IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.30511 of 2006 (O.A.No.6263 of 1996) M.Kaliappan ... Petitioner Versus The Secretary to Government, Home Department, Fort St. George, Madras-9. ... Respondent This petition came to be numbered by transfer of O.A.No.6263 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Mandamus, directing the respondent to include the name of the petitioner in the 'C' list of Inspector of Police fit for promotion to Deputy Superintendent of Police, Category I, for the year 1994-95 with consequential service benefits and also grant him such other reliefs. For Petitioner : Mr.K.Venkataramani (SC) For Respondents : Mr.S.Gopinathan, Addl. Government Pleader O R D E R The petitioner has sought for a Writ of Mandamus, directing the Secretary to Government of Tamil Nadu, Home Department, Madras, respondent herein, to include his name in the 'C' list of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 with all consequential service and monetary benefits and for further orders. 2. Facts of this case are as follows: The petitioner entered Police Department as Sub Inspector of Police in the year 1966, as a directly recruited candidate and thereafter, was promoted as Inspector of Police on 26.05.1980. He had a unblemished record of service and earned 250 rewards with 11 Meritorious certificates to his credit. Besides, he was also awarded Chief Minister's Medal for his outstanding service in the year 1995. During 1994, when the petitioner was working as Inspector of Police, Thanjavur West Police Station, he was dealt with a charge in P.R.No.220 of 1993 under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for gross neglect of duty in having failed to check up the weapons in the Police Station. Though the petitioner submitted a valid explanation that he had checked up the weapons available in the Police Station, he was awarded a punishment of postponement of increment for a period of one year with cumulative effect, by the Superintendent of Police, Thanjavur vide proceedings, dated 15.06.1994. On appeal, the DIG of police, by order dated 19.12.1994, modified the punishment as "deferred censure" for a period of three months. Subsequently, by letter dated 08.05.1995, the Superintendent of Police, Thanjavur, cancelled the punishment of "deferred censure". 3. The petitioner has further submitted that as per the service rules, 1st June of every year is the crucial date for empaneling eligible candidates for promotion to the post of Deputy Superintendent of Police. It is the case of the petitioner that the date on which, the panel of 'C' list of Inspector of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 was published, there was no currency of punishment against him and therefore, the State Promotion Board ought to have considered his case for inclusion in the 'C' list for the year 1994-95. He further submitted that the disciplinary proceeding under rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, for a minor charge ought not to have been put against him for inclusion in the panel. Aggrieved by the non-inclusion, the petitioner submitted a representation, dated 01.07.1996 to the government and the same was not considered. In these circumstances, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as Writ Petition. 4. At the foremost, Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner submitted that two dates are very relevant for the purpose of deciding the rights of the petitioner for promotion to higher post. The first being the date on which, a list of eligible candidates is prepared for empanelment, i.e., the crucial date under the relevant service rules for collecting the particulars of eligible candidates for preparation of a list of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police. 5. According to him, the date of issuing or publishing the panel of eligible candidates, is equally relevant for the purpose of assessment of merit of the concerned officer for promotion. To illustrate, if a government servant facing disciplinary proceedings or undergoing currency of punishment on the crucial date, fixed under the service rules, lateron, is exonerated of the charges or if the penalty suffered by him on the crucial date is cancelled or set aside before the publication or issuance of the panel for promotion to higher post, then the government servant has to be included in the panel and promoted to the higher post. In substance, it is the contention of the learned senior counsel that if for any reason, the government servant is found not suitable on the crucial date fixed under the service rules, but subsequently qualified himself in all respects, then he has got a legal right to be included in the panel on the date when it was notified. 6. On the facts of this case, learned senior counsel submitted that though the disciplinary authority has inflicted a penalty of stoppage of increment for a period of one year in P.R.No.220 of 1993, vide proceedings dated 15.06.1994 and on appeal, the DIG of Police, Thanjavur, has modified the same as "deferred Censure" for a period of three months, on 19.12.1994. According to him, once the punishment is modified by the appellate authority, it merges with the date of infliction of penalty by the disciplinary authority and therefore, it should be deemed to have been given effect from the date of Original order of penalty, i.e., 15.06.1994 and if it relates back to the order of disciplinary authority, then the punishment of "deferred censure" for three months would come to an end by 14.09.1994 and the effect of such penalty cannot be extended beyond that date. He therefore submitted that when 'C' list of Inspectors of Police, fit for promotion to the post of Deputy Superintendent of Police, Category I for the year 1994-95 was published on 31.03.1995, there was no currency of punishment and hence, the petitioner's name ought to have been included in the panel. 