S.Arasu vs The State Of Tamilnadu
2022 Latest Caselaw 13886 Mad

                                                                           WP(MD)No.10219 of 2021

                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 04.08.2022

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE M.S.RAMESH

                                           W.P.(MD)No.10219 of 2021
                 S.Arasu                                                      ... Petitioner
                                                         /vs./

                 1.The State of Tamilnadu,
                   Through its Secretary to Government / Additional Chief Secretary,
                   Municipal Administration and Water Supply Department,
                   Fort St.George,
                   Chennai 600 009.

                 2.The Commissioner of Municipal Administration,
                   Chepauk,
                   Chennai – 600 005.

                 3.The Madurai Municipal Corporation,
                   Through its Commissioner,
                   Madurai.

                 4.A.Mathuram

                 5.The Inspector of Police,
                   Vigilance and Anti Corruption Wing,
                   Madurai.                                                   ... Respondents

                 [R4 is impleaded vide order of this Court in WMP(MD)No.8729 of 2021 dated
                 19.07.2021 and R5 is suo-motu impleaded vide order of this Court and
                 21.07.2022.]


                 1/20

https://www.mhc.tn.gov.in/judis
                                                                                   WP(MD)No.10219 of 2021

                 PRAYER: Writ Petition filed under Article 226 of the Constitution of India for
                 issuance of Writ of Mandamus directing the respondents 1 and 2 to consider the
                 proposals of the third respondent in M.N.1/008658/2020 dated 21.07.2020 for
                 promoting the petitioner as City Engineer in the third respondent Corporation and
                 promote the petitioner accordingly.


                                  For Petitioner   :   Mr.Isaac Mohanlal
                                                       for Mr.K.Vairamuthu
                                  For Respondents :    Mr.R.Ragavendran
                                                       Government Advocate (for R1, R2 & R5)
                                                       Mr.R.Murali
                                                       Standing Counsel (for R3)
                                                       Mr.B.Vinoth (for R4)


                                                          ORDER

The petitioner herein, who is now serving as an Executive Engineer under

the third respondent corporation, seeks for promotion to the post of City

Engineer, which vacancy arose on 22.02.2019. According to the petitioner, the

third respondent Corporation has also forwarded a proposal to the second

respondent on 21.07.2020, for promoting him as City Engineer and therefore, the

petitioner seeks for issuance of Writ of Mandamus, directing the respondents 1

and 2 to consider such proposal within a time frame.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

2.The fourth respondent herein, who has been impleaded himself in the

present writ petition, had submitted that the proposal of the Corporation dated

21.07.2020 has been cancelled by the Corporation and therefore, the request of

the petitioner does not require consideration. In the light of such a submission,

the third respondent herein had produced the original files relating to the issue in

hand.

3.As pointed out by the fourth respondent herein, the earlier proposal sent

on 21.07.2020, was withdrawn by the third respondent Corporation on

12.10.2021, only on the ground that when the proposal was sent on 21.07.2020,

there was no criminal case registered against the petitioner herein and since he

has now been implicated in an FIR in Crime No.7 of 2021 dated 30.04.2021, the

proposal dated 21.07.2020 has been withdrawn.

4.The crucial issue involved in the present writ petition is as to whether the

pendency of a criminal case against the Corporation Official, could be an

impediment for consideration of his candidature for promotion to a higher post?

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

5.Rule 7(b) of the Tamil Nadu Municipal Corporation Service Rules, 1996

[hereinafter referred to as “aforesaid Rules” for the sake of convenience] provides

for promotion of an officer, against whom an inquiy into allegations of corruption

is pending. As per the provision, the appointing authority may promote him

temporarily, pending enquiry into the charges against him.

