IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-12-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 21797 of 2009 and M.P. No. 3 of 2009 M.P. Nos. 1, 2 and 3 of 2010 G. Sundararajan .. Petitioner Versus 1. The State of Tamil Nadu rep. By its Secretary to Home Department Fort St. George Chennai – 600 009 2. The Additional Director General of Prisons Egmore, Chennai – 600 008 .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent dated 30.04.2008 issued in G.O. Ms.No.495, Home (Prison 1) Department on 30.04.2008 relying on the amended guidelines issued in Letter No.52716/S/99-1 of the Personnel & Administrative Reforms (S) Department dated 01.10.1999 (which is incorporated in the Government letter No. 18824/S/2005-2, Personnel & Administrative Reforms (S) Department dated 07.10.2005) and quash the same in so far as the petitioner is concerned and consequently direct the first and second respondents to consider the case of the petitioner for inclusion in the appropriate regular panel of Jailors applying the guidelines (G.O. Ms. No.368, Personnel and Administrative Reforms (S) Department dated 18.10.1993 and G.O. Ms.No.248, Personnel & Administrative Reforms (S) Department dated 20.10.1997) which were in operation on the date when the vacancy was occurred (15.02.1996) and award all consequential service and monetary benefits without prejudice to the claim of the petitioner based on the finality to be arrived by the judicial forum on the punishment imposed against the petitioner in G.O. Ms.No.58, Home (Prison) Department dated 27.01.1998. For Petitioner : Mr. R. Thiagarajan, Sr. Counsel for Mr. P.I. Thirumoorthy For Respondents : Mr. R. Murali Government Advocate https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner was originally recruited as Assistant Jailor directly by the Tamil Nadu Public Service Commission on 01.02.1985. Later, he was promoted as Deputy Jailor in the year 1991. The next avenue of promotion was to the post of Jailor in which for which the method of appointment is by way of promotion and direct recruitment in the ratio of 2:1. The crucial date for preparation of panel in the Department was 15th February every year. According to the petitioner, he is entitled for inclusion of his name for promotion to the post of Jailor for the year 1996-1997 since he was fully qualified and eligible on the crucial date of preparation of panel for the year 1996-1997 namely 15.02.1996. 2. The petitioner was served with a charge memo 20.07.1994 and the charge culminated in imposition of punishment of stoppage of increment for two years without cumulative effect on 27.01.1998. According to the petitioner, since he became eligible to be included in the panel for promotion for the year 1996-1997, for which the crucial date was 15.02.1996, his name ought to have been considered by the respondents as per G.O. Ms. No. 368, P&AR Department dated 18.10.1993. Even if the claim of the petitioner is considered in the light of G.O. Ms.No.248, P&AR dated 20.10.1997, his name could have been overlooked in the panel prepared for the period 1998-1999, but his name ought to have been included in the subsequent panel for the year 1999-2000. According to the petitioner, there is no other punishment except the punishment imposed on him on 27.01.1998 and the period of punishment was also over on 26.01.2000 itself. Since the petitioner's name was not included in the panel for promotion, he filed O.A. No. 2895 of 1998 before the Tamil Nadu Administrative Tribunal and ultimately, the Tribunal quashed the punishment imposed on the petitioner on 29.10.2007. The respondents preferred appeal before the Division Bench of this Court, and the Division Bench, by order dated 06.08.2009, set aside the order passed by the Tribunal holding that the punishment imposed on the petitioner is legal. The petitioner also filed Special Leave Petition before the Honourable Supreme Court and it was dismissed in limine on 01.09.2009. 3. The petitioner would further contend that as per the guidelines issued by the Government on 18.10.1993, since the charges were pending on the crucial dates of 15.02.1996 and 15.02.1997, the petitioner's name was deferred from being included in the panel for promoti8on for the post of Jailor during 19961997 and 1997-1998. Thereafter, the petitioner should have been considered for promotion for the year 1998-1999 even though punishment was imposed and was in operation on the crucial date namely 15.02.1998. Even if the revised guidelines issued in G.O. Ms. No.248 is taken into consideration, the respondents should have denied promotion only for the year 1998-1999 and his name should have been considered for the year 1999-2000. Since the petitioner's name was excluded for all these years on the basis of subsequent