Madras High Court
M.Kaliappan vs The Secretary To Government on 21 October, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.30511 of 2006 (O.A.No.6263 of 1996) M.Kaliappan ... Petitioner Versus The Secretary to Government, Home Department, Fort St. George, Madras-9. ... Respondent This petition came to be numbered by transfer of O.A.No.6263 of 1996 from the file of the Tamil Nadu Administrative Tribunal praying for Mandamus, directing the respondent to include the name of the petitioner in the 'C' list of Inspector of Police fit for promotion to Deputy Superintendent of Police, Category I, for the year 1994-95 with consequential service benefits and also grant him such other reliefs. For Petitioner : Mr.K.Venkataramani (SC) For Respondents : Mr.S.Gopinathan, Addl. Government Pleader O R D E R
The petitioner has sought for a Writ of Mandamus, directing the Secretary to Government of Tamil Nadu, Home Department, Madras, respondent herein, to include his name in the 'C' list of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 with all consequential service and monetary benefits and for further orders.
2. Facts of this case are as follows:
The petitioner entered Police Department as Sub Inspector of Police in the year 1966, as a directly recruited candidate and thereafter, was promoted as Inspector of Police on 26.05.1980. He had a unblemished record of service and earned 250 rewards with 11 Meritorious certificates to his credit. Besides, he was also awarded Chief Minister's Medal for his outstanding service in the year 1995. During 1994, when the petitioner was working as Inspector of Police, Thanjavur West Police Station, he was dealt with a charge in P.R.No.220 of 1993 under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for gross neglect of duty in having failed to check up the weapons in the Police Station. Though the petitioner submitted a valid explanation that he had checked up the weapons available in the Police Station, he was awarded a punishment of postponement of increment for a period of one year with cumulative effect, by the Superintendent of Police, Thanjavur vide proceedings, dated 15.06.1994. On appeal, the DIG of police, by order dated 19.12.1994, modified the punishment as "deferred censure" for a period of three months. Subsequently, by letter dated 08.05.1995, the Superintendent of Police, Thanjavur, cancelled the punishment of "deferred censure".
3. The petitioner has further submitted that as per the service rules, 1st June of every year is the crucial date for empaneling eligible candidates for promotion to the post of Deputy Superintendent of Police. It is the case of the petitioner that the date on which, the panel of 'C' list of Inspector of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 was published, there was no currency of punishment against him and therefore, the State Promotion Board ought to have considered his case for inclusion in the 'C' list for the year 1994-95. He further submitted that the disciplinary proceeding under rule 3(a) of the Tamil Nadu Police Subordinate Services (Discipline and Appeal) Rules, for a minor charge ought not to have been put against him for inclusion in the panel. Aggrieved by the non-inclusion, the petitioner submitted a representation, dated 01.07.1996 to the government and the same was not considered. In these circumstances, the petitioner has preferred Original Application before the Tamil Nadu Administrative Tribunal, which has been subsequently transferred to this Court and renumbered as Writ Petition.
4. At the foremost, Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner submitted that two dates are very relevant for the purpose of deciding the rights of the petitioner for promotion to higher post. The first being the date on which, a list of eligible candidates is prepared for empanelment, i.e., the crucial date under the relevant service rules for collecting the particulars of eligible candidates for preparation of a list of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police.
5. According to him, the date of issuing or publishing the panel of eligible candidates, is equally relevant for the purpose of assessment of merit of the concerned officer for promotion. To illustrate, if a government servant facing disciplinary proceedings or undergoing currency of punishment on the crucial date, fixed under the service rules, lateron, is exonerated of the charges or if the penalty suffered by him on the crucial date is cancelled or set aside before the publication or issuance of the panel for promotion to higher post, then the government servant has to be included in the panel and promoted to the higher post. In substance, it is the contention of the learned senior counsel that if for any reason, the government servant is found not suitable on the crucial date fixed under the service rules, but subsequently qualified himself in all respects, then he has got a legal right to be included in the panel on the date when it was notified.
6. On the facts of this case, learned senior counsel submitted that though the disciplinary authority has inflicted a penalty of stoppage of increment for a period of one year in P.R.No.220 of 1993, vide proceedings dated 15.06.1994 and on appeal, the DIG of Police, Thanjavur, has modified the same as "deferred Censure" for a period of three months, on 19.12.1994. According to him, once the punishment is modified by the appellate authority, it merges with the date of infliction of penalty by the disciplinary authority and therefore, it should be deemed to have been given effect from the date of Original order of penalty, i.e., 15.06.1994 and if it relates back to the order of disciplinary authority, then the punishment of "deferred censure" for three months would come to an end by 14.09.1994 and the effect of such penalty cannot be extended beyond that date. He therefore submitted that when 'C' list of Inspectors of Police, fit for promotion to the post of Deputy Superintendent of Police, Category I for the year 1994-95 was published on 31.03.1995, there was no currency of punishment and hence, the petitioner's name ought to have been included in the panel.
