JUDGMENT 1. The petitioner has preferred the instant Writ of Certiorarified Mandamus praying for passing of an order by this Court in calling for the records in the impugned orders in G.O.(D)No.135, PWD (E1), dated 27.03.2012 and to quash the same. Further, he has sought for passing of an order by this Court in directing the respondents, more particularly, the first respondent to retain his name in the appropriate place in the panel for promotion of Assistant Executive Engineer (without over looking him) to be released soon. 2. According to the petitioner, while he was serving in Government Stanley Hospital, each and every works contract reached to the level of Rs.50,000/- only. As such the expenditure to be arrived at was below Rs. 50,000/-. This was as per instruction of his immediate superior viz., the Dean of the Government Stanley Hospital, Chennai. Further, he cannot act against their dictum. However, the second respondent/Engineer in Chief (buildings), Chief Engineer (Buildings), Chennai Region and Chief Engineer (General), P.W.D., Chennai misunderstood this works contract, as if the petitioner splitted up the works to see that it is limited only upto an extend of Rs.50,000/-. Only on this flimsy ground, charges were framed initially against the immediate superior viz., A.E.E. (Engineer Bharathi) 3. During the year 2009, charges were initially framed only against Engineer Bharathi, A.E.E. as a Sub-Divisional Officer in Government Stanley Hospital, Subdivision (he was in charge of Stanley Hospital and RSRM Hospital Section, Rayapuram) for violation in finalising the tender contracts. Later, the said Engineer somehow or other was promoted and shifted to somewhere else and the charges that was earlier framed on the said Engineer Bharathi was shifted on the petitioner without any rhyme or reason (although he was attached only to Government Stanley Hospital and not in any way attached to RSRM Hospital). In fact, the said Bharathi was a Superior Officer, who approved each and every works. As such the very framing of the charges itself was totally not in order. As such he filed W.P.No.23235 of 2010 seeking to quash the charges and for consequential relief of promotion and other service benefits. 4. In fact, the said Bharathi was a Superior Officer, who approved each and every works. As such the very framing of the charges itself was totally not in order. As such he filed W.P.No.23235 of 2010 seeking to quash the charges and for consequential relief of promotion and other service benefits. 4. The petitioner filed W.P.No.20354 of 2010 before this Court to call for the connected records in regard to the issuance of the order of charge memo initiated on 28.03.2005 of the Executive Engineer, Marina Division, Chennai and the present charge memo No.CII (2) 6461/2007-16 dated 29.10.2009 of the respondent therein and to quash the same. Further, he has sought for passing of an order by this Court in directing the respondent therein to include his name in the panel for promotion of Assistant Executive Engineer for 2010-2011. In M.P.Nos.2 and 3 of 2010 in W.P.No.20354 of 2010, an interim stay was granted and also an interim direction was also issued to consider his name in any panel without reference to the second charge memo, if there are no other impediments. In the said writ petition is still pending. 5. Subsequently, he filed W.P.No.23235 of 2010 for quashing of all the charges and the said writ petition was withdrawn by the petitioner. Accordingly, this Court dismissed the said writ petition as withdrawn. Further, while he was working in Government Stanley Hospital, the final orders were passed imposing a punishment of stoppage of two increments for two years with cumulative effect affecting his pension for the future. As against the punishment order of stoppage of two increments for two years with cumulative effect affecting his pension, he filed present W.P.No.11078 of 2012. He filed petition before the Government and the Government passed orders on 25.09.2013 in G.O.(D)No.389 Public Works (F2) Department, wherein, the punishment of withholding of increment of two years with cumulative effect imposed on him was modified into that of withholding of increment for one year with cumulative effect. 6. The petitioner has put in 27 years of total service in his carrier and he is due to retire on 31.05.2015. The petitioner's usual increment falls on 1st October. As on date, the currency of punishment in respect of the petitioner expired on 27.03.2013. 7. 6. The petitioner has put in 27 years of total service in his carrier and he is due to retire on 31.05.2015. The petitioner's usual increment falls on 1st October. As on date, the currency of punishment in respect of the petitioner expired on 27.03.2013. 