1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:21.6.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI WRIT APPEAL (MD) No.509 of 2011 and MP(MD)No.1 of 2011 1.The Secretary, Tamil Development, Religious Endowments and Information Department, Fort St.George, Chennai – 9. 2.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai – 600 034. :Appellants -Vs- 1.R.Patchaiappan 2.C.Kumaradurai 3.T.Gajendran 4.G.Thennarasu 5.R.Jegannathan 6.S.Sivaji 7.K.P.Ashok Kumar 8.T.Varadarajan :Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of this Court dated 11.12.2009 in W.P.(MD)Nos.6675 of 2008 under article 226 of the Constitution of India to issue writ of certiorarified mandamus calling for the records relating to the impugned panel of the first respondent issued in the G.O.(Ms)No.238, Tamil Deelopment, Hindu Religious and Information (Aa.Ni-21) Department dated 24.6.2008 and the consequential posting order of the first respondent issued in the G.O.No.(Valayam)206, Tamil Development Hindu Religious and Information(Aa.Ni-22) Department dated 4.7.2008 and quashing the same in so far as the executive officer Grade I is concerned, more specifically the respondents 3 to 9 and to direct the respondents 1 and 2 to include the petitioner's name in the said panel at serial No.1 for the post of Assistant Commissioner for the year 2006-2007 and to promote the petitioner as Assistant Commissioner, Hindu Religious and Charitable Endowment Department with all the consequential benefits with effect from the date on which the petitioner's junior was promoted as Assistant Commissioner and granting such other and further relief. For appellants :Mr.R.Karthikeyan, Addl.Govt.Pleader For 1st respondent:Mr.K.Vellaiswamy JUDGMENT (Judgment of the Court was delivered by S.RAJESWARAN, J) This Writ Appeal has been filed by the respondents 1 and 2 in W.P (MD)No.6675 of 2008 challenging the final order passed in the Writ Petition dated 11.12.2009. 2.The case of the appellants is as follows:- Writ Petition (MD)No.6675 of 2008 was filed by the first respondent herein challenging the Executive Officer Grade - I Panel of the first respondent issued in G.O.Ms.No.238, Tamil Development Hindu Religious and Information (Aa.Ni.2.1) Department dated 24.6.2008 and the consequential posting orders of the first respondent quashing the same and directing the https://hcservices.ecourts.gov.in/hcservices/ 2 respondents to include the petitioner's name in the said panel as Serial No.1 for the post of Assistant Commissioner for the year 2006-2007 and to promote him accordingly. 3.The case of the writ petitioner is that he was working as Assistant Commissioner in H.R.&C.E. Department. Previously, he was working as Executive Officer Grade - I, which is a feeder category for promotion to the post of Assistant Commissioner. A panel of Executive officers Grade - I, for promotion to the post of Assistant Commissioner for the year 2006-2007 was prepared and published in the Government Order i.e. G.O.Ms.No.238, Tamil Development Hindu Religious and Information (Aa.Ni.2.1) Department dated 24.6.2008 and promotions were also given accordingly. But, since the petitioner's name was not included in the panel, he was not promoted Hence, he challenged the same in the Writ Petition. 4.It was the specific case of the petitioner that the check period in the panel year 2006 - 2007 was only on 1.10.2006. Therefore, according to the petitioner, as on 1.10.2006, since the petitioner was not suffering from any punishment and the check period was already over by 30.9.2005 itself, the petitioner should have been included in the panel and promoted along with his juniors. 5.The said contention was resisted by the respondent department However, considering the relevant rules viz., 2A of the Tamil Nadu Hindu Religious and Charitable Endowments (Administration) Service Rules, the learned single Judge of this Court allowed the Writ Petition and directed the respondents to give effect to the promotion of the petitioner as Assistant Commissioner with effect from the date on which his immediate juniors were promoted and to give him all the consequential service benefits including the seniority in the post of Assistant Commissioner. 6.Aggrieved over the same, the first respondent department in the Writ Petition has filed the present Writ Appeal. 7.According to the learned Additional Government Pleader, the writ petitioner was appointed as Executive Officer Grade I in the H.R.