Madras High Court
The Managing Director vs N.Ganesan (Deceased) on 5 July, 2023
W.A.No.2443 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.07.2023
CORAM
THE HON'BLE Mr. JUSTICE R.SURESH KUMAR
AND
THE HON'BLE Mr. JUSTICE V.LAKSHMINARAYANAN
W.A.No.2443 of 2010
The Managing Director,
Tamil Nadu Civil Supplies Corporation,
No.12, Thambusamy Road, Kilpauk,
Chennai – 600 010. ... Appellant
Vs.
1.N.Ganesan (deceased)
2.G.Vijaya
3.G.Arun
4.G.Vindhiya
5.G.Brindha ... Respondents
[RR 2 to 5 brought on record as LRs
of the deceased sole respondent vide
order dated 27.10.2017 made in
CMP.No.17750 of 2017 in WA.No.2443/2010]
Prayer : Appeal filed under Clause 15 of the Letters Patent Act, praying
to set aside the order dated 20.04.2010 made in W.P.No.9264 of 2004
passed by this Court.
For Appellant : Mr.C.Selvaraj
For R1 : Died
For R2 to R4 : No appearance
1/10
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W.A.No.2443 of 2010
JUDGMENT
(Judgment of the Court was delivered by R.SURESH KUMAR, J.)
This writ appeal has been directed against the order passed by the
Writ Court on 20.04.2010 made in W.P.No.9264 of 2004.
2. The 1st respondent viz., Ganesan was an employee of the
appellant Corporation. He was working as Assistant Quality Inspector.
The next promotion avenue for him as Quality Inspector. For getting such
a promotion depending upon the vacancy every year panel will be
prepared by having 1st October of that year as a crucial date. It seems that
for the year 1992, a panel was prepared by taking 01.10.1992 as a
crucial date.
3. Though the 1st respondent Ganesan was eligible to be
considered to be included in the panel for promotion of Quality Inspector,
his name was not included, therefore he made a request to that effect,
which was rejected by the order 12.11.2003 by the appellant
Corporation, which was under challenge before the Writ Court.
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W.A.No.2443 of 2010
4. The learned Judge who considered the said case has allowed the
said writ petition. Aggrieved over the same, the present writ appeal has
been filed by the appellant.
5. Heard Mr.C.Selvaraj, learned Standing Counsel appearing for
the appellant Corporation who would submit that, insofar as the said
Ganesan is concerned, he was otherwise eligible to be included in the
panel for the year 1992 for promotion to the post of Quality Inspector.
However, on 04.11.1992 the panel was drawn and on 18.11.1992 for the
alleged violation on the part of the said Ganesan, a charge memo has
been prepared and served on him. Since there has been a charge memo
that has been prepared and served on him, as per Clause 3 of the Circular
issued by the appellant Corporation dated 05.07.1988, his name need not
be considered for inclusion in the panel of the year 1992 and therefore
that request made by him was turned out through the order dated
12.11.2003.
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W.A.No.2443 of 2010
6. The learned counsel would further submit that, these aspects
have not been considered in proper perspective by the learned Judge who
dealt with the writ petition and ultimately allowed the said writ petition,
therefore it is erroneous, he contended.
7. We have considered the said submissions made by the learned
Standing Counsel appearing for the appellant and have perused the
materials placed before this Court.
8. The learned Standing Counsel very much relied upon the
Circular issued by the appellant Corporation dated 05.07.1988 where,
inter alia, the following has been stated:
“1) Charges should not be pending as on the crucial date,
i.e. 1st April of each year.
2) If charges are pending on the crucial date and final orders
passed subsequent to that date and before the drawal of the
panel (either dropping further action or issuing a warning or
awarding a censure), the cases of those employees will be
taken up for consideration for inclusion in the panel, if
otherwise qualified.
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W.A.No.2443 of 2010
3) If charges are framed subsequent to the crucial date and
still pending disposal till the panel is drawn, the case of
those employees cannot be considered for inclusion
irrespective of the nature of charge.”
