Madras High Court
S.Thilagam vs Government Of Tamil Nadu on 6 June, 2022
W.P.No.1796 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.06.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No. 1796 of 2014
and
M.P.No.1 of 2014
S.Thilagam ... Petitioner
-vs-
1. Government of Tamil Nadu,
Represented by Principal Secretary to
Government,
Rural Development & Panchayat Raj Department,
Secretariat, Chennai – 600 009.
2. The Commissioner of Rural Development
& Panchayat Raj,
Chennai – 600 015.
3. The District Collector,
Salem District, Salem. ... Respondents
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India praying for issuance of Writ of Certiorarified Mandamus calling for
the records on the file of the first respondent herein in Government Letter
No.1516/E1/2013-3 dated 25.04.2013 and quash the same and to
consequently direct the first respondent herein to include the name of the
1/14
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
petitioner in the appropriate place in the panel for promotion to the post of
Assistant Director of Rural Development Department for the year 2009-
2010 and to promote the petitioner as such, with retrospective effect from
the date of promotion of the petitioner immediate junior therein and to grant
the petitioner all consequential benefits.
For Petitioner : Mr.M.Ravi
For Respondents : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
ORDER
The order impugned dated 25.04.2013 declining the request of the
writ petitioner to include her name in the panel of Block Development
Officers fit for promotion to the Post of Assistant Director of Rural
Development is under challenge in the present writ petition.
2. The writ petitioner was recruited as Trainee Assistant by the Tamil
Nadu Public Service Commission in the year 1976. She was promoted as
Assistant in the year 1984, she was further promoted as Extension Officer in
the year 1997 and as Deputy Block Development Officer in the year 2002
and thereafter as Block Development Officer in the year 2005. The
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
petitioner states that she is fully qualified for promotion as Assistant
Director of Rural Development and was ripe for empanelment in the panel
for the year 2009, wherein the crucial date was 01.03.2009.
3. Admittedly, the Departmental disciplinary proceedings under Rule
17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules dated
16.10.2009 was initiated. The disciplinary proceeding ended with an order
of punishment of stoppage of increment for six months without cumulative
effect in proceedings dated 31.05.2011 passed by the 3rd respondent. Thus,
the currency of punishment was ended on 30.11.2011. The petitioner
preferred an appeal and it is stated to be pending.
4. The learned counsel for the petitioner mainly contended that the
charges framed against the writ petitioner cannot be construed as grievous
warranting initiation of proceedings under Rule 17(b) of the Tamil Nadu
Civil Services (Discipline & Appeal) Rules. There was no financial loss to
the Panchayat and in respect of certain mistake, the petitioner herself
collected the same and deposited the loss to the Panchayat and rectified the
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
same by recovering the said amount from the persons responsible. Thus, for
all the purposes, the disciplinary proceedings are to be construed as 17(a)
proceedings instead of 17(b). Once the proceedings are considered as 17(a)
proceedings under the Tamil Nadu Civil Services (Discipline & Appeal)
Rules, then the punishment would not be a bar for promotion to the higher
post of Assistant Director of Rural Development. Though the order of
punishment was issued on 31.05.2011 the petitioner was imposed with the
minor penalty of stoppage of increment for six months without cumulative
effect, thus the charges are to be construed as Rule 17(a) of the Tamil Nadu
Civil Services (Discipline & Appeal) Rules instead of 17(b) and
consequently the petitioner must be granted promotion to the post of
Assistant Director of Rural Development.
5. In support of the said contention, the learned counsel for the
petitioner relied on the orders passed by the learned Single Judge of this
Court dated 22.03.2013 in W.P.(MD).No.12725 of 2011 in the case of
M.Sampoornam Vs. The State of Tamil Nadu and anr., wherein, the Court
had made an observation that as per guidelines issued by the Government,
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
for the allegations considered as minor in nature, charges can be framed
against the petitioner under Rule 17(a) and not under Rule 17(b) of the
Tamil Nadu Civil Services (Discipline & Appeal) Rules. Relying on the said
judgment, the learned counsel for the petitioner reiterated that in the present
case also the nature of the allegations are minor and therefore, the action
under Rule 17(b) is highly unwarranted.
