IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2010 CORAM THE HONOURABLE MR. JUSTICE T. RAJA W.P.No.28959 of 2008 J.Raju ... Petitioner Vs. 1. The Secretary to Government, Finance Department, Fort St. George, Chennai – 9. 2. The Director of Treasuries and Accounts, Panagal Building, Saidapet, Chennai – 15. 3. The Treasury Officer, Tiruvallur. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India for the issuance of writ of certiorarified mandamus, to call for the records in pursuant to the impugned orders passed by the 2nd respondent in proceeding Rc.No.25217/07/N1 dated 06.11.2007 and in proceeding Rc.No.12227/2008/N1 dated 15.10.08 and quash the same and consequently direct the respondents to include the name of the petitioner in the panel for promotion to the post of Sub-treasury Officer/Superintendent of the year 2006- 07 and accordingly promote the petitioner in accordance with his seniority with all monetary and other consequential service benefits. For Petitioner : Mr.S.M.Subramaniam For Respondents Nos.1 to 3 : Mr.B.Vijay, Government Advocate O R D E R The petitioner Mr.J.Raju has filed the present writ petition, challenging the impugned order, imposing the punishment of stoppage of increment for two years without cumulative effect from 09.03.2007 till 31.03.2009, quash the same and consequently direct the respondents to include the name of the petitioner in the panel for promotion to the post of Sub-treasury Officer/Superintendent of the year 2006-07 and accordingly promote the petitioner in accordance with his seniority with all monetary and other consequential service benefits. https://hcservices.ecourts.gov.in/hcservices/ 2. On the allegation of assaulting one of his office colleagues, two charges were leveled against the petitioner, by charge memo dated 18.11.1994, and the petitioner was called upon to give explanation for the above allegations. The petitioner submitted his explanation on 09.01.1995, denying all the charges. After receiving the petitioner's explanation, enquiry was conducted and the enquiry officer submitted the final report holding that the first charge was proved and the second charge was partially proved. Therefore, the 3rd respondent passed the final order on 11.07.1996, imposing the punishment of reversion to the post of Junior Assistant for a period of 2 years. 3. Thereafter, the petitioner filed an appeal before the 2nd respondent on 16.08.1996 and the same was rejected by the 2nd respondent by his proceeding dated 07.02.1997. Aggrieved against the order passed by the 2nd respondent, the petitioner preferred an appeal before the 1st respondent on 21.03.1997 and the same was rejected by the 1st respondent in G.O.(2D).No.22 Finance (T&A-II) Department, dated 02.08.1999. 4. Thereafter, the petitioner filed a Review Petition and the matter was referred to the Tamil Nadu Public Service Commission. The Tamil Nadu Public Service Commission had also taken into account the serious nature of allegations leveled against the petitioner, the findings of the enquiry officer and also the punishment imposed upon the petitioner. After receiving the opinion of the TNPSC, the 1st respondent issued G.O.(2D) No.72, Finance (T&A-II) dated 08.11.2004, duly setting aside the punishment of reversion imposed on the petitioner and directed the 3rd respondent to conduct a de novo enquiry. 5. As per the direction of the 1st respondent, the 3rd respondent conducted a de novo enquiry and passed final orders by proceeding in Rc.No.27380/2004/A2, dated 20.07.2006, imposing the punishment of stoppage of increment for a period of four years without cumulative effect. 6. The petitioner once again, preferred an appeal to the 2nd respondent on 25.09.2006. The Director of Treasuries and Accounts/2nd respondent, passed the final order vide Proceeding in Rc.No.49940/06/Q3, dated 09.03.2007, reducing the punishment as stoppage of increment for 2 years without cumulative effect. 7. Thereafter, the panel for promotion to the post of Sub-treasury Officer/Superintendent was published for the year 2006-2007 vide proceeding dated 14.07.2007. In the above said panel, the name of the petitioner was deferred on account of the punishment of stoppage of increment. Therefore, aggrieved against the non inclusion of his name in the above said panel for the year 2006-2007, the petitioner made a representation to the respondents with a request to include his name in the above panel. Thereafter, the petitioner made another representation to https://hcservices.ecourts.gov.in/hcservices/ the first respondent on 11.09.2007. The 2nd respondent issued an order dated 06.11.2007, stating that though the date of occurrence (27.10.1994) is prior to the check period of 5 years, i.e., from 01.04.2001 to 31.03.2006, as the punishment is in currency at the time of consideration and drawing of the panel for the post of Sub Treasury Officer/Superintendent for 2006-07 by including the name of the petitioner cannot be considered. 8. In the next panel for the year 2007-2008, the petitioner's name was deferred on account of the very same reason. Thereafter, the petitioner made an appeal to the 2nd respondent on 11.04.2008 and to the 1st respondent on 29.09.2008. The 2nd respondent passed the impugned order of rejection vide proceeding dated 15.10.2008 stating that the punishment was in currency on the crucial date, i.e. on 01.04.2007. Therefore, the petitioner's name was not considered for the year 2007-2008. Aggrieved by the same, the present writ petition has been filed. 