Prayer: Writ Appeal filed against the order of this Court dated 18.11.2009 made in W.P(MD). No. 11811 of 2009 on the file of Madurai Bench of Madras High Court.
JUDGMENT
1. 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 Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai, 2008 (5) MLJ 350.
2. In the above cited case, the delinquent was imposed with punishment of stoppage of increments for two years without cumulative effect as a minor punishment under Rule 8 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The delinquent, who was working as an Assistant Executive Engineer was served with a Charge Memo issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules and after enquiry, he was imposed with the punishment of stoppage of increments for two years without cumulative effect. A Panel for promotion to the post of Executive Engineer was notified by the Government in G.O.Ms No. 36 Public Works (A1) Department dated 31.01.1997, in which the said delinquent's name did not find a place and therefore, he approached the Tamil Nadu State Administrative Tribunal by filing O.A No. 1647 of 2002 for including his name in the promotion list of Executive Engineers.
(a) Pending adjudication before the Tribunal, it appears that as per the direction of the Tribunal, his name was included in the panel for the year 1996-97 and he was also promoted as Executive Engineer by G.O.Ms No. 172, Public Works (A2) Department, dated 23.3.1999 It was, thereafter, the punishment of withholding increments for two years without cumulative effect came to be passed by the Government on 16.10.2000 The Government published the promotion list in respect of next category of Superintending Engineers in G.O.Ms No. 317, Public Works (A1) Department dated 26.6.2000, in which the delinquent's name did not find a place, against which the Petitioner made a representation, for which he was informed by the Chief Engineer, Public Works Department on 24.8.2001 that it was due to the pendency of the Disciplinary proceedings culminated into the punishment of stoppage of increment for two years, his name could not be included. Challenging the said order, the delinquent moved the Tribunal by filing O.A No. 5801 of 2001 challenging the said order of punishment and the Tribunal upheld the punishment and also held that he could not be directed to be promoted as Superintending Engineer during the currency of punishment.
(b) It was, challenging the order of the Tribunal, the Writ Petition was filed and the Division Bench accepted the order of the Tribunal and held as follows:
“20. 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 amounts 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.”
(c) In respect of granting of promotion during the currency of punishment, the Division Bench has ultimately held as follows:
“22. The Petitioner was admittedly imposed punishment of stoppage of increment for two years without cumulative effect, as per G.O(2D) No. 49 dated 16.10.2000 As contended by the learned Counsel for the Petitioner, it could be construed only as a minor punishment and solely based on the same, he could not be denied further promotion. 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 30.04.2003 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.”
(d) It is to be noted that even though the Division Bench observed that the punishment imposed therein could be construed only as a minor punishment on the ground that there has been no financial loss to the department and the punishment of stoppage of increment was awarded with effect from 16.10.2000 for two years and the delinquent therein attained superannuation on 30.4.2003, a direction was issued to grant him notional promotion prior to the date of his superannuation, if he was otherwise fit. When that judgment was quoted, a Division Bench of Madurai Bench of this Court, after referring to the contention of the learned Additional Advocate General that granting of promotion to a person, who had been imposed with punishment, during the currency of punishment, whether it is minor or major, will amount to rewarding the tainted Government servant and in the light of the fact that there were different decisions by various Hon'ble Judges, in order to settle the issue so as to get a binding precedent, by order dated 15.2.2011, directed the Registry to place the matter before the Hon'ble the Chief Justice for posting the same before a Full Bench. Having taken note of the fact that similar issues were pending by way of Writ Appeals before this Court, other Writ Petitions originally filed before the Tribunal as OAs and later transferred to this Court, they were directed to be clubbed together and the Full Bench came to be constituted to hear the above matters.”
3. The Government in exercise of the powers conferred under Article 309 of the Constitution of India through the Governor of State framed the Tamil Nadu Civil Services (Discipline and Appeal) Rules (in short, “the Rules”) which came into existence on 1.1.1955 Rule 8 of the said Rules enable the State to impose the penalties viz., (i) censure, (ii) fine, (iii) withholding of increments or promotions, (iv) reduction to a lower rank in the seniority list or to a lower post not being lower than that of which he was directly recruited, (v) recovery from pay all or part of pecuniary loss caused to the State Government or Central Government, etc., (vi) compulsory retirement, (vii) removal from the civil service of the State Government, (viii) dismissal from the civil service of the State Government, and (ix) suspension, where a person has been suspended under Rule 17(e) to the extent considered necessary by the authority imposing the penalty.
