IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.08.2010 CORAM THE HONOURABLE MS.JUSTICE K.B.K.VASUKI W.P.No.16864 of 2009 N.K.Saminathan ... Petitioner Vs 1.The Principal Secretary to Government, School Education Department, Fort St.George, Chennai-600 009. 2.The Directorate of Government Examinations, Chennai-600 006. 3.H.Chitrammal 4.V.Mari ... Respondents Prayer: Writ petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorarified Mandamus or any other writ, order or direction in the form of the writ to call for the records connected with the Government letter issued in Letter No.13297/V1/2009-5 dated 11.08.2009 passed by the 1st Respondent and Na.Ka.No.202560/E1-1/2008 dated 14.08.2009 passed by the 2nd Respondent and quash the same and to consequently direct the 1st and 2nd Respondents to include the petitioner's name in the present panel and promote the petitioner as Secretary to the Regional Deputy Director. For Petitioner : Mr.R.Arumugham For Respondents: M/s.E.Ranganayaki, G.A.,Edn.) for R1 and R2 ORDER On Consent, writ petition is taken up for final hearing. 2.The writ petition is filed to quash the letter issued by the 1st respondent in his Letter No.13297/V1/2009-5 dated 11.08.2009 and the order of promotion given to the respondents 3 and 4 and few others in the 2nd respondent's proceedings Na.Ka.No.202560/E1-1/2008 dated 14.08.2009 and to consequently direct the respondents 1 and 2 to include the petitioner's name in the panel and to promote the petitioner as Secretary to the Regional Deputy Director. https://hcservices.ecourts.gov.in/hcservices/ 3.The brief facts which are relevant for consideration herein are that the petitioner joined as Junior Assistant and thereafter periodically promoted as Assistant and Superintendent and was during the relevant point of time, the senior most Superintendent. The very next promotional cadre is Regional Secretary. The fact that the petitioner was the senior most Superintendent is evident from the list of seniority as on 01.09.2008 drawn on 10.10.2008 enclosed at page 10 of the typed set of papers. The petitioner is shown as serial no.13 and the respondents 3 and 4 were shown as serial nos.14 and 15 in the seniority list dated 10.10.2008. 4.In the meanwhile, the petitioner was awarded punishment of censure in the proceedings of Joint Director Rc.No.038410/E1-1/2008, dated 30.09.2008 and the same was challenged by way of appeal by the petitioner before the Director of Government Examinations, College Road, Chennai. Director of Government Examinations has by his order dated 11.08.2009 set aside the punishment of censure. Thereafter the petitioner sent representation to the Government to consider him for promotion. On the failure of the Government to consider his name for promotion he moved High Court in W.P.No.13515 of 2009 for directing the respondent to promote the petitioner as Regional Secretary by disposing of the petitioner's representation dated 26.05.2009. The writ petition was disposed of by order dated 17.07.2009 and our High Court without going into the merits of the petitioner's claim directed the 1st respondent to consider the petitioner's representation in the light of decision of the Hon'ble Division Bench of this Court reported in (2008) 5 MLJ 350 and to pass orders on merits. 5.In pursuance of the same, the 1st order impugned herein was passed by the 1st respondent and thereafter, the respondents 3 and 4 and few others were promoted as Regional Secretary by overlooking the seniority of the petitioner. Aggrieved against both the orders, the petitioner has come forward with the present writ petition seeking to quash them and to direct the respondents to consider him for promotion. 6.Heard the rival submissions made on both the sides. 7.Though the orders of the 1st respondent dated 11.08.2009 and the order of the 2nd respondent dated 14.08.2009 are challenged herein, the correctness of order of the 1st respondent is to be first dealt with and the order of the 2nd respondent dated 14.08.2009 being consequential in nature, the validity of the same is only subject to the decision on the validity and correctness of the order dated 11.08.2009. The 1st respondent has in his proceedings dated 11/08/2009 rejected the petitioner's claim for promotion on two grounds. The details of the same are mentioned therein. (1) the penalty of censure imposed on the petitioner on 13.08.2008 and (2) the penalty of reduction of stoppage of increment without cumulative https://hcservices.ecourts.gov.in/hcservices/ effect for two years imposed by the 2nd respondent in his proceedings dated 10.08.2004. which is according to the petitioner falls within the checking period of five years. 8.As far as the penalty of censure is concerned, the same was awarded after the promotional panel for 2009 is drawn and set aside by the 2nd respondent in his proceedings dated 11.08.2009. (i.e.) before the impugned order and before the next crucial date for preparing the promotional panel (i.e.) 01.09.2009 as such the rejection of the petitioner's claim for being considered for promotion on this ground is totally invalid in law. Regarding the 2nd ground the punishment is admittedly imposed on 10.08.2004 and the nature of the punishment is stoppage of increment for two years without cumulative effect as such the punishment so imposed does not fall within the checking period i.e., five years before the cut off date for preparing the promotional panel on 01.09.2009. Even otherwise, the stoppage of increment without cumulative effect being minor punishment, the petitioner's name cannot be excluded from the promotional panel on this ground. 