1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.11006 of 2011 Dr.A.Banumathi, Medical Officer : Petitioner Vs. 1.The Director of Medical and Rural Health Service, Chennai-06. 2.The Joint Director of Health Service, Tuticorin. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Mandamus, directing the respondents to include the name of the petitioner in the promotion panel of Senior Civil Surgeon for the year 2011. For Petitioner : Mr.G.Karnan For Respondents : Mr.T.S.Mohammed Mohideen Additional Government Pleader ORDER A Medical Officer attached to Valanadu Public Health Centre, Tuticorin District, has sought for a Writ of Mandamus, directing the respondents to include her name in the promotion panel of Senior Civil Surgeon for the year 2011. 2. According to the petitioner, she joined medical service on 03.06.1987 and assigned Civil Medical Nos.3918/2005 and 1795/2010. Though a promotion panel was drawn on 10.01.2011 for the post of Senior Civil Surgeon, the name of the petitioner was not included. On enquiry, she was informed that due to a punishment of censure awarded in a proceeding initiated against her under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, she has not been considered for inclusion in the above said panel. 3. Placing reliance on a decision of a Full Bench of this Court in the Deputy Inspector General of Police, Thanjavur Range v. V.Rani reported in 2011(3) CTC 129, the learned counsel for the petitioner submitted that though a punishment of censure has been imposed on 24.02.2009, the same cannot be held against the petitioner on the ground of currency of punishment for a check period of five years, as per the decision of the Full Bench and in such circumstances, sought for a direction to the respondents, as prayed for. 4. Considering the limited request and the decision of the Full Bench of this Court, Mr.T.S.Mohammed Mohideen, learned Additional Government Pleader was put on notice and heard. The learned Additional Government Pleader fairly accepted the legal position. https://hcservices.ecourts.gov.in/hcservices/ 2 5. Heard the learned counsel for the parties and perused the materials available on record. 6. Pursuant to a disciplinary action initiated under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the petitioner has been inflicted with a punishment of censure vide order dated 24.02.2009 of the Director of Public Health and Preventive Medicine, Chennai. Though a promotion panel has been drawn on 10.01.2011 for the post of Senior Civil Surgeon, the name of the petitioner has not been included on account of the punishment of censure. Now that the Full Bench of this Court in V.Rani's case cited supra, has clarified the legal position and upheld the right of a Government servant to be considered for promotion to the next category, on expiry of the validity of punishment, the petitioner is entitled to be considered for inclusion in the panel for promotion to the post of Senior Civil Surgeon, if she is otherwise qualified, as per the statutory rules. In this regard, useful reference can be made to paragraph No.28 of the decision of the Full Bench, stated supra. "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 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 India and cannot be read either with https://hcservices.ecourts.gov.in/hcservices/ 3 the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Service (Discipline 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 other minor punishments is illegal and impermissible under the Statutory Rules." 7. Accordingly, there shall be a direction to the respondents to consider the inclusion of the petitioner in the panel for promotion to the post of Senior Civil Surgeon for the year 2011, if she is otherwise qualified and eligible, as per the statutory rules, on the basis of seniority. The respondents shall complete the said exercise, within a period of four weeks from the date of receipt of a copy of this order. 8. The Writ Petition stands ordered accordingly. No costs. Sd/- Assistant Registrar (Records) / True Copy / Sub Assistant Registrar To 1.The Director of Medical and Rural Health Service, Chennai-06. 2.The Joint Director of Health Service, Tuticorin. Sml SR : 28.09.2011 : 3p/3c Order made in W.P.(MD).No.11006 of 2011 Dated:- 26.09.2011 https://hcservices.ecourts.gov.in/hcservices/