7. Referring to Police Standing Order No.97, learned Senior Counsel for the petitioner submitted that warning with censure is not a punishment and it is imposed only to check the performance of the policeman during the period of punishment, the effect of which would be suspended or kept in abeyance. As the petitioner was able to establish that during the period of deferred censure, he had not committed any delinquency or repeated the delinquency which resulted in the punishment of deferred censure, it is automatically cancelled on completion of the period of deferment and in such an event, there is no punishment in the eye of law on the date of consideration of his name, i.e., publication of the panel and hence, he is eligible for promotion to higher post.
8. According to him, though on completion of three months period from the date of imposition of penalty, i.e., 15.06.1994, the punishment ceased to have the desired effect, the Superintendent of Police, Thanjavur, on his sweet will, had cancelled the penalty only on 08.05.1995, by which time, the petitioner's right to be considered for promotion had already been infringed. Learned senior counsel further submitted that for the fault of the disciplinary authority, the Superintendent of Police, Thanjavur, in cancelling the penalty belatedly, the petitioner should not be made to suffer. Overlooking his case in the panel for the year 1994-95 of Inspectors of Police, for promotion to the post of Deputy Superintendent of Police, is arbitrary and illegal.
9. Placing reliance on a decision of the Supreme Court in C.O.Arumugam v. State of Tamil Nadu reported in 1991 Supp. (2) SCC 199, learned senior counsel for the petitioner submitted that though promotion could be postponed on reasonable grounds, the moment the charges framed against a government servant in a disciplinary proceedings or the penalty inflicted on him is dropped or set aside, as the case may be, then he is eligible for promotion with retrospective effect from the date when his junior came to be promoted. Applying the said judgment, he submitted that when the penalty of "deferred censure" ceased to have the effect on the completion of three months period, the petitioner ought to have been included in the panel.
10. Placing reliance on an executive order issued in G.O.Ms.No.690, Home, Police Department, dated 22nd June 1994, learned senior counsel for the petitioner submitted that in similar circumstances in the case of an Inspector of Police, whose name was not included for the reason that he was imposed with a penalty of deferred censure, was subsequently considered for promotion as Deputy Superintendent of Police, on completion of the period of deferment, taking into consideration the number of rewards and Meritorious Service entries earned by him. Inviting the attention of this Court to the averments made in the counter affidavit, learned senior counsel submitted that the petitioner has received 251 rewards, including 7 Meritorious Service entries, apart from the Hon'ble Chief Minister's Medal and therefore, the respondents ought to have applied the same yardstick as was done in the case of Thiru.Kanagarajan and included the name of the petitioner in the panel of Deputy Superintendent of Police for the year 1994-95 and failure to do so, is discriminatory and amounts to violation of Article 14 of the Constitution of India.
11. Referring to the guidelines issued by the Personnel and Administrative Reforms Department, Madras, in the matter of preparation of panel for promotion and recruitment by transfer and the further instructions issued by the Government in Letter No.248, dated 20.10.1997, learned senior counsel for the petitioner submitted that as the disciplinary proceedings initiated under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules was only for a minor charge in respect of an alleged misconduct of not checking up the weapons available in the Police Station and therefore, as per the guidelines issued by the Government, pendency of charges under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, ought not to have been held against the petitioner.
12. For all these reasons, learned counsel for the petitioner submitted that the petitioner's statutory right to be considered for promotion has been infringed, without proper application of mind with reference to the rules and the guidelines issued thereto from time to time and therefore, prayed to issue suitable directions to the respondent for inclusion of the petitioner's name in the panel of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, for the year 1994-95 retrospectively with all service and monetary benefits.
13. The respondent has filed a counter affidavit. Reiterating the averments made in the counter affidavit, Mr.S.Gopinathan, learned Additional Government Pleader, submitted that the petitioner, a directly recruited Sub Inspector of Police, was promoted as Inspector of Police, on 26.05.1980 and was ranked at Sl.No.69 in the list of Inspectors of Police. The crucial date for inclusion of the names in the panel of Inspectors of Police was 01.06.1994 and not 31.03.1995, i.e., the date of issuing or publishing the panel. He further submitted that as on 01.06.1994, the petitioner was facing a disciplinary proceedings under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for which he was inflicted with a penalty of postponement of increment for one year with cumulative effect, on 15.06.1994 for gross neglect of duty in having failed to check up the weapons.
14. Learned Additional Government Pleader further submitted that the post of Deputy Superintendent of Police is a selection post and on the crucial date of considering his eligibility, the petitioner was facing a disciplinary proceedings and therefore, he was less meritorious, comparing to others and therefore, his name was rightly passed over for promotion.
15. Learned Additional Government Pleader further submitted that the punishment of postponement of increment for one year with cumulative effect awarded on 15.06.1994, was not cancelled, but on appeal, it was only modified into that of "deferred censure" for a period of three months. He further submitted that the relevant date for the purpose of consideration of eligibility criteria for promotion to higher post, is the crucial date mentioned in the service rules applicable to that post and not the date on which, the panel is issued. Therefore, he submitted that when the petitioner was facing a charge on 01.06.1994, postponement of his promotion is justified.
