Madras High Court
M.V. Kaliyaperumal vs The Principal Secretary To ... on 22 September, 2022
W.P. No.16191 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.09.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P. No.16191 of 2018
and
W.M.P. No.19277 of 2018
M.V. Kaliyaperumal ...Petitioner
vs.
1. The Principal Secretary to Government,
Department of Rural Development and Panchayat Raj,
Fort. St. George,
Chennai – 600 009.
2. The Director of Rural Development and
Panchayat Raj,
Panagal Building,
Saidapet,
Chennai – 600 015.
3. The District Collector,
Thanjavur District,
Thanjavur. ... Respondents
Prayer : Writ petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
in pursuant to the impugned order passed by the 1st respondent passed in
G.O. (PA) No.115 Rural Development and Panchayat Raj (E1)
Department, dated 13.03.2017 and quash the same and consequently
direct the respondents to retrospectively promote the petitioner as
Divisional Development Officer (Now re-designated as Assistant
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W.P. No.16191 of 2018
Director of Panchayat) on par with his junior by including his name in
the panel for promotion to the post of Divisional Development Officer
for the year 1997-1998 with all consequential service and monetary
benefits and to accordingly revise his pension and other pensionary
benefits with effect from the date of his retirement on 31.03.2002.
For petitioner : Mr. R. Premnarayan
For respondents : Mr.P. Gurunathan
Addl. Govt. Pleader
ORDER
This writ petition has been filed challenging the order dated
13.03.2017 passed by the 1st respondent rejecting the petitioner's request
for promotion as Divisional Development Officer (now re-designated as
Assistant Director of Panchayat) on par with his junior by including his
name in the panel for promotion to the post of Divisional Development
Officer for the year 1997-1998 with all consequential service and
monetary benefits and to accordingly revise his pension and other
pensionary benefits with effect from the date of his retirement on
31.03.2002, within a time frame to be fixed by this Court.
2. The only issue that arises for consideration in this writ petition
is whether the petitioner is entitled for promotion if the charges against
the petitioner, which were pending on the crucial date when the seniority
panel was finalised and subsequently, the charges were dropped against
him.
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W.P. No.16191 of 2018
3. The petitioner was working as a Block Development Officer and
has retired from service on attaining the age of superannuation on
31.03.2002. His next avenue of promotion was to the post of Divisional
Development Officer (now re-designated as Assistant Director of Rural
Development). Under G.O. Ms. No.368, Personnel Administrative
Reforms Department dated 18.10.1993 prescribes the procedure to be
followed in the preparation of panel and grant of promotion. As per the
aforesaid Government Order, only if specific charges under Rule 17(b) of
the Tamil Nadu Civil Services (Discipline and Appeal) Rules 1955 are
pending or currency of punishment in force as on the crucial date, then
the name of such person should not be included in the panel and their
promotion shall be deferred till the conclusion of disciplinary
proceedings or expiry of the punishment. According to the petitioner, his
name should have been included in the seniority panel for promotion to
the post of Divisional Development Officer for the Panel year 1997-
1998. But only due to the pendency of 17(b) charges against him, his
name was not included. The crucial date for inclusion in the panel for
promotion to the post of Divisional Development Officer for the panel
year 1997-1998 is 01.03.1997. The seniority panel for the year 1997-
1998 was issued in G.O. (4Pa) No.144, Rural Development and
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W.P. No.16191 of 2018
Panchayat Raj (E1) Department dated 15.12.1997. The petitioner's name
was not included in the abovesaid panel due to the pendency of 17(b)
charges against him. Two reasons were given for not including the name
of the petitioner name in the above referred seniority panel, they are as
follows :-
a) 17(b) charge memo dated 13.10.1997 was pending against the
petitioner.
b) a currency of punishment of stoppage of increment for a period
of six months without cumulative effect was in force as on the crucial
date i.e. on 01.03.1997. The above said punishment was imposed in the
proceeding dated 25.08.1997. According to the petitioner neither the
17(b) charge memo nor the currency of punishment was in force as on
the crucial date i.e. 01.03.1997. In the 17(b) charge memo, dated
13.10.1997, the petitioner was initially imposed with a punishment of
stoppage of increment for a period of one year without cumulative effect
vide Proceedings, dated 16.03.1999. However, the Government issued
G.O. (D) No.617, Rural Development (E6) Department dated 02.12.2005
setting aside the above said punishment. According to the petitioner, the
punishment of stoppage of increment for a period of six months without
cumulative effect issued in the 17(b) charge memo was communicated to
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W.P. No.16191 of 2018
the petitioner only in the year 2007 i.e. after the petitioner's retirement.
