Madras High Court
The Agricultural Production ... vs R.Thiruppathy on 20 March, 2023
W.A.(MD)No.63 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
AND
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A.(MD)No.63 of 2020
and C.M.P.(MD)No.538 of 2020
1.The Agricultural Production Commissioner
and Principal Secretary to Government,
Agriculture Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture,
Chepauk, Chennai – 600 005. ... Appellants
Vs.
R.Thiruppathy ... Respondent
PRAYER: Appeal filed under Clause 15 of Letters Patent, praying this
Court to set aside the order dated 24.09.2019 made in W.P.(MD)No.16807
of 2013 on the file of this Court.
For Appellants : Mr.N.Ramesh Arumugam
Government Advocate
For Respondent : Mr.S.Viswalingam
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This intra-Court Appeal has been directed against the order passed
by the Writ Court dated 24.09.2019, made in W.P.(MD)No.16807 of 2013.
2. The respondent one Thiuppathy was appointed after recruitment
through TNPSC in the year 1981 as Agricultural Officer and joined the duty
on 25.05.1984. Though a disciplinary action was initiated against him by
the Secretary to Government on 21.09.1990 and all the process was over, it
was kept pending without passing any final order from 2010 for a period of
20 years. Therefore, a Writ Petition in W.P.(MD) No.11791 of 2010 was
filed, which was disposed by order dated 01.11.2011, where the charge
memo itself was quashed and it was ordered that he was entitled to get all
service benefits, including promotion and the said exercise shall be
completed within a time frame.
3. On receipt of the orders dated 01.11.2011, his name was
included in the approved list of Assistant Director of Agriculture in the year
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
2010-2011 instead of 2007-2008, for which he was otherwise entitled to, on
the ground that, he was inflicted with a punishment of censure on
21.05.2007.
4. Against the said order, the respondent filed the said Writ
Petition which was allowed by the learned Judge through the order, against
which, the present appeal has been filed.
5. Heard Mr.N.Ramesh Arumugam, learned Government
Advocate, appearing for the appellants, who would submit that the crucial
date for promotion to the post of Assistant Director of Agriculture for the
year 2007-2008 was 01.04.2007 and the punishment of censure has been
imposed on 21.05.2007, as per the Government Order i.e., G.O.No.22 P &
AR (S) Department dated 24.02.2014, after the crucial date and before the
actual promotion is being given, if any punishment is awarded that would be
taken as a currency of punishment and for that reasons the incumbent name
could not be included in the panel fit for promotion. Therefore, in this case
according to the learned Government Advocate, the crucial date was
01.04.2007 and the punishment of censure awarded on 21.05.2007,
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
therefore, even though it is after the crucial date but before giving actual
promotion during which period the censure punishment was inflicted
against him, he was not included in the panel for the year 2007-2008 and
therefore, he was included in the panel for the year 2010-2011, hence,
justifying the said action on the part of the appellants to include his name
for the said promotion for the year 2010-2011, the learned Government
Advocate would submit that, the order passed by the learned Judge, which is
impugned herein finding fault with such a promotion given from the year
2010-2011 was not based on any plausible reasons or grounds and in this
regard G.O. 22 though has been brought to the notice of the learned Judge,
who has not accepted the said plea and therefore, in this context the order
passed by the learned Judge, which is impugned herein is erroneous, he
contended.
6. We have heard Mr.S.Viswalingam, learned counsel appearing
for the respondent, who would submit that insofar as the punishment dated
21.05.2007 it is well after the crucial date i.e., either 31.03.2007 or
01.04.2007, on the crucial date, the respondent was eligible to be included
in the panel for the year 2007-2008 as no other punishment was awarded
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
and there was no currency of punishment.
7. Subsequent punishment by way of censure, if at all has been
inflicted against him on 21.05.2007 that would not take away the accrued
right on the part of the incumbent i.e., the respondent, who would otherwise
be entitled to get included his name on the crucial date viz., 31.03.2007 or
01.04.2007.
8. He would also submit that insofar as the entitlement of the
inclusion of the panal during the check period is concerned, this issue has
been covered by the Full Bench judgment of this Court reported in 2011 (3)
CTC 129 (The Deputy Inspector General of Police, Thanjavur Range v.
V.Rani), where the Full Bench at para 28 (5) held as follows:-
“(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 illegall
and impermissible under the Statutory Rules.”
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
9. Relying upon this judgment as well as the crucial date and the
subsequent issuance of G.O. No.22 P & AR (S) Department dated
24.02.2014, the learned counsel for the respondent would contend that
neither of these grounds as urged by the appellants for the non inclusion of
the name of the respondent in the panel fit for promotion to the post of
Assistant Director of Agriculture for the year 2008 is justifiable and
therefore, by the order impugned, the learned Judge having taken note of all
these aspects, has allowed the Writ Petition filed by the respondent and the
same is to be sustained, he contended.
10. We have considered the said submissions made by the learned
counsel for both sides and have perused the materials placed on record.
11. As has been rightly pointed out by the learned counsel
appearing for the respondent, the crucial date in either 31.03.2007 or
01.04.2007, as the case may be, only well after such crucial date, admittedly
the punishment of censure was awarded on 21.05.2007.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
12. Even though the learned Government Advocate would bank
upon the subsequent Government Order issued in the year 2014, stating that
after the crucial date before the promotion date, if the punishment comes
that can also be taken into account is concerned, that is the subsequent event
taken place seven years after the crucial date and therefore, by no stretch of
imagination the import of G.O. 22 can be imposed against the respondent /
writ petitioner.
13. Moreover, prior to this Government Order, the law which was
prevailing as has been declared by the Full Bench of this Court in Rani case
(cited supra) has made it very clear that, the embargo put on the rights of
Government Servant of 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 of other minor
punishments is illegal and impermissible under the Statutory Rules.
14. Therefore, there is no check period concept as declared by the
Full Bench Judgment of this Court and during the relevant point of time,
since there has been no punishment awarded against the respondent as on
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
31.03.2007 or 01.04.2007, absolutely there has been no impediment for
consideration of the name of the respondent to be included in the panel fit
for promotion to the post of Assistant Director of Agriculture for the year
2007-2008.
15. The subsequent event dated 21.05.2007, where the punishment
of censure imposed against him would not stand in the way as that kind of
expected action cannot stand in the way for getting the right accrued on the
Government Servant for getting the promotion on the crucial date. This has
been held in number of cases that, the subsequent development concept
cannot be put against the employee or Government Servant for getting the
lawful rights of promotion or any service benefits as per the then prevailing
service regulations or law.
16. All these aspects have been considered exhaustively by the
learned Judge in the order impugned and has rightly allowed the said Writ
Petition filed by the respondent. Hence, we do not find any reasons to
interfere with the said order, as such, the present appeal deserves to be
rejected, accordingly it is rejected and hence, this Writ Appeal is dismissed.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
However, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
(R.S.K., J.) & (K.K.R.K, J.)
20.03.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SJ
To
1.The Agricultural Production Commissioner
and Principal Secretary to Government,
Agriculture Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture,
Chepauk, Chennai – 600 005.
https://www.mhc.tn.gov.in/judis
W.A.(MD)No.63 of 2020
R.SURESH KUMAR, J.
AND
K.K.RAMAKRISHNAN, J.
SJ
W.A.(MD)No.63 of 2020
20.03.2023
https://www.mhc.tn.gov.in/judis
