Madras High Court
M.Marypushparani vs The Managing Director on 21 December, 2018
Author: C.Saravanan
Bench: C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.12.2018
CORAM
THE HONOURABLE MR. JUSTICE C.SARAVANAN
W.P(MD).No.10500 of 2014
and M.P.(MD).No.1 of 2014
M.Marypushparani .. Petitioner
Vs.
The Managing Director,
Tamil Nadu Fisheries Development Corporation Ltd.,
No.485, MTB Building, Anna Salai,
Nanthanam, Chennai .. Petitioner
PRAYER: Writ Petition is filed under Article 226 of Constitution of India
for issuance of Writ of Certiorarified Mandamus to call for records on the
file of the respondent pertaining to the order bearing Rc.No.
3307/Per-3/2013, dated 15.03.2014 and to quash the same and
consequently direct the respondent to promote the petitioner as
Superintendent with effect from 01.07.2014 within a time frame that may
be fixed by this Court.
For Petitioner : Mr.S.C.Herold Singh
For Respondents : Mr.K.P.Krishna Doss
ORDER
In this case, disciplinary proceedings were initiated against the petitioner under the provisions of the Tamil Nadu Fisheries Development Corporation Limited Service Rules. The petitioner was imposed with the punishment of stoppage of increment for one year by the respondent vide http://www.judis.nic.in 2 Memo No. 7484/Per bar 20, 16, dated 22.7.2009 with effect from 1.4.2010.
2.Therefore, the respondent overlooked the petitioner and promoted one Vasanthi though both were shortlisted in the panel for promotion to the Post of Superintendent. Since the petitioner was denied the promotion, she asked for an explanation from the respondent vide representation dated 10.03.2014.
3.By the impugned Memo dated 15.3.2014 bearing reference Rc.No.3307/Per-3/2013, the respondent has replied and stated that since the punishment awarded was within five years period of the crucial date ie. 1.4.2013, the petitioner was ineligible to be promoted to the post of Superintendent.
4.In the counter, it has been stated that in the year 2014 also the petitioner was facing disciplinary proceeding and that even though the petitioner had rendered service for over a period of 27 years, she has not gained knowledge of the rules and regulations of the respondent Fisheries Department and therefore her promotion would not fulfil the requirement of the organisation.
5.The learned counsel for the respondent / Fisheries Department http://www.judis.nic.in 3 submitted that the petitioner could not have been considered for promotion as she suffered stoppage of increment, on the following grounds.
“1.While working as Assistant, Petitioner has committed various types of lapses/irregularities/dereliction of duty.
2.It is pertinent that, the petitioner has not discharged her duties to the utmost satisfaction of the higher authority as affirmed in the affidavit which was filed before the Honourable High Court of Madras, Madurai Bench.
Punishment such as stoppage of increment was awarded on 3 occasions for the following periods.
i. Stoppage of increment for 3 months from 01.04.1996 to 30.06.1996.
ii. Stoppage of increment for 1 year i.e., from 01.04.2006 to 31.03.2007.
iii. Stoppage of increment for 1 year from 01.04.2010 to 31.03.2011.
3.During the year 2014 also, for the grave offence committed by the petitioner, disciplinary action was initiated and charges under Rule 40 (vi) of Tamil Nadu Fisheries Development Corporation's Service Rules are framed and same is under scrutiny of the inquiry officer.
Though the petitioner has rendered 27 years of service, from her inception, she has not gained much knowledge in Rules and Regulations / Services/ Handling of files. Merely promoting a person on http://www.judis.nic.in 4 seniority to the higher post will not fulfill the motive of the organization being a Public Sector Unit functioning for public cause and achieve the task in Fisheries sector. As far as the petitioner concerned, the respondent who is one of the Board of Directors observed the incapability of the petitioner to serve in the post of Superintendant and has issued impugned order to the petitioner in Memo No.3307 / Per-3/2013, dated 15.03.2014, with valid reasons.
6.Further, he submitted that since the crucial date falls within the period of five years from the date of punishment of stoppage of increment which is the minor punishment, the petitioner was not eligible to be considered for promotion and therefore, the writ petition is liable to be dismissed.
7.The learned counsel drew my attention to G.O.Ms.No.368, dated 18.10.1993 which was in power during the relevant time. The said G.O., in Chapter II, deals with the preparation of panel as stipulated with the effect of punishment on promotion/recruitment by transfer will be depend upon:-
“a) the nature of the higher post, i.e., 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 http://www.judis.nic.in 5 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 impose 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.” Further, it has been stated that “(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 or 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 which took place during the said specified period of service have to be http://www.judis.nic.in 6 taken into consideration whether or not the person concerned was proceeded against under Rule 17(a) or Rule 17(b) of the Tamilnadu 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 far 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.”
8.I am of the view that the reasons stated in the counter to justify the denial of promotions are not relevant. These proceedings pertaining to the year 2014 where as crucial date of the promotion was 1.4.2013.
http://www.judis.nic.in 7
9.Thus, subsequent events to justify denial of promotion are not relevant for determining the correctness of the reasons given in the impugned order/memo dated 15.3.2014.
10.The learned counsel for the petitioner drew the attention to para 28 of the decision of the Full Bench of this Court in The Deputy Inspector General of Police, Thajavur Range Vs. V.Rani (FB) 2011 (3) CTC 129, wherein the Full Bench of this Court over-ruled the earlier decision of the Division Bench of this Court in Subramanian Vs. Government of Tamil Nadu, represented by its Secretary, Chennai and others reported in 2008 (5) MLJ 315. The Court in The Deputy Inspector General of Police, Thajavur Range Vs. V.Rani (FB) supra referred the detailed instructions issued in G.O.No.386, Personnel and Administrative Department, dated 18.10.1993, issued by the Chief Secretary to Government and held that the same cannot be equated to the statutory rules framed under the proviso to Article 309 of the Constitution of India and Administrative Instructions issued under Article 162 of the Constitution of India.
