Madras High Court
A.Balasubramanian vs The Agricultural Production ... on 4 April, 2022
W.P.(MD).No.21461 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.04.2022
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.21461 of 2016
A.Balasubramanian ... Petitioner
Vs.
1.The Agricultural Production Commissioner
and Principal Secretary to Government,
Agriculture Department,
Secretariat,
Chennai-600 009.
2.The Chief Engineer,
Agricultural Department,
487, Anna Salai,
Nandanam,
Chennai-600 035. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records of the first respondent i.e., the Agricultural Production Commissioner,
Chennai relating to the impugned order issued in letter No.30320/AA3/2013-5
Agriculture (AA3) Department, dated, 29.01.2015 and quash the same and
consequently direct the first respondent to pass appropriate orders relating to
payment of arrears in the promoted posts in the cadre of Executive Engineer
from 31.01.2001 to 24.02.2005 and in the cadre of Superintending Engineer for
the period from 25.02.2005 to 31.05.2006 in the light of decision taken in
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W.P.(MD).No.21461 of 2016
W.P.No.48365 of 2006, dated, 20.12.2011 and implemented by the Government
in G.O.(D)No.4 Public Works (A1) Department, dated, 07.01.2013 within a
specified time frame that may be fixed by this Court.
For Petitioner : Mr.S.Visvalingam
For Respondents : Mr.S.Kameswaran
Government Advocate(Civil Side)
ORDER
This present writ petition has been filed to quash the impugned order,
dated, 29.01.2015 with the consequential prayer to pass appropriate order
relating to payment of arrears in the promoted posts in the cadre of Executive
Engineer from 31.01.2001 to 24.02.2005 and in the cadre of Superintending
Engineer for the period from 25.02.2005 to 31.05.2006 in the light of decision
taken in W.P.No.48365 of 2006, dated, 20.12.2011 and implemented by the
Government in G.O.(D)No.4 Public Works (A1) Department, dated,
07.01.2013.
2. The brief facts of the case are that the petitioner was last serving as
Executive Engineer (Agricultural Engineering) and permitted to retire on
31.05.2006. While the petitioner was serving as Assistant Executive Engineer,
he was placed under suspension on 08.03.2000 and charges were framed
against the petitioner on 16.08.2000 under Rule 17(b) Tamil Nadu Civil
Services (Discipline and Appeal) Rules by the Chief Engineer, Chennai. The
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W.P.(MD).No.21461 of 2016
charge against the petitioner is that the petitioner has entrusted fabrication
works to AGROFED at exorbitant rate while he was serving as Assistant
Executive Engineer (CADP1) Madurai during 1994-95. The above said Charge
Memo, dated, 16.08.2000 was dropped by Government in G.O. (2D) No. 211
Agriculture Department, dated, 16.12.2004 on the ground that the charges
framed against the petitioner were not proved. After dropping of the charges,
the petitioner submitted representations for promoting the petitioner as
Executive Engineer, since the petitioner's juniors were officiating as Executive
Engineers from January 2001. Further promotion panel in respect of petitioner's
juniors for the post of Superintending Engineer was also under preparation in
the year 2004. But the petitioner was promoted as Executive Engineer in the
vacant place as per G.O.RT.No.378 Agriculture Department, dated, 26.12.2005
and retired as Executive Engineer on 31.05.2006.
3. The contention of the petitioner is that since the Charge Memo, dated,
16.08.2000 was dropped, the petitioner ought to be considered for promotion
from the panel 1998-99 and ought to have been promoted in the year 2001 as
his juniors were promoted in the year 2001. The further contention of the
petitioner is that the panel for promotion of Superintending Engineer as
approved in G.O.Ms.No.32 Agriculture Department, dated, 22.02.2005, was
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W.P.(MD).No.21461 of 2016
sent to Government in letter, dated, 26.05.2003 by the Chief Engineer and at
that time, the charges against the petitioner was pending. Therefore, the
petitioner's name was first considered for inclusion in the panel of promotion to
the post of Executive Engineer by restoring his original seniority. But the
petitioner was promoted as Executive Engineer on 30.12.2005. The petitioner
was not promoted as Executive Engineer from the panel 1998-1999. The
contention of the petitioner is that the panel was prepared in the year 1998-99
and the petitioner's name was not considered. Since the respondents were
contemplating to take departmental proceedings against the petitioner based on
the Charge Memo, dated, 16.08.2000, the respondents have not considered the
petitioner's claim at all. Since the Charge Memo was dropped by Government
Order, dated, 16.12.2004, as per Fundamental Rules, Rule 17 proviso (1), the
petitioner is entitled to be considered. Therefore the petitioner prayed to allow
the writ petition by directing the respondents to grant promotion.
