Madras High Court
K.Subham vs The Secretary on 8 September, 2023
WP.No.26588/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 08.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.26588/2017
K.Subham ... Petitioner
Versus
1.The Secretary,
Department of School Education,
Secretariat, Fort St George
Chennai 600 009.
2.The Director
Directorate of School Education
Chennai 600 006.
3.The Joint Director [Service]
Department of School Education
Chennai 600 006.
4.The Chief Educational Officer
CEO Office, Pin Code 638 101
Erode District. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of mandamus directing the 3rd
respondent herein to grant notional promotion to the petitioner as PG
1
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WP.No.26588/2017
Assistant Language Teacher [English] from the date of completion of
petitioner's minor punishment, viz., 30.06.2012 and on par with the
petitioner's juniors promoted as on date of completion of date of minor
punishment and all other consequential monetary benefits including pension
and all other retirement benefits upon retirement.
For Petitioner : Mr.S.Sathiaseelan
For Respondents : Mr.S.Ravikumar, Spl.GP
ORDER
(1) This writ petition has been filed in the nature of a mandamus seeking
a direction to the 3rd respondent, Joint Director [Service], Department
of School Education, at Chennai, to grant notional promotion to the
petitioner as P.G.Assistant Language Teacher [English] from the date
of completion of the petitioner's punishment namely, 30.06.2012, on
par with the juniors who had been promoted as on the date of
completion of the date of the said punishment and also grant
monetary benefits.
(2) The petitioner herein was working as B.T.Assistant Language
Teacher [English] at Government Girls Higher Secondary School,
Sivagiri in Erode District. By proceedings dated 11.05.2011 issued
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WP.No.26588/2017
by the 3rd respondent, the petitioner was inflicted with the punishment
of one year increment cut without cumulative effect with effect from
01.07.2011. The said punishment was in force till 30.06.2012. The
petitioner claims that after 30.06.2012, namely, on and from
01.07.2012, the petitioner is eligible for grant of promotion.
(3) The stand of the respondents is that the petitioner had suffered a
subsequent punishment also of cut of six months of increment. With
respect to that particular aspect, it is the contention of the learned
counsel for the petitioner that the petitioner had earlier filed
WP.No.14303/2018. Questioning the order of a learned Single Judge
dated 23.07.2019, an appeal had been filed before a Division Bench
in WA.No.3861/2019. By a judgment dated 15.11.2019, the Division
Bench had finally held as follows:-
''4. We have considered the submissions raised
and in order to appreciate the controversy, it would be
appropriate to extract Rule 54B(1) herein under:
“Rule 54-B-1. (1) When a Government servant
who has been suspended is reinstated or would
have been so reinstated but for his retirement
on superannuation or compulsory retirement
while under suspension, the authority
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WP.No.26588/2017
competent to order reinstatement shall consider
and make a specific order—
(a) regarding the pay and allowances to be
paid to the Government servant for the period
of suspension ending with reinstatement or the
date of his retirement on superannuation or
compulsory retirement, as the case may be; and
(b) whether or not the said period shall be
treated as a period spent on duty.”
5. A perusal of the Rule would indicate that it
mandates the passing of an order in respect of the
salary and allowances admissible or otherwise during
the period of suspension. Clause (b) of the said Rules
separately mandates to pass an order with regard to a
declaration about the period being spent on duty or
otherwise. We find that the second part, namely, as
contained in Clause (b), has been complied with, but
there does not appear to be a speaking or a specific
order with regard to the payment of salary and
allowances as envisaged under Clause (a), extracted
herein above. To that extent, the judgment of the
learned Single Judge deserves to be modified.
6. We, accordingly, partly allow the appeal and
direct the competent authority to pass a fresh order
keeping in view the observations made herein above
and after taking into consideration the ratio of the
judgment of the Apex Court that has been extracted by
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WP.No.26588/2017
us in the present judgment, within a period of six weeks
of the date of production of certified copy of the order
before the said authority.
7. The writ appeal is partly allowed with the said
directions. No costs.''
(4) It is thus seen that the Division Bench had granted salary and
allowances to be admissible during the period of suspension and that
period to be treated as 'spent on duty'.
(5) The only issue now is with respect to the punishment which had been
imposed, which was in force from 01.07.2011 to 30.06.2012.
(6) The petitioner claims that necessary notional promotion should be
given consequent to the ratio laid down by the Full Bench in the
judgment reported in 2011 [3] LW 673 [The Deputy Inspector
General of Police, Thanjavur Range, Thanjavur and Another Vs.
V.Rani]. The reference before the Full Bench was as follows:-
''Whether the currency of punishment has to be
treated as a bar for promotion during the period?''
(7) After examining the entire issue, the Full bench had answered that
particular reference as follows:-
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''28.Therefore, after analysis of the entire law on
the subject, we answer the reference as follows:-
[1]...
[2]...
[3]...
[4]...
[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 of other minor punishments is illegal and
impermissible under the statutory rules.''
(8) It is therefore, contended by the learned counsel for the petitioner that
there cannot be an embargo on the right of a Government servant to
be considered for promotion for a further period after the period of
minor punishment is over in the name of check period namely one
year in the case of censure and five years in the case of other minor
punishments.
(9) On the side of the respondents, the very same Rule is again reiterated
namely, the amendment to the Tamil Nadu Government Servants
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WP.No.26588/2017
[Conditions of Service] Act, 2016, wherein subsequent to the Full
Bench judgment, the Government had introduced an amendment with
respect to the check period and very specifically, had introduced
Section 11, which is as follows:-
''11.Any punishment [other than 'Censure']
imposed on a member of service within a period of five
years prior to the crucial date and a punishment of
'Censure' imposed within a period of one year prior to
the crucial date shall be held against the member of
service and his name shall not be considered for
inclusion in the approved list. Any punishment,
including 'Censure' imposed on a member of service
after the crucial date, but before actual promotion or
appointment shall be held against the member of
service and he shall not be given promotion or
appointment.''
(10) The respondents may therefore, balance all the aforementioned
aspects, namely,
A)The judgment of the Division Bench reported in 2019 SCC
Online Mad 35600 [K.Subham Vs. Secretary, Department of
School Education and Others], whereby the second punishment
imposed on the petitioner had been examined by the Division
Bench and orders had been passed which had been extracted
above.
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WP.No.26588/2017
B)The judgment of the Full Bench reported in 2011 [3] LW-673 and
the ratio of the Full Bench which had been extracted above.
C)The effect of the amendment to the Tamil Nadu Government
Servants [Conditions of Service] Act, 2016, particularly with
respect to Section 11 of the said Act, and thereafter may pass
necessary orders.
(11) The petitioner may give a fresh representation seeking notional
promotion and on the basis of such representation whenever it is
given, within a period of sixteen weeks from the receipt of such fresh
representation, necessary orders may be passed by the 3rd respondent.
(12) The writ petition stands disposed of. No costs.
08.09.2023
AP
Internet : Yes
To
1.The Secretary,
Department of School Education,
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WP.No.26588/2017
Secretariat, Fort St George
Chennai 600 009.
2.The Director
Directorate of School Education
Chennai 600 006.
3.The Joint Director [Service]
Department of School Education
Chennai 600 006.
4.The Chief Educational Officer
CEO Office, Pin Code 638 101
Erode District.
https://www.mhc.tn.gov.in/judis
WP.No.26588/2017
C.V.KARTHIKEYAN, J.,
AP
WP.No.26588/2017
08.09.2023
https://www.mhc.tn.gov.in/judis
