S. Parameswaran vs The Inspector General of Prisons

D. Hariparanthaman, J.—The Original Application in O.A. No. 6240 of 1998 before the Tamil Nadu Administrative Tribunal is the present

writ petition.

The petitioner entered the service as Assistant Jailor by direct recruitment through Tamil Nadu Public Service Commission and he joined duty

on 01.02.1985. In 1989, the petitioner was included in the list of approved candidates finalised by the Promotion Board for the post of Deputy

Jailor. In the said approved list, he stood in seniority as Sl. No. 13. But, before arrival of his turn for promotion, the said panel got lapsed. Hence,

he was not able to get promotion as Deputy Jailor.

While preparing the list of approved candidates fit for promotion as Deputy Jailor from among the Assistant Jailors, in the year 1991 on regular

basis, the promotee Assistant Jailors filed Original Application in O.A. No. 126 of 1991 before the Tamil Nadu Administrative Tribunal and

obtained an interim order on 09.01.1991 to the effect that any promotion made during the pendency of the Original Application would be subject

to the final result of the Original Application. Hence, a temporary panel of Assistant Jailors fit for promotion to the post of Deputy Jailor for the

year 1991 was drawn by the respondent vide proceedings dated 08.03.1991. The name of the petitioner was included at Sl. No. 10 in the said

temporary list of approved candidates. Accordingly, he was promoted as Deputy Jailor on temporary basis by the respondent vide proceedings

dated 17.12.1991 and he joined duty as Deputy Jailor on 27.12.1991.

After the disposal of the Original Application in O.A. No. 126 of 1991, the respondent prepared a panel dated 24.06.1998 for promotion to

the post of Deputy Jailor for the year 1996-1997 on regular basis. However, the petitioner was not included in the said panel on the ground that he

was imposed with a punishment of postponement of increment for a period of six months without cumulative effect vide Superintendent''s

Proceedings dated 30.11.1996 pursuant to a charge under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. It is stated

that since 17(b) charges were pending which resulted in the imposition of aforesaid punishment, he was not included in the panel. The respondent

issued a notice dated 29.06.1998 giving the list of persons who were not included in the panel for the reasons given in the notice. The petitioner

stands at Sl.No.7 in the said notice dated 29.06.1998 and the reason given therein reads as follows:

Charge under Rule 17(b) was pending during 96-97 (Since punishment awarded).

Thereafter, the impugned order dated 01.07.1998 was passed promoting the Assistant Jailors who were included in the panel dated 24.06.1998,

while reverting the petitioner from the post of Deputy Jailor to Assistant Jailor.

The petitioner filed Original Application in O.A. No. 6240 of 1998 (W.P. No. 30799/2006) to quash the aforesaid impugned order dated

01.07.1998, in so far as his case is concerned. The respondent filed reply affidavit refuting the allegations.

Heard Mr. K. Venkatramani, learned Senior Counsel for the petitioner and Mr. S. Shiva Shanmugam, learned Government Advocate for the

respondent.

The learned Counsel for the petitioner submits that before passing the impugned order reverting the petitioner from the post of Deputy Jailor to

Assistant Jailor, he worked for seven years as Deputy Jailor. It is submitted that the respondent was not justified in reverting him from the post of

Deputy Jailor after seven years. It is also submitted that since 17(b) charges resulted only in imposition of minor penalty, the respondent was not

justified in not including the name of the petitioner in the panel of Assistant Jailors fit for promotion to the post of Deputy Jailor on regular basis. It

is further submitted that he was included in the list of Assistant Jailors even in the year 1989 for regular promotion. In 1991, temporary promotion

was given only due to the interim order passed by the Tribunal in the Original Application preferred by the promotee Assistant Jailors. It is

submitted that in 1991, there was no proceedings against him and that therefore, the later proceedings should not be used against him to deny

promotion.

The learned Counsel for the petitioner has also relied on an order dated 09.01.2009 in W.P. No. 23751 of 2008, which in turn relies on the

decision of a Division Bench of this Court in Subramanian v. Government of Tamil Nadu reported in 2008 (5) MLJ 350. The relevant para from

the said judgment is extracted here-under:

The learned Counsel for the petitioner would further submit that consequential prayer made in the writ petition for a direction to include the

name of the petitioner in the panel for promotion may be granted. He would submit that as per the law laid down by a Division Bench of this Court

in Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai and Ors. 2008 (5) MLJ 350, 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. The law laid down by the Division Bench is squarely

applicable to the facts of the present case. Therefore, the petitioner is entitled for his name to be included in the panel for promotion to the post of

Deputy Inspector General of Registration provided he possess the other qualifications and if he satisfies the other legal requirements.

On the other hand, the learned Government Advocate strenuously contends that the petitioner was not eligible to be included in the panel in view

of the Government letter (MS) No. 248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997. It is submitted that the

pendency of the 17(b) charges and the resultant punishment passed thereon could be a bar for inclusion of the petitioner in the panel as per the

aforesaid Government letter.

As rightly contended by the learned Counsel for the petitioner, the petitioner was temporarily promoted in 1991 only due to interim order of

the Tribunal in O.A. No. 126 of 1991 preferred by the promotee Assistant Jailors and he was temporarily promoted in 1991 only in those

circumstances, as otherwise he could have been regularly promoted. This circumstance is in favour of the petitioner. Once the Original Application

in O.A. No. 126 of 1991 was disposed, the petitioner should have been regularly promoted.

On the other hand, a panel was prepared for the year 1996-97 for promotion to the post of Deputy Jailor on regular basis and the petitioner

was not included in the panel on the ground that he suffered a minor punishment of postponement of increment for a period of six months without

cumulative effect by an order dated 30.11.1996. This is the reason for not including his name in the panel dated 24.06.1998 for the year 1996-97.

Therefore, I am of the considered view that the matter is squarely covered by the decision of the Division Bench of this Court in Subramanian

v. Government of Tamil Nadu reported in 2008 (5) MLJ 350 and the judgment in dated 09.01.2009 in W.P. No. 23751 of 2008.

In the result, the writ petition is allowed with a direction to the respondent to consider the claim of the petitioner for inclusion of his name in the

panel dated 24.06.1998 of Assistant Jailors fit for promotion to the post of Deputy Jailor for the year 1996-97 at an appropriate place and

promote him as Deputy Jailor, within a period of sixteen (16) weeks from the date of receipt of a copy of this order. However, it is made clear that

the petitioner is entitled only to notional benefits on such promotion. No costs.