Madras High Court
M. Karuppiah vs The Secretary To on 2 March, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/03/2011
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Writ Petition (NPD) No.3850 of 2006
M. Karuppiah ... Petitioner
Vs
1. The Secretary to
Government
Personnel and Administrative
Reforms Department
Secretariat
Chennai 600 009.
2. The District Collector
Sivagangai District
Collectorate Complex
Sivagangai. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for
the issuance of a writ of certiorarified mandamus to call for the records of the
second respondent relating to R.O.C.No.A1/41125/2005 dated 17/3/2006 and quash
the same and consequently direct the second respondent to include the
petitioner's name in the approved list of Tahsildars of the year 2005.
!For petitioner ... M/s.S.Visvalingam
^For respondents ... Mr.D.Sasikumar,
Government Advocate
- - - - - -
:ORDER
The petitioner has filed the present writ petition seeking the relief of writ of certiorarified mandamus in calling for the records of the second respondent relating to R.O.C.No.A1/41125/2005 dated 17/3/2006 and to quash the same. Further, the petitioner has sought for issuance of a direction to direct the second respondent to include the petitioner's name in the approved list of Tahsildars of the year 2005 within a specified period that may be fixed by this Court.
2. The petitioner has been informed by the second respondent as per his Memo No. A1/41125/2005 dated 17/3/2006 that his name has not been included in the approved list of Tahsildars for the year 2005 on the basis of two punishments awarded to him as per Rule 17 (a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1953. The two punishments are:-
(i). Stoppage of increment for three years without cumulative effect as per Collectors' proceedings in R.O.C.No.A2/40161/98 dated 11/1/2001.
(ii). Stoppage of increment for one year without cumulative effect as per Collectors' R.O.C.No.A2/21431/99-1 dated 16/8/2000.
Further, the petitioner has been informed that the two punishments are within the check period of five years.
3. The petitioner has been informed that though the currency of two punishments have been completed, since his name has come up for consideration for inclusion in the approved list of Tahsildars, for the first time, his name has been passed over, as per the instructions issued by the Government in its letter No. 25165 (98-1) dated 10/6/1998 and 19/6/1998 respectively.
4. The learned counsel for the petitioner submits that the two executive instructions of the Government in its letter No.25165 (98-1) dated 10/6/1998 and 19/6/1998 are against the Tamil Nadu State Subordinate Rules. Added further, in the Tamil Nadu State and Subordinate Rules, pendency of charges as per Rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1953 are punishments awarded under the aforesaid Rules are not a bar for promoting any subordinate Government Servant to a higher post.
5. The learned counsel for the petitioner contends that the second respondent's memo in Ref.No.A1/41125/2005 dated 17/3/2006 although says that 'the currency of aforesaid punishments have been completed, his name cannot be included because, his name has come up for consideration for the first time.'
6. It is the stand of the petitioner that a reading of the second respondent's Memo No. A1/41125/2005 dated 17/3/2006 shows that he has suffered the stoppage of increment for three years and one year stoppage of increment already, he has to suffer yet for non-inclusion of his name in the approved list of Tahsildar for the year 2005.
7. The learned counsel for the petitioner contends that in the absence of any specific provisions in the Tamil Nadu State Subordinate Service Rules, denying promotion to the petitioner on the ground of stoppage of increment ordered in the year 2000 - 2001 is an illegal one.
8. In the counter filed by the respondents, it is averred that, the Special Commissioner and Commissioner of Revenue Administration, Chennai in his proceedings No.Ser.III (4) 63765/2005 dated 23/2/2006 has approved thirteen vacancies for the drawal of panel of Tahsildar for the year 2005 in Sivagangai District Revenue Unit and in the second respondent's proceedings in Ref.No. A1/41125/2005 dated 17/3/2006, the name of the petitioner does not find place in the panel of eligible Tahsildars for the year 2005.
9. According to the learned Government Advocate appearing for the respondents, the petitioner has been awarded the under mentioned two punishments within five years check period on the crucial date for the panel of Tahsildars 2005 i.e., 1/7/2005.
(i). Stoppage of increments for three years without cumulative effect was ordered in Collector's R.O.C.No.A2/40161/98 dated 11/1/2001. The writ petitioner had made an appeal to the Special Commissioner and Commissioner of Revenue Administration who rejected his appeal in his proceedings Ser.4(3)/98657/2001-12 dated 5/6/2004. The writ petitioner had filed a revision petition before the Government against the orders of the Special Commissioner and Commissioner of Revenue Administration and the Government have set aside his revision petition in their G.O. (1D) No.545 Revenue Ser. 4 (1) Department dated 29/7/2005.
