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Judgment
,,
R. Banumathi, J.—Challenge in this appeal is the order in W.P. No. 21947 of 2009 (18.10.2011) declining to quash the impugned",,
Proceedings in Ref. No. A2/69295/08 dt. 03.9.2009 and also declining to issue direction to the Respondents for inclusion of Appellant''s name in,,
the panel of Rangers fit for promotion as Assistant Conservator of Forests by recruitment by transfer for the year 1998-99 and grant all,,
consequential service and monetary benefits. Facts leading to filing of Writ Petition are as follows:-Appellant is a graduate in Science and was,,
appointed as Forest Ranger through a selection conducted by the Tamil Nadu Public Service Commission in the year 1980-81 and was appointed,,
as Forest Ranger in the Forest Department on 01.11.1980. Appellant was promoted as Assistant Conservator of Forest in the panel year 2000-,,
2001. Case of Appellant is that names of directly recruited Forest Rangers of the year 1980 for promotion as Assistant Conservator of Forests,,
was taken up for consideration for the year 1998-99. The crucial date for preparation of panel for the year 1998-99 was 15.8.1997, but the panel",,
was published on 12.12.2001, in G.O.Ms. No. 194 Environmental & Forest (F.R. 1) Department dated 12.12.2001. In the said G.O., the 2nd",,
Respondent has considered promotion of as many as 17 Rangers as Assistant Conservator of Forests; whereas the name of Appellant was not,,
included in the said panel. But his juniors have been considered and their names have been included in the panel and they were promoted as,,
Assistant Conservator of Forests.,,
Appellant submitted a representation dt. 12.12.2008 to the 1st Respondent claiming promotion to include his name in the panel of the year,,
1998-99. As there was no response, Appellant has filed Writ Petition in W.P. No. 14095 of 2009 seeking for issuance of Writ of Mandamus to",,
pass orders on his representation dt. 12.12.2008. Even in the admission stage, by the order dated 27.3.2009 the said Writ Petition was disposed",,
of with a direction, directing the Respondents to consider Appellant''s representation dated 12.12.2008 and pass orders on merit in accordance",,
with law. In furtherance of the direction in W.P. No. 14095 of 2009, 1st Respondent issued the impugned Proceedings in Ref. No. A2/69295/08",,
dt. 3.9.2009 rejecting the claim of the Appellant for inclusion of his name in the panel of Rangers fit for promotion as Assistant Conservator of,,
Forests for the year 1998-99 on the ground that Appellant has not completed discipline of service in Corporation as well as in Non Sensitive posts,,
as prescribed in Rule 4(3) of Special Rules for Tamil Nadu Forest Service and also the Appellant had currency of punishment imposed by the,,
Managing Director, TAFCORN, Trichy in Proceedings No. 3039/95/E2 dt. 19.11.1997 which lies within the check period for the preparation of",,
panel for the year 1998-99 and Appellant''s claim has been denied. Challenging the said Proceedings dt. 3.9.2009, Appellant has filed the Writ",,
Petition in W.P. No. 21947 of 2009. Along with W.P. No. 21947 of 2009, Appellant has also filed another Writ Petition in W.P. No. 21946 of",,
2009 challenging the punishment imposed on him vide Proceedings No. 3039/97/E2 dt. 19.11.1997 and confirmed by the Appellate Authority.,,
Respondents resisted the Writ Petition contending that the Departmental Committee had not recommended Appellant''s name for inclusion in the,,
panel for the year 1998-99, approved in G.O.Ms. No. 194 dt. 12.12.2001, since Appellant had not completed the service in",,
Corporation/discipline of service in Non Sensitive posts on the crucial date of the panel for the year 1998-99. That apart at the time of,,
consideration, the punishment of postponement of increment for one year without cumulative effect imposed in Proceedings dt. 19.11.1997 by the",,
Managing Director, TAFCORN, Trichy was held against the Appellant. The said occurrence of lapse with regard to this punishment was for the",,
year 1994-95 which was well within the check period for the panel year 1998-99 i.e. 16.8.1992 to 15.8.1997 and therefore as per panel,,
