Judgment :- 1. The petitioner in W.P.No.22368 of 2006 has filed this petition for a mandamus directing the respondents to include the petitioner's name in the panel of Assistant Engineers fit for promotion in the post of Assistant Executive Engineers for the year 2004-2005 in the appropriate place and promote him as an Assistant Executive Engineer on par with his immediate juniors with consequential service benefits. 2. The petitioner has joined the Public Works Department as an Assistant Engineer on 21.09.1987. While posted as Assistant Engineer in Buildings Construction and Maintenance Division Department, Thanjavur, a charge memo under 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued against him since he had permitted a senior officer to reside with him in the Government quarters allotted to him for a period of four months. The petitioner sent a detailed reply informing that since such senior officer was undergoing medical treatment the petitioner had permitted such officer to reside with him on humanitarian considerations. His explanation was not accepted and the Government under G.O.(D) No.537 dated 30.08.2004 imposed a punishment of stoppage of increment without cumulative effect for three months. Acceding to the request of the petitioner, the Special Chief Engineer (Buildings Construction and Maintenance Division), Thanjavur, under communication dated 07.06.2005 informed the first respondent that the petitioner though had suffered a minor punishment had already undergone the same and as such as on date, he was eligible to be included in the panel for appointment as Assistant Executive Engineer. The petitioner also made a representation to the first respondent seeking that he be appointed as Assistant Executive Engineer. Under proceedings No.S.1(1)/24937/2006-1 dated 26.06.2006 orders of regular appointment as Assistant Executive Engineers, were issued. The petitioner did not find a place in such list. Hence, the petitioner has come forward with this petition informing that he had not suffered disqualification for selection to the said post and he ought to be appointed and posted as such with seniority above his immediate junior in the post of Assistant Engineer. 3. Heard the learned counsel for the petitioner on the above contentions as also the response of the learned Government Advocate. 4. This Court has perused the counter affidavit filed on behalf of the respondents. 3. Heard the learned counsel for the petitioner on the above contentions as also the response of the learned Government Advocate. 4. This Court has perused the counter affidavit filed on behalf of the respondents. Both the counter affidavit as also the submissions of learned counsel for the respondents are to the effect that the petitioner had suffered stoppage of increment without cumulative effect for a period of three months as ordered in G.O.(D) No.537 dated 30.08.2004 based on disciplinary action enquiry under section 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and owing to having sub let Government quarters allotted to him at Thanjavur, during the year 2003. Since the occurrence of lapses fall within the check period of five years, the non-inclusion of the name of the petitioner in the approved panel for promotion as Assistant Executive Engineer in the year 2004-05 was justified. It is contended that the punishment accorded to the petitioner would not be held against him for a second time and accordingly, his name stands included in the panel for promotion in the year 2005-06 though the lapses of the petitioner fell within the five year check period. 5. It is seen that the non-inclusion of the petitioner's name in the panel for promotion during the year 2004-05was pursuant to instructions issued in Government Letter No.4992/S/2000-10 dated 19.10.2001. A Full Bench of this Court has, in decision in The Deputy Inspector General of Police and another vs. V. Rani [2011] 3 CTC 129 dealt with a letter of Government dated 07.10.2005 under letter No.18824/S/2005-2 and the annexures thereto. One of the annexures is the letter No.4992/S/2000-10 dated 19.10.2001 relied upon by the respondents. The Full Bench has held that such letters cannot be equated with statutory rules framed under proviso to Article 309 of Constitution of India. Finding that the Government letter dated 07.10.2005, stated to be consolidated instructions regarding preparation of panel for promotion, issued by the Secretary to Government had not even the authority of the Governor of the State and that the same never could be treated as statutory rules, it was informed that annexures thereto were not enforceable as statutory rules. Finding that the Government letter dated 07.10.2005, stated to be consolidated instructions regarding preparation of panel for promotion, issued by the Secretary to Government had not even the authority of the Governor of the State and that the same never could be treated as statutory rules, it was informed that annexures thereto were not enforceable as statutory rules. The new phrase inserted viz., 'check period' imposing a total embargo on the right of consideration of a Government servant who had undergone punishment for the period of one year in case of penalty of censure and five years in other cases of minor penalties, was found to have no legal basis. 