G. Thangadurai vs State of Tamil Nadu and Another

S. Tamilvanan, J.—Heard the learned counsel appearing for the petitioner as well as the learned Special Government Pleader appearing for

the respondents. This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of

certiorarified mandamus, calling for the records relating to the impugned panel in G.O. Ms. No. 46, Agriculture (AA3) Department, dated

22.2.2011 of Assistant Engineer fit for promotion to the post of Assistant Executive Engineer as on 1.4.2010 and quash the same as illegal and

consequently, direct the first respondent to include the petitioner name in the panel of Assistant Engineers fit for promotion to the post of Assistant

Executive Engineers as on 1.4.2010, considering the petitioner representation, dated 20.4.2011.

The petitioner was appointed as Junior Drafting Officer (Agricultural Engineering Department) at Bodinayakkanur on 9.9.1976 and was

promoted as Assistant Engineer on 20.6.1987 and on the date of filing the writ petition, he was working as Assistant Engineer in the Office of

Assistant Executive Engineer (A.E.), Theni.

It is also an admitted fact that a charge memo, dated 16.11.2011 was issued by the Commissioner for Disciplinary Proceedings, Madurai-2

against the petitioner. As per G.O. (2D) No. 54, Agriculture (AA2(3)) Department, dated 5.3.2009, based on the enquiry report, the first

respondent passed an order imposing punishment of stoppage of increment for a period of 12 months without cumulative effect on the petitioner,

besides recovery of alleged loss to the tune of Rs. 66,492.50/- holding that the charges levelled against the petitioner herein were proved.

Challenging the said order, the petitioner has preferred writ petition in W.P. (MD). No. 2807 of 2009 and the same is pending before this Court.

In the present writ petition, the petitioner has stated that the respondents have prepared panel for the promotion of Assistant Executive Engineers,

leaving the petitioner''s name, which is against law.

Learned counsel appearing for the petitioner submits that though the punishment of stoppage of increment was only for 12 months from the date

of order, i.e., 5.3.2009, for which the currency period was up to 4.3.2010, the name of the petitioner was left out in the panel for promotion, that

was prepared on 1.4.2010, contrary to law.

Per contra, Mr. B. Pugalendhi, learned Special Government Pleader submitted that the currency of punishment could be beyond the period from

5.3.2009 to 4.3.2010, since the stoppage of increment could be possible only from the commencement of the next financial year. According to the

learned Special Government Pleader, the petitioner had already got his increment on the date of punishment, hence, stoppage of increment could

be possible only on 1.7.2009 and therefore, according to him, the petitioner was eligible to get his next increment only on 1.7.2010 and hence, he

was not eligible to get his promotion on 1.4.2010, the crucial date for considering his promotion.

It is an admitted fact that the petitioner was awarded punishment of stoppage of increment of 12 months from the date of the order passed by

the respondents on 5.3.2009. It is not in dispute that stoppage of his annual increment could be implemented only based on the next financial year.

Hence, so far as stoppage of increment is concerned, it could be implemented only from 1.7.2009. As the punishment of stoppage of increment is

for 12 months, the currency period of punishment shall be calculated from the date of the order, accordingly, 5.3.2009 to 4.3.2010 could be the

currency period, so far as the punishment relating to his promotion is concerned. Merely because there could be no stoppage of increment possible

on 5.3.2009, the date of punishment, the currency of punishment could be extended beyond 12 months and decide the same from on 1.7.2009

and deny the right of promotion of the petitioner. As per G.O. (2D) No. 54, Agriculture (AA2 (3)) Department, dated 5.3.2009, after the enquiry,

punishment of stoppage of one increment without cumulative effect was ordered. Hence, after the expiry of the currency period, the petitioner was

eligible to get his due promotion and accordingly, on 4.3.2010, he was eligible to get his promotion. It is an admitted fact that the panel was

prepared only on 9.4.2010, hence, he was eligible for promotion, as the currency period of punishment was over. On the aforesaid circumstances,

it would not be just and fair on the part of the respondents to prepare the panel for promotion to the post of Assistant Executive Engineers, leaving

the petitioner and promoting his juniors, based on a wrong notion that the currency of the punishment was not yet over, merely because the

stoppage of increment could be possible for 12 months from 1.7.2009.

The other point raised by the learned Special Government Pleader is that though the petitioner filed W.P. (MD). No. 2807 of 2009, challenging

the order, dated 5.3.2009 and got interim stay to recover the amount of Rs. 66,492.50/-, without paying the amount towards the alleged loss, the

petitioner would not be entitled to include his name in the panel prepared on 9.4.2010 by the respondents.

The legality of the punishment imposed by G.O. (2D) No. 54, Agriculture (AA2 (3) Department, dated 5.3.2009 has to be decided in the said

other writ petition, which is pending for disposal. So far as this writ petition is concerned, the Court has to consider whether the petitioner is

entitled to get his promotion and seek an order to incorporate his name in the panel prepared for the Assistant Executive Engineers by the

respondents.