guidelines issued in Government Letter Ms. No. 248 Personnel and Administrative Reforms Department, dt. 20.10.1997 and subsequent",,
instructions in Government Letter No. 4992/S/2000-10 P & AR Department dt. 10.10.2001, Appellant was not fit for inclusion in the panel for",,
the year 1998-99. It was averred that even though the Appellant had not completed the discipline of service in Corporation as well as in Non,,
Sensitive posts as prescribed in Rule 4(3) of Special Rules for Tamil Nadu Forest Service, his name was included in the panel for the year 2000-",,
2001 by relaxing Rule 4(3) of Special Rules for Tamil Nadu Forest Service vide G.O.Ms. No. 92 Environment and Forests (F.R. 1) Department,,
dt. 21.6.2005. After accepting his promotion in the panel for the year 2000-2001 vide G.O.Ms. No. 92 dt. 21.6.2005, the Appellant had",,
belatedly made representation and in furtherance of the order in W.P. No. 14095 of 2009, the impugned Proceedings dt. 3.9.2009 was issued.",,
Since Appellant was not fit for promotion for inclusion in the panel for the year 1998-99, his request for inclusion in the panel for the year 1998-99",,
was not complied with and the Writ Petition is devoid of merits.,,
Learned single Judge elaborately considered the points raised in W.P. No. 21946 of 2009, challenging the imposition of punishment. After",,
extracting the infringements noted by the Authorities, the learned Judge observed that in view of the infringements, Appellant''s name was not",,
included in the panel for the post of Assistant Conservator of Forests for the year 1998-99 and dismissed W.P. No. 21947 of 2009 and also,,
dismissed W.P. No. 21946 of 2009 by common order. Learned Judge took the view that the decision of the Full Bench in the case of The Deputy,,
Inspector General of Police and The Director General of Police Vs. V. Rani, will have no application to the facts of the case.",,
Mr. K. Venkatramani, learned Senior Counsel for Appellant has contended that either on the crucial date of preparation of panel viz.,",,
15.8.1997 or on the date of consideration of the panel viz., 12.10.2001, the Appellant was neither facing the formulated charges nor currency of",,
punishment and therefore, the impugned order dt. 03.9.2009 is liable to be quashed. It was submitted that on the crucial date i.e. 15.8.1997, only",,
17(a) charge under Tamil Nadu Civil Services (Discipline and Appeal) Rules alone was pending and the same is not bar for promotion. Learned,,
Senior Counsel urged that currency of punishment that is stoppage of increment for a period of one year without cumulative effect was over as,,
early as prior to 01.1.1999 itself and the Respondents by relying on the check period concept was not justified in denying the promotion. Placing,,
reliance upon the Full Bench decision of this Court in The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani, ,",,
the learned Senior Counsel submitted that the concept of check period is illegal and impermissible under the Statutory rules and on this ground also,,
the impugned order is liable to be quashed.,,
On behalf of the Respondents, Mr. Hidayathullakhan, learned Government Advocate (Forest) has submitted that as prescribed in Rule 4(3) of",,
Special Rules for Tamil Nadu Forest Service, Appellant has not completed discipline of service in Corporation as well as in Non-Sensitive posts",,
and however, his name was included in the panel for the year 2000-2001 by relaxing Rule 4(3) vide G.O.Ms. No. 92 dt. 21.6.2005. It was",,
submitted that the punishment awarded in Proceedings No. 3039/97, E2 dt. 19.11.1997 by the Managing Director, TAFCORN, Trichy was held",,
against the Appellant and the occurrence of lapse of punishment was for the year 1994-95 which was well within the check period for the panel,,
year 1998-99 i.e. 16.8.1992 to 15.8.1997 and hence, as per the panel guidelines and the instructions of the Government, Appellant was not fit for",,
Sl. No.,Name of Unit,"Minimum
period to be
works
1,2,3
1.,"Plantation works (Such as Crash Plantation
Division, Soil Conservation in Reserve Forests
Afforestation Tamil Nadu Forest Plantation
Corporation and other plantation)",One year
2.,"Service in the Tamil Nadu Tea Plantation
Corporation Limited, Arasu Rubber Corporation