4. The said Rule also states specifically that penalties (i) to (iii), (v) and (ix) shall be treated as minor penalties and other penalties as major penalties. The procedures to be followed while proposing minor penalties are detailed in Rule 17(a) and the procedures to be followed for imposing major penalties are explained in Rule 17(b) of the Rules.
5. The Government through the Governor of the State has also framed the Tamil Nadu State and Subordinate Service Rules as per the powers conferred under Proviso to Article 309 of the Constitution of India, as general Rules made applicable to all State and Subordinate servants and to the holders of posts whether temporary or permanent. Rule 36 explains about the promotion, while making it clear that no member of a service is eligible for promotion from the category in which he is appointed to the service unless he satisfactorily completes the probation. However, in Rule 36(b) in addition to what is stated in Rule 36(a) which relates to successful completion of probation, there are two classes of promotion mentioned therein viz., promotion to selection category or grade and promotion according to seniority. For the purpose of appreciation of the above said fact, it is relevant to extract Rule 36(b) as follows:
“Rule 36(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.”
6. There is no provision under the above said Rules framed under Proviso to Article 309 of the Constitution of India regarding the manner of promotion, etc. However, Rule 39 enables a Government servant to be temporarily promoted in public interest owing to emergency. Rule 39(a)(i) and (d) which is relevant for the purpose of this case is as follows:
“Rule 39. Temporary promotion.— (a)(i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the Appointing Authority may temporarily promote a person, who possesses the qualifications prescribed for the post, otherwise than in accordance with the Rules.
(b) and (c) … … …
(d) Where it is necessary to promote an officer against whom an enquiry into allegations of corruption or misconduct is pending the Appointing Authority may promote him temporarily pending enquiry into the charges against him. The Competent Authority shall have discretion to make regular promotion in suitable cases.”
7. The Government issued instructions in G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993, giving instructions regarding the panel for appointment by promotion/by direct recruitment by transfer. That was issued by the Chief Secretary to Government by order of the Governor. In the said Government Order, which is contended to be a statutory order passed as per the Proviso to Article 309 of the Constitution of India by the learned Additional Advocate General, while it has been the contention of the contesting parties that it is only an administrative instruction issued under Article 162 of the Constitution of India, clause (vi) speaks about the effect of promotion by recruitment by transfer, which is as follows:
“(vi) Effect of punishment on promotion/recruitment by transfer:
(1) The effect of a punishment on promotion/recruitment by transfer, will depend upon:
(a) the nature of the higher post, i.e, whether it is a ‘Selection Category’ or an ordinary post;
(b) the period during which the irregularity took place; and
(c) the nature of the irregularities (rather than the quantum of punishment). For example, an Assistant tears off the Current File. On the charges framed against him for the above lapse, one Officer may merely award him a ‘censure’ taking a ‘lenient view’ while another officer may impose the punishment of ‘stoppage of increment with or without cumulative effect’ holding the lapse as ‘serious’. Yet another officer may even ‘dismiss’ him from service holding the lapse as ‘grave’. Thus, different officers may take different views and impose different punishments for one and the same lapse. Therefore, the quantum of punishment is not the objective criterion to assess the gravity of the charge.
(2) In S.L.P(C) No. 14612/91 against the Tamil Nadu Administrative Tribunal's order in O.A Nos. 2851 and 2604/90, the Supreme Court in its order dated 19.8.1992 has said that it did not subscribe to the view that punishment and non-inclusion in the panel would amount to ‘double jeopardy’. Therefore, the following courses of action are available:
(a) In the case of ‘selection category’ posts, the inclusion of names in the panel for 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 cases 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 ……. 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).
(b) The same principles as above will have to be followed in the case of recruitment by transfer from one service to another.
(c) For ordinary promotions, the fitness of the person with reference to all relevant factors has to be considered. The unfit persons have to be eliminated. As far as punishments are concerned, (except where a specific punishment of withholding of promotion for a specified period is awarded), it should be examined whether the proved irregularities took place within the specified period of service taken up for analysis and whether the irregularities were such as to make the individual unfit for the job in the higher category in the year in which his case is considered for inclusion in the panel for appointment to the higher post by promotion/by recruitment by transfer.”
Whether the said Government Order is an administrative instruction or a statutory Rule, the fact remains that even under the said Government Order, there is no provision regarding the promotion during the currency of punishment.
