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Judgment
Honourable Mr. Justice T. Raja
The present Writ Petition has been filed by the petitioner under Article 226 of the Constitution of India seeking issuance of Writ of Mandamus, directing the respondents herein to include the name of the petitioner in the Panel for promotion to the post of Joint Director of Health Services and consequently a further direction to promote the petitioner to the said post with all benefits.
Heard Mr. Vijay Narayanan, learned Senior Counsel for Mr. M. Karthikeya Venkitachalapathi appearing for the petitioner and Mr. T.R. Janarthanan, learned Additional Government Pleader takes notice on behalf of the respondents.
By consent, the writ petition itself is taken up for final disposal.
The learned Senior counsel appearing for the petitioner would submit that the petitioner after joining the medical services as Assistant Civil Surgeon in the year 1981, was promoted to the post of Civil Surgeon on 25.12.1998 and again, she was further promoted as Senior Civil Surgeon on 04.11.2004 and after six years of her service as Senior Civil Surgeon, on 06.05.2010 she was further promoted as Chief Civil Surgeon. When the matter stands as above, she became eligible for higher promotion for the post of Joint Director of Health Services. But, Unfortunately, she met with a Show Cause Notice dated 24.09.2007 issued under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Subsequently, the proceedings entered with a punishment of stoppage of increment for one year without cumulative effect by an order dated 31.07.2008. Aggrieved by the said order of punishment, the petitioner has preferred an appeal. Subsequently, she also withdrew the said appeal on 13.04.2010 and finally, she also completed the said punishment period. Thereafter, the petitioner was also refitted to the post of Chief Civil Surgeon.
At this juncture, learned Senior Counsel submitted that though the petitioner was entitled to be refitted for the earlier year, the same was not done in view of the currency of the punishment. But, subsequently, in the subsequent year as the period of punishment was over, the respondents called for willingness from the eligible candidates with the condition that the person who is submitting his or her willingness should submit a separate certificate to the effect that no punishment was awarded during the check period i.e. 5 years prior to the crucial date of the panel year 2011-2012 i.e. 15.03.2011. Since the said observation made in paragraph 4 of the Communication dated 23.11.2010 is an embargo for further promotion and the said check period has also been properly considered and held by the Division Bench of this Court as illegal in the judgment reported in 2008 (5) MLJ 350 (Subramanian v. Government of Tamil Nadu) in that basis he further contended that the respondents should be directed to consider the representation of the petitioner, on the basis of ratio laid down by this Court in the above mentioned judgment.
The learned Additional Government Pleader after taking notice sought for a reasonable time to do the said exercise.
Recording the submission as rightly submitted by the learned counsel for the petitioner that when the full bench judgment of this Court reported in 2008 (5) MLJ 350 (Subramanian v. Government of Tamil Nadu) has held as follows:
"23.... 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.
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.
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... 28(5) Consequently, 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 punishment is illegal and impermissible under the statutory rules.
the check period of five years cannot be a bar for further promotion of the petitioner, accordingly, I direct the respondents to consider the case of the petitioner as expeditiously as possible before the finalization of the panel.
With the above direction, this Writ Petition is disposed of. Consequently, connected miscellaneous petition is closed. No costs.