Madras High Court
R.Tiruppathy vs The Agricultural Production ... on 24 September, 2019
Author: S.S. Sundar
Bench: S.S. Sundar
W.P.(MD).No.16807 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.16807 of 2013
and M.P.(MD).No. of 2014
R.Tiruppathy .. Petitioner
Vs.
1.The Agricultural Production Commissioner and
Principal Secretary to Government,
Agriculture Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture,
Chepauk, Chennai – 600 005. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for
the issuance of Writ of Certiorarified Mandamus, calling for records of the
first respondent relating to the impugned orders issued in G.O.(3D) No.
47 Agriculture Department, dated 25/02/2013 and quash the portion
alone in paragraph-4 of the Government order and consequently direct
the first and second respondents to include the name of the petitioner in
the approved list of Assistant Director of Agriculture for the year
2007-2008 on par with his juniors with all service and monetary benefits.
For Petitioner : Mr.S.Visvalingam
For Respondents : Mr.D.Muruganandam
Additional Government Pleader
http://www.judis.nic.in
1/13
W.P.(MD).No.16807 of 2013
ORDER
This writ petition has been filed challenging the impugned order of first respondent in G.O.(3D)No.47, Agriculture Department, dated 25/02/2013 in so far as para 4 of the order and to direct the first and second respondents to include the name of the petitioner in the approved list of Assistant Director of Agriculture for the year 2007-2008 on par with his juniors with all service and monetary benefits.
2.The petitioner was recruited as Agricultural Officer in the year 1984 through TNPSC and joined duty in the Office of Assistant Director of Agriculture, Oil Seeds, Madurai. The petitioner is a Post Graduate in Agriculture. The petitioner was serving as an Agricultural Officer for 26 years. A charge memo was issued to the petitioner on 21.09.1990 for the alleged delinquency that took place in September 1984. The petitioner submitted his explanation initially. After issuing second show cause notice, the petitioner submitted his further explanation, but no official orders were passed by the first respondent. Ultimately, the petitioner's writ petition in W.P.(MD).No.11791 of 2010, challenging the charge memo was allowed and this Court issued consequential direction to grant all service benefits including the promotion to the petitioner. In view of the pendency of Disciplinary proceedings, the petitioner's name was not included in the approved list of Assistant Director of Agriculture http://www.judis.nic.in 2/13 W.P.(MD).No.16807 of 2013 Department for the year 2007-2008. By virtue of the order passed in W.P. (MD).No.11791 of 2010, the petitioner states that he was entitled to promotion on par with his juniors whose names were also included in the approved list for the year 2007-2008 and promoted later.
3.It is pertinent to mention that the petitioner earlier filed a writ petition in W.P.(MD).No.11791 of 2010 praying for quashment of charge memo issued on 21.09.1990 and direction to the first and second respondents to include the name of the petitioner in the approved list of Assistant Director of Agriculture in the year 2007-2008 on par with his juniors with all service and monetary benefits and this Court passed an order on 01.11.2011 in favour of the petitioner in the following lines.
“14.In view of the aforesaid reasons, this Court is left with irresistible conclusion to quash the impugned charge memo and the departmental proceedings initiated pursuant to the impugned charge memo. Accordingly, the writ petition is allowed and the impugned charge memo issued in R.C.B.1/3548/88, dated 21.09.1990 (Departmental Enquiry No.58/90) and the departmental proceedings pursuant to the impugned charge memo are quashed and consequently, the petitioner is entitled to all the attendant and service benefits including the promotion. It is made clear that the above said exercises of according service benefits, including the promotion, shall be completed by the respondents http://www.judis.nic.in 3/13 W.P.(MD).No.16807 of 2013 within a period of twelve weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. No costs.”