16. Referring to the guidelines in G.O.Ms.No.368, P & AR Department, dated 18.10.1993, learned Additional Government Pleader further submitted that in the case of selection category post, the inclusion of the names in the panel for promotion will be based on merit and ability, seniority would be considered, only when merit and ability of the candidates are equal. Therefore, when the Departmental Promotion Committee considered the eligibility of Inspectors of Police, with reference to their relative merit and performance over the period of service, viz., five years, which was taken up for comparative analysis, the petitioner was undergoing a punishment of "Deferred Censure" and therefore, he was not included in the panel issued on 31.03.1995.
17. As regards the contention that the modified penalty of "deferred censure" relates back to the original order of penalty, learned additional Government Pleader submitted that the punishment of stoppage of increment for one year was in force from the date of infliction of the penalty till it was modified on appeal and therefore, the period of deferment should be reckoned only from the date of modification of the penalty by the appellate authority and that the Doctrine of Merger is not applicable. He submitted that when the petitioner was facing a disciplinary proceedings on the crucial date, i.e., on 01.06.1994 and when he was under observation, for a period of three months from 19.12.1994, it cannot be said that he had maintained a clean defaulter sheet for inclusion of his name in the panel.
18. Learned Additional Government Pleader further submitted that as merit is the criteria for empanelment of a government servant for promotion to a selection post, even if the petitioner is exonerated of the charges, or the penalty is set aside by the appellate authority, after the date specified in the service rules, i.e., crucial date, he is not entitled to be considered for inclusion in the panel.
19. Finally, learned Additional Government Pleader, submitted that the representation of the petitioner, dated 17.07.1995 for inclusion in the panel for the year 1994-95 had already been considered and rejected by the Government, vide letter, dated 03.07.1996 and in the absence of challenge of the order of rejection, it is not open to the petitioner to seek for a direction, which would have the effect of nullifying the rejection order passed by the government. For the above said reasons, he prayed for dismissal of the Writ Petition.
Heard the counsel appearing for the parties and perused the materials available on record.
20. In order to examine the contention of the learned senior counsel that two different dates are relevant for considering the right of a government servant for promotion, before adverting to the facts of this case, it is relevant to extract the guidelines issued by the Government for preparation of panel for appointment by promotion/recruitment by transfer issued in G.O.Ms.No.368 Personnel and Administrative Reforms, dated 18.10.1993 and the orders issued by the Government from time to time.
21. Clause 4 of G.O.Ms.No.368 Personnel and Administrative Reforms, dated 18.10.1993 deals with consideration of persons against whom enquiries are pending and where specific charges have been framed by the department or Charge before a Criminal Court is laid. The said clause reads as follows:
"(1) As per the orders in the Government sixth read above, in the case of pending enquiries including vigilance enquiries and in case where specific charges have not been framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the Zone of Selection as on the date of consideration for promotion/appointment as revealed through the personal Files/Record Sheets and the seriousness of the punishments, if any previously imposed. In cases where specific charges have been framed of charge sheet has been filed in criminal case, promotion/appointment of such persons shall be deferred till the proceedings are concluded. They must, however be considered for promotion, if they are exonerated or acquitted from the charges. If found suitable with reference to all relevant criteria, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.
(2) The "Specific Charges" referred to are those framed under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules or its equivalent. Mere calling for the explanation of a Government Servant under Rule 17(a) of the said rues need not be treated as a bar for promotion on that score alone. This would equally apply to promotion to the ordinary posts and "Selection Category" posts, as well as to recruitment by transfer from one service to another.
(3) The case of a Government Servant whose promotion, etc., has been deferred, should be reopened after disposal of the charges and appropriate orders should be passed on merits, ie., (a) giving him his promotion as aforesaid if he was proved innocent and exonerated or acquitted of the charges and if there are no other adverse factors to be reckoned, or (b) denying him the promotion or giving him the promotion from a later date depending upon the nature of punishment and other factors to be reckoned in other cases. In such cases, the Heads of Department must take suo-moto action within 15 days from the date of issue of final orders in the department disciplinary case/criminal case.
(4) Wherever the disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules against Government Employees are merely stayed by a Court/Tribunal, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court/Tribunal and it is decided not to challenge the same. If on the other hand, the Court/Tribunal Quarterly Charge memo, then the name of the government Employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer if he is otherwise qualified.
(5) If specific charges are framed or charge sheet is filed in the criminal case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included on the panel. The instructions in para (3) above will apply in this case thereafter."
22. Clause 6 of the above Government Order further states about the effect of punishment on promotion/recruitment by transfer and it is extracted hereunder:
"(1) The effect of a punishment on promotion/recruitment by transfer will depend upon:-
(a) The nature of the higher post, ie., whether it is a 'Selection Category' or an ordinary post;
(b) the period during which the irregularity took place; and (c ) the nature of the irregularities (rather than quantum of punishment), for example, an Assistant tears off the current file. On the charges framed against him for the above lapse, one officer may merely award him a 'Censure' taking a lenient view while another officer may impose the punishment of 'stoppage of increment with or without cumulative effect holding the lapse as serious. Yet another officer may even 'dismiss' him from service holding the lapse as 'grave'. Thus, different officers may take different views and different punishments for one and the same lapse. Therefore, the quantum of punishment is not the objective criterion to access the gravity of the charge.