(ii). Stoppage of increment for one year without cumulative effect was ordered as per Sivaganga Collector's proceedings R.O.C.A2/21431/99 dated 16/3/2000.
The punishment No.1 has been finally confirmed by the Government on 29/7/2005 i.e., after the crucial date viz., 1/7/2005.
10. The learned Government Advocate appearing for the respondents submit that as per instructions of the Government in its letter in Ms.No.248 Personnel and Administrative Reforms (S) Department dated 20/10/1997, charges framed as per 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 into account for assessing the suitability of the Officer for inclusion in the panel. The second punishment has been awarded to the petitioner on 16/8/2000 which lies within the check period.
11. The learned Government Advocate for the respondents contend that the petitioner's name has been passed over for this time and he has not preferred any appeal before the next Appellate Authority namely the Special Commissioner and Commissioner for Revenue Administration till date and also he has not filed any revision to the Government seeking remedy for inclusion of his name in the panel of Tahsildar for the year 2005.
12. The learned Government Advocate appearing for the respondents urge before this Court that Rule 36 (A) of the General Rules Tamil Nadu State and Subordinate Services specifies that "Appointments by recruitment by transfer to a class or category in a State service from among the holders of posts in a subordinate service has been made on the ground of merits, ability and seniority will be considered only where merit and ability are approximately equal"
introduced as per G.O.Ms.No.33 P & A.R.Department dated 30/1/1996 with effect from 30/1/1996 and in order to decide the merit and ability of the person, the Government has issued clarifications in G.O.Ms.No.368 P & A.R (S) Department dated 18/10/1993 and also further clarifications have been issued by the Government in letter No.248 P & A.R. (S) Department dated 20/10/1997 and amendments have also been issued in the Government letter No.25165/S/98-1, P & A.R.Department dated 10/6/1998 and in Government letter No.52511/S-98-3 P & A.R. Department dated 1/10/1999.
13. In short, the contention of the respondents is that the petitioner has an effective alternative remedy by preferring an appeal to the Special Commissioner and Commissioner of Revenue Administration and then to the Government. Hence, the Writ Petition filed by the petitioner is not maintainable before this Court.
14. At this stage, it is useful for this Court to refer to the Memo in Ref.No.A1/4125/2005 dated 17/3/2006 issued by the second respondent to the petitioner which reads as follows:-
"The punishments have been awarded on 11/1/2001 and 16/8/2000 which lies within the check period of five years.
Though the currency of the above punishments have been completed as his name has come for consideration for the panel of Tahsildars for the first time the name of the individual is passed over for this time as per the direction of the Government letter 25165 (98-1) Personnel and Administrative Reforms Department dated 10/6/1998 and Government letter No.25165/8/98-3 P & AR Department dated 19/6/1998."
15. It is significant to point out that the Government of Tamil Nadu, P & A.R (S) Department in letter No.25165/8/98-1 P & AR Department dated 10/6/1998 addressed to All Secretaries to Government, All Heads of Department, has stated the following:-
"The Government have examined in detail the norms prescribed under para 4 II (3) in the letter second cited and now issue the following amendment.
Amendment The existing para 4 II (3) shall be substituted 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 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 if it falls within the check period of any panel, if it has already been held against the official on any earlier occasion."
and issued the guidelines for preparation of panel for appointment by promotion/recruitment by transfer addressed to all the Secretaries to Government (By Name Cover) (w.e), The Secretary, Tamil Nadu Public Service Commission, Chennai 2 (w.e)., in letter No.25165/S/98-3 dated 19/6/1998 and the same is as follows:-
16. The learned counsel for the petitioner refers to the Consolidated Instructions of Personnel and Administrative Reforms (S) Department, Secretariat, Chennai 600 009 in respect of preparation of panel for appointment by Promotion/Recruitment by Transfer in and by which under the caption "II. Preparation of Panels" wherein at page Nos.12 to 14, it is mentioned as follows:-
"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 in the panel. The instructions in para (3) above will apply in such cases thereafter.
(V) I. Effect of pendency of vigilance enquiry/charges on inclusion in a panel for promotion and recruitment by transfer.
(Letter (MS) No.248 Personnel and Administrative Reforms (S) Department dated 20/10/1997) Nature of Enquiry/charge Effect 1 Preliminary or detailed enquiry undertaken by Directorate of Vigilance and Anti- Corruption Need not be held against the Officer for inclusion in the Panel.