4.Pursuant to the order of this Court in the writ petition on 01.11.2011, the Government issued G.O.(3D).No.72, dated 14.06.2012, directed the respondents to sent the necessary proposal to give service benefits in accordance with the direction of this Court in W.P.(MD).No. 11791 of 2010. Thereafter, the Government issued G.O.(3D).No.47, dated 25.02.2013, regarding the promotion in terms of the order passed by this Court in the writ petition filed by the petitioner. The operative portion of the Government order reads as follows:
@5)nkny Ie;jpy; gof;fg;gl;l ntshz;ik Mizahpd; fUj;JUtpid ghprPyid bra;J. jpU/Mh;/jpUg;gjp. ntshz;ik mYtyh; kPJ Rkj;jg;gl;l Fw;wr;rhl;Lf; Fwpg;ghiz vz;/RCB1/3548/88, ehs; 21/09/1990 (D.E.58/90) js;Sgo bra;ag;gl;L. nkny ehd;fpy;
gof;fg;gl;l murhizapd;go Miz
btspaplg;gl;Ls;sjhYk;. jdpah; kPJ ntW xG';F
eltof;if tHf;F-Fw;wtpay; tHf;F-
Fiwa[iufs; ,y;iybad ntshz;ik Mizah;
bjhptpj;Js;sjd; mog;gilapYk;. ,tuJ
bgahpid. ,tuJ K:Jhpikg;go. nkny K:d;wpy;
gof;fg;gl;l murhizapd;go m';fPfhpf;fg;gl;l 2010?11k;
Mz;ow;fhd ntshz;ik cjtp ,af;Feh; jw;fhypf
njh;e;j bgah;g; gl;oaypy; thpir vz;/7
y; ,lk;bgw;Ws;s jpU v!;/b$aghz;oad;. ntshz;ik
http://www.judis.nic.in
4/13
W.P.(MD).No.16807 of 2013
mYtyh; (njh;thiza vz;/121-81) mth;fspd;
bgaUf;Ff; fPHhft[k;. thpir vz;/8y; ,lk;bgw;Ws;s
jpU/gp/rz;Kfk;. ntshz;ik mYtyh; (njh;thiza
vz;/8/82-84) mth;fspd; bgaUf;F nkyhft[k; nrh;j;J
thpir vz;/7(a) vd eph;zak; bra;ayhk; vdt[k;.
nkYk;. jpU Mh;/jpUg;gjp. ntshz;ik mYtyUf;F
gzpapy; ,isatuhd jpU/gp/rz;Kfk;. mth;fs; gjtp
cah;tpy; ntshz;ik cjtp ,af;Feh; Mf 19/06/2012 Kw;gfy; gzpapy; nrh;e;Js;sjd; mog;gilapy;. jpU/ Mh; jpUg;gjp mth;fSf;F. mthpd; gzpapy; ,isath; jpU/gp/rz;Kfk;. mth;fs; ntshz;ik cjtp ,af;Feh; Mf gjtp cah;tpy; gzpnaw;w ehshd 19/06/2012 Kjy; ntshz;ik cjtp ,af;Feh; gjtpapy; fUj;jpayhd gjtp cah;t[ tH';fp. me;j njjpapypUe;J mtuJ Cjpaj;jpid mog;gil tpjp 27?d; tpjpKiwik 17? d;go eph;zak; bra;ayhk; vdt[k; Kot[ bra;J muR mt;thnw MizapLfpwJ/@
5.Pursuant to the Government order, by proceedings of Commissioner of Agriculture, dated 29.03.2013, the petitioner was placed above Mr.P.Shanmugam and below one S.Jeyapandian, Agriculture Officer.
Challenging the Government order vide G.O.(3D) 47, dated 25.02.2013 the above writ petition is filed.
6.Learned counsel for the petitioner relied upon the order dated 01.11.2011 passed by this Court in the writ petition in W.P.(MD).No.11791 of 2010 and the subsequent communications with regard to his http://www.judis.nic.in 5/13 W.P.(MD).No.16807 of 2013 entitlement which was accepted in principal by the Government. The grievance of the petitioner is that the petitioner is promoted to the post of Assistant Director of Agriculture only with effect from 19.06.2012. In the absence of charge memo, it is contended by the petitioner's counsel that the petitioner's name ought to have been included in the panel that was prepared for the year 2007-2008. The learned counsel for the petitioner would contend that petitioner's junior one Danapalan was included in the panel list for the year 2007-2008 and was promoted even earlier and therefore the order of this Court in W.P.(MD).No.11791 of 2010 has not been understood and implemented in the spirit in which it was passed in favour of the petitioner.
7.Learned counsel further submitted that as per the Judgment of the Honourable Full Bench of this Court in the case of The Deputy Inspector General of Police, Thanjavur Range, Thanjavur and another vs. V.Rani, reported in 2011 (3) CTC 129, the punishment of censure cannot be a blockade for promotion. It is admitted that a punishment of censure was awarded to the petitioner on 21.05.2007. The issue whether the punishment of censure would be a reason to with hold the promotion was decided by the Full Bench of this Court which is cited supra. The position is reflected in para 28 of the judgment which reads as follows:
http://www.judis.nic.in 6/13 W.P.(MD).No.16807 of 2013 “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 http://www.judis.nic.in 7/13 W.P.(MD).No.16807 of 2013 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 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,
8.From the judgment of Full Bench of this Court, it is seen that there can be no embargo in the right of Government Servant for being http://www.judis.nic.in 8/13 W.P.(MD).No.16807 of 2013 considered for promotion in the name of check period when the punishment is only censure or other minor punishment.
