1st respondent in WP.10867/09
2. The District Forest Officer, Madurai Division, Madurai. ..2nd Respondent in WP.10867/09 PRAYER IN WP.10856/09 Petition filed under
Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records of the respondent in connection with the impugned proceedings issued by him in Proc.No.AB1/36940/2008, dated 26.08.2009 and quash the same in so far as declaration of the petitioners name as "not selected" in Sr.No.58 is concerned for empanelment in the panel to the post of Forester for the year 2008-09 and consequently direct the respondent to empanel the petitioner in the impugned panel and to promote him as Forester with retrospective effect from the date of promotion of his immediate junior with all consequential service and monetary benefits.
PRAYER IN WP.10867/09 Petition filed under
Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus calling for the records of the First Respondent in Pro.No.AB1/36940/2008 dated 26.08.2009, quash the same in so far as to relates to non-inclusion of name of her petitioner in the said panel and issue consequential directions to the first respondent to include the name of the petitioner in the said panel, not withstanding and without reference to the punishment imposed in Pro.No.9534/2008/Pa.2 dated 18.11.2008 of the Second Respondent, and promote him as Forester with consequential benefits.
!For Petitioner in both W.Ps. ... Mr.M.Ravi ^For Respondent in both W.Ps ... Mr.V.Rajasekaran Special Government Pleader :COMMON ORDER The petitioners have come forward with these petitions seeking for the relief of calling for the records of the respondent in connection with the impugned proceedings issued by him in Proc.No.AB1/36940/2008, dated 26.08.2009 and quash the same in so far as declaration of the petitioners name as "not selected" in Sr.No.58 is concerned for empanelment in the panel to the post of Forester for the year 2008-09 and consequently direct the respondent to empanel the petitioner in the impugned panel and to promote him as Forester with retrospective effect from the date of promotion of his immediate junior with all consequential service and monetary benefits.
2.The petitioners are working as Forest Guards and they have been inflicted with the punishment of stoppage of increment for a period of three years without cumulative effect. Therefore the names of the petitioners were not included for the promotion to the post of Forester for the year 2008-09 and as such they have been constrained to approach this Court with the above said prayer.
3.Mr.M.Ravi, learned counsel appearing for the petitioners contended that the petitioners are eligible and entitled for the promotion to the post of Forester as they have been suffered only a minor penalty. The learned counsel for the petitioners would place reliance on Rule 8(iii) of Tamil Nadu Civil Service (Discipline and Appeal) Rules and the Division Bench decision of this Court reported in 2008 (5) MLJ 350 (Subramanian Vs. Government of Tamil Nadu), in support of his contention.
4.Heard Mr.V.Rajasekaran, learned Special Government Pleader on the submissions made by the learned counsel for the petitioners. It is contended that the names of the petitioners were not included in the promotion panel on the ground that they have been imposed with a penalty of stoppage of increment for a period of three years without cumulative effect. It is further contended that their names would be considered for promotion, if they are otherwise qualified and eligible for such promotion.
5.I have carefully considered the rival contentions of both sides and also perused the materials available on record.
6.The fact remains that as on date the petitioners are working as Forest Guards and the names of the petitioners are not included in the promotion panel for the post of Foresters for the year 2008-09 published on 26.08.2009 mainly on the ground of imposition of penalty of stoppage of increment for a period of three years without cumulative effect. It is relevant to refer Rule 8(iii) of Tamil Nadu Civil Service (Discipline and Appeal) Rules which reads hereunder: "The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon every person who is a member of the civil service of the State and every person holding a civil post under the State specified in rule 2, namely:-
(iii) Withholding of increments or promotion:
Provided that in cases where the punishment of withholding of increment cannot be given effect to fully the monetary value equivalent to the amount of increments ordered to be withheld for the unexpired period of the punishment shall be recovered from the person;
Provided further that in case of stoppage of increment with cumulative effect, the monetary value equivalent to three items the amount of increments ordered to be withheld may be recovered;
Provided also that the penalty of withholding of increments shall not be imposed on a person when no increments are to be earned by such person before the date of superannuation;
Provided also that the recovery of the monetary value equivalent to withholding of increments shall be resorted to only in cases where the punishment of withholding of increment cannot be implemented fully consequent on the promotion of the person to a higher post prior to the imposition of the punishment"
7. The question regarding the nature of punishment whether the same is minor or major is also provided under the same rule which reads hereunder: "The penalties mentioned in items (i) to (iii), (v) and (ix) shall be deemed to be minor penalties and those in items (iv) and (vi) to (viii) shall be deemed as major penalties.
The penalties mentioned in items (vi), (vii) or (viii) as the case may be, shall be imposed on a Government Servant for the violation of rule 19 of the Tamil Nadu Government Servants Conduct Rules, 1973."
8. A reading of the above said provisions for imposition of penalty of stoppage of increment for a period of three years without cumulative effect is a minor one and as such there is no legal impediment for including the names of the petitioners in the promotion panel to the post of Foresters. The learned counsel for the petitioner also rightly placed reliance on the decision of the Division Bench of this Court reported in 2008 (5) MLJ 350 (Subramanian Vs. Government of Tamil Nadu), which held as follows:
"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."
9. The above said principle laid down by the Division Bench of this Court is squarely applicable to the facts of the case on hand as in this case admittedly the petitioners suffered only a minor penalty and therefore there is absolutely no legal impediment for including the petitioners names in the promotion panel to the post of Foresters for the year 2008-09. Accordingly the first respondent herein is hereby directed to include the names of the petitioners in the promotion panel prepared for the year 2008-09 to the post of Foresters dated 26.08.2009, if the petitioners are otherwise qualified and eligible. It is made clear that the above said exercise shall be completed by the first respondent within a period of four weeks from the date of receipt of a copy of this order.
10. With the above direction, the Writ Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are also closed.
cs To
1. The principal Chief Conservator of Forests & Head of Forest Department, Panagal Buildings, Saidapet, Chennai - 15.
2. The District Forest Officer, Madurai Division, Madurai.