Madras High Court
G.Thangam Ambrose vs The Government Of Tamilnadu on 20 February, 2013
Author: S.Tamilvanan
Bench: S.Tamilvanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2013 CORAM THE HONOURABLE MR.JUSTICE S.TAMILVANAN W.P.No.48782 of 2006 G.Thangam Ambrose .. Petitioner Vs. 1.The Government of Tamilnadu, Rep. by its Secretary, Rural Development Department, Chennai-600 009. 2.The Director of Rural Development, Panagal Buildings, Saidapet, Chennai-600 015. 3.The District Collector, Trichirappalli District. .. Respondents PRAYER: The Writ Petition is filed under Article 226 of the Constitution seeking an order in the nature of Mandamus directing the respondents herein to promote the petitioner as Assistant Engineer (Rural Development) from the date of promotion of his immediate junior, together with all consequential service and monetary benefits. For Petitioner : M/s.G.Bala & Daisy For Respondents : Mr.S.Navaneethan, Additional Government Pleader O R D E R
The writ petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of Mandamus directing the respondents herein to promote the petitioner as Assistant Engineer (Rural Development) from the date of promotion of his immediate junior, together with all consequential service and monetary benefits.
2.Learned counsel appearing for the petitioner submitted that the petitioner herein had joined the Government Services in the year 1980 as Union Overseer. Having obtained B.E. Degree in May, 1987, he became eligible for promotion to the post of Assistant Engineer (Rural Development). The petitioner was assigned seniority No.203 i.e. in between one Marriappan and K.Pannerselvam. He was eligible for promotion as Assistant Engineer in the year 1999-2000. However, he was not given promotion on account of the fact that he was imposed with a punishment of stoppage of increment without cumulative effect for one year by order dated 20.02.2003.
3.It is seen from the averments made in the petition that a charge memo was issued on the petitioner during the year 1996 and order of stoppage of increment was passed only on 20.02.2003. It is not in dispute that the punishment imposed on the petitioner reached its finality.
4.Learned counsel appearing for the petitioner submitted that after expiry of currency period of punishment, the petitioner herein was entitled to get the promotion, however, he was not promoted by the respondents for the reasons best known to them.
5.Learned Additional Government Pleader appearing for the respondents has not disputed the fact that the petitioner was imposed punishment by order dated 20.02.2003 for stoppage of increment for one year without cumulative effect. However, learned Additional Government Pleader submitted that the petitioner is not entitled to get promotion for five years in view of charges framed against the petitioner under Rule 17(b) of Tamil Nadu Civil Services (D & R ) Rules and the punishment imposed on him. In support of his contention, he referred the Government Letter No.4992/S/2000-10 P&AR Department Dated 19.10.2001. In the counter, the respondents have specifically averred the contents of the letter which are as follows:
"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 held against him, if such penalty is not in currency on the crucial date and also on the date of consideration of the panel"
Since charges were framed under Rule 17(b) of TNCS (D & A) Rules, learned Additional Government Pleader submitted that the petitioner was not entitled to get his promotion for five years, though the punishment imposed is stoppage of increment for one year without cumulative effect.
6.Per contra, learned counsel appearing for the petitioner relied the decisions in Union of India and others vs. K.Krishnan reported in AIR 1992 SC 1898, wherein the Hon'ble Apex Court has held as follows:
"5.It has been stated by the learned Counsel for the parties that except for the above punishment, the respondent is fit for promotion and that the currency of the penalty will expire on 14.09.1990. In that view he may be promoted immediately thereafter with effect from 15.09.1990, provided he is not otherwise disqualified for promotion by incurring some other disqualification. The appeal is accordingly allowed but without costs."
It is argued by the learned counsel for the petitioner that after the currency period of punishment, the petitioner was entitled for getting promotion on par with his juniors. Learned counsel for the petitioner also relied upon the decision in Deputy Inspector General of Police V. V.Rani rendered by Full Bench of this Court reported in (2011) 4 MLJ 1, whereby it has been held that after the currency period of punishment, the Government servant is entitled to be considered for promotion, if otherwise eligible. The Full Bench of this Court has held that the currency of punishment count not be a ground for the Government to defer the promotion even after the completion of the period of punishment. After the currency period of punishment, the Government servant is entitled to be considered for promotion to the next higher post, if he is otherwise eligible. The embargo if any imposed in respect of further period, after the expiry of the currency period, which can never be said to be authorised under the statutory Rules. Referring to various decisions in paragraph-28, the Full Bench of this Court in the decision referred to above has held as follows:
"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 (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 Subramanian 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 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 ad Appeal) Rules."
7.Learned counsel appearing for the petitioner has also produced a copy of G.O.No.(1D) No.746, dated 19.08.2004, in support of his contention stating that there were 39 vacancies in the cadre of Assistant Engineer in Rural Development Department.
8.In the light of the decisions rendered by the Hon'ble Supreme Court reported in AIR 1992 SC 1898 and the Full Bench of this Court reported in (2011) 4 MLJ 1 (cited supra), it has been made crystal clear that after expiry of currency period of punishment, a Government servant is entitled to get promotion. In the instant case, the petitioner was punished by stoppage of increment without cumulative effect for one year from the date of order i.e., 20.02.2003 and the currency period expired accordingly on 19.02.2004. If there is any subsequent promotion in the cadre of Assistant Engineer, the petitioner is eligible for promotion. It is not the case of the respondents that there is any other embargo against the petitioner's promotion.
9.It is a settled proposition of law that if the currency of punishment is one year stoppage of increment which cannot be extended after the currency period, as per service rules. On the aforesaid facts and circumstances, I find it just and reasonable to allow the writ petition directing the respondents to promote the petitioner to the post of Assistant Engineer (Rural Development) for the vacancy that arose after 19.02.2004 and if he had been promoted to that post, he shall be given seniority on par with his juniors promoted subsequent to 19.02.2004 and it is made clear that the petitioner is also entitled to get consequential service and monetary benefits to that effect. The respondents are directed to comply with the order and direction within a period of eight weeks from the date of receipt of a copy of this order. No order as to costs.
20.02.2013 kal Index : Yes/No Internet : Yes/No To
1.The Government of Tamilnadu, Rep. by its Secretary, Rural Development Department, Chennai-600 009.
2.The Director of Rural Development, Panagal Buildings, Saidapet, Chennai-600 015.
3.The District Collector, Trichirappalli District.
S.TAMILVANAN, J kal W.P.No.48782 of 2006 20.02.2013