8. In addition to the above said Government Order, the Secretary to Government issued a letter dated 7.10.2005 by referring to G.O.Ms No. 368, Personnel and Administrative Reforms (S) Department, dated 18.10.1993 and the letter is stated to be in the form of consolidated instructions. Admittedly, that letter has not even been issued by the order of the Governor or issued as per the Proviso to Article 309 of the Constitution of India. The said letter contains various annexures viz., Annexure I to VII. In that, Annexure-I explains about the preparation of estimate of vacancies and preparation of panel. The clause relating to preparation of panel in Annexure-I to the said letter, speaks about the effect of pendency of vigilance enquiry and charges on inclusion in a panel for promotion by recruitment by transfer, while it is stated that the pendency of charges framed under Rule 17(a) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules need not be held against the officer irrespective of the pendency of delinquency, it is also explained about the effect of punishment on inclusion in the panel. Clause (b)II reads as follows:
“(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:
Provided that if the officer was imposed within 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:
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.
Since the punishment of censure is one of the codified punishments, the aforesaid Provisos will apply to censure also. The punishment of censure imposed within one year prior to the crucial date or the punishment of censure imposed after the crucial date but before actual promotion, should be held against the Officer. However, the punishment of censure imposed within a period of one year proceeding the crucial date need not be held against the officer if the delinquency had occurred prior to 5 years preceding the crucial date. I am also to clarify that the same censure need not be held against an officer more than once as per the aforesaid Second Proviso in para 411(2) of the Government Letter first cited.
1. Currency of punishment:
$ 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 the 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 it falls within the check period of any panel, if it has already been held against the official on any earlier occasion.
$ (Substituted in Letter No. 52716.S/99-1, Personnel & Administrative Reforms (S) Department dated 1.10.1999)
2. $$ It is further clarified that charges framed under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules and any of the punishments awarded after the crucial date and before actual promotion shall also be held against the officer.
$$ (Substituted in Letter No. 67652.S/2002-6, Personnel & Administrative Reforms (S) Department dated 27.8.2003)
3. The currency of punishment imposed in the form of recovery of loss will continue till the loss so caused is recovered in full. As such, in cases where punishment of recovery of loss is ordered the name of that individual should not be included in the panel until the entire recovery of loss is effected.
(Letter No. 52132.S/2000-14, Personnel and Administrative Reforms (S) Department dated 3.3.2003)
4. An order imposing any punishment including withholding of increment takes effect from the date on which the said order is communicated to the concerned Government servant.
(Letter No. 28790.S/2001-1, Personnel and Administrative Reforms (S) Department dated 5.7.2001)”
Therefore, a combined reading of the said Letter of the Government shows that, —
(i) during the currency of punishment other than censure on the crucial date of preparation of panel for promotion, the candidate's name should be passed over; and
(ii) a new concept of ‘check period’ has been created under the said letter meaning thereby that within a period of five years prior to the crucial date, a punishment other than censure and within the period of one year prior to the crucial date, a punishment of censure or even during the said check period the punishment or penalty having been undergone, the Government servant is not entitled for consideration for promotion.
9. The contention of the learned Additional Advocate General Mr. P. Wilson appearing in W.A(MD) No. 315 of 2010 preferred by the Government against the order of the learned Single Judge in WP (MD) No. 11811 of 2009 by holding that undergoing a minor penalty is not an impediment for the Petitioner therein for seeking the relief of promotion to the higher grade, by relying upon the judgment of this Court in Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai, 2008 (5) MLJ 350, is that when the Statutory Rules framed under the Proviso to Article 309 of the Constitution of India are silent about the effect of punishment, the instructions issued by order of the Governor by the Government in G.O.Ms No. 368, Personnel and Administrative Reforms Department Dated 18.10.1993 and the letter issued by the Secretary to Government to all departments dated 7.10.2005 as consolidated instructions, have to be taken as the exercise of supplementary power of the Government which is well within its jurisdiction and according to him, apart from the Statutory Rules, the Government Order as well as the letter is valid in law and therefore, a person undergoing punishment, during the currency of punishment cannot, as a matter of right, claim promotion to the next category.
10. To substantiate his contention that G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 should be construed to be the continuation of statutory service Rules, he would rely upon some portions of the judgment of another Division Bench of this Court in The Secretary to Government, Tamil Development, Culture and Religious Endowments Department, Fort St. George, Chennai-600 009 v. M. Pugalendran, 2011 (2) CTC 412. On a reading of the said Division Bench judgment, it is clear that the Division Bench in that case was referring to Rule 39(d) of the Tamil Nadu State Subordinate Service Rules which enables the Government to promote an officer, against whom the allegation of corruption or misconduct is pending, temporarily pending enquiry making it very clear that it is also the discretion of the authority to make regular promotion in suitable cases.