7. At this stage, this Court pertinently points out that in W.P.No.31627 of 2013 filed by the petitioner on 25.11.2013, this Court in Paragraph No.5 has passed the following order: "5.It is an admitted fact that the original punishment order was passed on 27.03.2012 and the punishment of stoppage of increment imposed for two years with cumulative effect by the said order, would have normally ended on 26.03.2014. If the said order had not been modified, then the petitioner would not have been eligible. However, the original order was modified on revision on 25.09.2013 reducing the punishment to stoppage of increment for one year with cumulative effect. By this order, the punishment ended on 26.03.2013. Therefore, it is clear that as on 01.04.2013, which is the crucial date, there was no currency of punishment enabling the petitioner to be included in the panel for promotion to the post of Assistant Executive Engineer for the year 2012-2013, 2013-2014." 8. From the aforesaid order dated 25.11.2013 passed by this Court in W.P.No.31627 of 2013 (filed by the petitioner) it is latently and patently evident that as on 01.04.2013, which is the crucial date, there was no currency of punishment enabling the petitioner to be included in the panel for promotion to the post of Assistant Executive Engineer for the year 2012-2013, 2013-2014. Ultimately, this Court has directed the first respondent in W.P.No.31627 of 2013 to consider the claim of the petitioner made in his representation dated 11.11.2013 for promotion to the post of Assistant Executive Engineer, within a period of eight weeks from the date of receipt of a copy of this order, if he is otherwise eligible. 9. On perusal of the Enquiry Report dated 26.05.2011, it is categorically clear that the charge Nos.1 and 2 levelled against the petitioner have been proved. 9. On perusal of the Enquiry Report dated 26.05.2011, it is categorically clear that the charge Nos.1 and 2 levelled against the petitioner have been proved. Further, it is also observed that in the Enquiry Report that for the same works (painting) in respect of the works concerning same building NSB and A.O Black outside colour white wash, estimates in respect of the tender works at the sub divisional level, with collusion of one R.Bharathi, Assistant Executive Engineer, the petitioner has preferred the work contracts. Finally, the Enquiry Officer has come to a conclusion that the petitioner unilaterally along with one Bharathi, Executive Engineer in collusion has prepared the estimates and sent the same to the sub division and opined that the charges 1 and 2 levelled against the petitioner have been proved for violation of Rule 20 of the Tamil Nadu Government servants Conduct Rules 1973. 10. At this juncture, this Court pertinently points out that Rule 19 of Tamil Nadu Civil Services (Discipline and Appeal) Rules speaks of filing of an appeal against the penalties imposed by authorities other than Government and the same is as follows: "Rule-19 (1) Every Government servant including a person who has ceased to be in Government service shall be entitled to appeal as hereinafter provided, from an order passed by an authority:- (a) imposing upon him any of the penalties specified in rule 8 or 9. (b) discharging him in accordance with the terms of his contract, if he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract continuous service for a period exceeding five years at the time when his services are terminated; and (c) reducing or withholding the maximum pension, including an additional pension, admissible to him under the rules governing pensions." (Substituted in G.O.Ms.No.188 P&AR, dated 2.3.90)" 11. In fact Rule 20 of T.N.C.S (D & A) Rules enjoins as follows: "Rule-20.Petition for review to Government where the original order is passed by Government; 20. In fact Rule 20 of T.N.C.S (D & A) Rules enjoins as follows: "Rule-20.Petition for review to Government where the original order is passed by Government; 20. (1) # A member of a State Service or a member of a Subordinate Service including a person who has ceased to be a member of such service in whose case the Government have passed original orders, shall be entitled to submit, within a period of two months from the date on which the order was communicated to him, a petition to the Government for review of the orders passed by them on any of the grounds specified below:- "(a) that the order was not passed by the competent authority; (b) that a reasonable opportunity of defending himself was not given; (c ) that the punishment is excessive or unjust; (# Substituted in G.O.Ms.No.108, P&AR, Dt.2.3.90) (d) discovery of new matter or evidence which the appellant alleges and proves to the satisfaction of the Government was not within his knowledge or could not be adduced by him before the order imposing the penalty was passed. (e) evident error or omission such as failure to apply the Law of Limitation or an error of procedure apparent on the face of record; Provided that the Government may, in its discretion, condone and delay in submitting the petition for review within the said period of two months. (2) The petition for review which does not satisfy any of the above grounds shall be summarily rejected. (3) A member of the Tamil Nadu State Judicial Service or Tamil Nadu State Magisterial Service and any other officer specified in rule II shall be entitled to appeal to the Government against an order passed under that rule by the authority specified therein; (4) A member of any of the services specified in column(i) of appendix IV to these rules, shall be entitled to appeal to the Government against order passed under the second provision to rule 12." 