&C.E.Department and he joined duty on 2.5.1999. His name was considered for inclusion in the panel of officers fit for promotion to the post of Assistant Commissioner in the panel 2006 – 2007. However, he had suffered a punishment of stoppage of increment for one year without cumulative effect on 12.2.2002. Since the punishment period was within the period of five years prior to the crucial date i.e. on 1.10.2005, his name was not considered for promotion to the post of Assistant Commissioner. When his name was not included, he made a representation to the department and the same was rejected. Hence, the Writ Petition was filed by the first respondent/writ petitioner to reiterate that the Government servant is entitled to be considered for promotion to the next post after currency of the punishment period if he is otherwise eligible. According to the writ petitioner, at the time of preparation of the panel, he was not undergoing any punishment. Therefore, when there was no currency of the punishment, there was no justification on the part of the respondent/appellant to have not included his name in the panel. According to learned Additional Government Pleader, the learned single Judge has taken the crucial date wrongly for the preparation of the panel for the year 2006-2007 as 1.10.2006 and not as 1.10.2005. Therefore, the order suffers from irregularity which has to be interfered with by this Court. 8.Per contra, the learned counsel appearing for the first respondent/writ petitioner, would submit that the punishment suffered by him during the year 2002 viz., stoppage of increment for one year without cumulate effect lasts as currency on 11.2.2003 and it cannot be put against https://hcservices.ecourts.gov.in/hcservices/ 3 the petitioner for the panel of the year 2006-2007. When the punishment has not fallen within the check period in the year 2006-2007, there was no justification on the part of the appellant department for not considering his name. Further reference to the period 10.7.2001 also goes beyond the period of 5 years prior to 1.10.2006. In fact, the petitioner's name should have been placed above Kumaradurai. Thus, by non-inclusion of the petitioner's name, the respondent has committed illegality. This aspect was considered by the learned single Judge rightly and the learned single Judge taking note of the provision of Rule 2A has granted the relief sought for He also refers for Rule 2(A). For better appreciation, rule 2(A) of the Tamil Nadu Hindu Religious and Charitable Endowments (Administration) Service Rules is extracted below: "The crucial date for possession of the prescribed qualification for appointment to any of the posts in the service by promotion or by recruitment by transfer shall be the 1st October of each year." 9.Therefore, he adds that applying the said provisions, learned Judge has rightly held that for the year 2006-2007 the crucial date should be only 1.10.2006 and not 1.10.2005 as claimed by the appellant department and the order of the learned single Judge is in order. 10.We have heard the rival submissions carefully. 11.As rightly held by the learned Judge that as on 1.10.2006, there was no punishment suffered by the petitioner and thus there was no other legal impediment for the petitioner to be promoted as Assistant Commissioner along with his immediate junior. Besides that the Full Bench Judgment referred by by the learned counsel for the first respondent/writ petitioner viz., 2011 (3) CTC 129 (The Deputy Inspector General of Police, Thanjavur Range, Thanjavur, 2. The Director General of Police, Tamil Nadu, Chennai – 4. Vs. V.Rani) has settled the principle that after currency of the punishment period, the Government Servant is entitled to be considered for promotion to the next post if otherwise eligible. However, the embargo put on the right of the Government Servant for being considered for promotion for a further period, after the period of minor punishment is over, in the name of the 'check period' viz., one year in the case of censure and five years in the case of the other minor punishments is illegal and impermissible under the statutory rules. 12.For better appreciation, paragraph 28 of the Full Bench Judgment, cited supra, is extracted below:- "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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 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 of other minor punishments is illegal and impermissible under the statutory rules..." 13.In the light of the above well settled principle and the well considered order passed by the learned single Judge, we are of the considered opinion that the appellant department has not made out a case for interference and the order passed by the learned single Judge has to be confirmed. 14.In the result, the Writ Appeal is dismissed and the order dated 11.12.2009 in W.P.(MD)Nos.6675 of 2008 is confirmed. No order as to costs Connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (Crl.side) / TRUE COPY / Sub Assistant Registrar To: 1.The Secretary, Tamil Development, Religious Endowments and Information Department, Fort St.George, Chennai – 9. 2.The Commissioner, Hindu Religious and Charitable Endowments Department, Chennai – 600 034. +1CC to Mr.K.Vellaiswamy, Advocate. SR.No.19546. +1CC to The Special Government Pleader. SR.No.19364. (asvm) WA(MD)No.509 of 2011 and MP(MD)No.1 of 2011 RP/14.07.2011/4P/5C. 21.6.2011 https://hcservices.ecourts.gov.in/hcservices/