2Regular cases/Registered cases by Directorate of Vigilance and Anti-Corruption Mere registration of cases in Courts need not be held against the Officer. But if charge sheet has been filed in the Criminal Case, it should be held against the officer.
3Trap and Arrest made under the prevention of Corruption Act by Director of Vigilance and Anti Corruption.
It should be treated as a serious offence and held against the Officer.
4Enquiry by Tribunal for Disciplinary proceedings undertaken by the department or on the recommendation of the Vigilance Commissioner. This will be equivalent to charges framed under Rule 17 (b) of Tamil Nadu Civil Services (D & A) Rules. Hence, it should be held against the Officer.
5Remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action on receipt of the report. Unless specific charges have been framed under Rule 17 (b) of Tamil Nadu Civil Services (D & A) Rules, the remittal orders issued by the Government need not be held against the Officer. If charges are framed under Rule 17 (b) as a result of remittal orders, the name need not be included in the panel. Even, if the name has been included in the panel, the name should be deleted from such a panel if charges under Rule 17 (b) are framed before actual promotion.
6Pendency of charges framed under Rule 17 (a) of Tamil Nadu Civil Services (D & A) Rules Need not be held against the Officer, irrespective of the seriousness of the delinquency.
7Pendency of charges framed under Rule 17 (b) of Tamil Nadu Civil Services (D & A) Rules It should be held against the Officer and inclusion deferred until finalisation of the disciplinary proceedings.
8Suspension If the Officer is placed under suspension on the date of consideration, inclusion may be deferred till finalisation of disciplinary proceedings.
(b). II. Effect of punishments on inclusion in the panel (1). As warning or severe warning is not a statutory punishment and since there is no provision for appeal, it need not be held against the Officer, whether it was awarded after framing of charges under Rule 17 (a) or 17 (b) of Tamil Nadu Civil Services (D & A) Rules.
(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 *(or censure imposed after the crucial date, but before actual promotion) should be held against the Officer. In such a case, the Officer's name should be passed over. *(added in Letter No.67652/S/2000-6, Personnel & Administrative Reforms (S) Department dated 27/8/2003) **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."
** (Substituted in Letter No.4992/S/2000-10, Personnel & Administrative Reforms (S) Department dated 19/10/2001) 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."
17. The learned counsel for the petitioner cites a Division Bench decision of this Court in SUBRAMANIAN Vs. GOVERNMENT OF TAMIL NADU, rep. BY ITS SECRETARY, CHENNAI AND OTHERS reported in (2008) 5 MLJ - 350, wherein it is 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."
Also, in the aforesaid decision, it is held as follows:-
"It is not in dispute that the Corporation has not incurred any loss. However, the petitioner is guilty of certain technical lapses, without involving any fraud, cheating or misappropriation, which amount to violation of Rules quoted in the charge memo. Hence, the punishment of stoppage of increment for two years with cumulative effect is justified and can never be stated to be severe or disproportionate to the proved charges. It is seen further that stoppage of increment was given effect by order dated 16/10/2000 for two years. The respondents have not denied that the petitioner had to attain superannuation only on 30/4/2003. In such circumstances, he was eligible to be considered for promotion along with his junior, prior to the date of superannuation. If he is otherwise fit for promotion along with his juniors, he would be eligible for notional promotion and based on which, eligible for corresponding retirement benefits."
18. He also relies on the order of this Court in W.P.(MD) No.11884 of 2009 dated 19/11/2009 between P.PAL PANDIAN AND THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, PANAGAL BUILDINGS, SAIDAPET, CHENNAI 600 015, wherein at paragraph 9, it is held thus:-
"Further, the Division Bench of this Court in Subramanian V. Govt. of T.N reported in (2008) 5 MLJ 350 held that 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 and he could not be denied further promotion solely based on the same, if he is otherwise fit for promotion. In view of the above said principle, which is squarely applicable to the facts in the instant case as in this case also the petitioner suffered only a minor penalty, this Court directs the respondent to include the name of the petitioner in the panel for the promotion of the Forest Rangers for the year 2009, if the petitioner is otherwise eligible for the said promotion."