12. As a matter of fact Rule 22 of T.N.C.S. (D & A) Rules refers to "the Appellate authorities for specified categories". Rule 23 speaks of "Power of the appellate authority". Rule 24 speaks of "order to be passed by the appellate authority". Rule 25 visualize "filing of an appeal to be in his own name." Rule 26 contemplates "procedure for preferring an appeal." 13. Rule 23 speaks of "Power of the appellate authority". Rule 24 speaks of "order to be passed by the appellate authority". Rule 25 visualize "filing of an appeal to be in his own name." Rule 26 contemplates "procedure for preferring an appeal." 13. Apart from the above, the Enquiry Officer in his finding in the final report dated 26.05.2011 has also observed that at the sub divisional to call for tender at Rs.50,000/- or for less than that amount, Junior Engineer (the petitioner) has prepared the estimates separately. At the risk of repetition, this Court points out that the petitioner as against the domestic officer enquiry findings dated 26.05.2011, has not preferred any Appeal as envisaged under Tamil Civil Services (Discipline and Appeal) Rules. However, it comes to be known that the petitioner has submitted a petition dated 17.04.2012 addressed to the State Government (through proper channel). The Government through G.O.(D)No.389, Public Works (F2) Department dated 25.09.2013 has examined the purported review petition (submitted by the petitioner) and after examining the matter carefully and independently coupled with connected records and also after obtaining the views of Tamil Nadu Public Service Commission, has reduced the punishment of withholding of increment for two years with cumulative effect to that of withholding of increment for one year with cumulative effect. Only in the review petition filed by the petitioner dated 17.04.2012, the Government has examined the case of the petitioner and passed the present G.O.(D)No.389, Public Works (F2) Department dated 25.09.2013. 14. In this connection, this Court very pertinently, at the risk of repetition, points out that the petitioner has not filed any appeal as envisaged under Tamil Nadu Civil Services (Discipline and Appeal) Rules as against the order dated 26.05.2011 passed by the domestic enquiry officer. Only he has preferred the review petition dated 17.04.2012 and based upon the petition only, the Government has passed the G.O.(D)No.389, Public Works (F2) Department dated 25.09.2013, whereby the punishment originally imposed upon the petitioner was reduced into that of withholding of increment for one year with cumulative effect. It is to be borne in mind that the petitioner is a party to the domestic enquiry officer findings dated 26.05.2011, in regard to the Departmental proceedings initiated against him for the charges leveled against him. It is to be borne in mind that the petitioner is a party to the domestic enquiry officer findings dated 26.05.2011, in regard to the Departmental proceedings initiated against him for the charges leveled against him. Admittedly, the order dated 26.05.2011 passed by the domestic enquiry officer has become final and binding being the parties inter-se as per Section 43 of the Indian Evidence At, 1872. However, it is to be pointed out that although the petitioner has not preferred the statutory appeal as envisaged under Tamil Nadu Civil Services (Discipline and Appeal) Rules, yet he has preferred the review petition dated 17.04.2012 and based on the said review petition, the Government has passed orders in G.O.(D)No.389 Public Works (F2) Department dated 25.09.2013 as stated supra. 15. Furthermore, it is to be pointed out that where a case is made out that juniors have been promoted while the petitioner has been denied, the appropriate relief to be granted is not a direction to promote the petitioner but a direction to consider his case for promotion from the date of promotion of his juniors on the same criteria on which, the juniors where promoted, as per decision of Hon'ble Supreme Court in Life Insurance Corporation of India Vs Jagmohan Sharma reported in (1998) 9 Supreme Court Cases 219. 