6.The enquiry specified under 7(b) of the aforesaid Rules is apparently a

domestic enquiry. The aforesaid Rule, does not provide for deferment of

consideration for promotion of an Officer on the ground of pendency of a

criminal case. In the absence of such a provision, the officers who face criminal

proceedings and claim for promotion during such pendency, would be governed

by the Regulations governing the Government employees, in view of Rule 36 of

the aforesaid Rules, which provides that in matters in respect of matters where no

provision has been made in the aforesaid Rules, every member of the Corporation

will be governed by the provisions applicable to Government servants of similar

status and standing. Insofar as the pendency of a criminal case is concerned, it is

not in dispute that the final report/charge sheet has not been filed in the case of

the petitioner herein, till date.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

7.The consequential issue is as to whether the pendency of a preliminary

inquiry before framing of charge sheet/final report could be termed as “pending

criminal charges”?

8.The Government, in G.O.Ms.No.368, Personnel and Administrative

Reforms Department, dated 18.10.1993, orders for grant of promotions to an

employee, against whom an inquiry is pending and charges have not been framed

in such criminal case. The relevant portion of the Government Order, in

G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated

18.10.1993 reads as follows:

“II.Preparation of Panels:-

......

(iv) Classification of persons against whom enquires are pending and specific charges have been framed or charge sheet has been filed in criminal cases:- (1) As per orders in the Government order sixth read above, in the case of pending enquiries including Vigilance enquiries and in cases where specific charges have not been framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the Zone of selection as on the date of consideration for

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

promotion/appointments as revealed through the Personal Files/Records sheets and the seriousness of the punishments, if any previously imposed. In cases where specific charges have been framed or charge sheet has been filed in criminal case, promotion/ appointment of such persons shall be deferred till the proceedings are concluded. They must however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable with reference to all relevant criteria, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.”

9.The aforesaid Government Order is self-explanatory and would apply to

such government employees, who face inquiry in a criminal case and where the

final report/charge sheet has not been filed. As stated earlier, when the aforesaid

Rules do not specifically provide for deferment for promotions to an employee

who is facing an enquiry in a criminal case, G.O.Ms.No.368, Personnel and

Administrative Reforms Department, dated 18.10.1993 would be applicable.

10.This apart, the Hon'ble Supreme Court, in several decisions have

reiterated the legal proposition that when a charge sheet/final report in a criminal

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

case has not been filed, but only an inquiry is pending, such pendency cannot be

termed to be “pendency of a criminal case”. In one such decision of the Hon'ble

Supreme Court, in the case of Gurpreet Singh Bhullar and Another vs. Union

of India and Others reported in 2006 (3) SCC 758, such a proposition was laid

down in the following manner:-

“9.Explanation 1 as quoted above will make it crystal clear that the proceedings shall be treated as pending only if a chargesheet has actually been issued to the officer or filed in a Court. The language employed in the statute is unambiguous. The Explanation nowhere states about charges having been framed by the Trial Court. The High Court, in our view, erroneously read something to the Explanation, which is not provided by the Regulation. There is no concept of charge being framed by the Trial Court in the context of Explanation 1 of the Regulation.

.....

11.A conjoint reading of explanation 1 to Regulation 5(5) and proviso to Regulation 7(3) speaks about the chargesheet being filed against an officer in a court of law. There is no concept of charges being framed under the Regulation.

.....

15.The interpretation of the statute assigned by the Division Bench of the High Court as sought to be done in the

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

present case, if accepted, would negate the intendment of the Legislature and frustrate the statute itself. In fact, there is no ambiguity in the statute, which would require interpretation negating the intendment of the Legislature as sought to be done by the High Court.

16.Filing of chargesheet is preceded by an indepth investigation. Charges are filed in Court when the prima facie case is established in course of the investigation. The intendment of the Legislature is that a person who is charged with a criminal offence in which charge is filed in court and the case being pending for trial, that too against a police officer, the inclusion of such officer in the list shall be treated as provisional. The dangerous interpretation assigned to the statute by the High Court would negate the intendment of the Legislature. In our view, the High Court has committed grave fundamental error of law and the same is unsustainable in law.”

