N. Ganapathy vs The Collector

B. Rajendran, J.—The applicant was initially appointed as Junior Assistnat on 01.09.1973 and subsequently he was promoted as Assistant

in October 1982. Thereafter, he was promoted as Deputy Tahsildar and posted in the office of the Revenue Divisional Officer, Mayiladuthurai. His

services in the post of Deputy Tahsildar was also regularised with effect from 30.10.1992. Subsequently, the respondent, by his proceedings dated

16.10.1999 drawn a panel for promotion to the post of Tahsildars for the year 1998 in which the names of 31 persons have been included, but the

name of the applicant was not included. According to the applicant, the persons, who were shown in serial Nos. 17 to 31 of the said panel dated

16.10.1999 are juniors to him. In the said proceedings, it was stated that the applicant''s name was not included and he was found to be unfit for

inclusion in the panel as charges are pending against the applicant. Therefore, challenging the same, the applicant has filed the above Original

Application before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 38420 of

2006.

2.It is seen from the records that a charge memo was issued by the respondent on 01.12.1997 to the petitioner containing four charges under Rule

17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges relates to the unauthorised absence of the petitioner. After

conducting an enquiry, the respondent, by proceedings dated 28.03.1998 imposed the punishment of stoppage of increment for one year without

cumulative effect. The petitioner has filed an appeal before the Principal Commissioner and Commissioner of Revenue Administration, Chepauk,

Chennai - 600 005. The appeal was also rejected by proceedings dated 24.07.1998. Thereafter, the petitioner has filed a revision petition to the

Government on 17.08.1998. During the pendency of the Original Application, it is stated that the Revision Petition was allowed by the

Government modifying the punishment into one of stoppage of increment for a period of six months without cumulative effect.

The petitioner would contend that the refusal of the respondent to include his name in the panel for promotion to the post of Tahsildar on the

basis of minor punishment of stoppage of increment is illegal. According to the petitioner, such minor punishment is not a bar for inclusion of his

name in the panel for promotion to the post of Tahsildar and therefore he is entitled for inclusion of his name in the panel for the year 1998.

The respondent has filed reply affidavit contending that at the time when the name of the applicant was taken up for consideration for inclusion in

the panel for the year 1998, the applicant was imposed with punishment of stoppage of increment for one year without cumulative effect by

proceedings of the respondent dated 28.03.1998 and the appeal filed by the petitioner was also rejected by the appellate authority. The

Government, in Lr. No. 248, Personnel & Administrative Reforms Department dated 20.10.1997 had instructed that 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 held against the officer and their names should be passed over from consideration. Therefore, due to pendency

of the currency of punishment, the petitioner''s name was passed over and his name was not included in the list of panel for promotion to the post

of Tahsildar in the year 1998. Since on the crucial date of drawal panel, the petitioner was imposed with punishment, his name was rightly excluded

from consideration.

Heard both sides. The learned Counsel for the petitioner contended that the punishment imposed on the petitoner pursuant to proceedings

initiated under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules is a minor punishment of stoppage of increment for a

period of one year and the same was also subsequently modified to six months by the Government during the pendency of the Original Application

before the Tribunal, therefore the respondent may be directed to include the name of the applicant in the panel of Tahsildars for the year 1998 at

the appropriate place with reference to his seniority and grant him all consequential benefits.

The learned Government would contend that the Government, in Lr. No. 248, Personnel & Administrative Reforms Department dated

20.10.1997 had categorically instructed that 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 held against the officer and their names

should be passed over from consideration. Therefore, following the same, the petitioner''s name was rightly excluded from the list of panel and

prayed for dismissal of the writ petition.

The issue involved in this writ petition has been answered by the Honourable Supreme Court in the decision reported in ( Collector of Thanjavur

Distt. and Others Vs. S. Rajagopalan and Others, wherein it was held that the Tribunal was in error in thinking that if the minor punishments

inflicted on the respondents were taken into consideration at the time of considering their merit for the purpose of inclusion in the list of Deputy

Tahsildars, that would amount to double jeopardy. In our opinion the said view expressed by the Tribunal is clearly contrary to the legal position

enunciated in Union of India v. K.V. Jankiraman. In Para No. 6, it was held as follows:

We are of the view that the Tribunal was in error in thinking that if the minor punishments inflicted on the respondents were taken into

consideration at the time of considering their merit for the purpose of inclusion in the list of Deputy Tahsildars, that would amount to double

jeopardy. In our opinion the said view expressed by the Tribunal is clearly contrary to the legal position in Union of India v. K.V. Jankiraman. This