7. Referring to Police Standing Order No.97, learned Senior Counsel for the petitioner submitted that warning with censure is not a punishment and it is imposed only to check the performance of the policeman during the period of punishment, the effect of which would be suspended or kept in abeyance. As the petitioner was able to establish that during the period of deferred censure, he had not committed any delinquency or repeated the delinquency which resulted in the punishment of deferred censure, it is automatically cancelled on completion of the period of deferment and in such an event, there is no punishment in the eye of law on the date of consideration of his name, i.e., publication of the panel and hence, he is eligible for promotion to higher post. 8. According to him, though on completion of three months period from the date of imposition of penalty, i.e., 15.06.1994, the punishment ceased to have the desired effect, the Superintendent of Police, Thanjavur, on his sweet will, had cancelled the penalty only on 08.05.1995, by which time, the petitioner's right to be considered for promotion had already been infringed. Learned senior counsel further submitted that for the fault of the disciplinary authority, the Superintendent of Police, Thanjavur, in cancelling the penalty belatedly, the petitioner should not be made to suffer. Overlooking his case in the panel for the year 1994-95 of Inspectors of Police, for promotion to the post of Deputy Superintendent of Police, is arbitrary and illegal. 9. Placing reliance on a decision of the Supreme Court in C.O.Arumugam v. State of Tamil Nadu reported in 1991 Supp. (2) SCC 199, learned senior counsel for the petitioner submitted that though promotion could be postponed on reasonable grounds, the moment the charges framed against a government servant in a disciplinary proceedings or the penalty inflicted on him is dropped or set aside, as the case may be, then he is eligible for promotion with retrospective effect from the date when his junior came to be promoted. Applying the said judgment, he submitted that when the penalty of "deferred censure" ceased to have the effect on the completion of three months period, the petitioner ought to have been included in the panel. 10. Placing reliance on an executive order issued in G.O.Ms.No.690, Home, Police Department, dated 22nd June 1994, learned senior counsel for the petitioner submitted that in similar circumstances in the case of an Inspector of Police, whose name was not included for the reason that he was imposed with a penalty of deferred censure, was subsequently considered for promotion as Deputy Superintendent of Police, on completion of the period of deferment, taking into consideration the number of rewards and Meritorious Service entries earned by him. Inviting the attention of this Court to the averments made in the counter affidavit, learned senior counsel submitted that the petitioner has received 251 rewards, including 7 Meritorious Service entries, apart from the Hon'ble Chief Minister's Medal and therefore, the respondents ought to have applied the same yardstick as was done in the case of Thiru.Kanagarajan and included the name of the petitioner in the panel of Deputy Superintendent of Police for the year 1994-95 and failure to do so, is discriminatory and amounts to violation of Article 14 of the Constitution of India. 11. Referring to the guidelines issued by the Personnel and Administrative Reforms Department, Madras, in the matter of preparation of panel for promotion and recruitment by transfer and the further instructions issued by the Government in Letter No.248, dated 20.10.1997, learned senior counsel for the petitioner submitted that as the disciplinary proceedings initiated under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was only for a minor charge in respect of an alleged misconduct of not checking up the weapons available in the Police Station and therefore, as per the guidelines issued by the Government, pendency of charges under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, ought not to have been held against the petitioner. 12. For all these reasons, learned counsel for the petitioner submitted that the petitioner's statutory right to be considered for promotion has been infringed, without proper application of mind with reference to the rules and the guidelines issued thereto from time to time and therefore, prayed to issue suitable directions to the respondent for inclusion of the petitioner's name in the panel of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 retrospectively with all service and monetary benefits. 13. The respondent has filed a counter affidavit. Reiterating the averments made in the counter affidavit, Mr.S.Gopinathan, learned Additional Government Pleader, submitted that the petitioner, a directly recruited Sub Inspector of Police, was promoted as Inspector of Police, on 26.05.1980 and was ranked at Sl.No.69 in the list of Inspectors of Police. The crucial date for inclusion of the names in the panel of Inspectors of Police was 01.06.1994 and not 31.03.1995, i.e., the date of issuing or publishing the panel. He further submitted that as on 01.06.1994, the petitioner was facing a disciplinary proceedings under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for which he was inflicted with a penalty of postponement of increment for one year with cumulative effect, on 15.06.1994 for gross neglect of duty in having failed to check up the weapons. 14. Learned Additional Government Pleader further submitted that the post of Deputy Superintendent of Police is a selection post and on the crucial date of considering his eligibility, the petitioner was facing a disciplinary proceedings and therefore, he was less meritorious, comparing to others and therefore, his name was rightly passed over for promotion. 