9.Even after the judgment of Full Bench, it was brought to the notice of this Court by the Additional Government Pleader that the Government issued G.O.Ms.No.22 P & AR Department, dated 24.02.2014. However, the said Government order was quashed by the Honourable Division Bench of this Court by order, dated 14.09.2016, in W.A.No.983 of 2015 in the case of Rajalakshmi Vs. Principal Secretary, School Education Department. The Government order, so far as it suggests the check period and treats the 'Censure' as an embargo for granting promotion was quashed.
10.The learned Additional Government Pleader further relied upon the new enactment namely the Tamilnadu Government Servants (Conditions of Service) Act, 2016, which came into effect from 2016 and the Government orders. As per schedule XI A of the Tamilnadu Government Servants (Conditions of Service) Act, 2016 (herein after referred as 'the Act'), the learned Additional Government Pleader pointed out that any punishment including 'censure' imposed on the member of service after the crucial date, but before actual promotion or appointment shall be held against the member of the service and he shall not be given http://www.judis.nic.in 9/13 W.P.(MD).No.16807 of 2013 promotion or appointment. The learned Additional Government Pleader is right that with effect from the date of commencement of the Act, the position as per the schedule under the Act cannot be disputed. However, its applicability to the petitioner is the question which has to be considered in the present writ petition. As pointed out earlier, the Act was only prospective. If it were to be construed as an Act giving retrospective effect that would be unconstitutional for the simple reason that the judgment of Full Bench cannot be rendered invalid by legislature which will be directly opposed to the basic structure doctrine. In other words, the Government has power only to remove the basis of the judgment of the Full Bench and in that manner the 2016 enactment is valid only if it is prospective and it will be applicable only to promotions which are after the commencement of the Act. In the present case, the petitioner succeeded in the earlier writ petition filed by him and the specific issue was also answered in the earlier writ petition. The contention of the petitioner's counsel that the petitioner is entitled to be included in the list prepared for 2007-2008 is perfectly valid and the petitioner is entitled to the consequential benefits.
11.Learned Additional Government Pleader appearing for the respondent relied upon the fundamental rules 27(17) which was introduced by G.O.Ms.No.977 Personnel and Administrative Reforms (FR http://www.judis.nic.in 10/13 W.P.(MD).No.16807 of 2013 III), dated 06.10.1986. F.R.27(17) reads as follows:
“In case where a Government Servant has been overlooked for promotion/appointment to the next higher post but subsequently promoted/appointed to that higher post after restoration of his original seniority on appeal, his pay shall be fixed on the date of assumption of charge in the higher post on par with the pay of his junior provided he has drawn the same rate of pay as his junior in the lower post from time to time. If he has not drawn the same rate of pay as his junior in the lower post, his pay shall be fixed, on the date of assumption of charge, at the stage at which he would have drawn pay on that date had he been promoted/appointed to the higher post along with his junior. In cases where seniority has been restored on or after 19th September 1981, arrears of pay and allowance consequent of fixation of pay shall be admissible with effect from the date of assumption of charge in the higher post; in cases where seniority has been restored prior to 19th September 1981, arrears shall be admissible only with effect from the above date.”
12.The above rule is not related to promotion, but it can be taken as a guidance for fixing the salary of petitioner. The same does not affect the promotion as per the seniority in the list prepared for 2007-2008.
http://www.judis.nic.in 11/13 W.P.(MD).No.16807 of 2013
13.Accordingly, this Court is of the view that the petitioner is entitled to the relief, as he prayed for. The writ petition is allowed and the impugned order issued by the first respondent in G.O.(3D) No. 47 Agriculture Department, dated 25/02/2013 is quashed. The respondents 1 and 2 are directed to include the name of the petitioner in the approved list for the post of Assistant Director of Agriculture in the year 2007-2008 on par with his juniors with all service and monetary benefits. This exercise shall be done within a period of four weeks from the date of receipt of a copy of this order.
24.09.2019 Index : Yes / No Internet: yes / No TM To
1.The Agricultural Production Commissioner and Principal Secretary to Government, Agriculture Department, Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture, Chepauk, Chennai – 600 005.
Tiruchirappalli – 2.
http://www.judis.nic.in 12/13 W.P.(MD).No.16807 of 2013 S.S. SUNDAR, J., TM W.P.(MD).No.16807 of 2013 23.09.2019 http://www.judis.nic.in 13/13