Madras High Court
The Government Of Tamil Nadu vs M.Balamohana Murugan on 2 September, 2021
W.A.Nos.271/2020 & 626/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.Nos.271 of 2020 and 626 of 2021
and C.M.P.Nos.4482 of 2020 and 2792 of 2021
W.A.No.271/2020 :
1. The Government of Tamil Nadu
Rep. by its Secretary to Government,
Public Works Department,
Fort St. George,
Chennai-600 009.
2. The Engineer-in-Chief, WRO and
Chief Engineer (General),
Public Works Department,
Chepauk, Chennai-600 005. .. Appellants/Respondents
Vs.
M.Balamohana Murugan .. Respondent/Petitioner
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 15.02.2019 passed in W.P.No.10402 of 2011.
***
W.A.No.626/2021 :
1. The Secretary to Government,
Revenue (Services-1) Department,
Fort St. George,
Chennai-9.
2. The Special Commissioner and
Commissioner of Revenue Administration,
Chepauk, Chennai-600 005.
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3. The District Collector,
Coimbatore District,
Coimbatore. .. Appellants/Respondents
Vs.
P.Manimegalai .. Respondent/Petitioner
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 25.06.2018 passed in W.P.No.116 of 2015.
***
For Appellants in : Mr.R.Neelakandan,
WA Nos.271/2020 State Government Counsel
and 626/2021
For Respondent : Mr.G.Sankaran
in WA No.271/2020 for Mr.R.Muniyapparaj
For Respondent : Mr.Ravi Shanmugam
in WA No.626/2021 for Mr.A.Prakash
COMMON JUDGMENT
The common question arises for consideration in both the writ
appeals is whether the names of the respondents could be included in the
promotion panel on the ground that the charge memos were issued after
the crucial date.
2. Though the issue involved in both the appeals is one and the
same, the facts of the individuals are yet different.
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3. The respondent in W.A.No.271 of 2021 is the writ petitioner in
W.P.No.10402 of 2011. He entered into service as Assistant Engineer in
January, 1999 in the appellants Department. He was due to be included
in the promotion panel for the year 2007-2008 for the further promotion
to the post of Assistant Executive Engineer. For reasons best known to
the appellants, the panel for the year 2007-2008 was deferred and the
same was drawn only in October, 2009. There was a complaint against
the respondent/writ petitioner, for which, a detailed enquiry was
conducted and it was found that the allegations in the complaint were not
substantiated and the proceedings against the respondent/writ petitioner
was dropped as per G.O.(D)No.327, Public Works (E1) Department,
dated 18.08.2009. As mentioned above earlier, the panel for the year
2007-2008 could be drawn only in October, 2009.
3.1. According to the respondent/writ petitioner, the crucial date
for drawing the panel was on 01.04.2007, on which date, there were no
charges pending against him. Even on the date, when the panel was
drawn an year later, i.e., on 21.10.2009, there were no charges pending
against the writ petitioner. On 02.12.2009, once again, a charge memo
was issued for the same incident and a punishment of stoppage of
increment for one year without cumulative effect was imposed on
10.01.2011. Later, the petitioner was promoted as Assistant Executive
Engineer on 25.10.2012.
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3.2. The specific case of the writ petitioner/respondent was that he
was eligible to be included in the promotion panel year 2007-2008, for
which, the crucial date was on 01.04.2007. When there were no charges
pending, the petitioner's name ought to have been included in the panel.
But, subsequently, when the panel was drawn on 21.10.2009, there were
no proceedings pending against the respondent, as the proceedings were
dropped as early as on 18.08.2009. However, he has been denied
promotion from the year 2007-2008 and was promoted only on
25.10.2012 depriving him of his services as Assistant Executive Engineer
for a period of five years.
