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2014 DIGILAW 479 (MAD)

Secretary to Government v. R. Selvaraj

2014-02-25

M.DURAISWAMY, V.DHANAPALAN

body2014
Judgment : V. Dhanapalan,J., 1. Heard Mr.R.Rajeswaran, learned Special Government Pleader appearing for the appellants / respondents and Mr.S.Sivakumar, learned counsel for the respondent / petitioner. 2. The writ appeal is filed against the order passed by the learned Single Judge in W.P.No.14730 of 2012 dated 20.09.2012, in and by which, the learned Single Judge, while setting aside the impugned order, directed the respondents to include the name of the petitioner in the panel for promotion to the post of Sub Registrar for the year 2010-2011 and accordingly give him promotion from the date on which his immediate junior was promoted. Aggrieved over the said order, the appellants / respondents have preferred the present appeal, seeking to quash the same. 3. The respondent / petitioner had filed a writ petition, questioning the proceedings of the Tamil Nadu Inspector General of Registration, Chennai, passed by the 2nd respondent / 2nd appellant herein dated 30.05.2012 vide No.53444/Aa3/Aa2/2011. 4. The case of the respondent / petitioner in the writ petition is that earlier, he filed a writ petition in W.P.No.25295 of 2011, seeking to quash the order dated 14.09.1010 whereunder his request for inclusion in the panel was rejected. A learned Single Judge, vide order dated 02.12.2011 quashed the said order with a direction to the respondents to consider the name of petitioner for inclusion in the panel for the year 2010-2011 for promotion to the post of Sub Registrar Grade II in case of no other impediment. However, claim of the petitioner was rejected vide proceedings No.53444/Aa3/Aa2/2011 dated 30.05.2012 and his name was also not included in the panel for promotion. Challenging the same, the respondent / petitioner had filed the writ petition. 5. However, claim of the petitioner was rejected vide proceedings No.53444/Aa3/Aa2/2011 dated 30.05.2012 and his name was also not included in the panel for promotion. Challenging the same, the respondent / petitioner had filed the writ petition. 5. Learned Single Judge, after due consideration of the entire facts and also upon bearing in mind the decision rendered by a Division Bench of this Court in the case of The Deputy Inspector General of Police, Thanjavur Range vs. V.Rani, reported in 2011 (3) CTC 129 [W.A. (MD) Nos.315 of 2010 etc., batch], decided on 27.04.2011, holding that the currency of punishment shall not be extended beyond the period of punishment and there is no separate period as check period, has come to the conclusion in the writ petition to the effect that the currency of punishment of stoppage of increment for a period of six months without cumulative effect, expired in the month of January, 2007 itself, which was imposed by the District Registrar, Gobichettipalayam vide proceedings in Na.Ka.No.1074/A1/2006 dated 18.07.2006 and while setting aside the impugned order, directed the respondents to include the name of the respondent / petitioner in the panel for promotion to the post of Sub Registrar for the year 2010-2011 and give him promotion from the date on which his immediate junior was promoted, against which, the present writ appeal has been preferred by the appellant / respondent. 6. The main ground urged by the learned Special Government Pleader for the appellants / respondents that promotion is not a matter of right and it could be given only based on the independent consideration of the case of each employee and also on the basis of his / her honesty and efficiency in work for the particular period. 7. On the other hand, learned counsel for the respondent has submitted that drawing of panel and grant of promotion should be strictly in accordance with the procedures contemplated under the Rules. When there was no currency of punishment against the respondent / petitioner at the time of drawing of panel, there was absolutely no justification with the 2nd appellant for non inclusion of the name of respondent / petitioner in the particular panel. 8. We have considered the rival submissions on the above background pleadings and also perused the material documents available on record. 9. 8. We have considered the rival submissions on the above background pleadings and also perused the material documents available on record. 9. It is seen from the documents that the name of respondent / petitioner was not included in the panel drawn for the year 2010-2011, merely because of imposition of punishment, namely, stoppage of increment for a period of six months without cumulative effect, imposed by the District Registrar, Gobichettipalayam vide proceedings in Na.Ka.No.1074/A1/2006 dated 18.07.2006, which resulted in non inclusion of his name for promotion by the 2nd appellant / 2nd respondent in the proceedings No.53444/Aa3/Aa2/2011 dated 30.05.2012. Learned Single Judge, on considering various aspects including non availability of currency of punishment against the respondent at the time of drawing of panel, set aside the impugned order and directed the respondents to include the name of the petitioner in the panel for promotion to the post of Sub Registrar for the year 2010-2011, by giving him promotion from the date on which his immediate junior was promoted. 10. It is true that a person facing charges under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules cannot be promoted as long as such charges are issued at any stage prior to the officer's actual promotion, but at the same time, in the present case, the crucial date for preparation of panel was fixed as on 15.03.2010 and there was no currency of punishment existing on that date against the respondent / petitioner and if that can be the position, it is not known as to what prevented the appellants / respondents in including the name of respondent / petitioner in the panel for the year 2010-2011. 11. Learned Single Judge has also come to the right conclusion by applying the ratio laid down by the Hon'ble Division Bench of this Court in the case The Deputy Inspector General of Police, Thanjavur Range vs. V.Rani (stated supra), wherein it has been held as under: "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 Tamil Nadu rep. 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 Tamil Nadu rep. by its Secretary, Chennai and Others (supra) 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 Tamil Nadu rep. by its Secretary, Chennai and Others (supra), 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 20.10.1997 are not statutory rules framed under proviso Article V.DHANAPALAN,J., and M.DURAISWAMY,J., ar 309 of the Constitution of India and cannot be read either with the Tamil Nadu Government Conduct Rules, 1973 or under the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules." 12. A cursory view of the above referred judgment shows that after the currency of punishment period, Government servant is entitled to be considered for promotion to the next post, if otherwise eligible. Therefore, learned Single Judge, on observing the above factum of ruling, has passed a well considered order, which , in our considered opinion, does not warrant any interference by this Court and thus, the writ appeal is liable to be dismissed on this sole ground itself. Accordingly, the same is dismissed. Therefore, learned Single Judge, on observing the above factum of ruling, has passed a well considered order, which , in our considered opinion, does not warrant any interference by this Court and thus, the writ appeal is liable to be dismissed on this sole ground itself. Accordingly, the same is dismissed. No costs. Consequently, connected miscellaneous petition is closed.