and in Tamil Nadu Forest Plantation Corporation
Limited (up to 01.09.92) and service outside the
Forest department on deputation",One year
3.,Service in the Forest Department in any discipline,Two Year
year 2000-2001. While so, it is not open to the Appellant to contend that he had already completed the service in Non Sensitive area/Corporation",,
as prescribed in Rule 4(3) of Special Rules for Tamil Nadu Forest Service.,,
Regarding Item No. 3, Appellant was charge sheeted for not having taken proper and timely action on the felling of trees from Mallangudi",,
Plantation of Panayapatty Range. By the Proceedings of the Managing Director, TAFCORN, Trichy in Proceedings No. 3039/97/E2 dt.",,
19.11.1997, Appellant was imposed punishment of postponement of increment for one year without cumulative effect. Appellant had already",,
made representation dt. 18.1.2002 to include his name in the panel of Assistant Conservator of Forests for the year 1998-99 and the said,,
representation was declined and the same was communicated to the Appellant vide Letter No. 10664/F.R. 1/02-1 dated 22.7.2002 by the 2nd,,
Respondent.,,
In yet another Proceedings No. E1/5215/90 dt. 31.3.98, Appellant was charge sheeted and punishment of postponement of his increment for",,
three years without cumulative effect for the proven charges was imposed on the Appellant. Challenging the said punishment imposed on him and,,
also praying to include his name in the panel of Assistant Conservator of Forests for the year 1998-99, Appellant had filed O.A. Nos. 5296 of",,
2002 and 3817 of 2003 respectively. By the order dated 18.12.2003, the Tribunal set aside the punishment of postponement of increment for",,
three years without cumulative effect. In the same order dated 18.12.2003, the Tribunal directed the Respondents to include the name of the",,
Appellant in the panel of Assistant Conservator of Forests for the year 1999-2000. Pursuant to the order of the Tribunal, Government also issued",,
G.O.(3D) No. 33 Environment and Forests (F.R. 9B) Department dt. 8.7.2004 setting aside the above punishment and also directing inclusion of,,
his name in the panel for the year 1999-2000. Appellant had also accepted the order of the Tribunal to include his name in the panel of Assistant,,
Conservator of Forests for the year 1999-2000. Tribunal order to include Appellant''s name in the panel for the year 1999-2000 might not have,,
been implemented, since Appellant had not satisfied Rule 4(3) of Special Rules for Tamil Nadu Forest Service. Having accepted the order of",,
Tribunal, now it is not open to the Appellant to re-agitate the matter to include his name for the panel of Assistant Conservator of Forests for the",,
year 1998-99.,,
According to Rule 4 (Approved candidates) in Part II of General Rules for Tamil Nadu State & Subordinate Service Rules, the list of",,
approved candidates for appointment by promotion and by recruitment by transfer to all categories of posts in the T.N. State & Subordinate,,
Service shall be prepared annually against the estimated number of vacancies expected to arise during the course of a year. Rule 4 also deals with,,
consultation with the Tamil Nadu Public Service Commission in the estimate of vacancies for the posts to be filled up by transfer/by promotion. As,,
stated above, the crucial date for preparation of panel for Assistant Conservator of Forests for the year 1998-99 was 15.8.1997 and the panel",,
was approved in G.O.Ms. No. 194 dt. 12.12.2001. The panel prepared shall be in force for one year and would lapse after one year. Thus the,,
panel of Assistant Conservator of Forests prepared for the year 1998-99 approved on 12.12.2001 lapsed after one year i.e. after 12.12.2002.,,
After getting relaxation of Rule 4(3) of Special Rules for Tamil Nadu Forest Service and after his name was included in the regular panel for the,,
year 2000-2001 and also after getting the post for Assistant Conservator of Forests, nearly 6 - 7 years thereafter Appellant has given",,
representation dt. 12.12.2008. By making belated representation, Appellant cannot seek to unsettle the settled position of seniority position.",,