6. In yet another case in W.A.No.2121 of 2021 dated 01.10.2021, the
Hon'ble Division Bench of this Court considered the issue and held that in
respect of minor allegations, charge under Rule 17(b) is unwarranted.
7. The learned Additional Government Pleader objected the said
contention by stating that the case of the writ petitioner is distinct and
different. The judgments relied on with reference to certain facts cannot be
applicable in respect of the facts on hand. The writ petitioner was issued
with the charge memo under Rule 17(b) and the allegations are no doubt
serious, it is for the Department to take a decision in respect of the nature of
allegations and accordingly initiate the proceedings. In the present case,
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
considering the nature of the allegations, the Authorities competent during
the relevant point of time initiated disciplinary proceedings and framed
charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules, which cannot be questioned in the present writ petition as
the relief sought for in the writ petition is regarding promotion.
8. The learned Additional Government Pleader further contended that
the disciplinary proceedings ended with an order of punishment. It is an
admitted fact that the charge memo was pending during the relevant point of
time when the panel was prepared and subsequently after passing of the
punishment the currency was also there. Thus, the petitioner would be
entitled for promotion only after the expiry of currency period, if she is
otherwise found eligible and in accordance with the Rules in force.
9. The learned counsel for the petitioner made a submission that the
order impugned is a non-speaking order and not even mentioned regarding
the witnesses.
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
10. The learned Additional Government Pleader replied by stating
that the said ground is not available for the petitioner at this point of time.
11. Considering the arguments as advanced by the respective learned
counsel appearing on behalf of the parties to the lis, this Court is of the
considered opinion that framing of charges are undoubtedly to be based on
the nature of the allegations. Even in certain circumstances, the Authority
Competent may take a decision either to create a charges under Rule 17(a)
or under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal)
Rules. Government guidelines are available for guidance. However, those
guidelines are directory in nature and cannot be construed as mandatory as
facts and circumstances and nature of the allegations in a particular case
plays a pivotal role. The Disciplinary Authority is competent to assess the
evidence, documents and the nature of the allegations and form an opinion.
Even in certain circumstances, the Competent Authority framed charge
under Rule 17(b) based on certain allegations, the same may not be a ground
for the delinquent official to seek conversion of the charges or otherwise
relying on the nature of the allegations or documents or otherwise.
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
However, the Court cannot venture into an adjudication, which involves
facts and circumstances with reference to the documents and evidence made
available as those factors are to be adjudicated.
12. As far as the disciplinary proceedings are concerned, once the
charges are framed, the delinquent official is entitled to defend the case in
the manner contemplated under the Disciplinary and Appeal Rules and he is
at liberty to raise all the grounds including the ground of framing of charges
either under Rule 17(b) or under Rule 17(a) placing reliance on the
Government Orders or Guidelines in force. However in the present case, the
petitioner has participated in the process of enquiry. The Enquiry officer
submitted his report, the Disciplinary Authority passed the final order
imposing the punishment of stoppage of increment for six months without
cumulative effect. No doubt, the Disciplinary Authority had taken a lenient
view based on the report of the Enquiry Officer. However, this Court cannot
go into the validity of the order of punishment, which is not under challenge
in the present writ petition.
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
13. The order under challenge is with reference to the rejection made
for promotion to the post of Assistant Director of Rural Development. As
far as the promotion is concerned, the Rule contemplates that the
punishment is a bar for promotion and also the currency of punishment,
when the panel fit for promotion to the higher post is prepared. The
employees, who all are facing the disciplinary proceedings are not eligible
for inclusion. This being the settled principle, it is admitted that during the
relevant point of time when the panel of Block Development Officer is fit
for promotion to the post of Assistant Director of Rural Development was
published, the petitioner was facing the departmental disciplinary
proceeding more specifically under Rule 17(b) of the Tamil Nadu Civil
Services (Discipline & Appeal) Rules. The disciplinary proceedings ended
with an order of punishment and it has reached its finality.