amendment, he is aggrieved. He would also contend that pursuant to the order of the learned single Judge quashing the punishment, his name was included in the regular panel of Jailor for the year 1996-1997, subsequently, after the order https://hcservices.ecourts.gov.in/hcservices/ passed by the Division Bench of this Court, it was deferred. Therefore, he would state that there was no necessity for him to challenge the wrongly prepared regular panel for the year 2001-2002. He would also contend that since he was earlier given the promotion, he should not be reverted back and he is entitled to promotion to the post of Superintendent of Prisons applying the guidelines which was in operation on the date on which vacancy occurred. Since the respondents are taking steps to revert him from the regular panel, the present writ petition has been filed. 4. The respondents have filed a detailed counter affidavit by stating that the petitioner was promoted as Deputy Jailor in the year 1991. The method of appointment to the post of Jailor was by way of direct recruitment and recruitment by transfer in the ratio of 1:2 according to Rule 5 of the Special Rules for Tamil Nadu Jail Service under the heading 'Branch-1 General'. The fixation of seniority between the directly recruited Assistant Jailors and Rank Promotee Assistant Jailors was settled only during the year 1996 as per the orders of the Tamil Nadu Administrative Tribunal in O.A. No. 126 of 1991, directing to place the rank promotee Assistant Jailors above the direct recruit Assistant Jailors. Thereafter, the seniority of Deputy Jailors was also revised during 2000. Consequently, the revised panel for promotion to the post of Jailor for the year 1994- 1995 was published by the Government only on 07.08.2003. However, the petitioner was given temporary promotion as Jailor as per G.O. Ms. No.910 dated 25.06.1994. As per G.O. Ms. No.368, P&AR Department dated 18.10.1993, in cases where specific charges under Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules have been framed against any person, promotion/ appointment of such person has to be deferred till the finalisation of the disciplinary proceedings. Subsequently, as per Government Letter in Ms. No. 248, P&AR (S) Department dated 20.10.1997, it has been reiterated that pendency of charges under Rule 17 (b) against a person should be held and inclusion of his name for promotion shall be deferred until the finalisation of disciplinary proceedings. Further, if any punishment is awarded after the crucial date and till the date of issue of panel, it shall also be considered for assessing the suitability of the officer for inclusion in the panel. Further, the Government in the letter No.18824/S/2005-s, P&AR Department dated 07.10.2005 have consolidated all the instructions issued in G.O. Ms. No.368, P&AR Department dated 18.10.1993 and G.O. Ms No.248, P&AR (S) Department dated 20.10.1997 and issued a consolidated instructions duly incorporating several amendments, instructions and clarification. Further, in G.O. Ms. No.368, P&AR Department dated 18.10.1993 and in letter No.248, P&AR (S) Department dated 20.10.1997, there was a specific mention about the effect of punishment and the consequential promotion. Subsequently, as per the Government Letter No.25165/S/98- 1, P&AR Department dated 10.06.1998, it was clarified that 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. Further, if the currency of punishment continues at the time of subsequent consideration for the next 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. https://hcservices.ecourts.gov.in/hcservices/ 5. The respondents would further contend in the counter affidavit that in view of the dereliction of duty on the part of the petitioner, charges under Rule 17 (b) was issued on 20.07.1994 and he was imposed with punishment of stoppage of increment for two years without cumulative effect. The delay on releasing the regular panel of Jailor for the year 1996-1997 was due to the fact that the fixation of seniority among the direct recruttees and rank promotees was settled only in the year 2003. During the period between 1996- 1997, the petitioner's name could not be considered for promotion because there was disciplinary proceedings were pending against him. In the year 1997-1998, three persons were appointed who are seniors to the petitioner. In the year 1998-1999, again, the petitioner's name was not considered due to punishment in currency and the same was also informed to the petitioner by G.O. Ms.No.1435, Home Department dated 12.10.2007. Again, for the year 1999-2000, his name was not considered due to the fact that currency of punishment continued on the crucial date namely 15.02.1999 and this fact was also intimated to the petitioner by G.O. Ms.No.1434, Home