11.Similar proposition was reiterated by the Hon'ble Supreme Court, in the

case of Union of India and others vs. Anil Kumar Sarkar reported in 2013 (4)

SCC 161 and reliance was placed on several other decisions and held as follows:

“16.It is not in dispute that an identical issue was considered by this Court in Union of India and Others vs. K.V.Jankiraman. The common questions involved in all those matters were:

“8...(1) What is the date from which it can be said that

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? and (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date?” Among the three questions, we are concerned about question No.1. As per the rules applicable, the “sealed cover procedure” is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over.

17.Inasmuch as we are concerned about the first question, the dictum laid down by this Court relating to the said issue is as follows:-

“16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant- authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge- sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.”

In para 17, this Court further held:

“17. … Conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee….”

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that:

“32....The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits…..We see no reason to interfere with this order. The appeal, therefore, stands dismissed.”

18.The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.

19.In Coal India Limited & Ors. vs. Saroj Kumar Mishra, AIR 2007 SC 1706, this Court, in para 22, has held that:

“18.A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.”

20.In Coal India Limited and Others vs. Ananta Saha, this Court held as under:

“27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V.Jankiraman, and UCO Bank v. Rajinder Lal Capoor)”

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

21.We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued.”

12.The aforesaid decisions of the Hon'ble Supreme Court are self

explanatory. As such, the criminal proceedings would be deemed to have

commenced, only when the charge sheet/final report is filed and a mere pendency

of an inquiry cannot be deemed to be pendency of a criminal case.

13.In the instant case, admittedly, no departmental proceedings were

initiated against the petitioner herein, when the vacancy for the post of a City

Engineer arose. Likewise, the charge sheet/final report in the criminal case has

also not been filed till date. By applying the ratio laid in the aforesaid cases of

the Hon'ble Supreme Court, it could be said that no criminal case, in terms of

service jurisprudence, was pending against the petitioner herein, to disentitle him

for consideration to the promotional post. Consequently, the petitioner would

have a right to be considered for promotion to the post of City Engineer, without

reference to the inquiry in the criminal case.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

14.The learned Senior counsel for the petitioner submitted that though the

right to promotion is not a fundamental right under the Constitution of India, the

right to be considered for promotion in accordance with the relevant Rules, is a

fundamental right as enshrined under Article 16 of the Constitution of India. In

support of such proposition, he placed reliance on a recent judgment, in the case

of Ajay Kumar Shukla and Others vs. Arvind Rai and Others reported in

2021 SCC OnLine SC 1195. The relevant portion of the order reads as:-

“37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. and Others vs. Pravat Kiran Mohanty and Others6 in paragraph 4 of the report which is reproduced below:

“4… There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.”

38. A Constitution Bench in case of Ajit Singh vs. State of Punjab7, laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

criteria for promotion but still is not considered for promotion, then there will be clear violation of his/her’s fundamental right. Jagannadha Rao,J. speaking for himself and (1991) 2 SCC 295 (1999) 7 SCC 209 Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:

“21: Articles 14 and 16(1): is right to be considered for promotion a fundamental right 22: Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1) xxxx xxxx xxxx xxxx xxxx

27.In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.”

39. This Court in Major General H.M. Singh, VSM vs. UOI and Another 8 , again reiterated the legal position, i.e. right to be considered for promotion as a fundamental right enshrined under Article 14 and Article 16 of the Constitution of India. The relevant extract from paragraph 28 is reproduced below: “28. The question that arises for consideration is, whether the non-consideration of the claim of the appellant would violate the fundamental rights vested in him under Articles 14 and 16 of the