4. The facts projected by the respondent in W.A.No.626 of 2021,
who was the petitioner in W.P.No.116 of 2015, are also similar. The writ
petitioner herein joined the service as Junior Assistant on 18.08.1980
and was promoted as Assistant in 1985 and Deputy Tahsildar for the
panel year 1995 and promoted as Tahsildar in the year 2003. The next
promotion was to the post of Deputy Collector and she was already well
within the zone of consideration for the year 2006-2007. The crucial date
in this case was 31.12.2005. A temporary list for the year 2006-2007
was published in G.O.Ms.No.313, Revenue (Services-I) Department,
dated 07.06.2007, which did not include the name of the respondent.
The reason being that while she was serving as Special Tahsildar (Stamp
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Duty) in Coimbatore during 2006 a charge memo was issued under
Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)
Rules on 30.12.2006. The final report, after enquiry, was filed in that
regard on 30.07.2007 holding that the charges against the respondent
were not proved. The said report was accepted by the third appellant
herein and the proceedings were dropped.
4.1. The case of the respondent was that the proceedings having
been dropped, her name ought to have been included in the promotion
list for the year 2006-2007 and hence, she gave a representation to the
third respondent. As there was no response, W.P.No.19357/2010 was
filed seeking a direction to include her name for the year 2006-2007
based on her seniority. Though this Court passed an order on 24.08.2010
issuing a direction to consider her representation, no action was taken for
granting her promotion as Deputy Collector. Upon verification, it was
found that there was another disciplinary action that was pending against
the respondent, which disentitle her from the benefit of inclusion in the
promotion list.
4.2. The cut-off date for the panel year 2006-2007 was 31.12.2005
and the panel was drawn on 13.01.2007. The charge sheet was issued on
30.12.2006 and the charges were dropped on 13.03.2008. Therefore, it
was contended on behalf of the respondent that her name should have
been added in the list. Even otherwise, once the disciplinary proceedings
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ended in favour of the employee or the employee is exonerated, his/her
name shall be considered for the promotion. But in this case, the
respondent pointed out that since there was another charge memo
issued against her on 10.10.2007, she cannot be considered is not an
acceptable reason, as on the crucial date, there was no charge memo
issued to her and the disciplinary action taken subsequent to the same
was also dropped. The second charge memo, allegedly issued after the
crucial date cannot be an impediment to promote the writ
petitioner/respondent, and she should have been considered for
promotion for the panel year 2006-2007.
5. The writ Court, accepting the contentions of the writ petitioners,
allowed the writ petitions and issued consequential directions and the
said orders are now questioned by the State.
6. The above facts are not disputed by the appellants. The only
aspect that has to be seen is whether there was any vigilance enquiry
against the writ petitioners/respondents on the crucial date for non-
inclusion of their names in the promotion panels ?
7. The learned State Government Counsel invited this Court's
attention to the specific guidelines issued with regard to the pendency of
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Vigilance Enquiry / Charges, effect of adverse remarks in Personal file,
Confidential Report and specific punishments for adoption while preparing
panels in Government Letter No.18824/S/2005-2, Personnel and
Administrative Reforms (S) Department, dated 07.10.2005, wherein, in
Annexure I, the guidelines for preparation of panel are provided.
8. The learned counsel for the writ petitioners/respondents would
submit that to include the name of the persons in the promotion panel,
three aspects that are to be considered are : (i) the crucial date for
drawing the panel ; (ii) the date of drawing of the panel ; and (iii)
promotion of the junior and there is no bar for the promotion of the writ
petitioners/respondents.
9. Heard the learned State Government Counsel appearing on
behalf of the appellants and the learned counsel for the respondents/writ
petitioners.