11. In fact, before the Administrative Tribunal in that case, the Government relied upon the G.O.Ms 368, Personnel and Administrative Reforms Department, dated 18.10.1993 for denying promotion, which was rejected by the Tribunal holding that the said Government Order being administrative instruction, cannot go beyond the statutory Rule 39(d). While considering that decision of the Tribunal, the Division Bench held that even temporary promotion to be effected under Rule 39(d) is not a matter of right and whether a person should be temporarily promoted or not is a matter of discretion of the authority. The Bench, of course, considered the question whether the G.O.Ms No. 368, Personnel and Administrative Reforms Department dated 18.10.1993 is prospective or not, on the facts of the said case, but there was absolutely no decision as to whether the said Government Order is either a statutory Rule or an administrative instruction.
12. The contention of the learned Additional Advocate General, by placing reliance on the judgment of the Supreme Court in State of Uttar Pradesh v. Dr. Anupam Gupta, 1993 Supp. (1) SCC 594, that in the absence of specific provision in the Statutory Rules, the Administrative Instructions can fill up the same is totally misconceived. In that judgment, in respect of entrance examination for MBBS course, regarding qualifying marks, it was held that non-mentioning of minimum requirement of 50% marks as cut off marks in the first press note by the Government cannot be treated as fatal to the admission process. Further, while considering about the cut off marks as seen in the Government Order issued and the subsequent letter of the Government which amplified the eligibility criteria, it was held that the clarifying note issued by the Government regarding eligibility criteria for admission viz., minimum requirement of 50% as cut off marks, is valid. The said finding which relates to the admission of students to MBBS course can never be taken aid of by the Government in the present situation to justify that the G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 and the Government Letter are all supplemental and are not supplant to the Statutory Rules. However, his submissions, by relying upon the judgment of the Supreme Court in Union of India v. K.V Jankiraman, 1991 (4) SCC 109, that the employee has only a right to be considered for promotion and he has no right to promotion and that the non-promotion of an employee on the penalty imposed cannot be considered to be a double jeopardy, are all established judicial precedents about which there can be no doubt.
13. The Additional Advocate General would also heavily rely upon the judgment in Union of India v. K.V Jankiraman, 1991 (4) SCC 109 apart from the judgment in Union of India v. A.N Mohanan, 2007 (3) CTC 621 (SC) : 2007 (5) SCC 425, wherein it was held that penalty of censure is also a blameworthy factor and cannot give right to a person to be considered for promotion in that year. The Supreme Court in A.N Mohanan's case (stated supra), has held as follows:
“11. Awarding of censure, therefore, is a blameworthy factor. A bare reading of Para 3.1 as noted above makes the position clear that where any penalty has been imposed the findings of the sealed cover are not to be acted upon and the case for promotion may be considered by the next DPC in the normal course.”
14. The Supreme Court in State of Tamil Nadu v. K.S Murugesan, 1995 (3) SCC 273, which is relied upon by the Additional Advocate General, by referring to the judgment in Jankiraman's case (cited supra), in categorical terms, held that for the purpose of promotion, the currency of punishment based on previous records, is an impediment. While holding so, the Supreme Court has again clarified that the Principle of Double Jeopardy will not apply in cases of imposing penalty in disciplinary proceedings and withholding of promotion on account of currency of punishment and that does not offend either Article 14 or 21 of the Constitution of India. The operative portion of the judgment is as follows:
“7. 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.”
15. Therefore, the contention of Mr. G. Rajagopal, learned Senior Counsel appearing in W.A(MD) No. 587 of 2010 and Mr. Ajmalkhan, learned Counsel for the Petitioner in W.P(MD) No. 3602 of 2011 that under Rule 36(b)(ii) of the Tamil Nadu State Subordinate Service Rules elicited above, promotion can be withheld only if a penalty has been passed by withholding the promotion and in all other cases irrespective of pendency of penalty, promotion is a matter of right based on seniority is totally unacceptable. In fact, Mr. G. Rajagopal, learned Senior Counsel appearing for the Appellant in W.A(MD) No. 587 of 2010 would fairly submit that his contention is not that in all cases where punishment is being undergone, promotion should be given as a matter of right and that only in cases where promotion is withheld as a penalty as per Statutory Rules, viz., Tamil Nadu State and Subordinate Service Rules, the promotion should be withheld.