2) In S.L.P.(c)No.14612/91, against the Tamil Nadu Administrative Tribunal's order in O.A.No.2851 and 2604/90, the Supreme Court in its Order, dated 19.08.1992 has said that it did not subscribe to the view that punishment and non-inclusion in the panel would amount to 'double jeopardy'. Therefore, the following courses of action are available:-
(a) In case of "Selection Category" posts, the inclusion of names in the panel from promotion will be based on merit and ability, seniority being considered only when merit and ability of the contesting candidates are nearly equal. Therefore, strict comparison of the cases of the individuals, over a specified period of service (say 5 years)taken up for analysis, is quite necessary before deciding upon the question of inclusion or exclusion as the scope for subjective satisfaction and interpretation is limited. For the purposes of comparison, the proved irregularities which took place during the said specified period of service have to be taken into consideration whether or not the person concerned was proceeded against under Rule 17(a) or Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The number of individuals considered for this purpose should be as per the scales laid down in the General Rules, particularly General Rule 4(a).
(b) The same principles as above will have to be followed in the case of recruitment by transfer from one service to another.
(c) For ordinary promotions, the fitness of the person with reference to all relevant factors has to be considered. The unfit persons have to be eliminated. As per as punishments are concerned, (except where a specific punishment of withholding of promotion for a specified period is awarded), it should be examined whether the proved irregularities took place within the specified period of service taken up for analysis and whether the irregularities were such as to make the case is considered for inclusion in the panel for appointment to the higher post by promotion/by recruitment by transfer."
Amendment No.1:
23. The Government have issued a letter No.27336/S/96-1, Personnel and Administrative Reforms (S) Department, dated 28.06.1996, setting out certain norms to be adopted by the Departmental Promotion Committee/Committee for promotion, for preparation of panel for higher posts. Norms prescribed in the above letter were directed to be followed by all departments uniformly without giving room for discrimination. Norms 2 and 3 prescribed by the government in the above said government letter for judging the suitability of the candidates for promotion are, "(2) Any punishment ordered within a period of five years as on the crucial date, is held against the officer, and (3)If any punishment ordered is within a period of five years as on the crucial date, but the date of occurrence falls beyond the period of five years, then it is not held against the Officer."
24. The above guidelines were issued by the government pursuant to a meeting of the Departmental Promotional Committee, dated 03.04.1996. The Chairman, TNPSC had expressed his views and issued revised norms. On examination of the said norms communicated to all the Secretaries to the government/Heads of the government, further points were raised by some of the Heads of the Department and Departments of Secretariat, with regard to the pendency of the charges, effect of punishments and effect of adverse remarks, etc., Amendment No.2:
25. Thereafter, the government issued further guidelines in Letter Ms.No.248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997. While examining cases of pendency of Vigilance enquiry/Charges, on inclusion in a panel for promotion and recruitment by transfer, the Government have considered various instances, such as, (1) Preliminary or detailed enquiry undertaken by Directorate of Vigilance and Anti Corruption, (2) Regular cases/Registered cases by the Directorate of Vigilance and Anti Corruption, (3) Trap and Arrest made under the Prevention of Corruption Act by Directorate of Vigilance and Anti Corruption (4) Enquiry by Tribunal for Disciplinary proceedings undertaken by the department or on the recommendation of the Vigilance Commissioner, (5) Remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action on receipt of the report, (6) Pendency of charges framed under Rule 17(a) of the Tamil Nadu Civil Services (O & A) Rules, (7) Pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules and (8) Suspension. In so far pendency of charges under Rule 17(a) of the Rules, occurring in Clause (1)(6) of the guidelines issued in Government Letter, dated 20.10.1997, the Government have directed that the charges framed under Rule 17(a) need not be held against an officer, irrespective of the seriousness of the delinquency.
26. In so far as the effect of punishments on inclusion in the panel, Clause II (2) of the said Government Letter Ms.248, dated 20.10.1997, states that any punishment, other than 'Censure', imposed on an Officer within a period of five years prior to the crucial date and a punishment of 'Censure' within a period of one year prior to the crucial date should be held against the Officer. In such cases the Officer's name should be passed over.
27. As regards currency of punishment, the Government have directed that whenever the Officer is undergoing a punishment and if there is a currency of punishment on the crucial date, the name should be passed over at the time of first consideration irrespective of the time of occurrence or irregularity. If the currency of that punishment continues at the time of subsequent consideration, for the next panel then the name may be included in the panel, on the basis that the name should not be passed over for the second time, on account of the same punishment. The Government have further clarified that the charges framed under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules and any of the punishments awarded after the crucial date and till the date of issue of the panel, shall also be taken into consideration for assessing the suitability of the Officer for inclusion in the panel.
28. The norms prescribed in Paragraph 4(ii)(3) of the above Government Letter No.248, P & AR (S), dated 20.10.1997, was once again examined and further amendment to the said clause was issued by the Government in Letter No.25165/S/98-1, Personnel and Administrative Reforms (S) Department dated 10.06.1998. Amendment No.3 reads as follows:
"The punishment of censure has no currency. Whenever an officer is undergoing any punishment other than censure, on the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for that panel. If the currency of punishment continues at the time of subsequent consideration for the next panel(s), he should still be passed-over on the ground that an officer should not be considered for promotion or promoted during the currency of any punishment. After the complete of its currency no punishment should be held. Once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion."