10. As stated above, in both the above cases, the factual details
are not disputed. A reading of paragraph II(iv)(2) of Annexure I of the
Government Letter dated 07.10.2005 shows that the "specific charges"
are those framed under Rule 17(b) of the TNCS (D & A) Rules, or its
equivalent. It is also made clear therein that mere calling for the
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explanation of a Government servant under Rule 17(a) of the TNCS (D &
A) Rules need not be treated as a bar for promotion on that score alone
and this would equally also to promotion to ordinary posts and "Selection
Category" posts, as well as to recruitment by transfer from service to
another. Placing reliance on the paragraph II(iv)(5), wherein, it is stated
that if specific charges are framed or charge sheet is filed in the criminal
case before actual promotion, the person concerned shall not be
promoted, though his name has been included in the panel.
11. However, a Full Bench of this Court in the judgment rendered
in the Deputy Inspector General of Police, Thanjavur Range V.
V.Rani, 2011 (3) CTC 129 (FB), held that the said Government Letter
dated 07.10.2005 cannot not treated as statutory rules framed under
Proviso Article 309 of the Constitution and cannot be read either with the
Tamil Nadu Government Servants Conduct Rules, 1973 or under the
Tamil Nadu Civil Service (Disciplinary and Appeal) Rules. Hence, the
appellants cannot lay their hands on the said Government Letter in
support of their action.
12. Though there were certain guidelines issued in G.O.Ms.No.22,
Personnel and Administrative Reforms (S) Department, dated 24.02.2014
amendments General Rule 4(a) of the Tamil Nadu State and Subordinate
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Services Rules, the Tamil Nadu Government Servants (Conditions of
Services) Act, 2016 was brought into force to regulate the service
conditions of the Government Servants of the State. Section 7 of the
said Act deals with approved candidates. Schedule XI under Section 7(1)
contains the nuances of the approved list. Clause II under Part A of the
said Schedule mandates how consideration of members for inclusion in
the approved lists has to be made. Even as per the said provision, there
is no embargo on the appellants to consider the case of the writ
petitioners/respondents, though their cases were prior to the coming into
force of the said Act.
13. In this context, learned counsel appearing for the writ
petitioners/respondents would contend that Rules cannot be amended
with retrospective effect and placed reliance on the judgment of the
Hon'ble Supreme Court in State of Madhya Pradesh V. Yogendra
Shrivastava, (2010) 12 SCC 538, wherein, it has been held as follows:
"15. It is no doubt true that Rules made under Article 309 can
be made so as to operate with retrospective effect. But it is well
settled that rights and benefits which have already been earned or
acquired under the existing Rules cannot be taken away by amending
the Rules with retrospective effect. (See N.C. Singhal v. Armed
Forces Medical Services [(1972) 4 SCC 765]; K.C. Arora v. State of
Haryana (1984) 3 SCC 281 and T.R. Kapur v. State of Haryana 1986
Supp SCC 584.) Therefore, it has to be held that while the
amendment, even if it is to be considered as otherwise valid, cannot
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affect the rights and benefits which had accrued to the employees
under the unamended rules. ......"
14. The learned counsel for the writ petitioners/respondents also
placed reliance on the judmgnet of the Hon'ble Apex Court in Union of
India V. Hemraj Singh Chauhan, (2010) 4 SCC 290 to buttress his
submission that it is the mandatory duty of the Government to consider
the promotion of the Government servant at the relevant time, as it is
part of the fundamental right guaranteed under Article 16 of the
Constitution of India. The relevant portion of the said judgment are as
follows :
"35. The Court must keep in mind the constitutional obligation
of both the appellants/Central Government as also the State
Government. Both the Central Government and the State
Government are to act as model employers, which is consistent with
their role in a welfare State.
36. It is an accepted legal position that the right of eligible
employees to be considered for promotion is virtually a part of their
fundamental right guaranteed under Article 16 of the Constitution.
The guarantee of a fair consideration in matters of promotion under
Article 16 virtually flows from guarantee of equality under Article 14
of the Constitution."
15. Following the said decision, a Division Bench of this Court also
in The Engineer-in-Chief, W.R.O., and the Chief Engineer (General)
V. C.L.Pasupathy, 2013 SCC OnLine Mad 592 extended certain
benefits to the respondent therein, considering the fact that the
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Department also delayed preparation of panel and on account of such
inaction, there was no justification on their part to deny the benefit of
promotion to the employee.