Department dated 12.10.2007. Again in the year 2000-2001, the petitioner's name was not considered due to the fact that currency of punishment was in force. This fact was intimated to the petitioner under G.O. Ms. No.494 dated 30.04.2008. Subsequently, for the year 2001-2002, the petitioner's name was considered and included in the regular panel as per G.O. Ms. No.495 dated 30.04.2008. Therefore, the petitioner's name was rightly passed over for the year 1996-1997, 1997-1998, 1999- 2000. The respondents are guided by the instructions received from the Government vide Government Letter dated 27.08.2003 wherein it is stated that punishment awarded after the crucial date and before the actual promotion shall also be held against the officer and this was taken into consideration. 6. The respondents would further contend that the petitioner challenged the punishment imposed on him in G.O. Ms. No.58, Home Department dated 27.01.1998 before the Tribunal by filing O.A. No. 2985 of 1998 and after abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 35727 of 2006. This Court allowed the writ petition on 29.10.2007, against which the respondents have filed W.A. No. 302 of 2008. As there was no interim stay granted in the writ appeal, it was decided that the petitioner be given temporary promotion as Additional Superintendent of Prisons, purely on temporary basis subject to the outcome of the writ appeal. Subsequently, the writ appeal was allowed on 06.08.2009 and the punishment imposed on the petitioner was restored by the Division Bench of this Court. Therefore, the Government cancelled the temporary promotion given to the petitioner and action was taken to restore the petitioner to original post. At that time, the petitioner had filed the present writ petition contending that the amended Rules will not apply and the reversion order was stayed and therefore, he should not be reverted from the post of Additional Superintendent of Prisons to a lower post. Further, the juniors of the petitioner, who were regularly placed in the panel and promoted as Deputy Jailor are still working as Jailors, whereas, by virtue of the interim order, the petitioner was promoted to the post of Superintendent of Prison and he cannot be allowed in that post when the writ appeal was allowed. Even in the promotion order, it was https://hcservices.ecourts.gov.in/hcservices/ clearly stated that such order is subject to the outcome of the writ appeal. Ultimately, the writ appeal filed by the respondents was allowed and based on that order, the petitioner has to be reverted automatically to the original post. In any event, the relief sought for by the petitioner cannot be granted and prayed for dismissal of the writ petition. 7. Heard both sides. The learned Senior counsel for the petitioner mainly contended that the petitioner was promoted to the post of Additional Superintendent of Prisons pursuant to the order passed by this Court allowing the writ petition filed by him challenging the original punishment. The order passed in the writ petition was set aside by the Division Bench restoring the punishment imposed on him. Notwithstanding the order passed by the Division Bench, the respondents ought to have taken into consideration that the crucial date for preparation of panel for promotion was 15th of every year and in this case, the charge memo was issued to him on 20.07.1994 which culminated in imposition of punishment on 27.01.1998, imposing the punishment of stoppage of increment for two years without cumulative effect exclusive of the period spent on leave and it shall not affect the pension. According to the petitioner, if the benefits conferred under G.O. Ms. No.368, P&AR Department dated 18.10.1993 is taken in to consideration, as the promotion of the petitioner was pertaining to the relevant period namely 1996-1997, the subsequent amendment and subsequent circular, which gave right to the department to even take into consideration the punishment imposed after the crucial date and before the actual promotion cannot be taken at all. In this connection, the petitioner relied on the guidelines issued by the Government in the matter of preparation of panel/consolidated instructions issued thereof, which are as follows:- "(c) For ordinary promotions, the fitness of the person with reference to all relevant factors has to be considered. The unfit persons have to be eliminated. As far as punishments are concerned, (except where a specific punishment of withholding of promotion for a specific period is awarded), it should be examined whether the proved irregularities took place within the specified period of service taken up for analysis and whether the irregularities were such as to make the individual unfit for the job in the higher category in a year in which his case is considered for inclusion in the panel for appointment to the higher post by promotion/by recruitment by transfer." 