(Prayer: Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein.)

This writ petition is directed against the impugned Government Order in G.O.Ms.No.1040, Home (Prison-I) Department, dated 30.10.2006 in so far as it relates to the petitioner and for a direction against the respondents to include the name of the petitioner in the panel of Deputy Jailors fit for appointment by recruitment by transfer to the post of Jailor for the year 1996-97 and for all service benefits on par with his juniors.

2. The petitioner joined in the second respondent Department as Assistant Jailor on 1.2.1985, recruited through the Tamil Nadu Public Service Commission. Thereafter, he was promoted as Deputy Jailor and then as Jailor by recruitment by transfer. He was awarded accelerated promotion as Additional Superintendent on 5.3.2007 for his participation in the operations against the Forest Brigand, Veerappan and posted at the District Jail, Dindigul and then transferred to the Central Prison, Trichy. Presently, he is working in the Central Prison, Puzhal.

3. According to the petitioner, in the year 1996-97 there were vacancies in the post of Jailor and the second respondent did not prepare the panel for appointment by direct recruitment by transfer to the post of Jailor for the said year and he prepared the panel for the year 1996-97 only in the year 2005 by placing the name of the petitioner along with other eligible officials in the panel of Deputy Jailors fit for appointment by recruitment by transfer to the post of Jailor for the year 1996-97. The Departmental Promotion Committee on 10.10.2006 did not recommend the name of the petitioner as well as six others and accepting the same, the Government passed the impugned G.O. by which the petitioner was not promoted as Jailor on regular basis while his juniors were promoted to the next grades up to the level of Superintendent. The non-recommendation by the Departmental Promotion Committee was due to the reason that the petitioner was having punishment during the check period/after the crucial date.

3(a). It is the case of the petitioner that there was no charge pending against the petitioner on or before December, 1997 and it was only during 1999, he was placed under suspension from 26.4.1999 and ultimately imposed a punishment of reduction of pay by one stage for a period of six months without cumulative effect and such an order was passed on 9.7.1999 by the Superintendent of Prison, Central Prison, Palayamkottai. Therefore, according to the petitioner, there is no justification for not including his name in the panel of the year 1996-97 for the post of Jailor. However, the same Departmental Promotion Committee for the year 1997-98 recommended the petitioners name in the panel for consideration for promotion to the post of Jailor. Under these circumstances, the impugned G.O. is challenged by the petitioner on various grounds including that the impugned order has been passed without assigning any reason and without properly appreciating the check period or crucial date.

4. In the counter affidavit, it is stated that the petitioner was appointed as Assistant Jailor in the Prison Department on 1.2.1985 and subsequently promoted as Deputy Jailor on 15.7.1990 and he was further promoted as Jailor on temporary basis on 4.8.2006 as per G.O.(D)No.744 Home (Pri.I) Department, dated 28.7.2006 and as per the proceedings of the second respondent dated 28.7.2006. It is also specifically admitted that the petitioner was included in the promotion panel for the post of Jailor by recruitment by transfer for the year 1997-98 and he was regularly promoted as Jailor on 15.11.2006 as per proceedings of the second respondent dated 16.11.2006. It is also admitted that the petitioner was given accelerated promotion as Additional Superintendent of Prison on 20.2.2007, in which post he has joined in District Jail, Dindigul on 5.3.2007 and transferred as Additional Superintendent in the Central Prison, Trichy, in which post he joined on 14.6.2007. Thereafter, he was transferred to the Central Prison, Chennai, in which post he joined on 10.04.2008 and then transferred to the Central Prison, Vellore, in which post he is working with effect from 9.1.2009.

4(a). It is stated that for the years 1996-97 and 1997-98, the regular panel for promotion to the post of Jailor was delayed due to the pendency of a case in O.A.No.126 of 1991 before the Tamil Nadu Administrative Tribunal, in which orders were passed based on the directions given by the Supreme Court which resulted in restoration of seniority of rank promotees in the post of Jailor by way of G.O.Ms.Nos.672 and 673 Home (Pri.I) Department, dated 7.8.2003 and it was, only thereafter the Departmental Promotion Committee meeting was held on 10.10.2006.

4(b). It is stated that as per the consolidated instructions of the Government in its letter dated 7.10.2005, any punishment awarded after the crucial date and before the actual promotion should be held against the officer. It is stated that since the writ petitioner was awarded a punishment of reduction in pay by one stage for a period of six months without cumulative effect by order dated 9.7.1999, the name of petitioner was not considered for the panel 1996-97, for which the crucial date was 15.2.1996, but his name was included in the regular panel for appointment to the post of Jailor by recruitment by transfer for the year 1997-98.

