(Prayer : Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the entire records relating to the letter No.4331/E1(1) 2018-1 dated 06.07.2018 of the first respondent and sent to the petitioner in Endt. No.11333/EE1/2018 by the second respondent rejecting the request of the petitioner for promotion to the post of Joint Director (Engineering) in Category 1 of the Tamil Nadu Industries Service, quashing the letter dated 06.07.2018 and directing the first respondent to give Notional Promotion to the petitioner as Joint Director (Engineering) in category 1 of T.N. Industries service from 19.09.2015, when the currency of the punishment was over.)

1. Heard the learned counsel for the petitioner and the learned Special Government Pleader for respondents, and perused the records.

2. The petitioner, by the present writ petition, has challenged the proceedings dated 06.07.2018 issued by the first respondent, whereby his request for granting promotion to the post of Joint Director (Engineering) in category - 1 of the Tamil Nadu Industries Service has been rejected.

3. The petitioner contended that he was appointed as Assistant Director (Technical) on 18.08.1999 and thereafter promoted as Deputy Director on 29.11.2004. The petitioner further contended that on completion of 10 years of service as Deputy Director, he became eligible for being considered for promotion to the post of Joint Director; that the Government approved the estimate of vacancies for the post of Joint Director (Engineering), General Manager, Grade-I in Category – I of the Tamil Nadu Industries Service for the year 2013-2014, to be three posts vide G.O.Ms.No.65 dated 13.11.2013; and that the respondents, after considering his eligibility, issued G.O.(4D)No.16, Micro, Small and Medium Enterprises [E1(1)] Department dated 08.05.2014, including his name as eligible for promotion in the panel.

4. The petitioner further contended that although his name was included in the list of candidates for promotion to the post of Joint Director, a charge memo dated 24.06.2014 under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued to him, resulting in he being award of a punishment of stoppage of increment for a period of one year without cumulative effect, vide order dated 19.09.2014; and that due to the punishment his promotion was deferred.

5. It is the further case of the petitioner that after completion of one year punishment period, he became eligible for being considered for promotion with effect from 19.09.2015; that the respondents, however, with an intention to deny him such promotion, declared the panel years 2014- 2015, 2015-2016, and 2016-2017 as “NIL” panel years; and that though the name of the petitioner was included in the panel for the year 2017-2018, the respondents rejected his claim on the ground that the panel was approved only after the petitioner had attained the age of Superannuation, thereby rendering him ineligible for promotion or for receiving the benefits attached to such a post.

6. The petitioner further contended that in the panel year 2017-2018, the respondents considered 11 vacancies, on account of previous 3 years being declared as “NIL” years; that despite the existence of vacancies, in the respective years, the action of respondents declaring “NIL” panel years is contrary to Section 7 of the Tamil Nadu Government Servants (Condition of Service) Act, 2016.

7. The petitioner further contended that since, he had been awarded punishment under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, the same cannot be used as a ground to deny him promotion to the post of Joint Director; and that the punishment is not a bar to promotion as per the existing guidelines. The petitioner also contended that while considering the name of one K.Mahalingam under G.O. (4D)No.16 Micro, Small and Medium Enterprises [E1(1)] Department dated 08.05.2014 the respondent claimed issuance of charge memo is not a bar for inclusion of name in the panel, and that the respondents had applied different yardstick for different individuals, to suit their convenience, and such action amounts to discrimination.

8. Counter affidavit is filed on behalf of the respondents.

9. The respondents, by their counter affidavit, contended that the Special Rules for the post of Joint Director (Engineering) in Category 1 of the Tamil Nadu Industries Service were amended by merging the posts of Joint Director (Electrical and Electronics) and Joint Director (Chemicals) with that of Joint Director (Engineering) in G.O.(Ms.)No.10, Micro, Small and Medium Enterprises (E1.1) Department, dated 20.02.2014; that in view of the above merger of posts, inter-se-seniority list among the holders of the posts of Deputy Director (Technical), Deputy Director (Chemicals), and Deputy Director (Electrical and Electronics) was required to be prepared for drawing the panel for the newly merged post of Joint Director (Engineering); that the names of the petitioner along with K.Mahalingam, the third respondent herein, were included in the panel for the year 2013-2014; that while Thiru K.Mahalingam was promoted as Joint Director (Engineering) vide G.O.(4D) No.38 dated 08.08.2014, the petitioner was not granted promotion, as he was awarded a punishment of stoppage of increment for one year without cumulative effect, vide proceedings of the second respondent dated 19.09.2014; and that as the third respondent was the next person in the panel, he was promoted to the said post.