16. The above said Rule 36(b)(ii) cannot be read in isolation in order to come to a conclusion that irrespective of merit and ability, even in cases of currency of punishment imposed after following the procedures, a person should be given promotion blindly by seniority, as it is antithesis to the service law and it is also opposed to the decision of the Supreme Court in State of Tamil Nadu v. K.S Murugesan (cited supra). If such contention is accepted, the same will go against the established legal principle that promotion is not a matter of right.
17. Insofar as the legal effect of G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 is concerned, as stated earlier, there is no provision in respect of promotion in cases where there is currency of punishment. Therefore, the question as to whether in the absence of a statutory Rule framed under the Proviso to Article 309 of the Constitution of India, the gap can be filled up by way of Government Order in the form of instructions need not be gone into on the facts of the present case. In any event, a reading of the Government Order itself shows that while dealing about the effect of punishment, individual cases are to be looked into and there cannot be a general yardstick. Even though the said Government Order is stated to have been issued by the order of the Governor, it remains that the same has been issued on the order of the Chief Secretary to Government and it does not frame any rule under the Proviso to Article 309 of the Constitution of India. We are of the view that the Government Order utmost can be correlated to an administrative instruction given by the Government under Article 162 of the Constitution of India. The law is well settled that such administrative instruction cannot in any manner substitute the Statutory Rules. Therefore, we do not accept the contention of the learned Additional Advocate General that either G.O.Ms No. 368 Personnel and Administrative Reforms Department, dated 18.10.1993 or the subsequent Government Letter dated 7.10.2005 given as consolidated instructions for promotion with annexures has to be treated as steps taken by the Government to fill up the gap, which is well within the jurisdiction of the Government.
18. In any event, if such Government Order, G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 creates any inconsistent criteria against the Statutory Rules, the same cannot be accepted. The said aspect has been well established by the Supreme Court in State of Haryana v. Shamsher Jang Shukla, AIR 1972 SC 1546, wherein while dealing with the issue of promotion of a Government servant, it was held that, apart from the Rules framed under the Proviso to Article 309 of the Constitution of India, any addition by Administrative Instructions imposing more requirements cannot be valid in the eye of law. By dealing with similar contention as made by the Additional Advocate General here that in the absence of any prohibition, the gap in the Rules can be filled up by the Administrative Instructions, the Supreme Court held as follows:
“7. It may be noted that herein we are dealing only with those who were promoted from the cadre of clerks in the Secretariat. The first question arising for decision is whether the Government was competent to add by means of Administrative Instructions to the qualifications prescribed under the Rules framed under Article 309. The High Court and the Courts below have come to the conclusion that the Government was incompetent to do so. This Court has ruled in Sant Ram Shama v. State of Rajasthan, AIR 1967 SC 1910, that while the Government cannot amend or supersede the Statutory Rules by Administrative Instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed. Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or they alter the conditions of service prescribed by the Rules framed under Article 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the Rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affects the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the Rules framed under Article 309 by means of Administrative Instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the Rules. The rules can be implemented without any difficulty. We see no gap in the Rules.”
19. The above said view was reaffirmed by the Supreme Court in Dr. Rajinder Singh v. State of Punjab, 2001 (5) SCC 482, as follows:
“7. 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 Order and ignoring the mandate of Article 309 of the Constitution.”
20. As submitted by Mr. Ajmalkhan, learned Counsel, it was held by the Supreme Court in Paluru Ramkrishnaiah v. Union of India, AIR 1990 SC 166, that executive instructions could make a provision only with regard to matters which are not covered by the Statutory Rules framed.
21. It was held by the Supreme Court in Union of India v. Sangram Keshari Nayak, 2007 (6) SCC 704, that promotion is not a fundamental right, even though the right to be considered is a fundamental right holding that the Statutory Rules framed under the Proviso to Article 309 of the Constitution of India can be altered or amended by such Statutory Rule or otherwise. The relevant portion of the judgment is as follows:
“11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a Departmental proceeding should be initiated against him.
12. The terms and conditions of an employee working under the Central Government are governed by the Rules framed under the Proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law.”