4(c). It is also stated that in respect of two other persons who are really seniors to the petitioner, they were also not considered for the panel for the year 1996-97 and were included in the regular panel for the year 1997-98. The panel for the year 1996-97 for appointment of Jailor was published by the Government in the impugned G.O.Ms.No.1040, Home (Prison-I) Department, dated 30.10.2006. In that, the Committee recommended only the name of one K. Anandan fit for inclusion in the panel for the year 1996-97 while the petitioner and six others were recommended not to be included in the panel for the year 1996-97 since they were having punishment during the check period/after the crucial date.

5. On the analysis of the unassailable facts as admitted in the counter affidavit, it is clear that the petitioner was inflicted with the punishment of reduction of pay by one stage for a period of six months without cumulative effect on 9.7.1999. Admittedly, the crucial date for the panel for promotion to the post of Jailor for the year 1996-97 was 15.2.1996. It is the claim of the petitioner that he should have been included in that panel since at that time he was neither suffering any punishment, nor he suffered a punishment five years before the crucial date. It is also not the case of respondents that the petitioner suffered any punishment or was undergoing punishment on the crucial date or five years prior to that date. The only reason given is that the petitioner was imposed a punishment on 9.7.1999 that is, reduction of pay by one stage for a period of six months without cumulative effect and the Departmental Promotion Committee considered the matter on 10.10.2006 and therefore, it took note of the fact that the petitioner suffered punishment after the crucial date viz., 15.2.1996 and before the inclusion of his name in the panel, viz., 10.10.2006 and therefore, he was passed over for the panel for promotion for the year 1996-97 and that is also the contention raised by the learned Additional Government Pleader. The said stand taken by the respondents in respect of the petitioner is alarming and unsustainable. If really, it is the case of the respondents that after the crucial date viz., 15.2.1996 till date date of consideration by Departmental Promotion Committee which was held on 10.10.2006, the petitioner suffered the punishment of reduction of pay by one stage for six months on 9.7.1999, it is not known as to how the petitioners name was included in the panel for the next year viz.,1997-98. Therefore, on the face of it, it is clear that neither after the crucial date, nor during the check period, the petitioner was in any way disabled from being included in the panel for the year 1996-97.

6. The Government of Tamil Nadu issued detailed instructions regarding preparation of panel for promotion by recruitment by transfer in G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993. In the said Government Order, consolidated instructions have been issued by the Government to minimize the delay in the approval of panel. The said instructions consist of preparation of estimate of vacancies and preparation of panel with various annexures. In Part II of the said Government Order, which relates to the preparation of panels, sub-clauses (iv), (v) and (vi), which are relevant for the purpose of this case to some extent, relate to the consideration of persons against whom enquiries are pending and specific charges have been framed or charge sheet has been filed in criminal case and consideration of adverse remarks and the effect of punishment on the promotion by recruitment by transfer and the said sub-clauses are as follows:

"II. Preparation of Panels

(i) to (iii) xxxx

(iv) Consideration of persons against whom enquiries are pending and specific charges have been framed or charge sheet has been filed in criminal cases.

(1) As per orders in the Government Order sixth read above, in the case of pending enquiries including Vigilance enquiries and in cases where specific charges have not been framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the zone of selection as on the date of consideration for promotion/appointment as revealed through the Personal Files/Record Sheets and the seriousness of the punishments, if any previously imposed. In cases where specific charges have been framed or charge sheet has been filed in criminal case, promotion/appointment of such persons shall be deferred till the proceedings are concluded. They must, however be considered for promotion, if they are exonerated or acquitted from the charges. If found suitable with reference to all relevant criteria, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.

(2) The "Specific Charges" referred to are those framed under Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules or its equivalent. Mere calling for the explanation of a Government Servant under Rule 17(a) of the said rules need not be treated as a bar for promotion on that score alone. This would equally apply to promotion to ordinary posts and Selection Category posts, as well as to recruitment by transfer from one service to another.

(3) The case of a Government Servant whose promotion, etc., has been deferred, should reopened after disposal of the charges and appropriate orders should be passed on merits, i.e., (a) giving him his promotion as aforesaid if he was proved innocent and exonerated or acquitted of the charges and promotion from a later date depending upon the nature of punishment and other factors to be reckoned in other cases. In all such cases, the Heads of Department must take suo-moto action within 15 days from the date of issue of final orders in the department disciplinary case/criminal case.

(4) Wherever the disciplinary proceedings under rule 17(b) of the Tamil Nadu Civil Service (Classification, Control and Appeal) Rules against Government Employees are merely stayed by a Court, Tribunal, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court/Tribunal and it is decided not to challenge the same. If on the other hand, the Court/Tribunal quashes the charge memo, then the name of the Government employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer if it is otherwise qualified.

(5) If specific charges are framed or charge sheet is filed in the criminal case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included in the panel. The instructions in para (3) above will apply in his case thereafter.

