An employee must be free from any disciplinary punishment during the three years preceding a promotion consideration to be eligible for such promotion.

J U D G M E N T

(Order of the Court was made by the Hon'ble Acting Chief Justice)

Aggrieved by the order passed by the writ court in W.P.No.23049 of

2008, dated 01.07.2019, the present writ appeal has been filed by the appellant.

2. Before adverting to the submissions made by learned counsel for the parties, a brief reference to the relevant facts is necessary:

2.1. The 1st Respondent joined service as an Assistant in the Salem District Central Co-operative Ltd on 25.03.1987, and was placed at No. 2 in the seniority list for promotion to Assistant Manager. Based on the occurence which said to have taken place in the year 1996 with regard to permitting to withdraw a sum of Rs.33,000/- by one S.Annapoorni, he was suspended from service in the year 2003 and a charge memo was issued on 08.02.2004 and after enquiry, the order of suspension was revoked and he was imposed with punishment of stoppage of increment for three years without cumulative effect. Based on the revision filed by the 1st respondent, the said punishment was reduced to two years by order of the 1st appellant dated 11.06.2007. Therefore, the 1st respondent is eligible for consideration for promotion to the post of Assistant Manager as on 01.08.2008, i.e on date the panel was drawn. The appellants, considering the fact that his punishment period has ended prior to the date of panel drawn, did not consider him for promotion, however his juniors were promoted. Hence, 1st respondent filed a writ petition in W.P. No. 23049 of 2008 before this Court. This Court by order dated 01.07.2019 directed the authorities to promote the 1st Respondent on par with juniors. Aggrieved by the said order, the present writ appeal is filed.

3. Mr. A.Selvendran, learned counsel appearing for the appellant-

Society has submitted that the learned single judge did not consider the fact the 1st respondent was imposed with the punishment for permitting a person to withdraw money from the deceased person in the year 1996 and the legal heirs of the deceased, preferred a complaint only in the year 2003. After receipt of the complaint, the appellant-society had initiated action and awarded punishment of stoppage of increment for three years and the same was subsequently reduced to two years. Since the promotion panel was drawn on 01.08.2008, taking into consideration the conduct of the 1st respondent three years before the promotion, the 1st respondent was not considered for promotion. Subsequently, he was promoted as Assistant Manager in the year 2010. Therefore there was no error on the part of the appellant-society in granting promotion to the 1st respondent.

4. The learned counsel for the appellant has further submitted that the learned Single Judge without considering Rule 7(B) of Special By-law, which mandates that "an employee is not subjected to any punishment during the period of three years prior to the date of consideration for promotion", has directed the authorities concerned to grant promotion to the 1st respondent from the crucial date i.e 01.08.2008, which is unsustainable in law and liable to be setaside. In support of his contentions the learned counsel has placed the following judgments;

i. Judgment of Hon'ble Full Bench of this Court in W.A.(MD).Nos. 315 of 2010 and etc., batch, dated 27.04.2011 in the case of The Deputy Inspector General of Police, Thanjavur Range, Thanjavur & another Vs.V.Rani (reported in 2011 SCC Online Mad 632)

ii. Judgment of Hon'ble Division Bench of this Court made in W.P.(MD)No. 6542 of 2010, dated 02.07.2012 in the case of A.Vijayakumar Vs.1.The Regional Joint Registrar of Co-operative Societies, Kajamalai, Trichy & another.

5. The learned counsel for the 1st respondent has submitted that due to delay on the part of the 4th appellant in issuing charge memo, not initiating disciplinary proceedings immediately and imposing punishment long after the alleged irregularity, cannot be put against the 1st respondent for denying his promotion. The 1st respondent is fully