date the Departmental Promotion Committee was constituted and commenced its proceedings for consideration of the cases of employees for promotion. In the instant case the Departmental Promotion Committee held its 113th proceedings on 28.12.2007 and adopted the Sealed Cover Procedure as regards the petitioner while recommending the cases of respondents No.4 to 42 for promotion. Neither the regulations nor the Official Memorandum empowered the Departmental Promotion Committee to adopt to the Sealed Cover Procedure in the absence of any pending proceedings. This Court concludes so in view of the fact that one of minor penalties, which could have been imposed by the Departmental Authority is withholding of promotion. Neither the regulations nor the Official Memorandum empowered the Departmental Promotion Committee to adopt to the Sealed Cover Procedure in the absence of any pending proceedings. This Court concludes so in view of the fact that one of minor penalties, which could have been imposed by the Departmental Authority is withholding of promotion. It is nobodies case that the Departmental Promotion Committee is entitled to formulate an opinion to withhold promotion contrary to the regulations. The Departmental Promotion Committee could have recommended for withholding the promotion if a penalty of withholding of promotion had been imposed by the competent authority. In the absence of such an imposition, the Departmental Promotion Committee was in error in resorting to a Sealed Cover Procedure. 32. The learned counsel for the respondents No.1 to 3 would vehemently contend that the petitioner has not been exonerated even in the appeal which order is passed subsequently on 24.05.2008 much after the completion of the Departmental Promotion Committee. 33. The argument has to be rejected on the short ground that the appeal was by the petitioner delinquent and the appeal was against the imposition of a minor penalty only. In the light of the regulations and various penalties envisaged under the regulations, it would be futile to contend that the withholding of promotion of the petitioner by the action of the Departmental Promotion Committee by adopting Sealed Cover Procedure does not amount to double punishment. It was open to the authorities to impose even the punishment of withholding of promotion. The authority not having imposed such a punishment, it was not open to the Departmental Promotion Committee to resort to an action which in a sense amounts to imposition of punishment or withholding of promotion. What the DPC could not do directly but has caused such an effect indirectly. 34. The further contention of the respondents that the appeal ought to be construed as pending proceedings requires to be rejected. It is not in dispute that the Appellate Authority could not have imposed any enhanced or other stringent punishment, in the appeal by the delinquent. It could have either modified and awarded a lesser punishment or allowed the appeal or rejected the same but it could never have imposed a enhanced or more severe punishment. It is not in dispute that the Appellate Authority could not have imposed any enhanced or other stringent punishment, in the appeal by the delinquent. It could have either modified and awarded a lesser punishment or allowed the appeal or rejected the same but it could never have imposed a enhanced or more severe punishment. In the light of the fact of the punishment having already been, awarded and the punishment not being one of denial of promotion and the employer, having not filed an appeal by accepting with the quantum of punishment imposed, the pendency of the appeals, preferred by the petitioner, could not and ought not have been construed so by the respondents for the purpose of considering the employee for promotions. On the other hand had the respondents preferred an appeal seeking for imposition of enhanced punishment, say for a major penalty, and the said appeal was pending, then the respondents would have been right in contending that the consideration was deferred on account of pending proceedings. 35. It is seen that the only punishment that was imposed was a minor punishment, which by itself is not a bar for the Departmental Promotion Committee to consider the case of the petitioner for promotion. It is also not in dispute that the appeal was filed by the petitioner only and he has also acted with alacrity and has not slept over the issue. The respondents having not been aggrieved by the punishment imposed cannot now turn around and cannot now contend that the appeal preferred by the petitioner ought to be construed as pending proceedings. It would have been open to the respondents to raise such contention if the punishment imposed was one which had the effect of acting as a bar or prohibition to the Departmental Promotion Committee to consider the case of the petitioner for promotion. The punishment being only a minor punishment and which by itself, has not barred or prohibited the respondents in promoting the petitioner and the authority having deemed it not fit to impose the punishment of withholding of promotion, the action of the Departmental Promotion Committee in resorting to the sealed cover procedure cannot be sustained and is required to be interfered with. 36. The other contention of delay and laches canvassed on behalf of the petitioner also holds no water. 36. The other contention of delay and laches canvassed on behalf of the petitioner also holds no water. It is seen that the issue of seniority is a continuing cause of action and it is also a settled law that courts, as a matter of fact, have been being granting reliefs by way of notional promotions and back wages commensurate with the promotion to be accorded to the party concerned. Hence, the question of the petition being vitiated by delay and laches is without sustenance and is liable to be rejected and is accordingly rejected. 37. The material or the basis on which his promotion was denied was the sole ground of pendency of proceedings and when that ground did not subsist, the same would not furnish a basis for DPC to overlook his promotion. This court is informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the D.P.C. had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits. 38. In the light of the above findings this Court is of the considered opinion that the writ petition requires to be allowed and is accordingly allowed. The rule is made absolute. The seniority list prepared by the respondent No.1 dated 01.04.2011 is directed to be redone by placing the petitioner above the respondent No.4 with effect from 28.12.2007, the date on which the respondents No.4 to 42 were promoted. The petitioner shall be entitled to all such consequential benefits and pecuniary benefits. 39. The writ petition is ordered accordingly. There shall be no order as to costs.