10. The respondents, by their counter, further contended that on account of merger of posts, the combined seniority list was not finalised and thus the panel years 2014-2015, 2015-2016, and 2016-2017 were treated as “Nil”, accordingly, the first respondent approved a “Nil” estimate of vacancies and a “Nil” panel for the post of Joint Director (Engineering), was sent to the Government and approved vide G.O.(2D) No.13, Micro, Small and Medium Enterprises (E1.1) Department, dated 18.07.2017; and that the first respondent thereafter, taking into consideration the vacancies for the post of Joint Director (Engineering) for the year 2017-2018, as approved vide G.O.(2D).No.14, Micro, Small and Medium Enterprises (E1.1) Department, dated 18.07.2017, consisting of 11 (eleven) names prepared a panel including the name of the petitioner, and sent the same to the first respondent on 20.07.2017.

11. It is further contended that in the meantime the inter-se-seniority for promotion to the post of Joint Director (Engineering) from among the holders of the posts of Deputy Director (Technical), Deputy Director (Chemical), and Deputy Director (Electrical and Electronics) was approved vide G.O.(2D) No.17, Micro, Small and Medium Enterprises (E1.1) Department, dated 08.08.2017; that in the meanwhile, the petitioner had retired from Government service on 31.07.2017 on attaining the age of superannuation; and thus, the petitioner is not eligible to be granted promotion after retirement, and there was no purposeful delay on the part of the respondents in issuing the Government Orders.

12. The respondents, by their counter affidavit, further contended that Thiru K.Mahalingam, who is senior to the petitioner, was granted promotion as only charges under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules were framed, whereas the petitioner had already been awarded a punishment on 19.09.2014.

13. The respondents further contended that Schedule 11 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 provides that the name of the member of service shall not be considered or included in the approved list, if any, punishment has been imposed within a period of five years prior to the crucial date. Further, it is contended that if the punishment is awarded for a period of one year, till the completion of the punishment period, the same would be held against the said member of service; and that since, the petitioner was awarded a punishment of stoppage of increment for one year without cumulative effect on 19.09.2014, the petitioner was not considered for promotion for the panel year 2013-2014; and that the petitioner cannot seek consideration even for the panel year 2014 – 2015 in view of the punishment suffered by him being in currency during the said period ; and that there was no purposeful delay on their part and that the administrative amendment of the Rules relating to the post of Joint Director had been duly completed.

14. The respondents further contended that the crucial date was taken as 15.04.2015, though, the petitioner was eligible for being included in the panel, however, owing to the punishment imposed on 19.09.2014, his name was not considered for inclusion in the panel for the year 2014-2015, as he was undergoing the one year punishment period, which was still in currency; further, that the name of the petitioner was also not considered for the panel year 2015-2016, since, the punishment was under currency i.e., till 18.09.2015, and in so far as panel year 2016-2017 is concerned as the check period of one year after completion of punishment period would be completed only on 18.09.2016, his name was excluded from the panel of the said year.

15. The respondents also contended that since, the one year punishment period completed on 18.09.2015 and the check period expired on 18.09.2016, the petitioner became eligible to be considered for promotion only for the panel year 2017-2018, i.e., on the crucial date of 15.04.2017 and accordingly, his name was included in the panel prepared after fixation of seniority in the cadre of Deputy Director, on merger of posts of Joint Director (Chemical) and Joint Director (Electrical and Electronics) in terms of G.O.(Ms) No.10 dated 20.02.2014; and that though the petitioner’s name was included in the panel, before the panel could be approved by the Government, the petitioner had retired from service on attaining the age of superannuation on 31.07.2017. Hence, the petitioner is not entitled to be granted promotion or any of the benefits attached to the post of Joint Director.