Court held that: (SCC pp.122-23, paras 28-29)

The Tribunal has also struck down the following portion in the second sub-para after Clause (iii) of para 3 which reads as follows: ''If any

penalty is imposed on the officer as a result of the disciplinary proceedings or if he is found guilty in the court proceedings against him, the findings

in the sealed cover/covers shall not be acted upon� and has directed that if the proceedings result in a penalty, the person concerned should be

considered for promotion in a Review DPC as on the original date in the light of the results of the sealed cover as also the imposition of penalty,

and his claim for promotion cannot be deferred for the subsequent DPCs as provided in the instructions. It may be pointed out that the said sub-

paragraph directs that �the officer�s case for promotion may be considered in the usual manner by the next DPC which meets in the normal

course after the conclusion of the disciplinary/court proceedings�. The Tribunal has given the direction in question on the ground that such

deferment of the claim for promotion to the subsequent DPCs amounts to a double penalty. According to the Tribunal, �it not only violates

Articles 14 and 16 of the Constitution compared with other employees who are not at the verge of promotion when the disciplinary proceedings

are initiated against them but also offends the rule against double jeopardy contained in Article 20(2) of the Constitution�. The Tribunal has,

therefore, held that when an employee is visited with a penalty as a result of the disciplinary proceedings there should be a Review DPC as on the

date when the sealed cover procedure was followed and the Review DPC should consider the findings in the sealed cover as also the penalty

imposed. It is not clear to us as to why the Tribunal wants the Review DPC to consider the penalty imposed while considering the findings in the

sealed cover if, according to the Tribunal, not giving effect to the findings in the sealed cover even when a penalty is imposed, amounts to double

jeopardy. However, as we read the findings of the Tribunal, it appears that the Tribunal in no case wants the promotion of the officer to be

deferred once the officer is visited with a penalty in the disciplinary proceedings and the Tribunal desires that the officer should be given promotion

as per the findings in the sealed cover.

According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all

that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of

dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the

officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be

rewarded by promotion as a matter of course even if the penalty is other than that of reduction in rank. An employee has no right to promotion. He

has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances.

To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a

clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the

other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated

differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when

for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least

till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such

circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record

has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him

the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties

awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it

cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct

prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said

portion of the second sub-para after Clause (iii) of para 3 of the said memorandum. We, therefore, set aside the said findings of the Tribunal.

In State of Tamil Nadu and another Vs. P. Bose and another, , it was held that the respondent awarded in the immediate past (the preceding

year in this case) punishments of censure for failure to attend to duty to restore law and order, postponemtn of increment for delaying the

cregistration of a case of a serious offence and censure for disboeying the instructions of a superior. In such circumstances, non-inclusion of the

appellant in the list of candidates eligible for promotion to next higher post of Inspector of Police did not warrant intereference by the Tribunal and

his non-inclusion is valid. In Para No. 1 of the said judgment, it was held as follows:

This appeal by special leave is directed against the order of the Tamil Nadu Administrative Tribunal whereby the Tribunal set aside the decision

of the department not to include the name of respondent 1 in the list of candidates eligible for promotion to the next higher post of Inspector of

Police. It transpires that in the year 1987 respondent 1 was visited with three punishments: (i) a censure on November 17, 1987 for neglect of duty

in not attending to law and order situation which arose due to water scarcity; (ii) postponement of increment for neglect of duty in delaying the

registration of a case Madurai City B-8 Police Station Cr. No. 567 of 1987, under Sections 448 and 376 IPC and (iii) a censure on December

15, 1987 for irresponsible conduct and disobedience of instructions of Deputy Superintendent of Police. All these acts of misconduct and

misdemeanour were during the period of two months, i.e. April and May 1987. When the question of considering whether or not respondent 1

was fit for promotion to the next higher post came up for consideration in 1988, on account of the aforesaid punishments with which he was visited

in the year 1987 for acts of misconduct/misdemeanour during the months of April and May 1987 the authorities did not consider him fit for

inclusion in the panel for promotion. Thereupon, respondent 1 approached the Tribunal and the Tribunal relying on G.O.Ms. No. 289 dated

March 12, 1980 came to the conclusion that since the misconduct was not of a serious nature e.g., corruption, gross negligence or failure in the

discharge of duties and responsibilities but the charges for which the punishments were imposed being relatively of a minor nature, the authorities

ought to have considered his overall performance. We are afraid we cannot accede to this line of reasoning. Respondent 1 being a police officer,

was expected to show devotion and dedication to duty and this is what he lacked if we are to bear in mind the reasons why he was visited with

three punishments during the year 1987. Failure to attend to duty to restore law and order, failure to promptly register a serious offence and refusal

to carry out or obey instructions of a superior, though visited with minor penalties are not matters which are not germane to the selection process.