14. The learned counsel for the petitioner contended that in respect of
minor allegations, charge memo under Rule 17(a) of the Discipline and
Appeal Rules alone is to be issued. In the present case, the allegations are
minor in nature and thus the charge framed under Rule 17(b) was in
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
violation of the Government guidelines. If at all the charge memo was
issued under Rule 17(a), the said punishment would not be a bar for
promotion and therefore for all purposes, the case of the writ petitioner is to
be treated as if the charges are framed under Rule 17(a). Such a presumptive
argument would not be a ground to grant the relief in the present case, as the
punishment reached its finality and admittedly, the charge memo was issued
under Rule 17(b) of the Discipline and Appeal Rules. Now the petitioner
cannot turn around and say that the charges would have been issued under
Rule 17(a).
15. It is needless to state that even in case where the charge memo
under Rule 17(b) is issued, the Authorities Competent are empowered to
impose minor punishment considering the gravity or proportionality. So also
if any charges are framed under Rule 17(a) of the Rules, such charge memo
can be converted as 17(b) charge if necessary or based on certain documents
to be traced out. When such powers are conferred to the Disciplinary
Authority, the Court cannot form an opinion that the charges would have
been framed under Rule 17(b) as the powers of the judicial review under
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
Article 226 of the Constitution of India, cannot be exercised for
adjudication of disputed facts. Such disputed facts are to be adjudicated
with reference to the documents and evidences and the High Court cannot
presume certain facts and arrive a conclusion that the charge memo must be
issued under Rule 17(a) or under Rule 17(b). The evidence available, the
gravity and other factors are to be assessed by the Competent Authority.
16. As far as the present writ petition is concerned, the relief
sought for is to include the name of the petitioner in the panel for promotion
to the post of Assistant Director of Rural Development. Admittedly, the
petitioner suffered punishment as if attempt to draw an inference that the
authority ought to have framed charges under Rule 17(a) and included the
name of the writ petitioner during the pendency of 17(a) charges. All such
arguments are based on certain assumptions and the Court cannot grant the
relief based on such assumptions. The fact remains that 17(b) charges were
framed and the punishment was imposed which became final and therefore,
the name of the writ petitioner was rightly not included during the relevant
point of time.
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
17. The judgments relied on by the petitioner are to be confined with
reference to the facts as the present facts are distinguishable in the case of
the writ petitioner. The departmental disciplinary proceedings were
admittedly initiated under Rule 17 (b), he participated in the enquiry and the
proceedings ended with an order of punishment, no doubt minor punishment
was issued. However, the fact remains that the charge memo under Rule
17(b) was pending during the relevant point of time when the panel for
promotion to the post of Assistant Director of Rural Development was
published by the Competent Authorities. This being the factum, the High
Court cannot go into the nature of the allegations in the departmental
disciplinary proceedings and form an opinion that the allegations are minor
in nature and therefore, the Authorities have made an error in framing the
charges under Rule 17(b) instead of 17(a), which would be overstepping
and is not with the scope of judicial review under Article 226 of the
Constitution of India.
18. This being the factum, this Court is of the opinion that there is no
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
infirmity as such in respect of the decision taken by the respondents
regarding the grant of promotion to the petitioner during the relevant point
of time and the case of the petitioner is to be considered only after currency
of pendency if she is otherwise eligible in accordance with Rules in force.
19. Accordingly, this writ petition stands dismissed. No costs.
Connected miscellaneous petition is closed.
06.06.2022
Index : Yes/No.
Internet: Yes/No.
Speaking Order : Yes/No
mp/Svn
To
1. The Principal Secretary
The Government of Tamil Nadu,
Rural Development & Panchayat Raj Department,
Secretariat, Chennai – 600 009.
2. The Commissioner of Rural Development
& Panchayat Raj,
Chennai – 600 015.
3. The District Collector,
Salem District, Salem.
https://www.mhc.tn.gov.in/judis
W.P.No.1796 of 2014
S.M.SUBRAMANIAM, J
mp/Svn
W.P.No.1796 of 2014
06.06.2022
https://www.mhc.tn.gov.in/judis
