(Writ Appeal filed under Clause 15 of Letters Patent against the order passed in W.P.No.33713 of 2006 (T) (O.A.No.9827/98) dated 29.06.2010.

WP.No.33713/06: Petition Presented under Article 226 of the Constitution of India to issue a Writ of the records connected with Government letter No. 1400/98-8 Public (Special-A) department dated 3.9.1998 and setaside the same and Consequently direct the Respondents to include the name of the Applicant in the panel of D.R.O.s for 1995 and to promote the Petitioner as D.R.O. from 08.08.1996 the date on which his junior Govindarajan with all monetary benefits.)

N. Paul Vasanthakumar, J.

1. This writ appeal is filed as against the order made in W.P.No.33713 of 2006 dated 29.06.2010, wherein, the writ petition filed by the appellant seeking to quash the Government letter No.1400/98-B, Public (Special-A) Department, dated 03.09.1998 and to direct the respondent to include his name in the panel of DROs for the year 1995 and to promote him as DRO from 08.08.1996, the date on which his junior one Govindarajan was promoted with all monetary benefits, was dismissed, holding that it is a Government letter, which debars the appellant from claiming promotion within the check period of five years. This Government letter was subsequently set aside by a Full Bench Decision of this Court in a decision reported in Deputy Inspector General of Police, Thanjavur Range, Thanjavur Vs.V.Rani reported 2011 (3) CTC 129. [LQ/MadHC/2011/2825] In paragraph 28 of the said Judgment, the Full Bench held thus:

"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 and others, 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 and others, 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 cannot 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."

2. In the light of the said Judgment rendered by the Full Bench after the disposal of the writ petition by the learned Single Judge, this Writ Appeal is allowed by setting aside the order of the learned Single Judge dated 29.06.2010 and remitting the matter to the 1st respondent to re-consider the claim of the appellant seeking promotion after the punishment of withholding of increment for six months was over and pass appropriate orders, within a period of three months from the date of receipt of a copy of this order. While considering the claim of the appellant, the respondent is also directed to take note of the orders passed by the Tribunal in O.A.No.2270 of 1997 dated 23.02.1998. It is pertinent to point out that the appellant having retired from service on 30.11.1997, is not entitled to get any monetary benefits, but is entitled to get only the benefits notionally for the purpose of revision of pension and other service benefits. No costs.