It is not in dispute that the name of the juniors to the petitioner are also available in the list prepared by the respondents for the said promotion.

As discussed earlier, the currency period of punishment is over by 4.3.2010. Though there is an interim stay to recover the amount, Rs.

66,492.50/- imposed by order, dated 5.3.2009, to meet the ends of justice, I find it just and reasonable to direct the petitioner to deposit the said

amount, without prejudice to the claim of both the parties and accordingly, an amount of Rs. 66,492.50/-was deposited by the petitioner to the

credit of the Government Receipt Account. Learned counsel for the petitioner produced certified copy of the chalan for the deposit made by the

petitioner to that effect.

In The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani, , a Full Bench of this Court has laid down ratio

that the pendency of punishment can be certainly a ground for the Government to deny the promotion till the completion of the period of

punishment. However, after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post,

if otherwise eligible and the embargo if imposed in respect of further period, it can never be said to be authorised under the statutory Rules.

In this regard, referring, the earlier decision rendered by a Division Bench in Subramanian v. Government of Tamil Nadu rep. by its Secretary,

Chennai and others, reported in (2008) 5 MLJ 350, was over ruled and held thus:

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.

The Hon''ble Supreme Court in State of Orissa and Others Vs. Prasana Kumar Sahoo, has held that the exercise of powers by the State under

Article 162 of the Constitution of India is subservient to the recruitment rules framed under the proviso to Article 309 of the Constitution of India.

Speaking for the Bench, S.B. Sinha, J. (as His Lordship then was) has held as follows:

It is now well settled that a State is bound by the constitutional scheme to treat all persons equally in the matter of grant of public employment

as envisaged under Articles 14 and 16 of the Constitution of India.

Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to

the recruitment rules framed by the State either in terms of a legislative Act or the proviso appended to Article 309 of the Constitution of India. A

purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional

provisions.

Similarly, in Dr. Rajinder Singh Vs. The State of Punjab and Others, it has been held as follows:

The settled position of law is that no Government order, notification or circular can be a substitute of the statutory rules framed with the authority

of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the

civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High

Court was not justified in observing that even without the amendment of the Rules, Class II of the service can be treated as Class I only by way of

notification. Following such a course in effect amounts to amending the rules by a Government older and ignoring the mandate of Article 309 of the

Constitution.

It is a well settled proposition of law that when the statute is clear in imposing punishment, by way of subordinate legislation and making Rules,

additional punishment cannot be imposed on the delinquent official, as subordinate legislation cannot prevail over the statutory provisions.

In the instant case, as per G.O. (2D) No. 54, Agriculture (AA2 (3) Department, dated 5.3.2009, the petitioner was imposed a punishment of

stoppage of increment for 12 months without cumulative effect and was also directed to pay Rs. 66,492.50/- for the alleged loss incurred by the

Department. The said order is under challenge in W.P. (MD). No. 2807 of 2009. It is not in dispute that the petitioner has got interim stay to

recover the aforesaid amount. However, he filed the present writ petition, seeking promotion, since he was not considered for the promotion and

leaving his name in the panel for promotion to the post of Assistant Executive Engineer was being prepared on 9.4.2010.

As contended by the learned counsel appearing for the petitioner, the Court is of the view that 12 months currency period commenced from

5.3.2009, the date of the order of punishment and ends on 4.3.2010. Hence. on 9.4.2010, the date on which, the panel was prepared by the

respondents for the promotion of Assistant Executive Engineers, the petitioner was eligible to be included in the panel for promotion.

In view of the Full Bench decision cited above, it has been made clear that further punishment cannot be imposed over and above the Service

Rules, by withholding promotion, based on any Government Order, as the provision of the statute will prevail over the Government Orders, being

the subordinate legislation and further, as directed by this Court, the petitioner has deposited the aforesaid amount, without prejudice to the claim

of both the parties. On the aforesaid circumstances, to meet the ends of justice, I find it just and reasonable to allow this writ petition. In the result,

this writ petition is allowed. Consequently, connected miscellaneous petition is closed. The respondents are directed to include the name of the

petitioner in the panel for promotion as Assistant Executive Engineer. It is also made clear that the petitioner is entitled to get promotion from the

date on which his juniors were promoted. In other words, in the list of seniority, he should be placed below his immediate senior and above his

immediate junior, as per the panel prepared.

The petitioner is entitled to arrears of salary from the date of the promotion given to his immediate junior, till the date of his promotion, for which

the respondents shall pass appropriate orders, according to law. The respondents are directed to promote the petitioner on or before 8.3.2013,

restoring his original seniority, by placing him above his immediate junior, considering the date of promotion of such junior. No order as to costs.