16. Added further, in the decision of Hon'ble Supreme Court in State of Mysore Vs. C.R.Seshadri and others reported in AIR 1974 Supreme Court 460, wherein it is observed as follows: "The power to promote an officer belongs to the Executive and the judicial power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles. If the rule of promotion is one of sheer seniority it may well be that promotion is a matter of course. On the other hand if seniority-cum-merit is the rule, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to Deputy Secretaryship. The latter part of the High Court's order is therefore set aside. On the other hand if seniority-cum-merit is the rule, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazardous to assume that by efflux of time the petitioner would have spiralled up to Deputy Secretaryship. The latter part of the High Court's order is therefore set aside. AIR 1968 SC 1113 and AIR 1969 NSC 38 followed." 17. In the decision of Hon'ble Supreme Court in State of Madhya Pradesh Vs Srikant Chaphekar reported in (1992) 4 Supreme Court Cases 689, it is held as follows: "The Tribunal fell into patent error in substituting itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case, the Tribunal outstepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. In a case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law. It was not within the competence of the Tribunal, in the facts of the present case, to have ordered deemed promotion of the respondent. Further, this is not a fit case where even a direction to consider the respondent for promotion from the year 1981 can be given. It would not be in the interest of justice to issue any such direction after a period of more than a decade." 18. Moreover, in the decision of Hon'ble Supreme Court in Gurdial Singh Fijji Vs. State of Punjab and others reported inAIR 1979 Supreme Court 1622, wherein it is observed that "the Court cannot direct that promotion should be granted to the person who claims before the Court that he should have been promoted. Moreover, in the decision of Hon'ble Supreme Court in Gurdial Singh Fijji Vs. State of Punjab and others reported inAIR 1979 Supreme Court 1622, wherein it is observed that "the Court cannot direct that promotion should be granted to the person who claims before the Court that he should have been promoted. The proper course for a Court of law is to direct the authorities concerned that the case be considered afresh by the Selection Committee indicating the broad frame work within which the Committee should act and the principles which it should follow". 19. In regard to the plea of the petitioner that the enquiry officer in his findings dated 26.05.2011 has stated that there is no financial loss and that the works were not to be applied as per orders in G.O and there is no need for a witness to appear etc, the said plea, in the considered opinion of this Court, cannot heighten or improve the case of the petitioner because of the simple reason that the Enquiry Officer has dealt with the matter by conducting the domestic enquiry against the petitioner and has come to positive conclusion that the charges 1 and 2 levelled against the petitioner have been proved. Therefore, this Court is of the considered view that the finding that the charges levelled against the petitioner have been proved in the domestic enquiry, as held by the domestic enquiry officer in his report dated 26.05.2011 cannot be interfered with by this Court, since the same does not suffer from any material irregularity or illegality in the eye of law. However, in view of the fact that the petitioner has projected the review petition dated 17.04.2012 to the Government and also this Court taking note of the fact that the Government in G.O.(D)No.389, Public Works (F2) Department dated 25.09.2013 has reduced the punishment imposed upon the petitioner to that of withholding of increment for one year with cumulative effect and also bearing in mind, yet another pivotal fact that the currency of punishment in respect of the petitioner expired on 26.03.2013, also in view of the orders passed by this Court in W.P.No.31627 of 2013 dated 25.11.2013 and further, on the basis of facts and circumstances of the present case, directs the First respondent/Secretary to Government, Public Works Department to consider the name of the petitioner (subject to suitability and eligibility) for promotion to the post of Assistant Executive Engineer for 2012-2013, 2013-2014 within a period of eight weeks from the date of receipt of a copy of this order and if the petitioner, upon consideration of his case by the First respondent, is found eligible and suitable to the promotion in question, then the first respondent is directed to place him in seniority at the appropriate place for the aforesaid order in question, in the manner known to law and in accordance with law and to confer with all monetary and consequential benefits. 20. With the aforesaid observation, the writ petition stands disposed of. No costs.