6. The Full Bench has explained as follows: "24. While it is true that the pendency of punishment can be certainly a ground for the Government to deny the promotion till the completion of the period of punishment, it can never be said that even after the period of punishment is over, in between the date of crucial date and the date of punishment there must be one year in case of censure and five years in other cases as disqualification period. The above said impediment in the name of 'check period' can never be imposed on a Government servant. Even though it has not been issued as Statutory Rules under the Proviso to Article 309 of the Constitution of India, the said letter stating the currency of punishment as an embargo for considering for further promotion during the period of punishment cannot be said to be antithesis to the principles of law. The embargo imposed in respect of further period as stated above can never be said to be authorized under the Statutory Rules. The said Government Letter can be treated as a circular issued by the Secretary to Government to all departments. This letter, as correctly submitted by the learned Senior Counsel Mr. G. Rajagopal, cannot supersede the Statutory Rules. 25. It has been held by the Supreme Court in State of Orissa and others v. Prasana Kumar Sahoo, 2007 (15) SCC 129 , that the exercise of powers by the State under Article 162 of the Constitution of India is subservient to the recruitment Rules framed under the Proviso to Article 309 of the Constitution of India. Speaking for the Bench, S.B. Sinha, J. (as His Lordship then was) held as follows: "11. Speaking for the Bench, S.B. Sinha, J. (as His Lordship then was) held as follows: "11. It is now well settled that a State is bound by the Constitutional scheme to treat all persons equally in the matter of grant of public employment as envisaged under Articles 14 and 16 of the Constitution of India. 12. Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment Rules framed by the State either in terms of a legislative Act or the Proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or Statutory Rules far less the Constitutional provisions." 26. In Dr. RajinderSingh v. State of Punjab and others, 2001 (5) SCC 482 , the Supreme Court has enunciated the settled position as follows: "7.The settled position of law is that no Government Order, Notification or Circular can be a substitute of the Statutory Rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the Constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of Notification. Following such a course in effect amounts to amending the Rules by a Government Order and ignoring the mandate of Article 309 of the Constitution." 27. It was held that by the executive instructions, the State can make provisions only with regard to matters not covered by the Statutory Rules in Paluru Ramakrishnaiah and others v. Union of India and another, 1989 (2) SCC 541 . The relevant portion of the judgment is as follows: "11. It is, thus, apparent that an executive instruction could make a provision only with regard to a matter which was, not covered by the Rules and that such executive instruction could not override any provision of the Rule. Notwithstanding the issue of instruction dated 6.11.1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Notwithstanding the issue of instruction dated 6.11.1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in the instant case prescribed a procedure for making promotion the said procedure could not be abrogated by the executive instruction dated 6.11.1962. The only effect of the Circular dated 6.11.1962 was that Supervisors 'A' on completion of two years' satisfactory service could be promoted by following the procedure contemplated by Rule 8. This Circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand was to be governed by the Rules. This right was conferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the posts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of Rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these Rules apply shall be made otherwise than, as specified in these Rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the Circular. The order dated 28.12.1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the Circular dated 20.1.1966 which provided that promotions in future will be effected in accordance with the normal Rules and not merely on completion of two years' satisfactory continuous service had the effect of doing away with the accelerated chance of promotion and relegating Supervisors 'A' in the matter of promotion to the normal position as it obtained under the Rules." Inter alia, the Full Bench concluded that the embargo put on the right of Government servant for being considered for promotion for a further period, after the period of minor punishment is over, in the name of 'check period' viz., one year in the case of censure and five years in the case other minor punishments is illegal and impermissible under the Statutory Rules. 7. Following the rationale of the judgment of the Full Bench of this Court, this Writ Petition stands allowed. 7. Following the rationale of the judgment of the Full Bench of this Court, this Writ Petition stands allowed. The respondents shall now effect the appointment of the petitioner as Assistant Executive Engineer and as immediate senior to the person who was his immediate junior in the post of Assistant Engineer. The petitioner shall be entitled to all consequential benefits. 8. In W.P.No.27952 of 2006, the petitioner challenges the proceedings of the first respondent passed in G.O.(D) No.537, Public Works (A1) Department, dated 30.08.2004. The purpose of the petition being that the order of punishment imposed upon him in the year 2004 should be not an impediment to his consideration for promotion to the post of Assistant Executive Engineer, this Court finds it unnecessary to dwell on the merits of the case since under orders in W.P.No.22368 of 2006, this Court already has held the petitioner eligible for promotion to the said post. 9. In the result, (i) W.P.No.22368 of 2006 stands allowed. (ii) W.P.No.27952 of 2006 stands closed. No costs. Consequently, the connected miscellaneous petitions are closed.