15. Learned Additional Government Pleader further submitted that the punishment of postponement of increment for one year with cumulative effect awarded on 15.06.1994, was not cancelled, but on appeal, it was only modified into that of "deferred censure" for a period of three months. He further submitted that the relevant date for the purpose of consideration of eligibility criteria for promotion to higher post, is the crucial date mentioned in the service rules applicable to that post and not the date on which, the panel is issued. Therefore, he submitted that when the petitioner was facing a charge on 01.06.1994, postponement of his promotion is justified. 16. Referring to the guidelines in G.O.Ms.No.368, P & AR Department, dated 18.10.1993, learned Additional Government Pleader further submitted that in the case of selection category post, the inclusion of the names in the panel for promotion will be based on merit and ability, seniority would be considered, only when merit and ability of the candidates are equal. Therefore, when the Departmental Promotion Committee considered the eligibility of Inspectors of Police, with reference to their relative merit and performance over the period of service, viz., five years, which was taken up for comparative analysis, the petitioner was undergoing a punishment of "Deferred Censure" and therefore, he was not included in the panel issued on 31.03.1995. 17. As regards the contention that the modified penalty of "deferred censure" relates back to the original order of penalty, learned additional Government Pleader submitted that the punishment of stoppage of increment for one year was in force from the date of infliction of the penalty till it was modified on appeal and therefore, the period of deferment should be reckoned only from the date of modification of the penalty by the appellate authority and that the Doctrine of Merger is not applicable. He submitted that when the petitioner was facing a disciplinary proceedings on the crucial date, i.e., on 01.06.1994 and when he was under observation, for a period of three months from 19.12.1994, it cannot be said that he had maintained a clean defaulter sheet for inclusion of his name in the panel. 18. Learned Additional Government Pleader further submitted that as merit is the criteria for empanelment of a government servant for promotion to a selection post, even if the petitioner is exonerated of the charges, or the penalty is set aside by the appellate authority, after the date specified in the service rules, i.e., crucial date, he is not entitled to be considered for inclusion in the panel. 19. Finally, learned Additional Government Pleader, submitted that the representation of the petitioner, dated 17.07.1995 for inclusion in the panel for the year 1994-95 had already been considered and rejected by the Government, vide letter, dated 03.07.1996 and in the absence of challenge of the order of rejection, it is not open to the petitioner to seek for a direction, which would have the effect of nullifying the rejection order passed by the government. For the above said reasons, he prayed for dismissal of the Writ Petition. Heard the counsel appearing for the parties and perused the materials available on record. 20. In order to examine the contention of the learned senior counsel that two different dates are relevant for considering the right of a government servant for promotion, before adverting to the facts of this case, it is relevant to extract the guidelines issued by the Government for preparation of panel for appointment by promotion/recruitment by transfer issued in G.O.Ms.No.368 Personnel and Administrative Reforms, dated 18.10.1993 and the orders issued by the Government from time to time. 21. Clause 4 of G.O.Ms.No.368 Personnel and Administrative Reforms, dated 18.10.1993 deals with consideration of persons against whom enquiries are pending and where specific charges have been framed by the department or Charge before a Criminal Court is laid. The said clause reads as follows: "(1) As per the orders in the Government sixth read above, in the case of pending enquiries including vigilance enquiries and in case where specific charges have not been framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the Zone of Selection as on the date of consideration for promotion/appointment as revealed through the personal Files/Record Sheets and the seriousness of the punishments, if any previously imposed. In cases where specific charges have been framed of charge sheet has been filed in criminal case, promotion/appointment of such persons shall be deferred till the proceedings are concluded. They must, however be considered for promotion, if they are exonerated or acquitted from the charges. If found suitable with reference to all relevant criteria, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted. (2) The "Specific Charges" referred to are those framed under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules or its equivalent. Mere calling for the explanation of a Government Servant under Rule 17(a) of the said rues need not be treated as a bar for promotion on that score alone. This would equally apply to promotion to the ordinary posts and "Selection Category" posts, as well as to recruitment by transfer from one service to another. (3) The case of a Government Servant whose promotion, etc., has been deferred, should be reopened after disposal of the charges and appropriate orders should be passed on merits, ie., (a) giving him his promotion as aforesaid if he was proved innocent and exonerated or acquitted of the charges and if there are no other adverse factors to be reckoned, or (b) denying him the promotion or giving him the promotion from a later date depending upon the nature of punishment and other factors to be reckoned in other cases. In such cases, the Heads of Department must take suo-moto action within 15 days from the date of issue of final orders in the department disciplinary case/criminal case. (4) Wherever the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules against Government Employees are merely stayed by a Court/Tribunal, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court/Tribunal and it is decided not to challenge the same. If on the other hand, the Court/Tribunal Quarterly Charge memo, then the name of the government Employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer if he is otherwise qualified. (5) If specific charges are framed or charge sheet is filed in the criminal case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included on the panel. The instructions in para (3) above will apply in this case thereafter." 