9. The learned counsel appearing for the petitioner submits that in view of G.O.Ms.No.368, Personnel & Administrative Reforms Department, dated 18.10.1993, promotion shall be overlooked only once for a punishment and for the same punishment the name of the officer need not be passed over for the second time. But in the case of the petitioner, the promotion has been deferred continuously for 2 years in 2006-07 and 2007-08. In support of his submission, the learned counsel appearing for the petitioner relied upon the letter issued from the Personnel and Administrative Reforms Department, dated 07.10.2005, sent to all the Government Departments, with regard to the preparation of panel for appointment by promotion, wherein at para 5(b)II, it is stated as follows: ".....(Substituted in Letter No.4992/S/2000-10, Personnel & Administrative Reforms(S) Department dated 19.10.2001). Provided that an Officer passed over once, need not be passed over for the second time on account of the same punishment at the time of subsequent consideration for the next panel......." On the basis of the above letter, the learned counsel submitted that when once the name of the petitioner was not included in the panel for the year 2006-2007 on account of currency of punishment, the non inclusion of the petitioner's name for the second time in the year 2007-2008 is not maintainable. In view of the above, the learned counsel for the petitioner prayed for setting aside the impugned order with a direction to include the petitioner's name in the panel for the year 2007 – 2008. 10. Refuting the above said submission, the learned Government Advocate appearing for the respondents submits that https://hcservices.ecourts.gov.in/hcservices/ the case of the petitioner cannot be considered for the sole reason that the punishment of stoppage of increment for two years without cumulative effect was in currency and, admittedly, the said punishment had started from 09.03.2007 and came to an end only on 31.03.2009. Further, the learned Government Advocate also submitted that G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, has made it very clear that if the name of the officer is not included and passed over for the first year and the same punishment is not completed, the respondents are entitled to exclude his name till the currency of punishment is over. On that basis, he further submitted that since the petitioner was imposed with the punishment of stoppage of increment for two years without cumulative effect, which started from 09.03.2007 and ended only on 31.03.2009, the petitioner's name could be considered only after the completion of punishment, namely, only after 01.04.2009, his name can be considered. Hence, the learned Government Advocate prayed for dismissal of the writ petition. 11. Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 12. Admittedly, the petitioner was imposed with a punishment of stoppage of increment for two years which started from 09.03.2007 and ended on 31.03.2009. The petitioner was imposed with the punishment of stoppage of increment and on the basis of the punishment already imposed, the respondents had not included the name of the petitioner in the panel for the year 2006-2007 and, subsequently, his name was once again not included in the panel for the year 2007-2008 also. 13. It is pertinent to refer a Government letter No.52716/S/99-1 dated 01.10.1999, which states as follows:- "Whenever an officer is undergoing any punishment other than censure, on the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity his name should be passed over for that panel. If the currency of punishment continues at the time of consideration for the next panel(s) he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After completion of the currency, no punishment should be held." In view of the above instruction, it is not correct to say that the officer passed over once, should not be passed over for the second time on account of the same punishment at the time of consideration for the next panel. The Government letter https://hcservices.ecourts.gov.in/hcservices/ No.52716/S/99-1, dated 01.10.1999 makes things absolutely clear that if the currency of punishment continues at the time of consideration for the second panel, he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. But, only after completion of the currency of punishment, his name should be included for consideration in the next panel. Therefore, the respondents have rightly passed over the name of the petitioner till the completion of currency of punishment. 14. However, now the petitioner has completed the entire punishment in the year 2007-2008 itself. In this view of the matter, by applying G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, the case of the petitioner, can be considered only after the completion of two years i.e., only from 2008-2009. So, on that basis, this court is of the considered opinion that though the prayer sought for in the present writ petition cannot be granted in full, the respondents are directed to include the petitioner's name in the subsequent promotion panel for the post of Sub Treasury Officers/Superintendents. 15. With these observations, the writ petition is disposed of. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ogy To 1. The Secretary to Government, Finance Department, Fort St. George, Chennai – 9. 2. The Director of Treasuries and Accounts, Panagal Building, Saidapet, Chennai – 15. 3. The Treasury Officer, Tiruvallur. + 1 cc to Mr.S.M.Subramaniam,Advocate,SR.11110 W.P.No.28959 of 2008 BVR(CO) EM/29.3.10 https://hcservices.ecourts.gov.in/hcservices/