CORAMTHE HONOURABLE MR v. The Engineer in Chief WRO & Chief Engineer (General)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 21.06.2012CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMW.P.Nos.22368 and 27952 of 2006andM.P.No.1 of 2006 in W.P.No.22368 of 2006 andM.P.No.2 of 2006 in W.P.No.27952 of 2006A.Hilal AhmedAssistant EngineerPublic Works Department,Buildings Construction &Maintenance Division,Thanjavur... Petitioner in both W.Ps.Vs.1.The Engineer in Chief WRO & Chief Engineer (General), Public Works Department, Chepauk, Chennai – 600 005..1st Respondent in W.P.No.22368/06 & 2nd respondent in W.P.No.27952/062.The Secretary to Government, State of Tamil Nadu Public Works Department, Fort St. George, Chennai – 600 009. .. 1st Respondent in W.P.No.27952/06 & 2nd respondent in W.P.No.22368/06Prayer:W.P.No.22368 of 2006:Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Mandamus directing therespondents to include the petitioner's name in the panel ofAssistant Engineers fit for promotion in the post of AssistantExecutive Engineers for the year 2004-2005 in appropriate placeand promote him as an Assistant Executive Engineer on par with hisjuniors immediate with consequential service benefit.W.P.No.27952 of 2006:Writ Petition filed under Article 226 of the Constitution ofIndia praying to issue a Writ of Certiorari calling for the https://hcservices.ecourts.gov.in/hcservices/ records relating to the first respondent's proceedings made inG.O.(D) No.537, Public Works (A1) Department, dated 30.08.2004 andquash the same.For Petitioner:Mr.M.Muthappan For Respondents:Mr.I.Arockiasamy, GAassisted by Mr.N.Sakthivel, GAC O M M O N O R D E RThe petitioner in W.P.No.22368 of 2006 has filed thispetition for a mandamus directing the respondents to include thepetitioner's name in the panel of Assistant Engineers fit forpromotion in the post of Assistant Executive Engineers for theyear 2004-2005 in the appropriate place and promote him as anAssistant Executive Engineer on par with his immediate juniorswith consequential service benefits.2. The petitioner has joined the Public Works Department asan Assistant Engineer on 21.09.1987. While posted as AssistantEngineer in Buildings Construction and Maintenance DivisionDepartment, Thanjavur, a charge memo under 17(a) of the Tamil NaduCivil Services (Discipline and Appeal) Rules was issued againsthim since he had permitted a senior officer to reside with him inthe Government quarters allotted to him for a period of fourmonths. The petitioner sent a detailed reply informing that sincesuch senior officer was undergoing medical treatment thepetitioner had permitted such officer to reside with him onhumanitarian considerations. His explanation was not accepted andthe Government under G.O.(D) No.537 dated 30.08.2004 imposed apunishment of stoppage of increment without cumulative effect forthree months. Acceding to the request of the petitioner, theSpecial Chief Engineer (Buildings Construction and MaintenanceDivision), Thanjavur, under communication dated 07.06.2005informed the first respondent that the petitioner though hadsuffered a minor punishment had already undergone the same and assuch as on date, he was eligible to be included in the panel forappointment as Assistant Executive Engineer. The petitioner alsomade a representation to the first respondent seeking that he beappointed as Assistant Executive Engineer. Under proceedingsNo.S.1(1)/24937/2006-1 dated 26.06.2006 orders of regularappointment as Assistant Executive Engineers, were issued. Thepetitioner did not find a place in such list. Hence, thepetitioner has come forward with this petition informing that hehad not suffered disqualification for selection to the said postand he ought to be appointed and posted as such with seniorityabove his immediate junior in the post of Assistant Engineer. https://hcservices.ecourts.gov.in/hcservices/

3. Heard the learned counsel for the petitioner on the abovecontentions as also the response of the learned GovernmentAdvocate.4. This Court has perused the counter affidavit filed onbehalf of the respondents. Both the counter affidavit as also thesubmissions of learned counsel for the respondents are to theeffect that the petitioner had suffered stoppage of incrementwithout cumulative effect for a period of three months as orderedin G.O.