Learned Senior Counsel for Appellant forcibly contended that the impugned Proceedings dt. 3.9.2009 is without any merits. As discussed,,
earlier, having accepted the promotional position recruitment of Assistant Conservator of Forests by transfer for the year 2000-2001 by obtaining",,
relaxation of Rule 4(3) of Special Rules for Tamil Nadu Forest Service by virtue of G.O.Ms. No. 92, Environment and Forests (F.R. 1)",,
Department dt. 21.6.2005, nearly after three years thereafter Appellant had made representation to include his name in the panel for the years",,
1998-99. Thereafter, Appellant filed W.P. No. 14095 of 2009 seeking for issue of Writ of Mandamus to pass orders on his representation dated",,
12.12.2008. The said W.P. No. 14095 of 2009 was disposed of even at the admission stage itself, directing the Authorities to pass an order in",,
accordance with law. Thus by filing W.P. No. 14095 of 2009, the Appellant himself invited the Authorities to pass orders on his representation. It",,
is pertinent to note that in the Writ Petition, Appellant even though referred to the order of Tribunal in O.A. Nos. 5296 of 2002 and 3817 of 2003,",,
he has not mentioned about the direction of the Tribunal to include his name only in the year 1999-2000. Having accepted the relaxation of Rule,,
4(3) of Special Rules for Tamil Nadu Forest Service by virtue of G.O.Ms. No. 92 dt. 21.6.2005 and inclusion of his name in the panel for the year,,
2000-2001 and for promotional position, Appellant is estopped from re-agitating the matter to include his name in the panel of Assistant",,
Conservator of Forests for the year 1998-99.,,
Since elaborate arguments were advanced on Item No. 3 of the infringement indicated in the impugned order, we have also considered this",,
submission on Item No. 3 of the impugned Proceedings dt. 3.9.2009, which was held against the Appellant.",,
As pointed out earlier, by the Proceedings of the Managing Director, TAFCORN, Trichy dt. 19.11.1997, increment was postponed for one",,
year without cumulative effect which was held against the Appellant for not including his name in the panel of Assistant Conservator of Forests for,,
the year 1998-99. As pointed out earlier, the crucial date for the panel year 1998-99 was 15.8.1997. Date of approval of the panel was",,
12.12.2001. On the crucial date, the charge sheet under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules was pending",,
which is not a bar for promotion. At the time of consideration, the punishment of postponing his increment for one year without cumulative effect",,
imposed by the Managing Director, TAFCORN, Trichy in Proceedings No. 3039/97 E2 dt. 19.11.1997 was held against the Appellant. The",,
occurrence of lapse with regard to the said punishment was of the year 1994-95 which was within the check period for the panel year 1998-99,,
i.e. 16.8.1992 to 15.8.1997. Therefore, according to the panel guidelines issued in Government Letter Ms. No. 248 P & AR Department dt.",,
20.10.1997 and subsequent instructions in Government Letter No. 4992/S/2000-10 P & AR Department dt. 10.10.2001, Appellant was not fit",,
for inclusion in the panel for the year 1998-99.,,
Learned Senior Counsel for Appellant contended that on the crucial date i.e. on 15.8.1997, Rule 17(a) of Tamil Nadu Civil Services",,
(Discipline and Appeal) Rules charge alone was pending and the same was not a bar for promotion and on the date of approval of the panel i.e. on,,
12.12.2001, currency of punishment i.e. stoppage of increment for a period of one year without cumulative effect was over as early as prior to",,
01.1.1999 itself and the Respondents were not right in relying upon the check period concept and thereby denying the promotion.,,
Contending that under the guise of the check period, the promotion cannot be denied, the learned Senior Counsel placed reliance upon the",,
decision of the Full Bench of this Court in The Deputy Inspector General of Police and The Director General of Police Vs. V. Rani, . The",,
reference made in the batch of cases to the Full Bench relates to the issue, as to whether the currency of punishment has to be treated as a bar for",,
promotion during the period, as it was held otherwise by the Division Bench of this Court in 2008 (5) MLJ 350 [Subramanian v. Government of",,
