in both W.Ps.
PRAYER in both W.Ps 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, relating to G.O.(D) NO.441, Public Works (A2) Department, dated 01.10.2009 and quash the same to the limited extent of deferring the promotion of the petitioner as Executive Engineer and consequently direct the first respondent to issue suitable orders of promotion on the petitioner as Executive Engineer with retrospective effect from the date of promotion of his immediate junior with all 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 first respondent, relating to G.O.(D) NO.441, Public Works (A2) Department, dated 01.10.2009 and quash the same to the limited extent of deferring the promotion of the petitioner as Executive Engineer and consequently direct the first respondent to issue suitable orders of promotion on the petitioner as Executive Engineer with retrospective effect from the date of promotion of his immediate junior with all consequential benefits.
2. The petitioners are working as Assistant Executive Engineers in the Public Works Department and they have been included in the panel for promotion to the post of Executive Engineer for the year 2009-2010. After inclusion of their names in the said promotion panel, the petitioners have been awarded with the punishment of Censure as per the order passed by the first respondent dated 22.09.2009 and as such the petitioners have been denied the promotion to the post of Executive Engineer. Being aggrieved against such denial of promotion, the petitioners have been constrained to approach this Court with the above said prayer.
3. Mr.M.Ravi, the learned counsel for the petitioner contended that having included the petitioners name in the panel for promotion, they could have been very well appointed. It is further contended that the order of denying the promotion to the petitioner was issued against the petitioners on 22.09.2009 itself and whereas the order of awarding the punishment of Censure was served on the petitioners only on 05.10.2009. It is also contended that in view of the admitted fact that the punishment of Censure is only a minor one there is no legal impediment for promoting the petitioners to the post of Executive Engineer. The learned counsel for the petitioner would place reliance on Rule 8(1) 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 appearing for the respondents on the submissions made by the learned counsel for the petitioner.
5. The fact remains that the petitioners are working as Assistant Executive Engineer as on date and they have been admittedly included in the promotion panel to the post of Executive Engineer for the year 2009-2010. The said panel was prepared on 14.09.2009, but subsequently the petitioners have suffered with punishment of Censure imposed on them by the order dated 22.09.2009 and the said order was served on them on 05.1.2009. The only consideration for this Court is to the effect that whether the infliction of punishment of Censure of the petitioners would stand in the way of their promotion. It is relevant to refer Rule 8(i) 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:-
(i) Censure"
6. 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."
7. Therefore it is crystal clear that even as per the above said provision, the imposition of punishment of Censure is only a minor penalty. 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."
8. This Court is of the considered view that the above decision is squarely applicable to the facts of the instant case as in this case also the petitioners have suffered only a minor penalty of Censure and as such absolutely there is no legal impediment for considering the names of the petitioners for promotion to the post of Executive Engineer. It is seen that already the names of the petitioners have been included in the panel prepared for promotion. But their promotions have been denied only on the ground of imposition of penalty of Censure. In view of the above said reasons, this Court is constrained to set aside the impugned order denying promotions to the petitioners passed by the first respondents in his proceedings G.O.(D) NO.441, Public Works Department, dated 01.10.2009.
9. Consequently, this Court is constrained to direct the first respondent herein to promote the petitioners to the post of Executive Engineer, if otherwise they are qualified and eligible and no other proceedings pending against them except the above said imposition of punishment of Censure. It is made clear that the petitioners shall be promoted with effect from the date of inclusion in the promotion panel for the year 2009-2010.
10. With the above direction, the Writ Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are also closed.
cs To
1.Government of Tamil Nadu represented by Secretary to Government, Public Works Department, Secretariat, Chennai - 600 009.
2.Engineer-in-Chief W.R.O. & Chief Engineer (General), Public Works Department, Chepauk, Chennai - 600 005.