9.Such contention raised on the side of the petitioner is also fortified by the Judgment of the Hon'ble Division Bench of out High Court reported in N.K.Saminathan Versus Government of Tamil Nadu reported in (2008) 5 MLJ 350. As a matter of fact, our High Court has while disposing of the early writ petition W.P.No.13515 of 2009 on 17.07.2009 directed the respondent to consider the petitioner's representation dated 26.05.2009 only in the light of this decision reported in 2008 (5) MLJ 350. But the impugned order came to be passed in violation of the direction so issued by the Hon'ble High Court. Considering the petitioner's claim in the light of the observation so made by our Hon'ble High Court both the grounds on the basis of which the petitioner's legitimate claim for promotion is rejected by the 1st respondent are not factually and legally sustainable. 10.The learned counsel for the respondent would in the course of argument attempt to argue that the proceedings initiated against the petitioner is under section 17 (C) for his conviction for the offence under section 138 of Negotiable Instruments Act. But, the 1st respondent has not whispered anything about the pendency of Section 17 C proceedings in his order dated 11.08.2009. Even otherwise, the conviction of the Trial Court is already by an order dated 16.11.2009 set aside on the basis of the compromise memo. Further, the learned counsel for the respondent is also not in a position to furnish particulars as to whether departmental proceedings is initiated and the stage of the departmental proceedings in this regard. Whereas, the learned counsel for the petitioner has on instructions from his client stated that the departmental proceedings is not further pursued and the learned Additional Government Pleader is not in a position to seriously deny it. If that is so, the correctness and https://hcservices.ecourts.gov.in/hcservices/ the validity of the impugned order cannot be sought to be sustained on the basis of new ground which is not referred to in the order impugned herein. 11.The learned Additional Government Pleader has also relied upon G.O.Ms.No.368, Personnel and Administrative Reforms (S) Department, dated 18.10.1993 and the letter no.18824/S/2005-2, Personnel and Administrative Reforms(S) Department, Secretariat, Chennai-600 009 dated 07.10.2005 in and under which certain guidelines are issued as to how the list of candidates for appointment by promotion and by transfer is to be prepared and as to how pendency of vigilance enquiry/charges, effect of adverse remarks in personal file/confidential report and specific punishments to be adopted while preparing panels etc. The copy of the letter and G.O. are produced herein for perusal and the relevant clause is extracted herein: "1)As warning or sever warning is not a statutory punishment and since there is no provision for appeal, it need not be held against the Officer, whether it was awarded after framing of charges under Rule 17(a) or 17(b) of Tamil nadu Civil Services (D & A) Rules. 2)Any punishment, other than 'Censure' imposed on an Officer within a period of Five years prior to the crucial date and a punishment of 'Censure' within a period of one year prior to the crucial date *(or censure imposed after the crucial date, but before actual promotion) should be held against the Officer. In such a case the Officer's name should be passed over." 12.In my considered view the two restrictions as above referred to are not applicable to the petitioner's case. As far as clause I is concerned warning or severe warning need not at all be held against the candidate. Regarding clause II, the judgment of Hon'ble Division Bench of our High Court above referred to will answer this issue. Our High Court has clearly held that the stoppage of increment being a minor punishment the promotional chances of any employee cannot be denied solely on this ground. Further, as there is no specific clause in the service rule in the line of the guidelines as mentioned above the guidelines issued cannot be looked into for the purpose of denying the petitioner's legitimate claim for being considered for promotion. 13.Viewing from any angle, the impugned order of the 1st respondent dated 11.08.2009 rejecting the petitioner's claim for being considered for promotion is to be necessarily set aside. As a result, the petitioner is entitled to be considered for his promotion https://hcservices.ecourts.gov.in/hcservices/ as per the seniority list drawn on 10.10.2008 as on 01.09.2008 wherein the petitioner is placed over and above the respondents 3 and 4. Admittedly, the petitioner's seniority was over-looked and the respondents 3 and 4 and few others who are all juniors to him are considered for promotion and are given promotion by order dated 14.08.2009. Notwithstanding the same, the petitioner's claim for promotion can be now considered in the existing vacancy without disturbing the promotion given to the respondents 3 and 4 and the seniority can be thereafter refixed. 14.In the result, the impugned order dated 11.08.2009 passed by the 1st respondent is set aside with direction issued to the respondent to consider the petitioner's claim for promotion to the post of Secretary to the Regional Deputy Director in the existing vacancy and thereafter to refix his seniority over and above the respondents 3 and 4. The whole exercise shall be completed within eight weeks from the date of receipt of the copy of this order. 15.The writ petition is ordered accordingly. There is no orders as to cost. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pri To 1.The Principal Secretary to Government, School Education Department, Fort St.George, Chennai-600 009. 2.The Directorate of Government Examinations, Chennai-600 006. 1 cc To Mr.M.Ramdhass, Advocate, SR.59291 1 cc To The Government Pleader, SR.58564 1 cc To Mr.R.Arumugam, Advocate, SR.58581 W.P.No.16864 of 2009 TRM(CO) sra 17/09/2010 https://hcservices.ecourts.gov.in/hcservices/