Madras High Court
The Secretary To Government vs R.Murugesan on 10 August, 2010
Bench: D.Murugesan, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/08/2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE M.DURAISWAMY W.A.(MD) No.350 of 2010 & M.P.(MD).No.2 of 2010 1.The Secretary to Government, Finance Department, Secretariat, Chennai. 2.The Director of Local Fund Audit, Kuralagam, Chennai-108 .. Appellants vs R.Murugesan .. Respondent Writ Appeal is filed under Clause 15 of letters patent against the order passed in W.P.No.11975 of 2009, dated 20.11.2009. !For Appellant ... Mr.V.Rajasekaran Special Government Pleader ^For respondent ... Mr.S.Visvalingam :ORDER
(Order of the Court was made by M.DURAISWAMY) The above writ appeal arises against the order of the learned single Judge made in W.P.(MD).No.11975 of 2009 dated 20.11.2009.
2. The respondents in the writ petition are the appellants in the above writ appeal. The respondent herein is the petitioner in the writ petition.
3. The petitioner filed the writ petition to issue a Writ of Mandamus directing the respondents to include his name in the approved list of Assistant Director of Local Fund Audit for the year 2009 along with others according to his seniority without insisting the minor punishment of censure as a blockade.
4.According to the petitioner, he was selected by the Tamil Nadu Public Service Commission under Group II Services and posted as Assistant Inspector of Local Fund Audit and joined duty on 24.06.1983. Subsequently, he was promoted as Deputy Inspector of Local Fund Audit and then as Inspector of Local Fund Audit and now serving as Inspector of Local Fund in the Selection Grade. When he was serving as Inspector of Local Fund Audit, Theni, a charge memo was issued under Rule 17-a of the Tamil Nadu Civil Service (Discipline and Appeal) Rules for the alleged lack of supervision. The petitioner submitted his explanation for the charge memo. However, the explanation was not accepted and by proceedings dated 26.10.2009 a punishment of 'censure' was passed by the second respondent. In the meantime proposals were called for the preparation of approved list of Assistant Director of Local Fund Audit for the year 2009. The crucial date for the preparation of the list of Assistant Director of Local Fund Audit was 01.09.2009. However, the petitioner's name was not included in the proposal sent to the respondents on the ground that an enquiry was pending.
5.According to the petitioner, even as per the instructions of the Government, charges framed under Rule 17-a of the Tamil Nadu Civil Service (Discipline and Appeal) Rules is not a bar for inclusion in the list of promotion. Further according to the petitioner, the censure is only a minor punishment. Therefore, it is not a bar for inclusion of his name in the panel for promotion. Hence, the petitioner is fully qualified for inclusion in the panel of Assistant Director of Local Fund Audit in all other aspect except the minor punishment of censure. In these circumstances, the petitioner filed the writ petition.
6.The learned single Judge after hearing both sides, relying upon the decision of this Court reported in (2008) 5 MLJ 350 (SUBRAMANIAN V. GOVERNMENT OF TAMIL NADU) found that the petitioner suffered only a minor punishment and therefore directed the first respondent to consider the claim of the petitioner to include in the panel for the promotion to the post of Assistant Director of Local Fund Audit for the year 2009, if he is otherwise qualified and eligible and did not suffer any other major penalty. Aggrieved over the order of the learned single Judge, the respondents in the writ petition have filed the above writ appeal.
7. Heard Mr.V.Rajasekaran, the learned Special Government Pleader appearing for the appellants and Mr.S.Visvalingam, the learned counsel for the respondent.
8. On a careful consideration of the materials available on record and the submissions made by both the counsel, it could be seen that by proceedings dated 26.10.2009, the petitioner was inflicted a punishment of censure and because of the said punishment of censure his name was not considered at the time of preparation of the panel for promotion to the post of Assistant Director of Local Fund Audit on 01.09.2009.
9.The learned counsel appearing for the respondent submitted that the punishment of censure can be termed as a minor punishment. Therefore, it cannot be a blockade for his promotion as Assistant Director of Local Fund Audit. It is not in dispute the crucial date for preparation of the list of Assistant Director of Local Fund Audit was on 01.09.2009. The punishment of censure was imposed in the proceedings dated 26.10.2009 (i.e) after the crucial date of 01.09.2009. That apart, the charge memo was issued under Rule 17-a of the Tamil Nadu Civil Service (Discipline and Appeal) Rules for the petitioner's lack of supervision, for which the petitioner also gave his explanation. However, the same was not accepted by the respondent and punishment of censure was imposed on the petitioner in the proceedings dated 26.10.2009.
10. The learned counsel appearing for the respondent relied upon a judgment reported in (2008) (5) MLJ 350 (cited supra), wherein a Division Bench of this Court held as follows;
"When the employee is imposed upon a punishment of stoppage of increment for two years without cumulative effect which could be construed only as a minor punishment, he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion."
Therefore, from the above judgment it is clear that a punishment of stoppage of increment for two years without cumulative effect could only be construed as a minor punishment and the employee could not be denied further promotion solely based on the said punishment, if he is otherwise fit for promotion.
11.The counsel for the respondent produced a copy of the letter No.25165/5/98-1, dated 10.06.1998 whereby the Government had amended the guidelines for preparation of panel for appointment by promotion. In the said letter, it has been stated that the punishment of 'Censure' has no currency.
12.Therefore from the above, it is clear that the punishment of censure could be construed only as a minor punishment and the petitioner could not be denied further promotion solely based on the said punishment. Further, the punishment of censure was subsequent to the crucial date for the preparation of the list of Assistant Director of Local Fund Audit. That part, the Government also in the their letter cited above, stated that the punishment of censure has no currency.
13.Therefore we are of the considered view that the learned single Judge has rightly directed the first respondent to consider the name of the petitioner to be included in the panel for the promotion to the post of Assistant Director of Local Fund Audit for the year 2009, if he is otherwise qualified and eligible and not suffered with any major penalty. The learned single Judge also directed the first respondent to complete the said exercise within a period of twelve (12) weeks from the date of receipt of a copy of the order.
14. In these circumstances, we find no ground to interfere with the order of the learned single Judge. The writ appeal is liable to be dismissed. Accordingly, the writ appeal is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
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