29. The matter was once again examined by the Government with regard to the effect of punishment within the check period for irregularities/delinquencies, which occurred five years prior to the date of punishment and certain suggestions were given by the Tamil Nadu Public Service Commission. The subject matter of consideration was with reference to the date of consideration of the irregularities/delinquencies and the date of imposition of penalty.
Amendment No.4:
30 The Government after examining the suggestion, issued yet another amendment in the form of a Letter No.52511/S/99-1, dated 01.10.1999 to Clause 4(ii) of the original guideline issued in G.O.Ms.No.368, P & AR Department, dated 18.10.1993 and the said amendment reads as follows:
"The existing first proviso to Paragraph 4(II)(2) shall be substituted as follows:
"Provided that if officer was imposed with any of the punishment within the check period as mentioned above, for irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be held against him."
Amendment No.5:
31. Another amendment was also issued by the Government in Letter No.52716/S/99-1, dated 01.10.1999, amending Paragraph 4(II)(3) to the Letter Ms.No.248, P & AR (S) Department, dated 20.10.1997 to the effect that:
"The existing Para 4 II (3) shall be substituted as follows:
"Whenever an Officer is undergoing any punishment, other than Censure, and the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for that panel. If the currency of punishment continues at the time of subsequent consideration for the next panel(s) he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After the completion of its currency, no punishment should be held, once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion.
In respect of 'Censure' the guidelines issued in paragraph 4II(2) of the letter second cited shall be followed."
Amendment No.6:
32. On the question of ordering retrospective promotion to the Officers, whose cases were deferred due to pendency of charges under rule 17(b), but subsequently awarded punishment of severe warning or warning with censure in the disciplinary cases, the Government issued a further guideline in Letter No.30880/S/2000-1, Personnel and Administrative Reforms (S) Department, dated 21.07.2000, to the effect that the names of those officers, whose cases were deferred due to pending charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, but subsequently awarded severe warning or warning with censure, be included in the panel in which the names of their juniors were included, if they are otherwise found suitable with reference to the eligibility criteria for promotion.
Amendment No.7:
33. Again, a further amendment to Clause 4(II)(2) was issued in Government Letter No.4992/S/2000-10, Personnel and Administrative Reforms (S) Department, dated 19.10.2001, which is as follows:
"The existing first proviso to Paragraph 4 II (2) shall be substituted as followings:
"Provided that if the officer was imposed with any of the punishments within the check period as mentioned above, for irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be against him if such penalty is not in currency on the crucial date and also on the date of consideration of the panel.""
34. In the case on hand, for a minor delinquency of not checking up of the weapons in the Police Station, the petitioner was dealt with under a charge under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. The crucial date for assessing the suitability for inclusion in the panel as per the Service Rules is 01.06.1994. As stated supra, a punishment of stoppage of increment for one year with cumulative effect was imposed by the Superintendent of Police only on 15.06.1994 and on the crucial date, i.e., 01.06.1994, he was not having any penalty. On appeal, the Inspector General of Police, Thanjavur, by order dated 19.12.1994, modified the penalty as "deferred Censure" for a period of three months. "Deferred Censure" as per Police Standing Order No.97, is as follows:
"(1) For minor offences and in case of more serious misconduct when a man has a previous good record, the punishment may be held in abeyance for a stated period ranging from three to six months at the end of which order of punishment will be cancelled, if the officers conduct while on duty during the period of postponement has been good. If the offenders conduct is found to be unsatisfactory at any time during the period of postponement, the punishment may at once be confirmed. A deferred punishment will be entered in the defaulter sheet if confirmed but not otherwise.
Note: If the second offence for which a punishment ore reprimand or censure is contemplated was committed during the period of deferment of the first punishment of censure or reprimand is liable for confirmation at the time of the imposition of the second punishment it will make no difference if the deferred punishment is a censure and the punishment contemplated for the second offence is only a reprimand. A deferred reprimand is likewise liable for confirmation when the proposed punishment is a deferred censure.
It must however, be clearly understood that the deferment of a punishment should be resorted to only if the delinquent has a good record or when the offence is minor. As reprimand has been introduced as a substantive punishment, there should ordinarily be no need to award a deferred censure for a minor offence when a reprimand would be appropriate.
(2) When the punishment held in abeyance is a blackmark the reprimand or a censure for the period should not exceed six months. If the black mark, reprimand or censure is subsequently confirmed it will have effect from the date of the offence to which it relates."
35. Reading of the guidelines issued by the Government for preparation of panel for promotion and recruitment by transfer in G.O.Ms.No.368, P & AR Department, dated 18.10.1993 and the subsequent amendments issued from time to time, makes it clear that while preparing a panel for promotion, three specific instances have to be considered, viz., (1) pendency of the disciplinary proceedings/enquiry (2) effect of punishments and (3) adverse marks.
