1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7618 of 2011 And M.P.(MD).No.1 of 2011 M.Vasantha ... Petitioner -Vs- 1. The Secretary to Government, Revenue Department,Secretariat,Chennai – 9. 2. The Principal Secretary and Commissioner of Revenue Administration Chepauk,Chennai – 5. 3. The District Collector,Collector's Office, Trichy District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records relating to the third respondent vide R.C.No.A2/35069/2010 dated 2.6.11 and to quash the same and consequently direct the third respondent to promote the petitioner to the post of Deputy Tahsildar for the year 2010-11 in the appropriate place, vide proceedings of the third respondent vide Rc.No. A2/35069/2010 dated 1.6.11. For Petitioner : Mr.S.Vijayakumar For Respondents : Mr.B.Pugalenthi Special Government Pleader ORDER The District Collector, Trichy, by impugned order, dated 02.06.2011, has deferred the name of the petitioner from inclusion in the panel for Deputy Tahsildar for the year 2010. Being aggrieved by the same, the petitioner has preferred the present Writ Petition. 2. It is the case of the petitioner that while she was working as Special Deputy Collector, disciplinary proceedings were initiated on 22.09.2005 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Not satisfied with the explanation, by an order, dated 28.08.2006, the disciplinary authority has imposed a punishment for stoppage of increment for a period of three years without cumulative effect. On Appeal to the District Revenue Officer, Trichy, on 02.01.2009, the punishment has been set aside and modified into that of "Censure" by proceedings, dated 16.12.2009. 3. According to the petitioner, she is entitled to be considered for promotion to the post of Deputy Tahsildar for the year 2010. The crucial date for drawal of panel of Deputy https://hcservices.ecourts.gov.in/hcservices/ 2 Tahsildar is 15th September of every year. However, in Trichy District, no panel for Deputy Tahsildar was drawn up for the year 2010 till May 2011. It is her further submission that she is the senior most Assistant in the District and therefore, she is eligible to be considered for inclusion in the panel. 4. On the above said pleadings and placing reliance on the Full Bench decision of this Court in Deputy Inspector General of Police and another Vs. V.Rani reported in (2011) 4 MLJ 1, Mr.S.Vijayakumar, learned counsel appearing for the petitioner submitted that as the Full Bench has held that the detailed instructions issued by the Government in G.O.Ms.No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 and the Government Letter No. 248, Personnel and Administrative Reforms Department, dated 20.11.1997, do not have any statutory basis, she is entitled to be considered for inclusion in the panel for the year 2010. It is his further submission that though the punishment of stoppage of increment for a period of three years without cumulative effect was imposed on 28.08.2006, on appeal, it has been modified upto that of Censure and in such circumstances, the date of effect of the punishment relates back to the date of passing of the original order. 5. On the abovesaid submissions, learned counsel for the petitioner submitted that there is manifest illegality in the impugned order, warranting interference and consequently, prayed for a direction to the third respondent to include the petitioner in the panel for the year 2010-2011 at the appropriate place. 6. Heard both parties and perused the materials available on record. 7. The impugned order reads as follows:- "A list of candidates fit for appointment temporarily to the post of Deputy Tahsildar for the year 2010-2011 has been drawn in the reference cited. Tmt.M.Vasantha, Revenue Assistant, Taluk Office, Srirengam is informed that her name has been considered for inclusion in the temporary panel of Deputy Tahsildars drawn for the year 2010. A "Censure" was awarded by the District Revenue Officer, Tiruchirappalli on her appeal on 16.12.2009 and it is in currency on the crucial date. Hence, her name deferred from inclusion in the temporary panel of Deputy Tahsildar for the year 2010." 8. Doubting the correctness of the order made by the Hon'ble Division Bench of this Court in Subramaniam V. Government of Tamil Nadu and others reported in (2008) 5 MLJ 350, a reference has been https://hcservices.ecourts.gov.in/hcservices/ 3 made to a Larger Bench of this Court and the query posed before the Hon'ble Larger Bench was, whether currency of punishment has to be treated as a bar for promotion during the period? After analysing the law on the subject and the nature of the Government Orders issued from time to time for preparation of a panel to higher post, the Hon'ble Full Bench in Deputy Inspector General of Police and another Vs. V.Rani reported in (2011) 4 MLJ 1, answered 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 Subramaniam V. Government of Tamil Nadu rep. by its Secretary, Chennai and Others (Supra), 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 Subramaniam V. Government of Tamil Nadu rep. by its Secretary, Chennai and Others (Supra), 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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." 9. Reading of the Full Bench Judgment makes it explicit that during the currency of a 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. Sub-Paragraph 7 of Para 28 of the Judgment also makes it clear that 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. There cannot be any embargo on the right of the Government Servant for being considered for the promotion for the period. 10. In the case on hand, though the panel for the year 2010 to 2011 has been prepared on 01.06.2011 by the District Collector, Trichy, it is evident that from the pleadings and materials available on record, that the petitioner was having a currency of punishment of Censure from 16.12.2009. The panel is not for the year 2011-2012, in which case, the punishment of Censure could be ignored after its expiry ie., on 15.12.2010. Admittedly, even as per the averment in the supporting affidavit, the crucial date for drawal of the panel of Deputy Tahsildar is 15th September of every year. the panel is only for the year 2010-2011, and that therefore, those candidates, who are eligible to be considered, on the crucial date, ie., 15.09.2010 can be included in the panel. 11. Reference to Government order 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, would not lend any support to the case of the petitioner as it has been made clear by the Ho'ble Full Bench that the said Government order did not deal with the case for promotion of a Government servant, during the currency of punishment. 12. The further contention of the learned counsel for the petitioner that the punishment of censure imposed on appeal, dates https://hcservices.ecourts.gov.in/hcservices/ 5 back to the date of passing of the original order is untenable, as the punishment of censure would operate only from the date of passing of the order and not anterior. In view of the settled legal principles of law, and following the Full Bench Judgment cited supra, this Court is of the view that there is no manifest illegality in the impugned order, deferring the case of the petitioner for inclusion in the panel of Deputy Tahsildar for the year 2010, as there was currency of punishment on the crucial date. 13. For the reasons stated supra, the Writ Petition is dismissed. Consequently, connected Miscellaneous Petition is also dismissed. No costs. Sd/- Assistant Registrar(AE) /TRUE COPY/ Sub Assistant Registrar To 1. The Secretary to Government, Revenue Department, Secretariat , Chennai – 9. 2. The Principal Secretary and Commissioner of Revenue Administration, Chepauk,Chennai – 5. 3. The District Collector, Collector's Office,Trichy District. +1cc to Mr.S.Vijayakumar, Advocate SR.No.22423 W.P.(MD).No.7618 of 2011 And M.P.(MD).No.1 of 2011 11.07.2011 vsg PA/12.07.2011/5P/5C(IT) https://hcservices.ecourts.gov.in/hcservices/