19. The learned counsel for the petitioner seeks in aid of the order of this Court dated 17/11/2009 in W.P.(MD) Nos.10001 and 10002 of 2009, wherein at paragraph 9, it is held hereunder:-
"Accordingly, the respondent herein is hereby directed to include the name of the petitioners in the ensuing panel to be prepared for promotion to the post of Forest Ranger within a period of four weeks from the date of receipt of a copy of this order, if the petitioners are otherwise eligible and competent and if there is no other proceedings were initiated or pending against the petitioners other than the punishment awarded by the Conservator of Forest, Madurai Circle as per the order dated 5/5/2008 in proceedings No.B2/5433/08 (S) and No.B2/5433/OS (4). The respondent shall also permit the petitioners to undergo the training to be commenced shortly pending disposal of the matter by including the petitioners name in the ensuing panel."
20. This Court in its order dated 20/11/2009, in W.P.(MD) No.11975 of 2009 between R.MURUGESAN Vs. 1. THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, SECRETARIAT, CHENNAI AND ANOTHER, in paragraph Nos.7 to 9 has observed as follows:-
"7. The fact remains that the petitioner admittedly faced departmental proceedings for the charge framed under the Rule 17 (a) of the Tamil Nadu Government Servants Conduct Rules and Tamil Nadu Civil Services Discipline and Appeal Rules, which deals with only in respect of minor charges. It is pertinent to note that admittedly the petitioner was imposed with a minor penalty of stoppage of increment for a period of six months without cumulative effect. Even as per Rule 8 (3), the punishment suffered by the petitioner to the effect of stoppage of increment for a period of six months comes under the category of minor penalty. Therefore, this Court is of the considered view that there is absolutely no legal impediment for considering the claim of the petitioner for promotion to the post of Deputy Inspector of Local Fund Audit. The learned counsel for the petitioner also rightly placed reliance on the decision of this Court in Subramanian V. Government of Tamil Nadu reported in (2008) 5 MLJ - 350, whereas, it has been held as under:
"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,"
8. Accordingly, the said principle laid down is squarely applicable to the facts of the instant case as in this case also, the petitioner suffered only a minor penalty as stated above. Therefore, this Court is constrained to direct the first respondent herein to consider the name of the petitioner to be included in the panel for promotion to the post of Deputy Inspector of Local Fund Audit, if he is otherwise qualified and eligible and not suffered any other major penalty."
9. With the above direction, the writ petition is disposed of. No costs."
21. The learned counsel for the petitioner cites an order dated 23/11/2009 in W.P.(MD) No.9340 of 2007 between S.PITCHAIMANI and THE SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, CHENNAI 9 AND ANOTHER, wherein at paragraph Nos.7 to 9, it is held as follows:-
"7. The learned Government Advocate placed reliance on G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18/10/1993 as amended in Government Letter No.248 Personnel and Administrative Reforms Department, dated 20/10/1997 for denying the promotion to the petitioner on the ground that he has suffered punishment of 'censure' within a period of one year prior to the crucial date for promotion. I am unable to countenance with such contention of the learned Government Advocate as it is well-settled that the Government Order and the letter cannot over ride the statutory rules. As on date, the petitioner has retired from service on attaining the age of superannuation. As per the Revenue Subordinate Service Rules as well as the Tamil Nadu Civil Services Rules, there is no legal impediment for giving notional promotion to the petitioner.
8. In view of the aforesaid reasons, this Court is constrained to direct the first and second respondents to give notional promotion to the petitioner as Deputy Collector as per his seniority on par with his junior with all monetary benefits. It is made clear that the said exercise should be completed within a period of three months from the date of receipt of copy of this order.
9. With the above direction, this writ petition stands disposed of. No costs."
22. That apart, the learned counsel for the petitioner refers to the order dated 3/9/2010 passed by this Court in W.P.(MD) No.12840 of 2009 between N.SOUNDARA PANDIAN AND 1. THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, SECRETARIAT, CHENNAI 600 009 AND ANOTHER, wherein at paragraph Nos.3 to 5, it is observed as follows:-
"3. According to the learned counsel for the petitioner, the punishment of censure will not stand in the way of giving promotion to the petitioner, in view of a judgment of a Division Bench of this Court in Subramanian Vs. Government of Tamil Nadu reported in 2008 (5) MLJ - 350.
4. The learned Special Government Pleader appearing for the respondents submitted that punishment of censure cannot stand in the way of giving promotion to the petitioner, as per the judgment, referred to above.
5. In view of the above, the writ petition is allowed and the respondents are directed to consider the claim of the petitioner for promotion to the post of Deputy Registrar of Co-operative Societies of the year 2009 - 2010 and pass appropriate orders within a period of twelve weeks from the date of receipt of a copy of this order. No costs."