(D) No.537 dated 30.08.2004 based on disciplinary actionenquiry under section 17(a) of the Tamil Nadu Civil Services(Discipline and Appeal) Rules and owing to having sub letGovernment quarters allotted to him at Thanjavur, during the year2003. Since the occurrence of lapses fall within the check periodof five years, the non-inclusion of the name of the petitioner inthe approved panel for promotion as Assistant Executive Engineerin the year 2004-05 was justified. It is contended that thepunishment accorded to the petitioner would not be held againsthim for a second time and accordingly, his name stands included inthe panel for promotion in the year 2005-06 though the lapses ofthe petitioner fell within the five year check period.5. It is seen that the non-inclusion of the petitioner's namein the panel for promotion during the year 2004-05 was pursuant toinstructions issued in Government Letter No.4992/S/2000-10 dated19.10.2001. A Full Bench of this Court has, in decision in TheDeputy Inspector General of Police and another vs. V.Rani [2011] 3CTC 129 dealt with a letter of Government dated 07.10.2005 underletter No.18824/S/2005-2 and the annexures thereto. One of theannexures is the letter No.4992/S/2000-10 dated 19.10.2001 reliedupon by the respondents. The Full Bench has held that suchletters cannot be equated with statutory rules framed underproviso to Article 309 of Constitution of India. Finding that theGovernment letter dated 07.10.2005, stated to be consolidatedinstructions regarding preparation of panel for promotion, issuedby the Secretary to Government had not even the authority of theGovernor of the State and that the same never could be treated asstatutory rules, it was informed that annexures thereto were notenforceable as statutory rules. The new phrase inserted viz.,'check period' imposing a total embargo on the right ofconsideration of a Government servant who had undergone punishmentfor the period of one year in case of penalty of censure and fiveyears in other cases of minor penalties, was found to have nolegal basis.6. The Full Bench has explained as follows:"24. While it is true that the pendency ofpunishment can be certainly a ground for the Government https://hcservices.ecourts.gov.in/hcservices/ to deny the promotion till the completion of the periodof punishment, it can never be said that even after theperiod of punishment is over, in between the date ofcrucial date and the date of punishment there must beone year in case of censure and five years in othercases as disqualification period. The above saidimpediment in the name of 'check period' can never beimposed on a Government servant. Even though it has notbeen issued as Statutory Rules under the Proviso toArticle 309 of the Constitution of India, the saidletter stating the currency of punishment as an embargofor considering for further promotion during the periodof punishment cannot be said to be antithesis to theprinciples of law. The embargo imposed in respect offurther period as stated above can never be said to beauthorized under the Statutory Rules. The saidGovernment Letter can be treated as a circular issued bythe Secretary to Government to all departments. Thisletter, as correctly submitted by the learned SeniorCounsel Mr.G.Rajagopal, cannot supersede the StatutoryRules.25. It has been held by the Supreme Court in Stateof Orissa and others v. Prasana Kumar Sahoo, 2007 (15)SCC 129, that the exercise of powers by the State underArticle 162 of the Constitution of India is subservientto the recruitment Rules framed under the Proviso toArticle 309 of the Constitution of India. Speaking forthe Bench, S.B.Sinha, J. (as His Lordship then was) heldas follows:"11. It is now well settled that a State is boundby the Constitutional scheme to treat all personsequally in the matter of grant of public employmentas envisaged under Articles 14 and 16 of theConstitution of India.12. Even a policy decision taken by the State inexercise of its jurisdiction under Article 162 ofthe Constitution of India would be subservient tothe recruitment Rules framed by the State either interms of a legislative Act or the Proviso appendedto Article 309 of the Constitution of India. Apurported policy decision issued by way of anexecutive instruction cannot override the statuteor Statutory Rules far less the Constitutionalprovisions."26. In Dr.Rajinder Singh v. State of Punjab andothers, 2001 (5) SCC 482, the Supreme Court hasenunciated the settled position as follows:"7.The settled position of law is that noGovernment Order, Notification or Circular can be a https://hcservices.ecourts.gov.in/hcservices/ substitute of the Statutory Rules framed with theauthority of law. Following any other course wouldbe disastrous inasmuch as it would deprive thesecurity of tenure and right of equality conferredupon the civil servants under the