1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:02.09.2013 CORAM: THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.(MD) No.14660 of 2011 D.Vijayarani ... Petitioner Vs. 1. The Principal Secretary and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Chennai-600 005. 2. The District Collector, Sivagangai District, Sivagangai. ... Respondents Writ petition is filed under Article 226 of Constitution of India seeking an order in the nature of Writ of Certiorarified Mandamus. For Petitioners :Mr.S.Vishvalingam For Respondents :Mr.B.Pugalendhi, Spl.Govt.Pleader(W) O R D E R The Writ Petition has been filed under Article 226 of Constitution of India seeking an order in the nature of Writ of Certiorarified Mandamus calling for the records relating to the first respondent in his proceedings Na.Ka.No.SEr3 (4)/15521/2007 dated 24.02.2010 and quash the same and consequently direct the respondents to include the name of the petitioner in the approved list of Tahsildars of the year 2006 of Sivagangai District with all service benefits on par with his juniors. 2. The petitioner herein was appointed as Junior Assistant on Compassionate Ground in the Revenue Department on 13.06.1981 and joined duty in the Taluk Office, Sivgangai. The petitioner's name was included in the list of Assistant in the year 1990, then his name was included in the list of Deputy Tahsildar in the year 1999 and subsequently in the list of Tahsildars in the year 2007. On the date of filing of the writ petition, he was serving as Divisional Excise Officer in the Cadre of Tahsildar at Devakottai and his date of superannuation was 30.06.2013. 3. The petitioner has further stated that he should have been included in the approved list of Tahsildars for the year 2006, but his name was included only in the year 2007. He was awarded punishment of censure, as per the proceeding No.B4/6086/2004, dated 20.09.2005 of the Revenue Divisional Officer, Devakottai. He was informed by the memo of the District Collector, Sivagangai, dated 18.11.2006 that his name had not been included in the aforesaid list relating to the year 2006, on the ground of punishment of censure imposed on him. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The petitioner has further stated that the currency of punishment of one year censure was expired on 01.07.2006, however, his name was not included in the list. Hence, he preferred an appeal to the Principal Secretary and Commissioner of Revenue Administration, Chennai against the non-inclusion of his name in the approved list of Tahsildars for the year 2006 of Sivagangai District. The petitioner pleaded before the first respondent regarding the minor charges framed against him under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and the minor punishment of censure for the alleged delinquency, which had taken place in the year 2003. However, the first respondent rejected the plea of the petitioner. The petitioner has further submitted that his juniors, were included in the approved list of Tahsildars for the year 2006 and are acting as Deputy Collectors at the time of filing the writ petition. However, the petitioner was continuing only as Tahsildar because of the aforesaid punishment of censure. It is argued on behalf of the petitioner that the punishment of censure has no currency and the check period of one year prescribed by the Government Letter No.248 P&AR Department dated 20.10.1997 has been held as illegal, as per the law laid down by a Full Bench of this Court, in the decision reported in 2011 (3) CTC 129. 5. It was submitted by the learned counsel appearing for the petitioner that the impugned letter in Na.Ka.No.Ser3 (4)/15521/2007 dated 24.02.2010 of the first respondent is not legally sustainable in view of the decision rendered by the Full Bench of this Court in the decision reported in 2011 (3) CTC 129. 6. Learned counsel appearing for the petitioner argued that the petitioner could have been included in the list of Tahsildars, fit for promotion for the year 2006, since there was no currency of punishment in the said year. In view of the above ground, the petitioner has sought an order in the nature of Writ of Certiorarified Mandamus against the respondents to quash the impugned order dated 24.02.2010 and include the name of the petitioner in the approved list of Tahsildars for the year 2006, Sivagangai District. 7. Mr.B.Pugalendhi, learned Special Government Pleader appearing for the respondents submitted that the writ petition is not maintainable in law, since the petitioner has directly preferred this writ petition, without availing the alternative remedy of preferring revision. Learned Special Government Pleader also drew the attention of this Court to the impugned order, dated 24.02.2010, wherein the petitioner herein was informed that he was entitled to prefer revision, within 30 days from the date of receipt of a copy of the order before the Principal Secretary and Commissioner of Revenue Administration, Govt. of Tamil Nadu. However, no revision was preferred, but directly the petitioner has come forward with this writ petition, seeking the relief of certiorarified mandamus. 8. It is a well settled proposition of law that if there is any violation of law or infringement of fundamental rights, as an affected party, the petitioner can directly approach this Court, by way of filing writ petition, for which, there is no legal bar, however, if it relates to mixed question of law and facts, he should establish the efficacious alternative remedy. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Learned counsel appearing for the petitioner submits that the currency period of punishment was over before the panel was prepared by the second respondent for the promotion and therefore, the petitioner herein has directly preferred the writ petition, which is legally sustainable. In support of his contention, he cited the decision rendered by Full Bench of this Court, in The Deputy Inspector General of Police, Thanjavur Range and another v. V.Rani, reported in 2011 (3) CTC 129. 10. It was argued on behalf of the petitioner that the name of the petitioner should have been included in the approved list of Tahsildars for the year 2006, however, it was included only in the year 2007, as she was awarded punishment of censure, by Proceedings No. B4/6086/2004, dated 20.09.2005 of the Revenue Divisional Officer, Devakottai. 11. It is an admitted fact that the petitioner was informed by the Collector's memo, dated 18.09.2006 that her name had not been included in the aforesaid list for the year 2006, since the currency of punishment of censure was in force for one year period and for which, the crucial date was 01.07.2006. 12. In the impugned order, dated 24.02.2010, the first respondent has stated that she had failed to send a report furnishing the details of one Thiru.M.Rajendran, Record Clerk, who had been eligible to get promotion as Junior Assistant, when she was working as Head Assistant, at the office of the Revenue Divisional Office, Devakottai and sent that there was no eligible candidate available. Hence, proceeding was initiated under Section 17 (a) of the Tamil Nadu Civil Services (Discipline and Appeal Rules) against the petitioner and there was punishment of censure, imposed on her, which had reached finality. 13. As per the order, the censure was given effect for one year till 01.07.2006. Since the panel was prepared during the currency period of one year, which was prior to 01.07.2006, the petitioner's name was not included in the panel. 14. This Court, by its Full Bench decision, referred to above, having considered various decisions, has held as follows : "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. 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 Tamil Nadu rep. by its Secretary, Chennai and others [2008 (5) MLJ 350], the same shall not be affected by the judgment of this https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 Service (Disciplinary and Appeal) Rules. 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 punishments is illegal and impermissible under the statutory rules." 15. It has been categorically held that 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 was 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 has been made clear that only after the currency of punishment period, the Government servant facing any punishment would be entitled to be considered for the promotion to the next post, if otherwise eligible. 16. It is not the case of the petitioner that the promotion of the petitioner was denied after the currency period of punishment, which expired on 01.07.2006. It is an undisputed fact that the petitioner's name had been included in the list of Assistant in the year 1990 and the list of Deputy Tahsildar during the year 1999 and then Tahsildar in the year 2007, as stated by the petitioner and she was serving as Excise Officer in the cadre of Tahsildar at Devakottai and her date of superannuation was on 30.06.2013. 17. According to the petitioner, she could have been given promotion, even during the year 2006, during the currency period and not subsequently in the year 2007. As per the decision cited on the side of the petitioner, during the currency of punishment, getting promotion is not a matter of right, however, after the currency period, the petitioner https://hcservices.ecourts.gov.in/hcservices/ 5 was eligible for getting promotion. Admittedly, the punishment of censure was imposed on the petitioner, by Proceeding No. B4/6086/2004, dated 20.09.2005 of the Revenue Divisional Officer, Devakottai. 18. In view of the Full Bench decision of this Court, reported in 2011 (3) CTC 129, after the expiry of the currency period of punishment, the petitioner was eligible for promotion and accordingly, she was given promotion as Tahsildar, in the year 2007. However, she was not eligible to seek promotion during the currency of punishment, that is prior to the crucial dated 01.07.2006. It is not the case of the petitioner that the currency period of one year was over on the date of preparing list for promotion as Tahsildar, even prior to the date of her promotion in the year 2007. On the facts and circumstances, this Court could find no error or infirmity in the impugned order, rejecting the claim of promotion during the currency period of punishment of the petitioner, accordingly, the writ petition is liable to be dismissed. 19. In the result, this writ petition is dismissed. No order as to costs. Sd/- Assistant Registrar(T&P) \\True copy\\ Sub Assistant Registrar To 1. The Principal Secretary and Commissioner of Revenue Administration, Ezhilagam, Chepauk, Chennai-600 005. 2. The District Collector, Sivagangai District, Sivagangai. Order in W.P.(MD) No.14460 of 2011 02.09.2013 tsvn NA/29/10/2013/P5/3C https://hcservices.ecourts.gov.in/hcservices/