22. According to Mr. S. Vadivelu, learned Counsel appearing for the Petitioners in W.P Nos. 22234 and 22235 of 2010, Letter No. 248 (P&AR) Department, dated 20.10.1997, which is nothing but the letter dated 07.10.2005 dealt with above, is invalid and it has not been issued in accordance with Articles 162, 166(2) and 16(3) read with Business Rules 11 and 12, for which he relied upon the judgment of the Supreme Court in State of U.P v. Neeraj Awasthi, JT 2006 (1) SC 19; Punit Rai v. Dinesh Chaudhary., JT 2003 (Suppl.) SC 557; Punjab Water Supply and Sewerage Board v. Ranjodh Singh, 2007 (2) SCC 491; Shanthi Sports Club v. Union of India, 2009 (7) MLJ 258 (SC); Fonseca Pvt. Ltd. v. L.C Guptha, AIR 1973 SC 563; Avana Nadar v. Union of India, 1987 LLN 143; and Ghaio Mal and Sons v. State of Delhi, AIR 1959 SC 65. Further, he submitted that stoppage of increment is not a bar for consideration for promotion to the higher post and according to him right to be considered for promotion is a Fundamental Right under Articles 16 and 14 of the Constitution of India by relying upon the judgment of the Supreme Court in State of M.P v. J.S Bansal, JT 1998 (1) SC 514; Subramanian v. State of Tamil Nadu, rep. by its Secretary, Chennai, 2008 (5) MLJ 350; and Collector of Thanjavur v. S. Rajagopal, 2002 SLR 552. It is also his submission that as the Petitioners are the employees of the Tamil Nadu Slum Clearance Board, they are governed by the Tamil Nadu Slum Areas Improvement and Clearance Act as well as the Tamil Nadu Slum Clearance Board Service Rules, 1972. Therefore, a circular from the State Government will not be of any statutory force. To substantiate the above contention, he relied upon the judgment of the Supreme Court in Punjab State Warehousing Corporation, Chandigarh v. Manmohan Singh, JT 2007 (4) SC 291. That is a case with regard to Punjab State Warehousing Corporation and the policy decision issued not under Article 162 of the Constitution of India was held to be not applicable to the Public Sector undertaking, Corporation or Board or local authorities. The relevant portion of the said judgment is as follows:
“8. The said purported scheme of the State was not made in terms of Article 162 of the Constitution of India. It was by way of a circular letter dated 23.01.201 The State without issuing any notification or without even exercising its statutory power governing the Constitution and functioning of the Statutory Authorities like the Appellant, sought to extend the same to Public Sector Undertakings, Corporations, Boards, Local Authorities and other autonomous bodies which it could not do in law.”
We have already expressed our view that during currency of punishment, no one can claim promotion as a matter of right. However, as rightly submitted by the learned Counsel, the letter dated 20.10.1997 cannot have any statutory basis as we have held in respect of a similar letter of the Government dated 07.10.2005
23. In the light of the above said categorical legal position, the submission of Mr. Ravi, learned Counsel appearing for the respondent in W.A 280 of 2011 as well as for Petitioner in W.P Nos. 45960 of 2006 and 955 of 2007 and apart from Mr. R. Subramanian, learned Counsel appearing for the Petitioner in W.P No. 47252 of 2006, that the Letter of the Government dated 7.10.2005 cannot be equated with the Statutory Rules framed under Proviso to Article 309 of the Constitution of India has to be certainly upheld. The Government Letter dated 7.10.2005 stated to be the consolidated instructions regarding preparation of panel for promotion issued by the Secretary to Government, not even with the authority of the Governor of State, can never be treated as Statutory Rules at all. Therefore, the annexures therein are not enforceable as Statutory Rules especially with regard to a new phrase inserted viz., ‘check period’ by imposing a total embargo on the right of consideration of a Government Servant who has undergone punishment for the period of one year in case of penalty of censure and five years in other cases of minor penalties, as it has no legal basis at all.
24. While it is true 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, it can never be said that even after the period of punishment is over, in between the date of crucial date and the date of punishment there must be one year in case of censure and five years in other cases as disqualification period. The above said impediment in the name of ‘check period’ can never be imposed on a Government servant. Even though it has not been issued as Statutory Rules under the Proviso to Article 309 of the Constitution of India, the said letter stating the currency of punishment as an embargo for considering for further promotion during the period of punishment cannot be said to be antithesis to the principles of law. The embargo imposed in respect of further period as stated above can never be said to be authorized under the Statutory Rules. The said Government Letter can be treated as a circular issued by the Secretary to Government to all departments. This letter, as correctly submitted by the learned Senior Counsel Mr. G. Rajagopal, cannot supersede the Statutory Rules.
25. It has been held by the Supreme Court in State of Orissa v. Prasana Kumar Sahoo, 2007 (15) SCC 129, 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) held as follows:
“11. 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.
12. 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.”