(v). Consideration of adverse marks

(1) Adverse remarks relating to a period of 3 years or more, prior to the date when the matter is noticed or brought to notice and which were not communicated at all to the officer concerned will have to be wholly ignored while considering promotion as per the instructions contained in paragraph 8(4)(ii) of the consolidated instructions issued in G.O.Ms.No.11, Personnel and Administrative Reforms (Per.R) Department, dated 5.1.1984. This is notwithstanding the fact that the officer might have perused the personal file under the open system of maintenance of the same.

(2) Adverse remarks are recorded in the Confidential Reports to enable the officer reported upon to rectify himself of the defects pointed out. Where adverse remarks have been communicated and have not been modified/expunged on representation, it shall be the duty of the reporting officer and the scrutinizing officer to specifically consider and state in the confidential report for the following year whether the defects have been rectified (Vide Para 8(4)(iv) of G.O.Ms.No.11, Personnel and Administrative Reforms (Per.R) Department, dated 5.1.84)

(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 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 access the gravity of the charge.

(2) In S.L.P.(C) No.14612/91 against the Tamil Nadu Administrative Tribunals order in O.A.Nos.2851 and 2604/90, the Supreme Court in its order dated 19.8.92 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 from 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 of subjective satisfaction and interpretation is limited. For purposes of comparison, the proved irregularities which look 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 case is considered for inclusion in the panel for appointment to the higher post by promotion/by recruitment by transfer."

7. Under the head, Effect of punishment on promotion/recruitment by transfer, the instructions make it clear that while making comparison of cases of individual services, the same must be analysed for a period of five years and the said instruction is directory in nature that the proved irregularities which took place during the said period viz., five years, should be taken into consideration. Therefore, as per the said guidelines, which are the basis for the subsequent instructions said to have been given by the Government by way of Letters issued from time to time, the check period appears to be a period of five years before the crucial date, which is to be considered for deciding the eligibility of a public servant for being included in the panel for promotion.

8. By applying the said yardstick, since the crucial date for the year 1996-97 as it is seen in the counter affidavit of the respondents being 15.2.1996, during the five year period before the said date there was no punishment suffered by the petitioner. Even assuming that in spite of the crucial date 15.2.1996, the Departmental Promotion Committee has taken 10.10.2006 as the date of consideration, even if the check period of five years is counted from the said date, there has been no punishment suffered by the petitioner during that period. Therefore, by applying the guidelines prescribed by the Government in G.O.Ms.No.368, Personnel and Administrative Reforms Department dated 18.10.1993, by no stretch of imagination, the petitioner can be denied to be included in the panel for promotion for the year 1996-97 on the ground of pendency of charges or disciplinary proceedings, etc.

9. On the other hand, if the contention of the learned counsel for the respondents is taken into account that from the crucial date viz., 15.2.1996 till date of consideration by the Departmental Promotion Committee, that is, 10.10.2006, the petitioner suffered punishment on 9.7.1999 by way of reduction of pay by one stage for a period of six months without cumulative effect and therefore, the petitioners name could not be included in the panel for the year 1996-97, it is not known as to how his name could find place in the panel for the year 1997-98. Therefore, the contention of the learned counsel for the respondents and the stand taken by the respondents in the counter affidavit in that regard is totally unsustainable.

10. In such circumstances, reliance placed by the learned counsel for the respondents on the letter of the Government in Letter No.18824/S/2005-2, Personnel and Administrative Reforms (S) Department, dated 7.10.2005, is not basically acceptable. Even the said letter is in the form of clarification intended to be given against the consolidated instructions given in G.O.Ms.No.368, Personnel and Administrative Reforms Department dated 18.10.1993. The subsequent Government letter Ms. No.248 Personnel and Administrative Reforms (S) Department, dated 20.10.1997 relates to the guidelines regarding pendency of vigilance enquiry/charges framed, effect of adverse remarks in the personal file/confidential report and subsequent punishment imposed, while dealing with the preparation of panel. Sub-clause (4) and (5) of Clause (iv) of Annexure II of the above said Government Letter dated 7.10.2005, relates to the consideration of persons against whom enquiry is pending and specific charges have been framed and charge sheet has been filed in criminal cases. The said sub-clauses are as follows:

(4) Wherever the disciplinary proceedings under rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules against Government Employees are merely stayed by a Court/Tribunal, their cases shall be deferred till the proceedings are concluded, unless a contrary order is passed by the Court/Tribunal and it is decided not to challenge the same. If on the other hand, the Court/Tribunal quashes the charge memo, then the name of the Government employee concerned should be considered for inclusion in the panel for appointment to the higher post by promotion/recruitment by transfer, if he is otherwise qualified.

(5) If specific charges are framed or charge sheet is filed in the criminal case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included in the panel. The instructions in para (3) above will apply in such cases thereafter."