16. It is not out of place to mention that in a catena of decisions,
various Division Benches of this Court deprecated similar actions of the
authorities and extended benefits to the employees/Government
servants. One such recent decision is the judgment of a Division Bench
of this Court in V.Visweswaran V. Director of Handloom and
Textiles, (2021) 5 MLJ 97, wherein, in paragraph 4, it has been held
as follows :
"3.The only issue which falls for consideration in this appeal is
whether the appellant's name can be passed over and not included in
the panel for promotion to the post of Handloom officer on the ground
that a charge memo was issued much after the crucial date. In this
regard, it is relevant to note Section 7(1) of the Tamil Nadu
Government Servants (Conditions of Service Act), 2016 which reads
as follows:
“Mere filing of cases in Courts by the appropriate
investigation Authority against a member of service, shall not be
a bar for inclusion of his name in the approved list. If specific
charges are framed or charge sheet has been filed in the criminal
case on the crucial date his name shall not be considered for
inclusion in the approved list”.
4.In terms of the above provisions, what would be relevant is
whether charge proceedings is pending as on the crucial date.
According to the appellant, on the crucial date ie., 01.03.2014, there
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was no charge proceedings pending and charge memo was issued
only on 12.01.2015. In the light of Section 7 of the conditions of
Service Act, the competent authority who draws the panel for
promotion has to consider the case of the candidate based on the
said provisions namely, Section 7(1). Therefore, we are not agreeable
with the findings rendered by the learned Single Bench in paragraph
No.5, by laying down the broad proposition that pendency of charge
even after the crucial date would be a bar. In fact, we find that there
are no adequate reasons to support such a conclusion apart from the
statutory provisions having not been taken note of. Therefore, we are
of the view that the decision rendered in the writ petition cannot be
taken to be laying down a general legal principal."
17. In the light of the above judgments, it is to be stated that the
name of writ petitioner in W.P.No.10402 of 2011 (appellant in
W.A.No.271 of 2020) ought to have been included in the panel for the
year 2007-2008. It has been categorically found that the panel was
drawn only on 05.02.2010, when the crucial date was on 01.04.2007 and
on both the dates, there was no charge memo issued/pending against
him.
18. Similarly, in the case of the writ petitioner in W.P.No.116 of
2015 (appellant in W.A.No.626 of 2021) also, on the crucial date for
drawing the panel, i.e., on 31.12.2005, there was no charge memo
pending against the writ petitioner and only on 30.12.2006 a charge
memo was issued, however, the charges were dropped on 13.03.2008.
Once the charges are dropped, her original position ought to have been
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restored. The second charge memo that was issued after the crucial date
cannot be a bar for considering the inclusion of the name of the writ
petitioner in the panel.
19. For the foregoing reasons, both the writ appeals fail and the
same are dismissed as devoid of merits confirming the orders of the writ
Court with a direction to the appellants to implement the impugned
orders in the time limit stipulated therein. No costs. Consequently,
connected miscellaneous petitions are closed.
(P.S.N., J.) (K.R., J.)
02.09.2021
Index : Yes / No
Internet: Yes
gg
To
1. The Secretary to Government,
Public Works Department,
Government of Tamil Nadu
Fort St. George,
Chennai-600 009.
2. The Secretary to Government,
Revenue (Services-1) Department,
Fort St. George, Chennai-9.
3. The Special Commissioner and
Commissioner of Revenue Administration,
Chepauk, Chennai-600 005.
4. The Engineer-in-Chief, WRO and
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Chief Engineer (General),
Public Works Department,
Chepauk, Chennai-600 005.
5. The District Collector,
Coimbatore District,
Coimbatore.
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PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
gg
W.A.Nos.271/2020 and 626/2021
02.09.2021
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