36. In G.O.Ms.No.368, P & AR Department, dated 18.10.1993, the Government in Pargaraph 4(II)(2) have made it clear that specific charges referred to in the said Government Order are those framed under Rule 17(b) of the Discipline and Appeal Rules or its equivalent. It has been further clarified that mere calling for an explanation of a Government servant under Rule 17(a) of the said Rules need not be treated as a bar for promotion on that score alone and this was applied for promotion to ordinary post and "selection category" posts, as well as to recruitment by transfer from one service to another service and the proved irregularities which took place within the specified period of service alone should be taken into consideration, whether or not, the persons concerned were proceeded under Rule 17(a) or 17(b) of the rules. In the present case, the corresponding rule is 3(a) or 3(b) of the Tamil nadu Police Subordinate Service (Discipline and Appeal) Rules. It is evident from the subsequent guidelines issued in Government Letter Ms.No.248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997, that while considering the effect of pendency of vigilance enquiry/charges on inclusion of name in the panel for promotion and recruitment by transfer, the Government have made it clear that the pendency of the charges framed under Rule 17(a) of the Tamil Nadu Subordinate Service (Discipline and Appeal) Rules, need not be held against an officer, irrespective of the seriousness of the delinquencies.
37. The relief sought for in this Writ Petition is with reference to the post of Deputy Superintendent of Police, Category I, a selection category post. Therefore, I shall reproduce the passage as to how the assessment has to be made, while comparing the individual merits of the contesting candidates. On the question of effect of punishments on promotion/recruitment by transfer to a selection category post and the assessment of the officers, following the decision of the Supreme Court in SLP.No.14612/91, dated 19.08.1992, the Government in G.O.Ms.No.368, P & AR Department, dated 18.10.1993, at Paragraph 6(2) have prescribed the course of action, which is as follows:
"(a) In the case of "Selection category" posts, the inclusion of names in the panel from promotion will be based on merit and ability, seniority being considered only when merit and ability of the contesting candidates are nearly equal. therefore, strict comparison of the cases of the individuals, over a specified period of service (say 5 years) taken up for analysis, is quite necessary before deciding upon the question of inclusion of exclusion as the scope for subjective satisfaction and interpretation is limited. For purposes of comparison, the proved irregularities which took place during the said specified period of service have to be taken into consideration whether or not the person concerned was proceeded against under Rule 17(a) or Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. The number of individuals considered for this purpose should as per the scales laid down in the General Rules, particularly General Rule 4(a).
(b) The same principles as above will have to be followed in the case of recruitment by transfer from one service to another."
38. In the case on hand, on the crucial date, i.e., 01.06.1994, the petitioner was facing only a charge under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, for a minor delinquency equivalent to the proceedings under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. When the Government have specifically directed that "specific charges" framed under Rule 17(b) of the Rules or its equivalent alone were be held against a member of a service and mere calling for explanation under Rule 17(a), should not be treated as a bar for promotion, both to selection and non-selection post and while assessing the relative merits of the contesting candidates, when the Government at Paragraph 6(2)(a) of G.O.Ms.No.368, P & AR Department, dated 18.06.1993, have directed that only the proved irregularities which took place over a period of five years have to be take into consideration, whether or not the person charged was proceeded against under Rule 17(a) or 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the case of the petitioner ought to have been considered with reference to the above parameters. It is not in dispute that the petitioner was not facing any penalty for the proved irregularities under Rule 3(a) or 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, on the crucial date. Therefore, if the case of the petitioner is examined with reference to the government guidelines on the crucial date, i.e., on 01.06.1994, the petitioner ought to have been considered for promotion as Deputy Superintendent of Police, Category I.
39. Let me now consider the contention of violation of Article 14 of the Constitution of India, inasmuch as the respondent had considered the case of Thiru.Kanagarajan, Inspector of Police, for inclusion of his name fit for promotion to the post of Deputy Superintendent of Police, Category I for the year 1992-93. At the time of preparation of the panel for Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, Category I, 1992-93, the above said individual was facing a charge under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules and therefore, the government did not include his name in the said panel. The charge was subsequently disposed of and he was awarded with a penalty of "deferred censure". When the deferrment was over, the punishment was cancelled. The said Inspector of Police had secured 157 plus 7 Meritorious Service rewards. He had also maintained a clean defaulter sheet. On consideration of his petition for inclusion in the panel for the year 1992-93, the Government in G.O.Ms.No.690, Home Police Department, dated 22.06.1994, issued orders, including his name in the panel to the post of Deputy Superintendent of Police, Category I, for the year 1992-93 and subsequently promoted him to the said post.
40. It is an admitted fact in the counter affidavit that the petitioner was having 221 rewards including 7 Meritorious Service Entries. It is also not in dispute that the petitioner was awarded with the Chief Ministers' Medal for outstanding service in the year 1995. When the Government have included Thiru.Kanagarajan in the panel of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police for the year 1992-93, on cancellation of the punishment of "deferred censure", there is no valid reason as to how the respondent could adopt a different yardstick in the case of the petitioner, who has secured 221 rewards plus 7 meritorious service entries and whose "deferred censure" is deemed to have been cancelled on the expiry of three months period, before the date of consideration of the panel. It is pertinent to note that the aspect of discrimination has not been dealt with in the counter affidavit by the respondent.