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

Constitution of India. The answer to the aforesaid query would be in the affirmative, subject to the condition that the respondents were desirous of filling the vacancy of Lieutenant-General, when it became available on 1-1-2007. The factual position depicted in the counter-affidavit reveals that the respondents indeed were desirous of filling up the said vacancy. In the above view of the matter, if the appellant was the senior most serving Major- General eligible for consideration (which he undoubtedly was), he most definitely had the fundamental right of being considered against the above vacancy, and also the fundamental right of being promoted if he was adjudged suitable. Failing which, he would be deprived of his fundamental right of equality before the law, and equal protection of the laws, extended by Article 14 of the Constitution of India. We are of the view that it was in order to extend the benefit of the fundamental right enshrined under Article 14 of the Constitution of India, that he was allowed extension in service on two occasions, firstly by the Presidential Order dated 29-2-2008, and thereafter, by a further Presidential Order dated 30-5-2008. The above orders clearly depict that the aforesaid extension in service was granted to the appellant for a period of three months (and for a further period of one month), or till the approval of the ACC, whichever is earlier. By the aforesaid orders, the respondents desired to treat the appellant justly, so as to enable him to acquire the honour of promotion to the rank of Lieutenant-General (in case the recommendation made in his favour by the Selection Board was approved by the Appointments Committee of the Cabinet, stands affirmed). The action of the authorities in depriving the appellant due consideration for

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

promotion to the rank of the Lieutenant-General would have resulted in violation of his fundamental right under (2014) 3 SCC 670 Article 14 of the Constitution of India. Such an action at the hands of the respondents would unquestionably have been arbitrary.”

15.When the Tamil Nadu Municipal Corporation Service Rules, 1996,

provide for consideration of the petitioner's candidature for promotion, even when

allegation of corruption is pending against him, non-consideration of his

candidature for promotion would be in violation of Article 16 of the Constitution

of India, in the light of the aforesaid decision in Ajay Kumar Shukla's case

(supra) and thus is unconstitutional.

16.The prayer in the present writ petition is for consideration of the

petitioner's candidature for promotion, in the light of the proposal sent by the

Corporation dated 21.07.2022. As stated earlier, the proposal has already been

withdrawn by the Corporation on 12.10.2021, as pointed out by Mr.R.Murali, the

learned Standing Counsel for the third respondent.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

17.Furthermore, the fourth respondent is neither an aspirant to the

promotional post, since he has already been promoted, nor has he any legal right

to seek for being posted in the vacancy, to which the petitioner seeks for

promotion. The only objection that has been raised on behalf of the fourth

respondent is that the proposal of the Corporation has already been withdrawn

and therefore, the petitioner is not entitled for consideraton for promotion.

18.The issue as to whether a favourable proposal has been forwarded to the

Government or has been withdrawn, will have no relevance to the facts involved

in the present case. Even assuming that the Corporation has not forwarded such

proposals, the petitioner would still be entitled for consideration to the

promotional post, in view of the above discussions.

19.In light of the discussions made in the preceding paragraphs to the effect

that a mere pendency of an inquiry into a criminal complaint, will not be a bar for

consideration to the promotional post, I am inclined to invoke the exordinary

powers under Article 226 of the Constitution of India, for the purpose of

moulding the prayer.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

20.Accordingly, there shall be a direction to the respondents 1 to 3 herein,

to forthwith consider the petitioner's candidature for promotion to the post of City

Engineer in their Corporation, in the light of G.O.Ms.No.368, Personnel and

Administrative Reforms Department, dated 18.10.1993, as well as the decisions

of the Hon'ble Supreme Court and the observations made by this Court in this

order and pass such orders, within a period of four (4) weeks from the date of

receipt of a copy of this order.

21.The Writ Petition stands allowed accordingly. No costs.

04.08.2022 Index : Yes Internet : Yes sm

Note: Issue Order Copy on 17.08.2022.

https://www.mhc.tn.gov.in/judis WP(MD)No.10219 of 2021

M.S.RAMESH, J.

Sm

TO:

1.The Secretary to Government / Additional Chief Secretary, Municipal Administration and Water Supply Department, Fort St.George, Chennai 600 009.

2.The Commissioner of Municipal Administration, Chepauk, Chennai – 600 005.

3.The Madurai Municipal Corporation, Through its Commissioner, Madurai.

4.The Inspector of Police, Vigilance and Anti Corruption Wing, Madurai.

Order made in W.P.(MD)No.10219 of 2021

Dated:

04.08.2022

https://www.mhc.tn.gov.in/judis