The Jammu & Kashmir and Ladakh High Court has clarified that treating a period of suspension as non-duty for promotion eligibility, while allowing it to count for increments and pension, constitutes an impermissible second punishment. This judgment reinforces the principle that service continuity cannot be arbitrarily disrupted without due process.
Background & Facts
The Dispute
The petitioner, a Banking Associate with J&K Bank Ltd., was placed under suspension pending disciplinary proceedings for alleged gross and minor misconduct. After an inquiry, a minor penalty of withholding one future increment for six months was imposed on 20.12.2019. He was reinstated, but the Disciplinary Authority ordered that the suspension period would not count as "period spent on duty" for service calculation, though it would qualify for leaves, increments, and retirement benefits.
Key Facts
- The petitioner was appointed as a Banking Associate on contractual basis in 2013 for two years.
- His services were regularized w.e.f. 17.12.2018 under Circular No. 6844 dated 02.01.2016.
- He was confirmed in service on 25.11.2016 under Circular No. 7791.
- He was placed under suspension on 22.10.2018 under Circular No. 9993 pending disciplinary action.
- Disciplinary proceedings concluded on 20.12.2019 with imposition of minor penalty.
- On 21.09.2023, the Bank issued Circular No. 15876 inviting applications for promotion to Assistant Manager under the Seniority-cum-Normal/Screening Channel.
- Eligibility for this channel required seven years of regular service as Banking Associate.
- The petitioner’s suspension period (22.10.2018 to 20.12.2019) was excluded from regular service calculation, rendering him ineligible for the Seniority-cum-Normal Channel.
- He was only eligible under the Fasttrack-cum-Merit Channel.
Procedural History
- 22.10.2018: Petitioner placed under suspension.
- 20.12.2019: Disciplinary Authority imposed minor penalty and issued order excluding suspension period from "period spent on duty" while allowing it for increments, leave, and retirement.
- 21.09.2023: Bank initiated promotion process under Circular No. 15876.
- October 2023: Petitioner’s application rejected for Seniority-cum-Normal Channel due to exclusion of suspension period.
- 2023: Writ Petition (WP(C) No. 3399/2023) filed before the High Court.
- 29.12.2023: Court permitted petitioner to appear in interview.
- 07.07.2025: Mir Kifayat-Ullah v. J&K Bank Ltd. judgment held that vacancies exceeded candidates, making merit-based shortlisting invalid.
- 08.04.2026: Bank issued fresh advertisement (Circular No. 18622) for Assistant Manager vacancies under Seniority-cum-Normal Channel.
Relief Sought
The petitioner sought:
- Inclusion of suspension period (22.10.2018 to 20.12.2019) as regular service for promotion eligibility.
- Direction to consider him for promotion under Seniority-cum-Normal/Screening Channel.
- Declaration that exclusion of suspension period for seniority but not for increments/pension amounts to double punishment.
The Legal Issue
The central question was whether the period of suspension, treated as duty for increments, leave, and retirement benefits under Rule 90(b) of the Officers Service Manual, 2000, can be excluded from calculation of regular service for promotion without violating the principle against double punishment and service continuity.
Arguments Presented
For the Petitioner
The petitioner argued that excluding the suspension period from regular service for promotion, while allowing it for increments and pension, creates an arbitrary and illogical distinction. He relied on Brij Lal Bundel v. State of Rajasthan and Vinod Kumar v. G.N.C.T. of Delhi to assert that once a period is counted for pension and increments, it must be counted for seniority to avoid a break in service. He contended that such exclusion amounts to a second punishment, as the penalty of withholding one increment had already been imposed.
For the Respondent
The Bank contended that Rule 90(b) permits the Disciplinary Authority to treat suspension as duty only for specified purposes, and that "regular service" for promotion means actual duty performed. It argued that the suspension period was not spent on duty and therefore could be excluded from promotion eligibility, consistent with the "no work, no pay" principle. It maintained that the order was lawful and did not violate any statutory or constitutional right.
The Court's Analysis
The Court examined the nature of the Disciplinary Authority’s order dated 20.12.2019, which explicitly stated that the suspension period would qualify for leaves, increments, and retirement benefits, but not for "period spent on duty." The Court held that this partial exclusion was legally unsustainable.
"Once the competent authority has treated the period of suspension of the petitioner as duty for the purpose of leave, increments and retirement benefits, writing off of the said period from his regular service does not align with the intention of the Disciplinary Authority."
The Court emphasized that treating the suspension period as duty for pension and increments but not for seniority creates a contradiction. If the period counts toward pension (which is calculated on total service), and toward increments (which are linked to seniority), then excluding it from promotion eligibility undermines the very foundation of service continuity.
The Court relied on Brij Lal Bundel v. State of Rajasthan, which held that denying increments during suspension after reinstatement amounts to imposing punishment without due procedure under Rule 17 of the CCA Rules. Similarly, in Vinod Kumar v. G.N.C.T. of Delhi, the Delhi High Court held that the period treated as "not spent on duty" must be construed only for back wages, not for seniority or promotion.
The Court concluded that excluding the suspension period from regular service for promotion would result in a break in service, which is impermissible under service jurisprudence. Such exclusion would effectively impose a second punishment - loss of seniority - without any formal inquiry or procedure, violating Article 14 and Article 16 of the Constitution.
The Verdict
The writ petition was allowed. The Court directed that:
- The order dated 20.12.2019 shall be construed to count the suspension period (22.10.2018 to 20.12.2019) as regular service for promotion eligibility.
- The suspension period shall continue to be excluded only for the purpose of back wages.
- The petitioner is eligible to be considered for promotion to Assistant Manager under the Seniority-cum-Normal/Screening Channel.
- The Bank shall consider his case for promotion in accordance with the rules, and if found fit, promote him from the date his immediate junior was promoted.
What This Means For Similar Cases
Suspension Period Cannot Be Partially Excluded for Service Benefits
- Practitioners must argue that any administrative order treating suspension as duty for pension or increments must include it in regular service for seniority and promotion.
- Exclusion for promotion while inclusion for increments constitutes arbitrary classification under Article 14.
Double Punishment Doctrine Applies to Service Benefits
- A minor penalty (e.g., withholding one increment) cannot be supplemented by de facto denial of promotion through service calculation.
- Any adverse consequence beyond the imposed penalty requires a separate, procedurally compliant order.
Promotion Eligibility Must Align with Service Continuity
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Banks and public sector employers must recalculate service tenure inclusively for promotion eligibility if suspension is credited for pension or increments.
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Fresh advertisements after judgment must include previously excluded periods in eligibility criteria.
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Always verify whether suspension periods are credited for pension or increments - if yes, they must be included in seniority.
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Challenge promotion rejections based on exclusion of suspension time where the penalty was minor and no formal order of forfeiture was passed.
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Cite Brij Lal Bundel and Vinod Kumar to establish that "no work, no pay" applies only to wages, not to service continuity.