22. Clause 6 of the above Government Order further states about the effect of punishment on promotion/recruitment by transfer and it is extracted hereunder: "(1) The effect of a punishment on promotion/recruitment by transfer will depend upon:- (a) The nature of the higher post, ie., whether it is a 'Selection Category' or an ordinary post; (b) the period during which the irregularity took place; and (c ) the nature of the irregularities (rather than quantum of punishment), for example, an Assistant tears off the current file. On the charges framed against him for the above lapse, one officer may merely award him a 'Censure' taking a lenient view while another officer may impose the punishment of 'stoppage of increment with or without cumulative effect holding the lapse as serious. Yet another officer may even 'dismiss' him from service holding the lapse as 'grave'. Thus, different officers may take different views and different punishments for one and the same lapse. Therefore, the quantum of punishment is not the objective criterion to access the gravity of the charge. 2) In S.L.P.(c)No.14612/91, against the Tamil Nadu Administrative Tribunal's order in O.A.No.2851 and 2604/90, the Supreme Court in its Order, dated 19.08.1992 has said that it did not subscribe to the view that punishment and non-inclusion in the panel would amount to 'double jeopardy'. Therefore, the following courses of action are available:- (a) In case of "Selection Category" posts, the inclusion of names in the panel from promotion will be based on merit and ability, seniority being considered only when merit and ability of the contesting candidates are nearly equal. Therefore, strict comparison of the cases of the individuals, over a specified period of service (say 5 years)taken up for analysis, is quite necessary before deciding upon the question of inclusion or exclusion as the scope for subjective satisfaction and interpretation is limited. For the purposes of comparison, the proved irregularities which took place during the said specified period of service have to be taken into consideration whether or not the person concerned was proceeded against under Rule 17(a) or Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The number of individuals considered for this purpose should be as per the scales laid down in the General Rules, particularly General Rule 4(a). (b) The same principles as above will have to be followed in the case of recruitment by transfer from one service to another. (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 per as punishments are concerned, (except where a specific punishment of withholding of promotion for a specified 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 case is considered for inclusion in the panel for appointment to the higher post by promotion/by recruitment by transfer." Amendment No.1: 23. The Government have issued a letter No.27336/S/96-1, Personnel and Administrative Reforms (S) Department, dated 28.06.1996, setting out certain norms to be adopted by the Departmental Promotion Committee/Committee for promotion, for preparation of panel for higher posts. Norms prescribed in the above letter were directed to be followed by all departments uniformly without giving room for discrimination. Norms 2 and 3 prescribed by the government in the above said government letter for judging the suitability of the candidates for promotion are, "(2) Any punishment ordered within a period of five years as on the crucial date, is held against the officer, and (3)If any punishment ordered is within a period of five years as on the crucial date, but the date of occurrence falls beyond the period of five years, then it is not held against the Officer." 24. The above guidelines were issued by the government pursuant to a meeting of the Departmental Promotional Committee, dated 03.04.1996. The Chairman, TNPSC had expressed his views and issued revised norms. On examination of the said norms communicated to all the Secretaries to the government/Heads of the government, further points were raised by some of the Heads of the Department and Departments of Secretariat, with regard to the pendency of the charges, effect of punishments and effect of adverse remarks, etc., Amendment No.2: 25. Thereafter, the government issued further guidelines in Letter Ms.No.248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997. While examining cases of pendency of Vigilance enquiry/Charges, on inclusion in a panel for promotion and recruitment by transfer, the Government have considered various instances, such as, (1) Preliminary or detailed enquiry undertaken by Directorate of Vigilance and Anti Corruption, (2) Regular cases/Registered cases by the Directorate of Vigilance and Anti Corruption, (3) Trap and Arrest made under the Prevention of Corruption Act by Directorate of Vigilance and Anti Corruption (4) Enquiry by Tribunal for Disciplinary proceedings undertaken by the department or on the recommendation of the Vigilance Commissioner, (5) Remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action on receipt of the report, (6) Pendency of charges framed under Rule 17(a) of the