9. The learned Standing Counsel very much relies upon Clause 3
of the Circular and would submit that, if charges are framed subsequent
to the crucial date and still pending disposal till the panel is drawn, the
case of those employees cannot be considered for inclusion irrespective of
the nature of charge.
10. In the case in hand, it is to be taken note of that, the crucial
date is October 1992 i.e., 01.10.1992. As per Regulation 27 of the Tamil
Nadu Civil Supplies Corporation Employees Service Regulations, 1989
such a crucial date has been fixed.
11. On the crucial date i.e. on 10.01.1992 admittedly there has
been no charge pending against the employee. Only on 18.11.1992 the
charge has been framed before which the panel has been drawn on
04.11.1992.
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W.A.No.2443 of 2010
12. Having these factual matrix in hand, if we apply even the
Clause 1 and 3 of the Circular of the appellant Corporation dated
05.07.1988, the 1st Clause says, charges should not be pending as on the
crucial date, i.e. 1st April of each year. The learned Standing Counsel has
submitted that the 1st April has been amended subsequently as 1st
October for this cadre.
13. Be that as it may, on the crucial date, there should not be any
charges pending. The crucial date is admittedly on 01.10.1992 on that
date there has been no charge pending against the employee. Therefore,
even if we apply Clause 1 of the said Circular, that would no way hamper
the prospects of the employee to get included in the panel. Assuming
that, the Clause 3 of the Circular can be applied against the employee
even that Clause says if charges are framed subsequent to the crucial date
and still pending disposal till the panel is drawn, the case of those
employees cannot be considered for inclusion.
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W.A.No.2443 of 2010
14. In this case, the charge was framed on 18.11.1992 whereas the
panel was drawn on 04.11.1992. Therefore, till the date of drawal of
panel there has been no charge pending.
15. Therefore, neither Clause 1 nor 3 of the Circular dated
05.07.1988 would apply to the case of the employee and therefore, the
denial of inclusion of his name in the panel dated 04.11.1992 for
promotion to the post of Quality Inspector cannot be countenanced.
16. If we consider Clause 1 and 3 of Circular dated 05.07.1988 in
juxtaposition, we can easily come to the conclusion that the primacy of
the Clause 1, which says that, on the crucial date no charge shall be
pending against an employee, cannot be overridden by Clause 3 as it is
only supplementary not supplanting to Clause 1. Therefore, on the crucial
date i.e. 01.10.1992 since there has been no charge framed against the
employee, his inclusion in the list of panel for the promotion to the post
of Quality Inspector for the year 1992 cannot be hampered. Therefore,
the rejection made in this regard dated 12.11.2003 is bad in law and
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W.A.No.2443 of 2010
therefore, the learned Judge is right in coming to a conclusion that the
said order which is impugned before the Writ Court is to be quashed and
accordingly the approach of the learned Judge in allowing the said writ
petition cannot be found fault with, with the result this appeal fails.
17. It has been brought to our notice during the pendency of these
proceedings in the year 2012, the employee superannuated and in the
year 2014 the employee died and the legal heirs have been brought on
record in these proceedings, however they did not choose to appear
before this Court. Be that as it may, the employee since was entitled to
get such a promotion by getting him included in the year 1992 panel to
the post of Quality Inspector, such a gesture should be shown to him by
giving the notional promotion to the employee as Quality Inspector
pursuant to the panel of the year 1992 and accordingly his service
benefits only for the purpose of calculating the pension/family pension
shall be calculated and be revised and the revised pensionary arrears as
well as family pension payable to the employee and his legal heirs, shall
be calculated and be paid to them within a period of eight weeks from the
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W.A.No.2443 of 2010
date of receipt of a copy of this judgment.
18. With these observations and directions, the Writ Appeal is
dismissed. No costs.
(R.S.K. J.) (V.L.N. J.)
05.07.2023
Index : Yes
Speaking Order : No
Neutral Citation : No
Sgl
https://www.mhc.tn.gov.in/judis
W.A.No.2443 of 2010
R. SURESH KUMAR, J.
And
V.LAKSHMINARAYANAN, J.
Sgl
W.A.No.2443 of 2010
05.07.2023
https://www.mhc.tn.gov.in/judis