16. By contending as above, the learned Special Government Pleader for the respondents placed reliance on the judgment of the Hon’ble Supreme Court in State of Uttar Pradesh and Others vs. Giriraj Prasad Sharma in SLP(C) Nos.18468 & 18469 of 2023.

17. I have taken note of the respective submissions.

18. Though the petitioner contended that on the crucial date, i.e., 15.04.2014, he became eligible for promotion to the post of Joint Director and that his name ought to have been included in the panel, by the time of arising of vacancy the petitioner has been awarded with punishment under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, vide order dated 19.09.2014. Thus, on account of the said punishment, the petitioner was not granted promotion in terms of Clause 11 of Part A to Schedule XI of the Act, thus, the contention of the petitioner that on the crucial date no charge sheet was pending against him and therefore the respondents ought to have appointed him as Joint Director, does not merit acceptance.

19. Further, as the petitioner was awarded punishment on 19.09.2014, and the period of punishment was in currency on the next crucial date, i.e.,15.04.2015, his name was differed for the next panel year.

20. Though after 19.09.2015 the petitioner became eligible to be considered for the post of Joint Director, due to the restriction of the ‘one year check period’, the petitioner name could not be considered as on the crucial date, i.e., 15.04.2016, as the check period would get over only on 18.09.2016. Hence, the petitioner became eligible for inclusion in the panel only on 15.04.2017.

21. The respondents, taking note of the aforesaid fact, included the name of the petitioner in the panel for the year 2017-2018 along with ten others. However, the petitioner was not granted promotion because the panel list was not approved by the Government before the petitioner attained the age of superannuation; and having retired from Government Service on 31.07.2017.

22. It is to be noted that once, an employee is found eligible for promotion on the crucial date and his name is included in the panel list, the mere fact that the panel was not approved by the Government in time, or that the panel was approved after the Government servant having retired from service, cannot take away his right to be considered for promotion to the post that fell vacant on the ‘crucial date’.

23. The ‘crucial date’ in this case is 15.04.2017, and the petitioner’s name was included in the panel with no adverse remarks noted against him. Therefore, even though the petitioner retired before the panel was approved by the Government, the respondent cannot deny his right atleast for being granted ‘notional promotion’. Particularly because the proposal for promotion to the post of Joint Director was forwarded by the second respondent to the first respondent vide proceedings dated 20.07.2017, while the petitioner was still in service. Further, for the relevant panel year, the ‘crucial date’ being 15.04.2017, and the petitioner being in service on that date, the petitioner would be entitled to be granted ‘notional promotion’ even if he had retired before the Government approving the panel and by issuing Government Order. In the present case, the petitioner had retired on 31.07.2017, after the second respondent forwarded the list to the first respondent, who took two months to approve it and issued the G.O. only on 23.09.2017.

24. The delay on the part of the respondents in preparing the list as on the ‘crucial date’ and further prolonging the approval process, cannot, in the considered view of this Court, deprive an eligible government servant of the benefit of promotion, even if it be ‘notionally’.

25. The Hon’ble Supreme Court, in Union of India vs. B.M. Jha, reported in (2007) 11 SCC 632, held that while an employee may not be entitled to claim arrears of pay on notional promotion, such notional promotion can be considered for fixation of pensionary benefits. Since, the petitioner became eligible for promotion on the crucial date, i.e. 15.04.2017, and retired thereafter, this Court is of the view that the petitioner would be eligible for ‘notional promotion’ to the post of Joint Director.

26. Accordingly, the writ petition is allowed, the respondents are directed to grant ‘notional promotion’ to the petitioner as on 31.07.2017 and revise pensionary his benefits as applicable to the post of Joint Director. The respondents shall undertake the aforesaid exercise of granting notional promotion and re-fixation of pensionary benefits within a period of twelve (12) weeks from the date of receipt of a copy of this order. No order as to costs.