4. Heard Mr.S.Visvalingam, the Learned Counsel appearing for the
petitioner and Mr.S.Kameswaran the Learned Government Advocate (Civil
Side) and perused the records.
5. The relevant portion of Rule 17 proviso (1) of Fundamental Rules is
extracted hereunder:
“Provided that in case of Government servants
whose names were deferred for inclusion in the panel
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W.P.(MD).No.21461 of 2016
for promotion to higher post due to pendency of
charges, but subsequently included in the same panel on
exoneration of the charges after the date of their
retirement on superannuation on appeal or review, their
pay shall be fixed notionally on the date of their
retirement on superannuation at the stage at which they
would have drawn, had they been promoted or
appointed to the higher post along with their junior for
the purpose of pension and other monetary terminal
benefit;”
6. Based on this proviso, any departmental proceedings if dropped, then
delinquent is entitled to promotion that too on the date when the delinquent
officer's junior was promoted. In the present case, the petitioner's juniors were
promoted in the year 2001 as Executive Engineers and as Superintending
Engineers in the year 2005. Therefore, based on Fundamental Rules, the
petitioner is entitled to the relief. Therefore, the respondents are directed to fix
the petitioner's promotion in the post of Executive Engineer from the year 2001
and in the post of Superintending Engineer from the year 2005, notionally, and
the monetary benefits shall be fixed notionally and the effect shall be granted in
pension and the arrears of pensionary benefits shall be disbursed. It is made
clear, the petitioner is not entitled to any interest for the said monetary benefits.
The said exercise shall be completed within a period of four weeks from the
date of receipt of the copy of the order.
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W.P.(MD).No.21461 of 2016
7. Before parting with the judgment, this Court is of the considered
opinion that the provisions of the disciplinary proceedings ought to be
revisited. In the present case, the petitioner was in the panel for the year
1998-1999. The petitioner was placed under suspension on 08.03.2000 and the
charge memo was issued on 16.08.2000. The petitioner's juniors were promoted
in the 2001 and the charge memo was dropped on 16.12.2004. Then the
petitioner is losing his valuable right of promotion for the period from 2000 to
2004. More so, when the charges were dropped the loss to the petitioner is an
“irreparable loss”. The government ought to consider to amend the rules to the
effect that the promotion shall not be considered only during the “period of
punishment” alone. For the period of “contemplating to initiate disciplinary
proceedings”, the delinquent ought to be considered for promotion. Since
during that period the delinquent is losing his valuable right of promotion, that
too when the disciplinary proceedings are dropped. Moreover, it gives power to
the higher authorities to stop promotion by initiating disciplinary proceedings
by framing charges and after the promotion is granted to others, the charges
would be dropped. This power without any guidelines leads to arbitrariness. It
is used in several cases as a tool to grant promotion to juniors in the list and to
stop promotion to the seniors on account of proposed action against them. The
government shall consider to amend the rules for the reasons as stated supra.
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W.P.(MD).No.21461 of 2016
8. With this above said direction, this Writ Petition is allowed. No costs.
04.04.2022
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Index : Yes / No
Internet : Yes/ No
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Agricultural Production Commissioner
and Principal Secretary to Government,
Agriculture Department,
Secretariat,
Chennai-600 009.
2.The Chief Engineer,
Agricultural Department,
487, Anna Salai,
Nandanam,
Chennai-600 035.
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W.P.(MD).No.21461 of 2016
S.SRIMATHY, J.
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W.P.(MD).No.21461 of 2016
04.04.2022
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