According to him, a punishment order will come into force only on the
date on which it was served on him. The above said punishment was
also set aside by the Government in G.O. (Pa) No.145, Rural
Development and Panchayat Raj(E1) Department, dated 13.03.2015.
According to the petitioner in view of the dropping of the punishment,
the petitioner is entitled for inclusion of his name in the seniority panel
for promotion to the post of Divisional Development Officer for the year
1997-1998. However, according to him, the 1st respondent issued the
impugned G.O.(P) No.115, Rural Development & Panchayat Raj
Department dated 13.03.2017 rejecting the petitioner's request for
inclusion of his name in the panel for the year 1997-1998 on the ground
that a 17(b) charge memo framed against the petitioner in Proceedings
dated 09.01.2001 and the same ended with punishment of cut in pension
in the year 2006.
4. A counter affidavit has been filed by the respondents denying
the contentions of the petitioner. They would submit that the
Government had issued orders in G.O. (D) No.617, Rural Development
(E6) Department dated 02.12.2005, cancelling the order of punishment
on the ground that the charges are not grave in nature and because the
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W.P. No.16191 of 2018
petitioner has retired from service on 31.03.2002. It is also stated that
the Tamil Nadu Public Service Commission has observed in their revised
opinion that further action may be pursued against the petitioner on the
basis of the Enquiry report and further explanation offered by the
petitioner. According to the respondents, the petitioner cannot take
advantage of the lenient view taken by the Government and only due to
the aforementioned circumstances, the charges against the petitioner
were dropped by the Government.
5. Heard Mr.R. Prem Narayan, learned counsel for the petitioner
and Mr.P.Gurunathan, learned Additional Government Pleader for the
respondents.
6. The learned counsel for the petitioner would submit that if on
the crucial date, there was no charge pending against the petitioner, he
ought to have been considered in the seniority panel. He would further
submit that though on the crucial date, charges under 17(b) were pending
against the petitioner, the same was subsequently dropped and therefore
notional promotion ought to have been granted to the petitioner based on
his request, which has been declined under the impugned Government
Order erroneously. However, he would submit that on instructions that
the petitioner is concerned only about the revision of pension and not
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W.P. No.16191 of 2018
about the arrears of pay and other retirement benefits that may accrue to
the petitioner due to the notional promotion on par with his juniors on
02.02.1998.
7. The learned counsel for the petitioner drew the attention of this
Court to the following authorities, in support of his submissions,
involving identical matters where charges were dropped subsequently
after the preparation of the seniority panel, wherein, this Court in the said
decisions had included the respective petitioner's name in the seniority
panel and granted promotion :-
a) The Division Bench judgment of this Court in the case of
V.Visweswaran vs. Director of Handloom and Textiles and another
reported in 2021 5 MLJ 97
b) The Division Bench judgment of this Court in the case of
Government of Tamil Nadu Rep. By its Secretary to Government and
another vs. J.Jayaprakash, dated 29.10.2020 passed in W.A. No.2056 of
2019.
c) The Division Bench judgment of this Court in the case of The
Principal Secretary to Government and two others vs. Ramkumar,
dated 07.10.2020 passed in W.A. No.2335 of 2019.
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W.P. No.16191 of 2018
d) The order of the learned Single Bench of this Court dated
25.06.2018 in W.P. No.116 of 2015 in the case of P.Manimegalai vs. The
Secretary to Government and two others.
8. Per contra, the learned Additional Government Pleader
appearing for the respondents would reiterate the contents of the counter
affidavit filed by the respondents before this Court and in particular, he
would submit that only on the ground that the charges were not grave in
nature and that too for the reason that the petitioner had retired from
service on 31.03.2002 itself, the charges against him, which is the
subject matter of this writ petition were dropped. He would also submit
that the petitioner is not entitled for any arrears of pay or any other
retirement benefits, i.e. not entitled for revision of his pension.
