1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03/08/2011 C O R A M THE HONOURABLE Mr.JUSTICE S.MANIKUMAR Writ Petition (MD)No.8665 of 2011 I.Ananatha Rajhan S/o.Late P.Irudhayaraja 3/48 Muthunagar 5th street Trichy Road,NGO Colony Post Dindigul District. ... Petitioner Vs The Inspector General of Registration, 100 Santhome High Road, Chennai – 600 028 ... Respondent Prayer : 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 relating to the impugned order passed by the respondent dated 27.06.2011 in Na.Ka.No.24220/a3/2010 and quash the same as illegal and further direct the respondent to promote the petitioner as Sub-Registrar Grade – II, Registration Department with effect from 01.11.2010 on which the junior of the petitioner have been promoted. For petitioner ...M/s.Eddy and Emboss For respondents ...Mr.B.Pugalendhi Special Government Pleader O R D E R Challenging the order passed by the respondent, dated 27.06.2011 in Na.Ka.No.24220/a3/2010, by which the case of the petitioner for promotion to the post of Sub Registrar Grade II has been denied, and for a further direction to the respondent to promote him as Sub-Registrar Grade – II, Registration Department with effect from 01.11.2010, the petitioner has come up with the present writ petition. 2. Mr.B.Pugalendhi, learned Special Government Pleader takes notice for the respondent. By consent of both sides, the Writ Petition is taken up for final disposal. 3. According to the petitioner, he was appointed as Junior Assistant in the Registration Department. Thereafter, by proceeding of the respondent, dated 06.02.1995, he was promoted to the post of Assistant. On 23.08.2007, he was issued with a charge memo, for which, he has submitted an explanation. The promotion panel for the post of Grade II Sub Registrar was completed on 08.02.2010. However, the name of the petitioner was not included. 4. Pleadings disclose that pursuant to the disciplinary proceeding initiated under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as 'the Rules'), a punishment of stoppage of increment without cumulative effect was imposed, on 18.05.2009. Being aggrieved by the same, the petitioner https://hcservices.ecourts.gov.in/hcservices/ 2 filed an appeal to the Government and that the same was rejected on 10.02.2011. Review petition filed before the said authority is stated to be pending. 5. It is the grievance of the petitioner that though pendency of disciplinary proceeding under Rule 17(a) of the Rules is not a bar for promotion and a representation made in this regard, was not considered and therefore, the petitioner was constrained to file a Writ Petition in W.P.(MD) No.4506 of 2011 before this Court to consider him for promotion to the post of Grade II Sub Registrar, as per seniority. In spite of the directions of this Court to consider the representation of the petitioner in the said writ petition, the Inspector General of Registration, Chennai, the respondent herein, has rejected the case of the petitioner for promotion citing the Government letter in No.67652/s/2002 (Personnel and Administrative Reforms) Department dated 27.08.2003, which states that if the Government servant is imposed with a punishment within the check period of five years, the same can be considered as a bar. The said order is impugned in this writ petition. 6. It is well settled by a Full Bench of this Court in 2011 in the Deputy Inspector General of Police & Others Vs. V.Rani reported in 2011 (3) CTC 129, that the right of the Government Servant to be considered for promotion to the next higher post, cannot be taken away on the ground that he / she suffered a minor punishment during the check period of five years. On the completion of the period of punishment, the Government servant is entitled to be considered for promotion to the higher post. In V.Rani's case, after analysing the law on the subject, the Full Bench of this Court, at paragraph 28, has summarised as follows:- "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 Vs. Government of Tamil Nadu rep. by its Secretary, Chennai and others reported in 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. 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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. 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. 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. " 8. Following the decision of the Full Bench, the impugned order is liable to be set aside and accordingly set aside. The writ petition is allowed and consequently the respondents are directed to consider the case of the petitioner for promotion to the post of Sub Registrar Grade II, Registration Department, if he is, otherwise, eligible, in accordance with the Rules, within a period of three weeks from the date of receipt of a copy of this order, and pay him all backwages and other attendant benefits from the date on which, he is due for promotion. No costs. Consequently connected miscellaneous petition is closed. Sd/- Deputy Registrar /True copy/ Assistant Registrar RR To The Inspector General of Registration, 100 Santhome High Road, Chennai – 600 028 +1cc to Special Government Pleader, SR.No.26142 GH : 05.08.2011 : 3p/3c Writ Petition No.8665 of 2011 and M.P.No.1 of 2011 03/08/2011 https://hcservices.ecourts.gov.in/hcservices/