26. In Dr. Rajinder Singh v. State of Punjab, 2001 (5) SCC 482, the Supreme Court has enunciated the settled position as follows:
“7. 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 Order and ignoring the mandate of Article 309 of the Constitution.”
27. It was held that by the executive instructions, the State can make provisions only with regard to matters not covered by the Statutory Rules in Paluru Ramakrishnaiah v. Union of India, 1989 (2) SCC 541. The relevant portion of the judgment is as follows:
“11. It is, thus, apparent that an executive instruction could make a provision only with regard to a matter which was, not covered by the Rules and that such executive instruction could not override any provision of the Rule. Notwithstanding the issue of instruction dated 6.11.1962 therefore, the procedure for making promotion as laid down in Rule 8 of the Rules had to be followed. Since Rule 8 in the instant case prescribed a procedure for making promotion the said procedure could not be abrogated by the executive instruction dated 6.11.1962 The only effect of the Circular dated 6.11.1962 was that Supervisors ‘A’ on completion of two years' satisfactory service could be promoted by following the procedure contemplated by Rule 8. This Circular had indeed the effect of accelerating the chance of promotion. The right to promotion on the other hand was to be governed by the Rules. This right was conferred by Rule 7 which inter alia provides that subject to the exception contained in Rule 11, vacancies in the posts enumerated therein will normally be filled by promotion of employees in the grade immediately below in accordance with the provisions of Rule 8. The requirements of Rule 8 in brief have already been indicated above. Rule 12 provides that no appointment to the posts to which these Rules apply shall be made otherwise than, as specified in these Rules. This right of promotion as provided by the Rules was neither affected nor could be affected by the Circular. The order dated 28.12.1965 which provided a minimum period of service of three years in the lower grade for promotion to the next higher grade and the Circular dated 20.1.1966 which provided that promotions in future will be effected in accordance with the normal Rules and not merely on completion of two years' satisfactory continuous service had the effect of doing away with the accelerated chance of promotion and relegating Supervisors ‘A’ in the matter of promotion to the normal position as it obtained under the Rules.”
28. Therefore, after analysis of the entire law on the subject, we answer the reference as follows:
(1) During the period of currency of minor punishment, an employee cannot claim as a matter of right to be promoted to the next category merely on the basis that he is otherwise fit for promotion and to that extent, the finding of the Division Bench in Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai, 2008 (5) MLJ 350, stands overruled. It is needless to state that after the currency of punishment period, the Government servant is entitled to be considered for promotion to the next post, if otherwise eligible.
(2) If any benefit has been conferred on the party to the judgment rendered by the Division Bench in Subramanian v. Government of Tamil Nadu, rep. by its Secretary, Chennai, 2008 (5) MLJ 350, the same shall not be affected by the judgment of this Bench since there is a factual finding in that case that there was a technical lapse committed by the delinquent and no financial loss caused.
(3) The detailed instructions issued by the Government in G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 issued by the Chief Secretary to Government by order of the Governor, cannot be equated to the Statutory Rules framed under the proviso to Article 309 of the Constitution of India and it can utmost be Administrative Instructions issued under Article 162 of the Constitution of India. In any event, the said Government Order does not deal with the case of promotion of a Government servant during the currency of punishment.
(4) The Government Letter No. 18824.S/2005-2, Personnel and Administrative Reforms (S) Department, dated 7.10.2005 with annexures 1 to 7 and the letter No. 248 (P&AR) Department, dated 20.10.1997 are not Statutory Rules framed under Proviso Article 309 of the Constitution of India and cannot be read either with the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules.
(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 five years in the case other minor punishments is illegal and impermissible under the Statutory Rules.
Accordingly, —
(a) W.A(MD) Nos. 315, 355, 587, 869, 826 and 149 of 2010 as well as W.A No. 280 of 2011 stand allowed and the orders of the learned Single Judge stand set aside, however, making it clear that after the period of punishment was over, in respect of Writ Petitioners, they are eligible for being considered for further promotion, if they are otherwise eligible.
(b) W.P(MD) Nos. 2023 of 2010 and W.P No. 45960 of 2006 (O.A No. 9125 of 2000), which relate to the claim of promotion during the currency of punishment, which was rejected by the impugned orders, stand dismissed, for the reasons stated above, making it clear that after the period of punishment is over, the Petitioners shall be entitled to be considered for promotion in accordance with law.
