K DURAIKKANNU Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) IN this writ petition, petitioner seeks to quash the G. O. Ms. No. 286 public Works Department dated 21. 5. 1999 and to direct the respondent to promote him as Assistant Executive Engineer by including his name in the Panel of 1998-1999 and for consequential benefits.

(2.) THE facts of the case as set out in the affidavit are as follows. (i ) Petitioner joined the public Works Department as Assistant Engineer on 19. 12. 1977. THE next avenue of promotion to him is to the post of Assistant Executive Engineer. According to the petitioner, the turn for inclusion of his name in the panel for promotion came in the years 1995-1996, 1996-1997 and 1997-1998. But however, his name was not included in the panel on the ground that a charge under Rule 17 (b) of the tamil Nad u Civil Services (Discipline & Appeal)Rules was pending against him. (ii) It is stated in the affidavit that the charge was framed on 17. 10. 1988 for certain irregularities alleged to have been committed by the petitioner in the year 1982 and after conducting enquiry, final order of punishment was passed by the respondent in G. O. (3d)No. 39, public Works (E2) Department, dated 24. 5. 1997. THE punishment imposed on the petitioner for the proven charges are, (i ) stoppage of increment for one year without cumulative effect, and (ii) recovery of a sum of Rs. 21,505. 10 from his salary in 22 monthly installments, the first installment being Rs. 505. 10 and the balance 21 installments at the rate of rs. 1,000/- per month. According to the petitioner, the recovery started from the month of May, 1997. (iii) THE grievance of the petitioner in this writ petition is that in spite of final orders having been passed by the respondent as early as on 24. 5. 1997 and the period of punishment of withholding increment for one year also having come to an end as early as on 30. 6. 1998 and further when the crucial date for preparation of panel for the year 1998-1999 fell only on 1. 7. 1998, petitioner's name was not included in the panel. Hence the petitioner challenges the impugned G. O. Ms. No. 286 Public Works Department, dated 21. 5. 1999 with the above mentioned prayer.

(3.) RULE 8 (v) of the Tamil Nad u Civil Services (Discipline & Appeal) RULEs reads as under, "rule 8 - PENALTIES: 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 ). . . . . (ii ). . . . . (iii ). . . . . (iv ). . . . . (v) Recovery from pay of the whole or part of any pecuniary loss caused to the State Government or the Central Government or to any government Company or Organization or Local Authority or to a Local Body, while on deputation, by negligence or breach of orders. " A perusal of the order of punishment passed against the petitioner discloses that the recovery of Rs. 21 ,505. 1 0 was ordered to make good the loss caused by the petitioner to the Government by his action of unauthorised removal of materials from the stores at Tiruvannamalai on 30. 8. 1982, without knowledge of his superiors, for his personal benefits. The learned senior counsel appearing for the petitioner argued that as per the amendment issued by the Government in its letter No. 52511/s/99-1 Secetariat , chennai, dated 1. 10. 1999, if an officer was imposed with any of the punishments within the check period for irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be held against him. But, the said amendment was clarified subsequently by the Government in its letter No. 52716/s/99-1 Secretariat, Chennai, dated 1. 10. 1999, which reads as under, "the existing Par a 4 II (3) shall be substituted as follows : "whenever an officer is undergoing any punishment, other than Censure, on the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for the panel. If the currency of punishment continues at the time of subsequent consideration for the next panel (s), he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After the completion of its currency, no punishment should be held, once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion. In respect of'censure'the guidelines issued in paragraph 4 II (2) of the letter second cited shall be followed. " Yours faithfully Sd /- fo r Chief Secretary to government" From the above amendment it is clear that whenever an officer is undergoing any punishment other than'censure'on the crucial date or on the date of consideration, irrespective of the time of occurrence of the irregularity, his name shall be passed over and if the currency of the punishment continues at the time of subsequent consideration for next panels, his name should still be passed over. Only after completion of the currency of punishment the name of such officer shall be considered for inclusion in the panel. In short, the name of an officer can be included in the panel for promotion only when an order of Censure is passed against him, irrespective of the time of occurrence of the irregularity, and in all other cases of punishment, his name shall be passed over till the expiry of punishment period.