1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.8025 of 2011 and M.P.(MD).Nos.1 to 3 of 2011 Dr.P.Tamil Selvi Assistant Surgeon, Government Hospital, Cumbum, Theni District ... Petitioner Vs. 1.The Director of Medical & Rural Health Services, Chennai -6. 2.DR.C.Velmurugan Assistant Surgeon, Primary Health Centre, Siruvayal, Sivagangai District 3.Dr.G.Usha Priyadharshini, Assistant Surgeon, Primary Health Centre, Kali, Nagapattinam ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorified Mandamus, calling for the records relating to the impugned promotion panel published by the 1st respondent in ref.R.No.78000/E6/1/09 dated 28.06.2011 in Annexure-I, and quash the same in so far as promoting the respondents 2 & 3 herein to the post of Senior Civil Surgeon (General/Specialist) are concerned and consequently direct the 1st respondent herein to promote the petitioner herein to the post of Senior Civil Surgeon (General/Specialist) and re-fix the seniority above the respondents 2 & 3 herein with all monetary and service benefits within a reasonable time. For petitioner .. Mr.K.Appadurai For respondents .. Mr.J.S.Mohammed Mohideen, Additional Government Pleader ORDER Pleadings disclose that for an alleged occurrence of the year 2008, disciplinary proceedings were initiated against the petitioner and in that a punishment of censure has been imposed on 15.12.2010. According to the petitioner, on the crucial date, prescribed under the recruitment rules for preparation of the panel for the post of Senior Civil Surgeon (General / Specialists Posts) for the year 2009, the petitioner was not inflicted with any punishment and therefore, she should have been included in the panel of Senior Assistant Civil Surgeon/Assistant Surgeon fit for promotion to the Post of Senior Civil Surgeon (General / Specialists Posts) in the medical services. It is the further contention of the petitioner that even the currency of minor punishment, like censure, is not a bar for promotion and in support of her contention, she placed reliance on a Division Bench Judgment of this https://hcservices.ecourts.gov.in/hcservices/ 2 Court in Subramanian v. Governemnt of Tamil Nadu, rep. by its Secretary, Chennai reported in 2008(5) MLJ 350. 2.Opposing the relief sought for, Mr.B.Pugalenthi, learned Additional Government Pleader submitted that there is no material irregularity in the panel published by the Director of Medical & Rural Health Services, first respondent herein, warranting interference and that there is no need to quash the same in so far as the respondents 2 & 3 are concerned. Inviting the attention of this Court to the Full Bench decision of this Court in the Deputy Inspector General of Police, Thanjavur and another v. V.Rani reported in 2011 (3) CTC 129, he submitted that as the Division Bench judgment relied on by the learned counsel for the writ petitioner had been overruled by the Full Bench, the contention of the petitioner should be rejected. He further contended that though disciplinary proceedings have been initiated under Rule 17-A of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, 1955, punishment of censure awarded on 15.12.2010 can be held against the petitioner as a bar for promotion to the post of Senior Civil Surgeon (General / Specialists Posts), for the reasons that when the panel was drawn on 28.06.2011, the punishment is in force. For the above said reasons, he prayed for dismissal of the writ petition. 3.Heard the learned counsel for the parties and perused the materials available on record. 4.In a recent decision on reference, the Full Bench of this Court, after considering the entire law on subject, held 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 Bench since there is a factual fining 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. 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, https://hcservices.ecourts.gov.in/hcservices/ 3 Personnel and Administrative Reforms (S) Department, dated 07.10.2005 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 Indian and cannot be read either with the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Services (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 of minor punishments is illegal and impermissible under the Statutory Rules." 5.In the case reported in 2011 (3) CTC 129, this Court has held that the consideration of a Government Servant for promotion to higher post is at two stages, i.e., (a) on the crucial date as prescribed under the recruitment Rules; and (b) on the date when the actual panel is prepared. Though the petitioner claims that he is qualified to be considered on the crucial date for the year 2009, no panel has been prepared for the year 2009, and the same has been prepared only on 28.06.2011, When, admittedly, the petitioner has been imposed with the punishment of censure on 15.12.2009 and that it was in currency. Applying the principles of law laid down by the Full Bench in the matter of preparation of panel for promotion to higher post, during the period of currency upon the punishment, the petitioner cannot claim as a matter of right to promote her to the next category. The judgment relied upon by the learned counsel for the petitioner has already been overruled. The case of the petitioner to quash the panel, dated 28.06.2011, published by the Director of Medical & Rural Health Services, Chennai, the first respondent herein, in so far as granting promotion to the respondents 2 & 3 herein to the post of Senior Civil Surgeon (General/Specialists) is concerned, has not been made out. Though the petitioner has sought for a direction to quash the promotion of respondents 2 & 3, merely on the grounds of overlooking seniority, the post of Senior Civil surgeon (General/Specialists) being a selection post, the respondents are right in considering the interse merit and therefore, there is no manifest error in considering them, though they are placed down in the seniority and within the zone of consideration. 6.The petitioner has not made out any ground to interfere with the impugned order. Hence, the writ petition stands dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ 4 To 1.The Director of Medical & Rural Health Services, Chennai -6. 2.DR.C.Velmurugan Assistant Surgeon, Primary Health Centre, Siruvayal, Sivagangai District 3.Dr.G.Usha Priyadharshini, Assistant Surgeon, Primary Health Centre, Kali, Nagapattinam +1cc to Special Government Pleader, SR.No.23902 gcg GH : 08.08.2011 : 4p/5c W.P.(MD) No.8025 of 2011 20.07.2011 https://hcservices.ecourts.gov.in/hcservices/