T.N. rep. by its Secretary, Chennai and others]. After analysis of the entire law on the subject, the Full Bench of this Court answered the reference",,
in Paragraph (28) in which sub-para (5) is relevant. Sub-para (5) reads as under:--,,
28........,,
(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 give years in the case other minor punishments is",,
illegal and impermissible under the Statutory Rules.,,
The check period referred to in Paragraph 28, sub-para (5) which relates to post punishment and not check period prior to preparation of panel.",,
In this case, we are concerned with the check period of five years prior to the panel year 1998-99 i.e. 16.8.1992 to 15.8.1997 which was held",,
against the Appellant. Therefore, the above decision of the Full Bench of this Court relied on by the learned Senior Counsel for Appellant has no",,
application to the present case.,,
Instructions have been issued for guidance of the Heads of Departments/Departments of Secretariat while preparing the panels for appointment,,
by promotion/recruitment by transfer for State and Subordinate Services, consolidating the earlier instructions on preparation of estimate of",,
vacancies, effect of charges, punishments etc. In the impugned Proceedings dt. 03.9.2009, reference is made Government Letter Ms. No. 248 P",,
& AR dt. 20.10.1997. Consolidating the earlier instructions on preparation of estimate of vacancies, effect of charges, punishments etc., in Letter",,
Ms. No. 248 P & AR dt. 20.10.1997, detailed instructions have been issued for guidance of the Heads of Departments/Departments of",,
Secretariat for preparing the panels for appointment by promotion/recruitment by transfer for State and Subordinate Services. In Letter Ms. No.,,
248 P & AR dated 20.10.1997, it is clearly stated that the letter should read with the existing guidelines issued in G.O.Ms. No. 368, Personnel",,
and Administrative Reforms (S) Department dated 18.10.1993 and not in isolation. In G.O.Ms. No. 368 Personnel and Administrative Reforms,,
(S) Department dt. 18.10.1993, detailed guidelines/instructions have been issued in preparation of estimate of vacancies to be filled up by",,
recruitment by transfer or by promotion. G.O.Ms. No. 368 dt. 18.10.1993 deals with inclusion of names in the panel in the case of ""Selection",,
Category"" posts which reads as under:--",,
(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 case 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 whether or not the person concerned was proceeded against under Rule,,
17(a) or Rule 17(b) of the Tamil Nadu 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).",,
(underlining added),,
It is clear from the above instructions that for inclusion of names in the panel in the case of ""Selection Category"", strict comparison of the cases",,
of the individuals, over a specified period of service (5 years) be taken up for analysis before deciding upon the question of inclusion or exclusion in",,
the panel of estimated vacancies. For the purpose of comparison, the proved irregularities which took place during the specified period of service",,
have to be taken into consideration whether or not the person concerned was proceeded against under Rule 17(a) or Rule 17(b) of Tamil Nadu,,
Civil Services (Discipline and Appeal) Rules. Accordingly, proved irregularities during the check period i.e. 16.8.1992 to 15.8.1997 was taken",,
into consideration whether to include the name of the Appellant in the panel of Assistant Conservator of Forests for the year 1998-99. The,,
occurrence of lapse with regard to punishment imposed by the Managing Director, TAFCORN, Trichy in Proceedings No. 3029/97, E2 dt.",,
19.11.1997 was within the check period for panel year 1998-99 i.e. 16.8.1992 to 15.8.1997 and therefore, the Authorities have rightly took the",,
view that Appellant was not fit for inclusion in the panel for the year 1998-99. We do not find any arbitrariness in the decision taken by the,,
Authorities in not including the name of the Appellant in the panel for the year 1998-99 and as such the order of learned single Judge warrants no,,
interference. In the result, the Writ Appeal is dismissed with costs.",,