41. Coming to the effect of punishment on promotion/recruitment by transfer, the Government have directed that the quantum of penalty is not the objective criterion to assess the gravity of the charge. The norms to be adopted by the Departmental Promotional Committee, as communicated by the Government in their letter in No.27336/S/96-1, Personnel and Administrative Reforms (S) Department, dated 28.06.1996, were framed only on 03.04.1996, after the crucial date, i.e., on 01.06.1994 and various orders have been issued thereafter from time to time, to the effect that any punishment ordered within a period of five years as on the crucial date has to be held against the officer. If the said penalty is ordered within a period of five years as on the crucial date, but the date of occurrence beyond the period of five years, then, it is not held against the officer. The guidelines issued in the year 1996 makes it clear that on the crucial date, as prescribed under the Service Rules for eligibility, the Heads of Department can take into consideration the punishment before the check period of five years. Only in the year 1997, the government by letter No.248, P & AR Department, dated 20.10.1997, have introduced an amendment in Para 4(II)(2) that the punishment imposed under Rule 17(b) after the crucial date will also be taken into consideration for assessing the suitability of the officer for inclusion in the panel. Hitherto, it was not a criterial for considering a government servant's case for omission from the panel. Therefore, it is not open to the respondents to apply the subsequent Government Orders to the case of the petitioner. Taking for granted that the government have the right to consider the penalty of deferred censure imposed after the crucial date, i.e., on 01.06.1994. Then, the question whether the government servant has got a statutory right to be considered for promotion in the event of the penalty being set aside or action on the departmental proceedings is dropped before publication of the panel, has to be examined.
42. The amendment issued to Paragraph 4(II)(2) of Government Letter No.248, P & AR Department, dated 20.10.1997, dealing with the effect of penalty, makes it clear that whenever an Officer is undergoing any punishment, other than Censure, within the check period of five years, preceding the crucial date, for the irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be held against him if such penalty is not in currency on the crucial date or on the date of consideration of the panel.
43. Reading of the guideline issued in the year 1996 and the subsequent amendments issued from time to time makes it clear that the effect of currency of punishment in the matter of consideration of inclusion of persons' names in the panel or in otherwords, assessment of their suitability is dealt with at two stages, (1) on the crucial date or (2) on the date of consideration. There cannot be any doubt that the crucial date refers only to the date prescribed under the service rules for the purpose of collecting materials of the candidates for preparation of the panel. When the Government have clarified that any punishment awarded after the crucial date and till the date of issue of the panel, should also be take into consideration for assessing the suitability of the officer for inclusion in the panel, then in a case, where the Government servant is inflicted with a penalty within the check period of five years, i.e., before the crucial date, is either exonerated of the charges on appeal or revision, or where the Government/Heads of Department have dropped the disciplinary proceedings, as the case may be, before the date of consideration of the panel, i.e., issuance of the panel, then those individuals, found not fit as on the crucial date, but secured a clean chit before the consideration of the panel, are also entitled to be considered for promotion to the higher post. If the Government/Head of the Department have got a right to take into consideration the penalty inflicted after the crucial date for overlooking the case of a government servant for promotion, then the government servant has also got a statutory right to consider his case for promotion, if the penalty is set aside or action dropped on the departmental proceedings, before the consideration of the panel. Right to consider for promotion is now recognised as a fundamental right in Union of India v. Sangram Keshari Nayak reported in 2007 (6) SCC 704 and S.Bhattacharjee v. S.D.Majumadar reported in 2007 (10) SCC 513 and therefore, there cannot be a different yardstick.
44. Clause 10 of G.O.Ms.No.368, P & AR Department, dated 18.10.1993, deals with the validity of the panel and it reads as follows:
"According to the provisions contained in Rule 4 of the General Rules, all lists (panels) prepared for a year shall be punished in the Tamil Nadu Government Gazette in respect of appointment to State Services and in the Notice Board in the office of the appointing authority in respect of appointment to subordinate services. The list should also be communicated by Registered post to all persons concerned whose names are found in the list as well as to persons senior to the junior most person included in the list whose names have not been included in the list. The list so published shall be valid for a period of one year from the date of approval by the competent authority. It shall lapse at the expiry of one year. If the estimate of vacancy of any particular year is nil, a 'Nil' list should also be published in the aforesaid manner."
45. Explanation 1 to Rule 4 of the Tamil Nadu State and Subordinate Service Rules, which is applicable to the State service, states that the period one year validity for the list of approved candidates shall be reckoned from the date of approval of the panel by the competent authority. It cannot be disputed that if an eligible candidate is overlooked for inclusion in the panel for some reasons, he has right to submit a representation to the Head of the Department/Government to vindicate his grievance till the panel is approved by the competent authority, by placing sufficient reasons for inclusion in the panel within a prescribed period and the Government/Head of the Department is bound to consider the said representation, with reference to the service records and if the Government/Head of the Department ultimately finds that the non-inclusion of the government servant is erroneous, then his name has to be included in the respective panel and placed above his immediate junior.
46. In the light of the procedure to be followed under statutory rules and the guidelines issued while preparing the panel for promotion and the clear distinction brought about by subsequent amendments issued by the government on the effect of punishment at different stages, i.e., (1) on the crucial date and (2) the date of consideration of the panel, this Court is of the considered view that in case of a Government servant exonerated from the disciplinary proceedings/action dropped/cancellation of the punishment, before the date of consideration of the panel, i.e., date of publication, he is entitled to be included with due regard to his seniority, if he is otherwise qualified.