8. The learned senior counsel for the petitioner would contend that if the above guidelines are taken into consideration, admittedly, there is no punishment at that point of time and there is no prohibition for inclusion of the name of the petitioner in the panel. https://hcservices.ecourts.gov.in/hcservices/ 9. It is to be pointed out that on 20.07.2009, the charge memo was issued to the petitioner. On 27.08.1995, the petitioner submitted his explanation. On 27.01.1998, final orders were passed imposing the punishment of stoppage of increment for two years. This order was challenged by the petitioner in WP No. 35727 of 2006. This Court allowed the writ petition on 29.10.2007, against which the respondents have filed W.A. No. 302 of 2008. In the writ appeal, there was no interim stay granted. Subsequently, the writ appeal itself was allowed on 06.08.2009 whereby the punishment imposed on the petitioner was confirmed. In the meantime, on 07.08.2003, the revised panel for promotion to the post of Jailor for the year 1994- 1995 was published by the Government. This panel was drawn for the estimated one vacancy and one K. Anandan, who is junior to the petitioner was considered and included in the panel as per G.O. Ms. No.1040, Home Department dated 30.10.2006 and promoted to the post of Jailor as per G.O. (D) No.1233, Home (Pri-I) Department dated 15.11.2006. In this panel, the name of the petitioner was excluded as the petitioner was found 'not fit' for inclusion as there was currency. For the next panel year i.e., 1997-1998 which was prepared for the estimated three vacancies, there persons who are seniors to the petitioner's were included. In the subsequent panel for the year 1998-1999, for the estimated four vacancies to the post of Jailor, the name of three persons were considered and the petitioner was not included in that panel. This was informed to the petitioner vide G.O. Ms. No.1433, Home (Pri-I) Department dated 12.10.2007. Subsequently, for the estimated one vacancy, for the post of Jailor for the panel year 1999-2000, the name of the petitioner was not included and this was also informed to the petitioner vide G.O. Ms.No.1434, Home (Pri- II) Department dated 12.10.2007. For the next panel prepared for the year 2000-2001 for the estimated 3 vacancies, the petitioner's name was excluded and it was also informed to the petitioner vide G.O. Ms.No.494, Home (Pri-I) Department dated 30.04.2008. In the next panel for the year 2001-2002, the name of the petitioner was included in the regular panel as per G.O. Ms.No.495, Home (Pri-I) Department dated 30.04.2008. 10. As rightly pointed out by the learned Government Advocate appearing for the respondents, the petitioner has not chosen to challenge the panel drawn on 07.08.2003 for the year 1994-1995; panel for the year 1997-1998; 1998-1999, 1999-2000 and 2000-2001 were not challenged by the petitioner even though it was intimated to him. Subsequently, the petitioner was also considered as fit and his name was included in the regular panel as per G.O. Ms.No.495, Home (Pri-I) Department dated 30.04.2008 on temporary basis. Such a promotion was granted to the petitioner by virtue of the order passed by this Court in the writ petition, which was subsequently set aside by the Division Bench in W.A. No. 302 of 2008. As stated above, in G.O. Ms. No.1433, Home (Pri-I) Department dated 12.10.2007, it was clearly stated that petitioner is found not fit for inclusion of his name in the panel due to currency of punishment. Even in G.O. Ms.No.494, Home (Pri-I) Department dated 30.04.2008 also, the petitioner was not found fit for inclusion of his name as there was currency of punishment on the crucial date. https://hcservices.ecourts.gov.in/hcservices/ 11. On perusal of the records, it is evident that at every stage, the petitioner's name was excluded by reason of currency of punishment. Subsequently, the petitioner was given temporary promotion by virtue of the allowing of the writ petition by this Court, of course, subject to the result of the writ appeal. Though the question arose as to whether the respondents should follow G.O. Ms. No.368, P&AR Department dated 18.10.1993 or G.O. Ms.No.248, Personnel & Administrative Reforms (S) Department dated 20.10.1997, as rightly pointed out by the learned Government Advocate appearing for the respondents, the Government in the letter No.18824/S/2005-s, P&AR Department dated 07.10.2005 have consolidated all the instructions issued in G.O. Ms. No.368, P&AR Department dated 18.10.1993 and G.O. No.248, P&AR (S) Department dated 20.10.1997 and issued a consolidated instructions which would clearly indicate that even after the crucial date, if there is punishment awarded before promotion, it has to be taken note of. In this case, the promotion was considered only in the year 2005 because of the delay in preparation of panel and on the date of promotion, what was available has to be considered. 