1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.405 of 2011 and M.P.(MD)No.1 of 2011 S.Nagarajan : Petitioner Vs. 1.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015. 2.The Divisional Forest Officer, Sirumalai Interface Forestry Division, Dindigul. : Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records of the first respondent in connection with the impugned order passed by him Ref.No.B2/53603/2010, dated 06.12.2010 and to quash the same and consequently, direct the respondents to declare the petitioner as selected and to empanel the petitioner in the panel issued by the first respondent in Pro.No.B2/45148/2010, dated 10.12.2010 for promotion to the post of Forest Ranger for the year 2010-2011 and to consequently, promote him as Forest Ranger, with retrospective effect from the date of promotion of his immediate junior with all consequential service and monetary benefits. For petitioner : Mr.M.Ravi For Respondents : Mr.T.S.Mohamed Mohideen, Additional Govt. Pleader ORDER Challenge in this writ petition is to an order, dated 06.12.2010 of which the request of the petitioner for promotion to the post of Forest Ranger has been denied, on the ground that there was a punishment of stoppage of increment for a period of one year with cumulative effect imposed by the District Forest Officer, Sirumalai, IFF Division, Dindigul, in his Proc No.1758/08/KA, dated 27.06.2008, which fell within the check period of five years, prior to the crucial date 15.07.2010 for the panel year 2010-2011. 2.Therefore, as per the consolidated Guidelines issued in Government Lr.No.18824/S/2005-2 P & AR (S) Department, dated 07.10.2005, the request of the petitioner cannot be complied with. 3.The issue as to whether, there can be any 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 https://hcservices.ecourts.gov.in/hcservices/ 2 punishments, came up for consideration before the Hon'ble Full Bench of this court, in the case of The Deputy Inspector General of Police, Thanjavur Range, Thanjavur vs. V.Rani, reported in 2011(3)CTC 129, and after analyzing the law on the subject, the Hon'ble Full Bench, answered the reference 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 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. 4.In the case of hand, though, a punishment of stoppage of increment for the period of one year without cumulative effect was imposed by the https://hcservices.ecourts.gov.in/hcservices/ 3 District Forest Officer, Sirumalai Interface Forestry Division, Dindigul, dated 27.06.2008, the same has already expired. However, as the punishment fell within the check period of five years, prior to the crucial date i.e. 15.10.2010, the petitioner has not been included in the panel for the year 2010-2011. In view of the decision of the Hon'ble Full Bench, in Deputy Inspector General of Police, Thanjavur Range, Thanjavur vs. V.Rani, reported in 2011(3)CTC 129, the impugned order is liable to be set aside and accordingly, set aside. Consequentially, there shall be a direction to the respondents to include the petitioner's name in the panel for the 2010-2011, if he is otherwise eligible and consequently, promote him as 'Forest Ranger' with retrospective effect from the date of promotion of his immediate junior, if he is found fit. 5.With the above direction, the writ petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs. SD ASST REGISTRAR /TRUE COPY/ SUB ASST REGISTRAR er To: 1.The Principal Chief Conservator of Forests, Panagal Buildings, Chennai-600 015. 2.The Divisional Forest Officer, Sirumalai Interface Forestry Division, Dindigul. 1CC TO THE SPL.GOVT PLEADER SR: 22185: DM::2011:JULY::14:: order in W.P.(MD).No.405 of 2011 07.07.2011 3P:4C:: https://hcservices.ecourts.gov.in/hcservices/