47. In the case on hand, the crucial date under the Service rules is 01.06.1994, on which date, the petitioner was facing a disciplinary proceedings under Rule 3(a) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. The punishment of stoppage of increment for one year, inflicted by the Disciplinary authority, the Superintendent of Police, Thanjavur, dated 15.06.1994 was subsequently modified on appeal by the DIG of Police, on 19.12.1994 to that of "deferred censure" for a period of three months. As per PSO 97, "Deferred censure" and reprimand are imposed for minor offences and in the case of more serious misconduct, having regard to the good record of service of the policeman, punishment is put off or kept in abeyance for the specific period of punishment and at the end of which, the order of punishment would stand cancelled, if the officer's duty, during the period of postponement has been good. If the officer's conduct is found to be unsatisfactory during the period of punishment, then the punishment would be confirmed. Deferred punishment would be entered in the defaulter sheet, only if it is confirmed and not otherwise. In the case on hand, on the date of infliction of the penalty of postponement of increment by the disciplinary authority, there was no occasion to keep a watch over the conduct of the petitioner and the said exercise could have been done, had the disciplinary authority imposed a penalty of deferred punishment at the first instance. The punishment of stoppage of increment for one year was modified into that of "deferred censure" for a period of three months only on 19.12.1994 and only from that date onwards, his superior officers, can monitor the conduct of the officer and adjudge as to whether his conduct is satisfactory and thereafter take a decision as to whether the punishment of deferred censure has to be either confirmed or cancelled. Pleadings disclose that the departmental promotion committee held its meeting on 09.03.1995 and 10.03.1995 to examine the suitability of the Inspectors of Police, for preparation of the panel to the post of Deputy of Superintendent of Police. Finding that the conduct of the petitioner was not satisfactory, he was not included in the panel issued on 31.03.1995.
48. The punishment of deferred censure imposed by the appellate authority on the petitioner was cancelled on 08.05.1995 by the Superintendent of Police, Thanjavur. As per Police Standing Order 97, at the end of three months period, the punishment of deferred censure would automatically stands cancelled. Though in the eye of law, a punishment of "deferred censure" is inflicted on a policeman, the effect of such punishment is suspended or kept in abeyance during the period mentioned in the penalty. Applying PSO 97, the punishment of "deferred Censure" imposed by the appellate authority, by order dated 19.12.1994, stands automatically cancelled on 18.03.1995 itself. The effect of such cancellation would mean that the policeman is not inflicted with any penalty at all and therefore, the same cannot be put against him at the time of consideration of his name for promotion to higher post. By cancelling the deferred punishment belatedly on 08.05.1995, the Superintendent of Police, Thanjavur, cannot be permitted to say that the deferred punishment for a period of three months would still have the effect, till the date of passing of an order of cancellation. If the contention of the respondent has to be accepted, then it will be contrary to PSO 97 and would amount to extending the period of punishment which is not permissible. In the case on hand, the punishment of deferred censure stands cancelled on 18.03.1995 and therefore, as on the date of consideration, viz., publication of the panel, i.e., on 31.03.1995, the petitioner has no impediment or adverse records to put against him. In such view of the matter, the petitioner has got a legitimate right to be included in the panel for the post of Deputy Superintendent of Police, Category I.
49. As regards contention of the respondent that the representation of the petitioner, dated 17.07.1995 for inclusion in the panel for the year 1994-95 has also been considered and rejected by the Government on 03.07.1996, on the ground that the name of the petitioner was not fit for promotion in the panel, learned senior counsel has submitted that as the petitioner was not served with the copy of the order before filing of the Original Application, he could not challenge the same and therefore, the same shall not be put against him. As discussed in the forgoing paragraphs, this Court is of the opinion that, as the legitimate claim of the petitioner for inclusion in the panel has been erroneously denied, contrary to the statutory rules and guidelines, the objections raised by the respondent, is overruled.
50. In view of the above, there will be a direction to the respondent to include the name of the petitioner in the 'C' list of candidates fit for promotion to the post of Deputy Superintendent of Police, Category I for the year 1994-95. At the time of filing of the Original Application, the petitioner was aged 55 years and as per the averments in the counter affidavit, the petitioner was considered for inclusion in the subsequent panel and promoted as Deputy Superintendent of Police, Category I and he had joined on 18.08.1997. As the petitioner has been denied promotion erroneously by the department, consequent upon the inclusion of his name in the panel for the year 1994-95, the petitioner is entitled to fixation of his seniority, fixation of pay and other service benefits, on par with that of his immediate junior in 1994-95 panel. The respondents shall work out his service and monetary benefits and disburse the same, in accordance with law, within a period of three months from the date of receipt of a copy of this order.
51. In the result, the Writ Petition is allowed. No costs.
21.10.2008 skm To The Secretary to Government, Home Department, Fort St. George, Madras-9.
S. MANIKUMAR, J.
skm W.P.No.30511 OF 2006 21.10.2008