12. The argument of the learned senior counsel for the petitioner that even though the promotion of the petitioner was considered in the year 2003, it relates to the year 1994-1995 and therefore, the Rule which was prevailing at that point of time alone should be considered. This argument cannot be accepted for the simple reason that the promotion panel itself was drawn only in the year 2003. When the panel was constituted and the panel is sought to be implemented, definitely the prevailing Rule only has to be taken into consideration. In fact, even for the earlier period also, as per G.O. Ms. No.368, P&AR Department dated 18.10.1993, there was an embargo in so far as it relates to promotion during the period of suspension. Therefore, the petitioner cannot now take advantage that at the crucial date, there was no punishment and therefore he should be promoted with retrospective effect. In fact, on the crucial date, there was initiation of proceedings against the petitioner. In any view of the matter, only to set right the anomaly, a subsequent clarification was issued by the Government in G.O. No.248, P&AR (S) Department dated 20.10.1997 clarifying that dehors the earlier order, when there is currency of punishment, which was given subsequent to the crucial date or even any proceedings initiated during the relevant time, it would definitely disentitle the employees from getting promotion. Therefore, as rightly pointed out by the learned Government Advocate appearing for the respondents, taking into consideration of the subsequent clarification, it is no longer open to the petitioner to seek retrospective promotion 13. The next point raised by the petitioner was there was a dispute in respect of the ratio namely 2:1. Since the petitioner has not chosen to challenge the promotion panel which was published and intimated to him, it is not open to him, at this stage, to seek to challenge the ratio of promotion. 14. The petitioner would now contend that subsequently, the petitioner's name has been included in the regular panel for promotion to additional superintendent of prison in the year 2010-11 https://hcservices.ecourts.gov.in/hcservices/ as per G.O. Ms. No.902 dated 20.02.2010 in the order of preference. Subsequently, by proceedings dated 27.10.2010, the petitioner has been promoted on temporary basis under Rule 39 (a) (i). Therefore also, his reversion is unwarranted and it has to be considered by this Court. 15. In this connection, the learned senior counsel for the petitioner relied on the decision reported in (V. Rangaiah and others vs. J. Sreenivasa Rao and others) 1986 (3) SCC 284 and contended that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended Rules. 16. The learned Government Advocate appearing for the respondents relied on the decision reported in 2007 5 SCC 455 (Union of India and others vs. A.A. Mohanan) wherein the Honourable Supreme Court held that penalty of censure imposed on a Government servant on completion of disciplinary proceedings is a bar for promotion 17. The learned Government Advocate appearing for the respondents also relied on the decision reported in (State of Tamil Nadu vs. K.S. Murugesan and others) 1995 3 SCC 273 for the proposition that where the Rules provided for promotion on the basis of merit and ability, withholding promotion on account of currency of punishment of stoppage of increments, would neither amount to double jeopardy or arbitrary exercise of powers. In this case, the Honourable Supreme Court held that unless the period of punishment expired by efflux of time, the claim for promotion cannot be considered otherwise it would amount to giving a premium for misconduct. 18. In respect of penalty of stoppage of increment, the Honourable Supreme Court held in (L. Rajaiah vs. Inspector General of Registration and Stamps, Hyderabad and others) 1996 8 SCC 246 that penalty imposed on the appellant even though was stoppage of increment and not that of withholding of promotion, the currency of the former penalty would disentitle him to be considered for promotion following the famous off quoted judgment of the Honourable Supreme Court reported in (Union of India vs. K.V. Janakiraman) 1991 4 SCC 109. In Para Nos. 29 of the judgment in Janakiraman's case, the Honourable Supreme Court held as follows:- "29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to https://hcservices.ecourts.gov.in/hcservices/ the officer from the original date even when the penalty imparted is of