Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3552 (MAD)

D. Ravindar v. Commissioner of Agriculture

2012-08-13

D.HARIPARANTHAMAN

body2012
Judgment :- 1. The petitioner was appointed as Agricultural Officer on 2.04.1985. Thereafter, he was working as Agricultural Development Officer in the same cadre, in the office of the Assistant Director of Agriculture at Krishnagiri. 2. According to the petitioner, the next avenue of promotion is Assistant Director of Agriculture. 3. The petitioner was imposed with a punishment of 'censure' by an order dated 30.12.2006, pursuant to the proceedings initiated under Rule 17(a) of the Tamilnadu Civil Services (Discipline and Appeal) Rules. 4. The grievance of the petitioner is that he should have been included in the panel for the year 2007-2008 for promotion to the post of Assistant Director. On the other hand, he was included in the panel for the year 2010-2011. 5. Hence, the petitioner has filed this writ petition, seeking for a direction to the respondent to include the name of the petitioner in the panel for promotion to the post of Assistant Director for Agriculture in the year 2007-2008. 6. The respondent has filed a counter affidavit refuting the allegations. 7. The respondent has relied on the Government letter Ms.No.248, Personnel and Administrative Reforms Department (S) Department, dated 20.10.97, for not including the name of the petitioner in the panel for promotion to the post of Assistant Director for the year 2007-2008. According to the respondent, since the petitioner suffered the punishment of 'censure' within a period of one year prior to the crucial date, he was not included in the panel. 8. Heard both sides. 9. The petitioner was imposed with the penalty of 'censure' by an order dated 30.12.2006. 10. The respondent has categorically stated in the counter affidavit that in view of the Government letter No.248, Personnel and Administrative Reforms Department (S) Department, dated 20.10.97, the punishment of 'censure' would operate against the petitioner for considering him for promotion to the next higher post. 11. According to the respondent, any punishment other than censure within a period of five years prior to the crucial date should be held against the officer while considering the officer for promotion. In the case of 'censure', if it is within one year of the crucial date, the officer should not be included in the panel. The following passage in paragraph No.5 of the counter affidavit is extracted hereunder: "...... In the case of 'censure', if it is within one year of the crucial date, the officer should not be included in the panel. The following passage in paragraph No.5 of the counter affidavit is extracted hereunder: "...... In this regard, it is submitted that as per stipulation laid down in Government Letter Ms.No. 248, Personnel and Administrative Reforms Department (S) Department, dated 20.10.97, a punishment of 'censure' within a period of one year prior to the crucial date should be held against the officer while considering him for promotion to the next higher post. In this instant case, the petitioner herein Thiru.D.Ravindar, Agricultural Officer was inflicted with a penalty of "Censure" as per Deputy Director of Agriculture, Krishnagiri Proc.No.E3/118/2005, dated 30.12.2006, which is within the crucial date of the temporary panel of Assistant Director of Agriculture for 2007-2008 i.e. 1.4.2007. The name of the petitioner herein was considered for inclusion in this temporary panel of Assistant Director of Agriculture for 2007-2008 and is found to be not fit for inclusion in this panel in view of the stipulation laid down in Government Letter Ms.No.248, Personnel and Administrative Reforms (S) Department, dated 20.10.97." 12. In my view, the aforesaid reason adduced by the respondent is contrary to the Full Bench Decision of this Court in 2011 (3) CTC 129 (1.The Deputy Inspector General of Police, Thanjavur Range, Thanjavur, 2.The Director General of Police, Tamil Nadu, Chennai-4 Vs. V.Rani). Paragraph 23, 24 and 28 of the abovesaid judgement of the Full Bench Decision are extracted hereunder: "23. In the light of the above said categorical legal position, the submission of Mr.Ravi, learned Counsel appearing for the respondent in W.A.280 of 2011 as well as for Petitioner in W.P.Nos.45960 of 2006 and 955 of 2007 and apart from Mr.R.Subramanian, learned Counsel appearing for the Petitioner in W.P.47252 of 2006, that the Letter of the Government dated 7.10.2005 cannot be equated with the Statutory Rules framed under Proviso to Article 309 of the Constitution of India has to be certainly upheld. The Government Letter dated 7.10.2005 stated to be the consolidated instructions regarding preparation of panel for promotion issued by the Secretary to Government, not even with the authority of the Governor of State, can never be treated as Statutory Rules at all. The Government Letter dated 7.10.2005 stated to be the consolidated instructions regarding preparation of panel for promotion issued by the Secretary to Government, not even with the authority of the Governor of State, can never be treated as Statutory Rules at all. Therefore, the annexures therein are not enforceable as Statutory Rules especially with regard to a new phrase inserted viz., 'check period' by imposing a total embargo on the right of consideration of a Government Servant who has undergone punishment for the period of one year in case of penalty of censure and five years in other cases of minor penalties, as it has no legal basis at all. 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. 28. Therefore, after analysis of the entire law on the subject, we answer the reference as follows: (1) During the period of currency of minor punishment, an employee cannot claim as a matter of right to be promoted to the next category merely on the basis that he is otherwise fit for promotion and to that extent, the finding of the Division Bench in Subramanian V. Government of Tamilnadu, rep. by its Secretary, Chennai and Others, 2008 (5) MLJ 350 , stands overruled. by its Secretary, Chennai and Others, 2008 (5) MLJ 350 , stands overruled. It is needless to state that after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post, if otherwise eligible. (2) If any benefit has been conferred on the party to the judgment rendered by the Division Bench in Subramanian V. Government of Tamilnadu, rep. by its Secretary, Chennai and Others, 2008 (5) MLJ 350 , the same shall not be affected by the judgment of this Bench since there is a factual finding in that case that there was a technical lapse committed by the delinquent and no financial loss caused. (3) The detailed instructions issued by the Government in G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993 issued by the Chief Secretary to Government by order of the Governor, cannot be equated to the Statutory Rules framed under the proviso to Article 309 of the Constitution of India and it can utmost be Administrative Instructions issued under Article 162 of the Constitution of India. In any event, the said Government Order does not deal with the case of promotion of a Government servant during the currency of punishment. (4) The Government Letter No.18824/S/2005-2, Personnel and Administrative Reforms (S) Department, dated 7.10.2005 with annexures 1 to 7 and the letter No. 248, (P & AR) Department, dated 20.10.97 are not Statutory Rules framed under Proviso Article 309 of the Constitution of India and cannot be read either with the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules. (5) Consequently, the embargo put on the right of the 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." 13. The Full Bench decision of this Court has made it clear that the check period of one year in the case of 'censure' is bad. 14. The Full Bench decision of this Court has made it clear that the check period of one year in the case of 'censure' is bad. 14. In view of the categorical pronouncement of the Full Bench of this Court, a direction is issued to the respondent to include the name of the petitioner in the panel of the year 2007-2008 for promotion to the post of Assistant Director of Agriculture, within a period of six weeks from the date of receipt of a copy of this order. The respondent is also directed to issue a consequential posting order from the date on which his immediate junior was promoted along with monetary benefits. 15. The Writ Petition is disposed of with the above terms. No costs.