1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8427 of 2011 Dr.S.Shanthi ... Petitioner Vs. 1. The Director of Medical and Rural Health Service, Chennai – 06. 2. The Joint Director of Health Service Sivagangai District ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of 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.Mohamed Mohideen Additional Government Pleader O R D E R Seeking for 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, the petitioner has preferred the present Writ Petition. 2. Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader takes notice for the respondents. By consent of both sides, the Writ Petition is taken up for final disposal. 3. According to him, she joined the service on 22.05.1996 at Kannakudi Primary Health Centre. Her Civil Medical Numbers are 8075/2005 R 5873/2010. The promotion panel for the post of Senior Civil Surgeon was drawn on 28.06.2011. The name of the petitioner was not included. On enquiries, he came to know that due to a punishment of censure imposed on 23.01.2009 and pursuant to a disciplinary proceedings initiated under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the name of the petitioner was not included. 4. Pleadings disclose that there was yet another punishment of stoppage of increment imposed in the year 2008 for alleged offences for two days i.e., 26.07.2007 and 27.07.2007. https://hcservices.ecourts.gov.in/hcservices/ 2 5. According to the petitioner, as per the recent Full Bench decision of this Court in the Deputy Inspector General of Police & Others Vs. V.Rani reported in 2011 (3) CTC 129, 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. 6. In V.Rani's case, after analysing the long 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 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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. " 7. According to the petitioner, the panel is stated to have drawn on 28.06.2011. As held by the Full Bench, if the petitioner does not suffer any currency of punishment, she is entitled to be considered for promotion to the higher post of Senior Civil Surgeon, notwithstanding the punishments during the check period. Besides, pendency of disciplinary proceedings under 17(a) of the abovesaid rules is not a bar for promotion. 8. In such a view of the matter, Mandamus is issued to the respondents to consider the case of the petitioner for inclusion in the panel, for the post of Senior Civil Surgeon for the year 2011, if there is no currency of punishment or pendency of a disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and subject to other eligibility conditions, as per rules. 9. With the abovesaid directions, the Writ Petition is disposed of. No costs. Sd/- Assistant Registrar (AS) /True Copy/ Sub Assistant Registrar To 1. The Director of Medical and Rural Health Service, Chennai – 06. 2. The Joint Director of Health Service Sivagangai District. +1 CC to Special Government Pleader (SR.No.25365) W.P.(MD).No.8427 of 2011 29.07.2011 vsg NSV/5.8.11/3P/4C https://hcservices.ecourts.gov.in/hcservices/