11.The Court observed that the denial of benefits based on Government Orders are not justified and therefore, the embargo put on the right of a Government Servant from being considered for promotion http://www.judis.nic.in 8 for a further period, after the period of minor punishment is over, in the name of 'check period' that is 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.
12.I have perused and considered the affidavit, counterfeited and the arguments advanced on behalf of the petitioner and the respondent.
13.The Government has issued clarification in the context of G.O.Ms.No.368, dated 18.10.1993 vide a Government letter Ms.No.248, dated 20.10.1997 of Personnel and Administrative (S) Department. Wherein, it has been clarified as under.
“II. EFFECT OF PUNISHMENTS ON INCLUSION IN THE PANEL.
1.Any warning or severe warning ...................... .
2.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 hold against the officer. In such a case the officer's name should be passed over.
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 date of http://www.judis.nic.in 9 punishment, such punishment need not be held against him.
Provided that an officer passed over once, need not be passed over for the second time on account of the same punishment at the time of subsequent consideration for the next panel.”
14.The proviso makes it clear if an officer was imposed with punishment within the check period which occurred five years prior to the date of punishment, such punishment need not be hold against him. The Government has issued yet another Government Order namely G.O.Ms.No.22, dated 24.02.2014, wherein, earlier Government Orders were consolidated and comprehensive guidelines were issued in exercise of power under Article 309 of the Constitution of India with the Governor of Tamilnadu. Clauses 1 H and 1 H H which read as under.
“(e) before item (1-J) as so inserted, the following item shall be inserted, namely:-
“(1-JJ) If a member of service is imposed with punishment for irregularities or delinquencies that were committed five years prior to the crucial date, his name shall be considered for promotion or appointment to a post, if the member of service is not undergoing such punishment on the crucial date or on the date of consideration for actual promotion”;
(f) after item (1-H) as so inserted, the following item http://www.judis.nic.in 10 shall be inserted, namely:-
“(1-HH) Any punishment (other than 'Censure') imposed on a member of service within a period of five years prior to the crucial date and a punishment of 'Censure' imposed within a period of one year prior to the crucial date shall be held against the member of service and his name shall not be considered for inclusion in the approved list.
Any punishment, including 'Censure' imposed on a member of service after the crucial date, but before actual promotion or appointment shall be held against the member of service and he shall not be given promotion or appointment.”;”
15.The Division 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 held that “(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.”
16.This view has been followed by yet another Division Bench of this Court in the context of the mandated G.O.Ms.No.22 Personnel and http://www.judis.nic.in 11 Administrative Reforms (S) Department, dated 24.02.2014, in a batch of Writ petitions and Writ Appeal in W.A.No.983 of 2015 and W.P.Nos. 21771 of 2015 & 31633 of 2014 in K.Rajalakshmi Vs. Principal Secretary to Government, while dealing with the amendments contained in G.O.Ms.No.22, held under.
“11.On a mere reading of both the clauses viz., (1-
HH) and (1-H) would reveal that both are contradictory as clause (1-HH) suggests that a member of service shall not be considered for promotion if he is imposed with any punishment other than Censure within a period of five years and within a period of one year in case of Censure, from the crucial date. Whereas clause (1-H) which is above the insertion (1-HH) suggests that a member of service shall be considered for promotion even though he was imposed with punishment, but for the irregularities that were committed five years prior to the crucial date and the only condition imposed therein being that the member of service should not have been undergoing such punishment on the crucial date or on the date of consideration for actual promotion.
12.Therefore, it is clear that the impugned G.O. is with several ambiguities, based on which, the appellant herein and the writ petitioner are denied promotion, even after the expiry of currency of punishment on the ground of 'check period' or http://www.judis.nic.in 12 treating 'Censure' as an embargo for granting promotion. Hence, the impugned G.O., insofar as it suggests the 'check period' and treats the 'Censure' as an embargo for granting promotion, which was already condemned by a Full Bench of this Court, cannot be maintained as a valid one. In view of the above, the order of the learned Single Judge passed in W.P.No.243 of 2015 is set aside and the impugned G.O. is quashed, insofar as it suggest the 'check period' and treats the 'Censure' as an embargo for granting promotion. The appellant and the writ petitioner shall be considered for promotion with retrospective effect, from the date when they became otherwise, eligible, within a period of three months from the date of receipt of a copy of this judgment. The writ appeal and the writ petitions are disposed of accordingly. No costs. The connected miscellaneous petitions are closed.”
17.In view of the above decisions of the Court, this writ petition is deserves to be allowed. The petitioner will be entitled for promotions as her case falls within the purview of the observations contained in the decisions cited above.
18.This writ petition therefore stands allowed. Accordingly, the impugned order bearing Rc.No.3307/Per-3/2013, dated 15.03.2014 is quashed and the respondent is directed to promote the petitioner also as http://www.judis.nic.in 13 Superintendent with effect from 01.07.2014 with consequential benefits. Consequently, connected miscellaneous petition is closed.
21.12.2018
Index : Yes / No
Internet : Yes / No
TM
http://www.judis.nic.in
14
C.SARAVANAN,J.
TM
W.P(MD).No.10500 of 2014
21.12.2018
http://www.judis.nic.in