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Judgment
D. Hariparanthaman, J.
W.P. (MD). No. 2099/2013
The petitioner was a Tahsildar. He was issued with a charge memo dated 23.08.2010 under Rule 17(a) of Tamil Nadu Civil Services (Disciplinary and Appeal) Rules. The crucial date for preparation of panel for promotion to the post of Deputy Collector from Tahsildar is the first day of every year. For the year 2012, as on 01.01.2012, there was no impediment for inclusion of the name of the petitioner in the panel for promotion to the post of Deputy Collector. Accordingly, when the panel for promotion to the post of Deputy Collector from the post of Tahsildar was issued on 23.07.2012, the name of the petitioner was found place in serial number 80 in the panel. While so, when promotion list were issued from the panel on 02.11.2012, the petitioner was not issued with the order, posting him as Deputy Collector. While his juniors, who rank below the petitioner, were issued with the promotion orders. Hence, he made an appeal to the first respondent. His appeal was rejected by an order, dated 15.11.2012. In the meanwhile, the first respondent passed the impugned order dated 10.12.2012 stating that in view of currency of punishment he was not given promotion order as per G.O. Ms. No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993
No counter affidavit is filed.
With the consent of both sides, the writ petition is taken up for final disposal as the matter is covered by the Full Bench decision of this Court reported in The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani,
Heard both sides.
The petitioner was imposed with the punishment of stoppage of increment for three months without cumulative effect by an order dated 03.07.2012 pursuant to the charge memo dated 23.08.2010 issued under Tamil Nadu Civil Services (Discipline and Appeal Rules). Admittedly, the punishment came to an end on 02.10.2012. Hence, there was no currency of punishment, when the promotion order dated 02.11.2012 was issued. The juniors of the petitioner were included in the panel that was issued on 02.11.2012. When there was no impediment for issuing promotion order to the petitioner, he should have been issued posting order as Deputy Collector. The only reason given in the impugned order dated 10.12.2012 is that there was currency of punishment at that time of issuing posting order dated 02.11.2012 promoting the other juniors.
G.O. Ms. No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 is relied on by the first respondent.
As rightly contended by the learned counsel for the petitioner as there was no currency of punishment and minor punishment of stoppage of increment for three months without cumulative effect came to an end on 02.10.2012, there was no impediment for the first respondent to issue promotion order in the case of the petitioner also.
Reliance placed on G.O. Ms. No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 has no merit. In fact, as rightly contended by the learned counsel for the petitioner, G.O. Ms. No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 was considered by the Full Bench of this Court in the decision reported in The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani, , wherein It is held in paragraphs 24 and 28 (i) as follows:-
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.
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. 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.
It is true that if there was currency of punishment, the petitioner cannot claim promotion to the post of Deputy Collector. Admittedly, there was no currency of punishment, when the promotion order was issued. Hence, the impugned order dated 10.12.2012 is quashed and the writ petition is allowed. The first respondent is directed to issue promotion order posting the petitioner as Deputy Collector from the date on which his immediate juniors were promoted on notional basis, within a period of four (4) weeks from the date of receipt of a copy of this order. No costs.
Consequently connected miscellaneous petitions are closed. In view of the order passed in W.P.(MD). No. 2099/2013, W.P.(MD). No. 835/2013 is closed. No costs. Consequently, connected miscellaneous petition is also closed.