11. That is followed by Clause (v) which relates to the effect of pendency of vigilance enquiry/charges on inclusion in a panel for promotion and recruitment by transfer. Clause (v) is as follows:

(v) I. Effect of pendency of vigilance enquiry/charges on inclusion in a panel for promotion and recruitment by transfer.

(Letter (Ms) No.248, Personnel and Administrative Reforms (S) Department dated 20.10.1997)

Nature of Enquiry/Charge

Effect

1) Preliminary or detailed enquiry undertaken by Directorate of Vigilance and Anti-corruption.

Need not be held against the Officer for inclusion in the Panel.

2) Regular cases/Registered cases by Directorate of Vigilance and Anti Corruption.

Mere registration of cases in Courts need not be held against the officer. But if charge sheet has been filed in the Criminal case, it should be held against the officer.

3) Trap and Arrest made under the Prevention of Corruption Act by Director of Vigilance and Anti Corruption.

It should be treated as serious offence and held against the officer.

4) Enquiry by Tribunal for Disciplinary proceedings undertaken by the department or on the recommendation of the Vigilance Commissioner.

This will be equivalent to charges framed under Rule 17(b) of Tamil Nadu Civil Services (D&A) Rules. Hence, it should be held against the officer.

5) Remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action on receipt of the report.

Unless specific charges have been framed under Rule 17(b) of Tamil Nadu Civil Services (D&A) Rules, the remittal orders issued by the Government need not be held against the officer. If charges are framed under Rule 17(b) as a result of remittal orders, the name need not be included in the panel.

Even, if the name has been included in the panel, the name should be deleted from such a panel if charges under rule 17(b) are framed before actual promotion.

6) Pendnecy of charges framed under Rule 17(a) of Tamil Nadu Civil Services (D&A) Rules.

Need not be held agianst the Officer, irrespective of the seriousness of the disciplinary proceedings.

7) Pendency of charges framed under Rule 17(b) of Tamil Nadu Civil Service (D&A) Rules.

It should be held against the Officer and inclusion deferred until finalisation of the disciplinary proceedings.

8) Suspension.

If the Officer is placed under suspension on the date of consideration, inclusion may be deferred till finalisation of disciplinary proceedings.

(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 Officers name should be passed over.

*(added in Letter No.67652/S/2000-6, Personnel & Administrative Reforms (S) Department dated 27.8.2003)"

12. Very strangely, by letter of the Government in Lr.No.67652/S/2002(6), Personnel and Administrative Reforms Department dated 27.8.2003, sub-clause (4) of Clause (iv), is stated to be substituted by way of clarification, with the following:

"4. It is further clarified that charges framed under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules and any of the punishments awarded after the crucial date and before actual promotion shall also be held against the officer."

13. The said clarification on the face of it is unreasonable, at least to the facts and circumstances of the present case. Apart from that, even assuming that the clarification is applicable, the respondents have themselves acted against the said clarification by including the petitioner in the panel for the year 1997-98. The said clarification is patently invalid since it would result in substantial injustice to a public servant. If a punishment suffered from the crucial date and before the date of actual promotion is taken against a Government servant, it may result in not only an anomalous situation, but also create a tendency among the authorities to act without restrictions to victimise any Government servant. In the present case, the admitted crucial date being 15.2.1996, a period of five years before the said crucial date should have been taken for consideration of petitioners name to be included in the panel for promotion for the year 1996-97, but due to no fault on the part of the petitioner and for certain extraneous reasons, the respondents took ten long years for convening the Departmental Promotion Committee which was held on 10.10.2006 and during the interregnum period viz., in the year 1999 a small punishment was inflicted on the petitioner and on that basis, he was denied the promotion as well as the legitimate right to be included in the panel for the year 1996-97, especially when the petitioner did not suffer any punishment or disqualification on the crucial date or within five years before the said crucial date. Therefore, the said Government letter given by way of clarification on 27.8.2003 is totally arbitrary, apart from being unsustainable, at least on the facts of the present case.

14. That apart, the respondents, are also conscious of the fact that the said clarification is not sustainable, since the respondents have proceeded to include the name of the petitioner in the panel for the year 1997-98. Therefore, looking at any angle, the stand taken by the respondents that the petitioner was disabled to be included in the panel for promotion to the post of Jailor for the year 1996-97 is totally unsustainable and liable to be set aside. In such view of the matter, the impugned G.O.Ms.No.1040, Home (Prison-I) Department, dated 30.10.2006 is set aside in so far as it relates to the petitioner and the respondents are directed to include the name of petitioner in the panel for Deputy Jailor fit for appointment by recruitment by transfer for the year 1996-97 and confer all further monetary and service benefits to him in accordance with law, if there are no other legal impediments and such order conferring the benefits shall be passed by the second respondent within a period of 12 weeks from the date of receipt of a copy of this order. Accordingly, the writ petition is ordered. No costs.