23. A closer perusal and scrutiny of the second respondent's Memo in R.O.C.No.A1/41125/05 dated 17/3/2006 clearly indicates that though the currency of punishments awarded on 11/1/2001 and 16/8/2000 as referred to in the said Memo have been completed. The petitioner's name has not been included because it is mentioned that his name has come up for consideration for the first time. By virtue of letter No.67652/S/2000-6 Personnel and Administrative Reforms (S) Department dated 27/8/2003, the following has been added and therefore, it is quite evident that if an Officer has been imposed with any of the punishments within the check period as mentioned therein 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.
24. Rule 36 of the Tamil Nadu State and Subordinate Services Rules enjoins as follows:-
"36. (a) Promotion - No member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category:
Provided that a member of a service or class of a service who, having satisfactorily completed his probation in the category in which he was appointed to the Service, has been promoted to the next higher category shall, notwithstanding that he has not been declared to have satisfactorily completed his probation in such higher category be eligible for promotion from such higher category"
Provided further that if scales of pay of posts in the feeder categories are different, the persons holding post carrying a higher scale of pay in the feeder category shall be considered first and that, if no qualified and suitable persons holding post in that feeder category are available, the persons holding post carrying the next higher scale of pay in descending order in other feeder categories shall be considered.
* Added in G.O.Ms.No.400 P & AR (Per.P) dated 17/4/1985, w.e.f 13/10/1984.
(b) (i) Promotions to selection category or grade - Promotions in a service or class to a selection category or to a selection grade shall be made on grounds of merit and ability, seniority, being considered only where merit and ability are approximately equal. The inter-se-seniority among the persons found suitable for such promotion shall be with reference to the inter-se- seniority of such persons in the lower post.
(ii). Promotion according to seniority - All other promotions shall, be made in accordance with seniority unless -
(1). the promotion of a Member has been withheld as a penalty, or (2). a Member is given special promotion for conspicuous merit and ability.
* Substituted in G.O.Ms.No.295, P & AR, dated 12/5/1998, w.e.f.11/6/1987.
(c). Appointment of a member to a higher category not to be considered if he had been on leave for three or four years or more continuously - Notwithstanding anything contained in sub-rules (a) and (b), a member of a service who had been on leave for a period of three years continuously for any reason except higher studies or for a period of four years continuously for higher studies, shall not be considered for appointment to a higher category either by promotion or by recruitment by transfer unless he has completed service for a period of one year from the date on which he joins duty on return from leave.
# inserted in G.O.Ms.No.863, P & AR (Per.P) dt.2/9/1986, w.e.f.28/3/1984.
(d) Deleted [in G.O.Ms.No.863, P & AR, dt. 2/9/1986]."
25. In the instant case, the stoppage of increment ordered in respect of the petitioner in the year 2000 & 2001, cannot be a bar for inclusion of his name in the list of Tahsildars for the year 2005, as opined by this Court.
26. It is well settled principle of law that the Government's Executive/Administrative instructions/letters cannot over ride the Provisions of a Statute in the considered opinion of this Court. As a matter of fact, there is no specific provision in the Tamil Nadu State and Subordinate Services Rules, denying or depriving promotion to the petitioner on the ground of stoppage of increment for three years without cumulative effect ordered as per Collector's proceedings in R.O.C.A2/40161/98 dated 11/1/2001 and stoppage of increment for one year without cumulative effect as per Collector's proceedings in R.O.C.A2/21431/99-1 dated 16/8/2000 issued by the second respondent/District Collector, Sivagangai to the petitioner inter alia stating that "though currency of above both punishments have been completed, as his name has come up in the panel of Tahsildars for the first time, the name of the individual is passed over for this time as per the instruction of the Government letter in No.25165 (98-1) dated 10/6/1998 and 19/6/1998 is quashed. Resultantly, the second respondent is directed to include the petitioner's name in the approved list of Tahsildars for the year 2005 within a period of eight weeks from the date of receipt of a copy of this order. Consequently, the writ petition succeeds.
27. In the result, the writ petition is allowed. The Memo of the second respondent in Memo No.A1/41125/2005 dated 17/3/2006 is hereby quashed. The second respondent is directed to consider the name of the petitioner for inclusion of his name in the approved list of Tahsildars for the year 2005 and pass appropriate orders thereto within a period of eight weeks from the date of receipt of a copy of this order. No costs.
mvs.
To
1. The Secretary to Government Personnel and Administrative Reforms Department Secretariat Chennai 600 009.
2. The District Collector Sivagangai District Collectorate Complex Sivagangai.