Discussion :-
9. The issue raised in this writ petition is now well settled by
various decisions of this Court including the decisions relied upon by the
learned counsel for the petitioner.
10. In the case of V.Visweswaran vs. Director of Handloom and
Textiles and another reported in 2021 5 MLJ 97, it has been held as
follows :-
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W.P. No.16191 of 2018
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 i.e., 01.03.2014, there 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 principle.
11. In the case of Government of Tamil Nadu Rep. By its
Secretary to Government and another vs. J.Jayaprakash, referred to
supra, the Division Bench of this Court in paragraph Nos.21 and 28 has
held as follows :-
21. These provisions are not relevant as they will apply
only on the crucial date and before promotion is granted.
These provision will not apply to situations where punishment
imposed are later dropped in the appellate proceedings.
28. Merely because subsequent departmental
proceedings were initiated in TDP Case No.26/2012 is of no
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W.P. No.16191 of 2018
consequence. The 4th charge memo dated 26.05.2015 was
issued much later. It cannot be to the prejudice of the
respondent.
In the aforesaid decision, the Division Bench has followed the
various decisions of the Hon'ble Supreme Court.
12. In the case of The Principal Secretary to Government and two
others vs. Ramkumar, referred to supra, the Division Bench has once
again reiterated that the issue of subsequent of charge memo or initiation
of fresh departmental proceedings cannot be a bar for considering the
promotion of the respondent as an Assistant Director for the panel year
2012-13.
13. In the case of P.Manimegalai vs. The Secretary to
Government and two others, referred to supra, the learned Single Judge
has also held that the law is well settled on this aspect that once the
charges were dropped, the clock must be put back to the time when there
was no charge memo against the employee and promotion granted from
that date, if otherwise was eligible to be granted promotion.
14. Though the respondents may contend that only due to the fact
that the charges were not grave in nature and due to the fact that the
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W.P. No.16191 of 2018
petitioner had retired on 31.03.2002, the charges were dropped, this
Court is of the considered view that the decisions rendered by the
Division Benches as well as by the learned Single Judge referred to
supra, does not differentiate as to the reason for dropping of the charges.
The only criteria to be seen is whether the charges are still pending
against the delinquent. Admittedly in the instant case, on the crucial date
pursuant to the dropping of the charges, subsequent to the crucial date
by the respondents, the petitioner has sought for revision of pension in
this writ petition. The decisions relied upon by the learned counsel for
the petitioner will squarely apply to the facts of the instant case. But
however, since the seniority panel pertains to the year 1997-98 and the
petitioner had also retired from service in the year 2002 itself, the
question of payment of arrears of pay and other retirement benefits
excepting for revision of pension amount will not arise, which is also
fairly conceded by the learned counsel for the petitioner.
15. For the foregoing reasons, the impugned G.O. (PA) No.115
Rural Development and Panchayat Raj (E1) Department, dated
13.03.2017 passed by the 1st respondent is hereby quashed and the 1st
respondent is directed to notionally promote the petitioner as Divisional
Development Officer(now re-designated as Assistant Director of
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W.P. No.16191 of 2018
Panchayat) as on 02.02.1988 and consequently revise the pension amount
payable to him and pay the arrears of revised pension from the date of
retirement till date, within a period of three months from the date of
receipt of a copy of this order.
16. With the aforesaid directions, this writ petition is disposed of.
No costs. Consequently, connected miscellaneous petition is closed.
22.09.2022
Index: Yes/No
Internet: Yes/No
Speaking Order/Non-Speaking Order
vsi2
To :
1. The Principal Secretary to Government,
Department of Rural Development and Panchayat Raj,
Fort. St. George,
Chennai – 600 009.
2. The Director of Rural Development and
Panchayat Raj,
Panagal Building,
Saidapet,
Chennai – 600 015.
3. The District Collector,
Thanjavur District,
Thanjavur.
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W.P. No.16191 of 2018
ABDUL QUDDHOSE, J.
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W.P. No.16191 of 2018
22.09.2022
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