(c) W.P(MD) No. 3099 of 2011 which challenges the Government Letter dated 20.10.1997 in letter No. 248, Personnel and Administrative Reforms (S) Department, which is in the line of the letter dated 7.10.2005, stands allowed, as the said Government Letter is held to be not a Statutory Rule framed under the Proviso to Article 309 of the Constitution and hence, it is not having a binding force as the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules and that the principle of check period enunciated therein is also held to be illegal.
(d) W.P No. 47252 of 2006 (O.A No. 8850 of 2000) challenges the order of the Deputy Commissioner, Commercial Taxes, Coimbatore, dated 28.9.1997 The inclusion of the name of Petitioner in the list of promotion has been deferred due to the punishment awarded to him by the Assistant Commissioner, Commercial Taxes (Enforcement) Coimbatore dated 30.8.1991, viz., the punishment of stoppage of increment for six months without cumulative effect as a minor punishment, since the impugned order proceeds on the basis that the Petitioner is not eligible for promotion due to the check period. Inasmuch as we have held that the concept of check period is unknown to the Statutory Rules and hence, it is illegal, the impugned order stands set aside and the Writ Petition stands allowed with direction to the respondents therein to consider the case of the Petitioner for promotion immediately after the period of punishment was completed, subject to his eligibility and other criteria as per law and pass appropriate orders. The Writ Petition stands allowed accordingly.
(e) W.P No. 955 of 2007 (O.A No. 9117 of 2000): The Writ Petition is against the order of the Government refusing to consider the name of Petitioner for promotion as a Ranger from the category of Forester on the ground that the Petitioner has suffered a minor penalty of punishment of stoppage of increment for a period of three months without cumulative effect from 19.11.1991 in respect of the occurrence that had taken place on 27.9.1991 and since the punishment as well as date of occurrence fell within the check period of five years, the claim for promotion of the Petitioner was rejected. As we have already held that the term, ‘check period’ does not find a place in the Statutory Rules and therefore, it is not legal, the impugned order stands set aside and the Writ Petition stands allowed with direction to the Second Respondent therein to consider the case of Petitioner for promotion to the post of Ranger after the currency of punishment was over, if he is otherwise eligible and pass appropriate orders as per law.
(f) W.P Nos. 22234 and 22235 of 2010 have been filed to declare the Government Order in G.O.Ms No. 248 dated 20.10.1997 as amended by the Government Letter dated 27.8.2003 as illegal, by which the principle of check period has been innovated imposing an embargo on a person who has suffered punishment for being considered for promotion for a period of five years after the currency of punishment period and prior to the date of crucial date. The challenge is also made against the impugned order of the Tamil Nadu Slum Clearance Board dated 25.5.2010, refusing to include the name of Petitioner concerned in the panel of Executive Engineers in the Slum Clearance Board on the basis of G.O 248 dated 20.10.1997, wherein the concept of check period was innovated. Since we have held that the principle of check period is not known to the Statutory Rules, the Writ Petitions stand allowed and the impugned orders are set aside with direction to the respective respondents to consider the case of the Petitioners concerned for promotion after the currency of punishment period was over, subject to eligibility of the Petitioners as per law and pass appropriate orders.
(g) W.P No. 26620 of 2010 challenges the order of the Second Respondent, Inspector General of Registration dated 14.9.2010, under which the claim of the Petitioner who was working as a Assistant, to include his name in the promotion panel to Grade-II Sub-Registrar for the year 2010-11, came to be rejected on the ground of currency of punishment period. It is seen that as per the show-cause notice issued under Rule 17(a) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, the Inspector General of Registration, by order dated 30.4.2009 imposed a minor punishment of stoppage of increment for a period of 30 months without cumulative effect. Since the currency of punishment is in force, as held by us, for the reasons stated above, the Petitioner is not entitled for the relief claimed and the Writ Petition stands dismissed, however, with liberty to the Petitioner to approach the Second Respondent therein after the period of punishment is over for consideration of his name for promotion.
(h) W.P(MD) No. 3602 of 2011 is for a declaration that the G.O.Ms No. 248, Personnel and Administrative Reforms (S) Department, dated 20.10.1997 is ultra vires on the ground that the same is not forming part of the Statutory Rules framed under the Proviso to Article 309 of the Constitution of India. It is seen that the Petitioner therein was imposed with the punishment of withholding of increment for three months without cumulative effect on 19.2.2007 Since we have held that G.O.Ms No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 cannot be equated with the Statutory Rules framed under the Proviso to Article 309 of the Constitution of India and that the other Government Letters have no legal force, the Writ Petition stands ordered accordingly.
(i) No costs in all the matters. Connected Miscellaneous Petitions are closed.
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