Constitutionalscheme. It would be negating the so far acceptedservice jurisprudence. We are of the firm viewthat the High Court was not justified in observingthat even without the amendment of the Rules, ClassII of the service can be treated as Class I only byway of Notification. Following such a course ineffect amounts to amending the Rules by aGovernment Order and ignoring the mandate ofArticle 309 of the Constitution."27. It was held that by the executive instructions,the State can make provisions only with regard tomatters not covered by the Statutory Rules in PaluruRamakrishnaiah and others v. Union of India and another,1989 (2) SCC 541. The relevant portion of the judgmentis as follows:"11. It is, thus, apparent that an executiveinstruction could make a provision only with regardto a matter which was, not covered by the Rules andthat such executive instruction could not overrideany provision of the Rule. Notwithstanding theissue of instruction dated 6.11.1962 therefore, theprocedure for making promotion as laid down in Rule8 of the Rules had to be followed. Since Rule 8 inthe instant case prescribed a procedure for makingpromotion the said procedure could not be abrogatedby the executive instruction dated 6.11.1962. Theonly effect of the Circular dated 6.11.1962 wasthat Supervisors 'A' on completion of two years'satisfactory service could be promoted by followingthe procedure contemplated by Rule 8. ThisCircular had indeed the effect of accelerating thechance of promotion. The right to promotion on theother hand was to be governed by the Rules. Thisright was conferred by Rule 7 which inter aliaprovides that subject to the exception contained inRule 11, vacancies in the posts enumerated thereinwill normally be filled by promotion of employeesin the grade immediately below in accordance withthe provisions of Rule 8. The requirements of Rule8 in brief have already been indicated above. Rule12 provides that no appointment to the posts towhich these Rules apply shall be made otherwisethan, as specified in these Rules. This right ofpromotion as provided by the Rules was neither https://hcservices.ecourts.gov.in/hcservices/ affected nor could be affected by the Circular.The order dated 28.12.1965 which provided a minimumperiod of service of three years in the lower gradefor promotion to the next higher grade and theCircular dated 20.1.1966 which provided thatpromotions in future will be effected in accordancewith the normal Rules and not merely on completionof two years' satisfactory continuous service hadthe effect of doing away with the acceleratedchance of promotion and relegating Supervisors 'A'in the matter of promotion to the normal positionas it obtained under the Rules."Inter alia, the Full Bench concluded that the embargo put onthe right of Government servant for being considered for promotionfor a further period, after the period of minor punishment isover, in the name of 'check period' viz., one year in the case ofcensure and five years in the case other minor punishments isillegal and impermissible under the Statutory Rules.7. Following the rationale of the judgment of the Full Benchof this Court, this Writ Petition stands allowed. The respondentsshall now effect the appointment of the petitioner as AssistantExecutive Engineer and as immediate senior to the person who washis immediate junior in the post of Assistant Engineer. Thepetitioner shall be entitled to all consequential benefits.8. In W.P.No.27952 of 2006, the petitioner challenges theproceedings of the first respondent passed in G.O.(D) No.537,Public Works (A1) Department, dated 30.08.2004. The purpose ofthe petition being that the order of punishment imposed upon himin the year 2004 should be not an impediment to his considerationfor promotion to the post of Assistant Executive Engineer, thisCourt finds it unnecessary to dwell on the merits of the casesince under orders in W.P.No.22368 of 2006, this Court already hasheld the petitioner eligible for promotion to the said post.9. In the result,(i)W.P.No.22368 of 2006 stands allowed.(ii)W.P.No.27952 of 2006 stands closed.No costs. Consequently, the connected miscellaneouspetitions are closed.gmSd/-Asst. Registrar(Records)//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Engineer in Chief WRO & Chief Engineer (General), Public Works Department, Chepauk, Chennai – 600 005.2.The Secretary to Government, State of Tamilnadu, Public Works Department, Chennai – 600 009.+ 1 cc to Mr. M. Muthappan, Advocate SR No.35495+ 1 cc to Government Pleader, SR No.35751EV(CO)SR/12.7.2012.W.P.Nos.22368 and 27952 of 2006