The next higher post of Inspector of Police being a very responsible post a person with a weak record with three punishments in the immediately

preceding year if not selected could not be heard to say that though fit for promotion to the next higher post he was wrongly ignored. The post of

Inspector of Police being a pivotal post in a uniformed service must be filled in by persons of integrity and devotion to duty and internal discipline

and anyone who has betrayed a tendency to ignore the same in the immediate past cannot aspire for promotion. The Tribunal was, therefore,

wrong in interfering with the selection process. We are, therefore, of the opinion that the Tribunal ought not to have interfered with the discretion of

those who were charged with the duty to select persons eligible for promotion.

Similarly, in the decision of the Honourable Supreme Court reported in State of T.N. Vs. Thiru K.S. Murugesan and Others, , it was held that

where the rules provided for promotion on the basis of merit and ability, withholding of promotion on account of currency of punishment of

stoppage of increments would neither amounted to double jeopardy nor arbitrary exercise of power. In Para No. 7, it was held as follows:

It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and

ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of

time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is

impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of

double jeopardy has no application and non-consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.

In L. Rajaiah Vs. Inspector General of Registration and Stamps, Hyderabad and Others, , it was held that an employee undergoing punishment

of stoppage of increment is not entitled to be considered for promotion during that period of punishment. In Para No. 4, it was held as follows:

A reading thereof clearly indicates that notwithstanding anything contained in special ad hoc rules, all promotions to non-selection category or

grade shall, subject to the provisions of Rule 16, may be made in accordance with seniority-cum-fitness unless promotion of a member has been

withheld as a penalty. Though due to stoppage of increment, he is not ineligible for consideration for promotion, he is otherwise entitled to be

considered in accordance with the rules, namely, seniority-cum-fitness. However, when seniority-cum-fitness is the criteria, the imposition of the

penalties for one year on 1-3-1988 and in another enquiry, stoppage of increment for five years from 1-3-1989, i.e., till 28-2-1994, disentitled him

to be considered; so he did not regain fitness for consideration for promotion as he was under disability undergoing punishment. Consequently,

when the promotion to the post of Senior Assistant is on the basis of merit and ability under special rules, fitness is one of the considerations for the

purpose. Since he was undergoing punishment during the relevant period, he is not eligible for consideration for promotion. Therefore, his juniors

have stolen march over the appellant as Senior Assistants. He cannot thereby have any grievance. However, he is entitled to be considered for

promotion according to rules after 1-3-1994.

In a decision of the three Judges of Honourable Supreme Court reported in (Union of India and Ors v. K. Krishnan) AIR 1992 Supreme

Court 1898 it was held that denial of promotion during the currency of penalty in disciplinary proceedings against an employee wouold not be said

tobe arbitrary and violative of Article 14 and 16 of the Constitution of India or it does not subject the employee to double jeopardy. In Para No.

4, it was held as follows:

We have considered the matter closely and in our opinion the view taken by the Tribunal both in the impugned judgment and in the earlier

decisions holding that as a result of the provisions of Rule 157 forbidding the promotion of a State employee during the currency of the penalty

results in a second punishment, is not correct. There is only one punishment visiting the respondent as a result of the conclusion reached in the

disciplinary proceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a

consequential result thereof. The view that a government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at

the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157

by including the aforementioned provision is subjecting the government servant concerned to double jeopardy. We do not find any merit in the

argument that there is no justification or rationale behind this policy; nor do we see any reason to condemn it as unjustified, arbitrary and violative

of Articles 14 and 16 of the Constitution of India. On the other hand, to punish a servant and at the same time to promote him during the currency

of the punishment may justifiably be termed as self-contradictory. The impugned judgment is, therefore, set aside.

In all the above decisions, the Honourable Supreme Court had categorically held that denial of promotion during the currency of punishment by

the employer is warranted. In this case, admittedly, when the respondent drew the panel for promotion to the post of Tahsildars in the year 1998,

the petitioner was imposed with punishment and therefore, his name was rightly not included in the panel. I do not find any irregularity or illegality in

the action of the respondent.

In the result, the writ petition is dismissed as devoid of merits. No costs.