Madras High Court
D.Gajendra Babu vs The Commissioner on 19 July, 2023
WP.No.35374/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 19.07.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.35374/2016
D.Gajendra Babu ... Petitioner
Versus
The Commissioner
Chennai City Municipal Corporation
Rippon Buildings
Chennai 600 003. ... Respondent
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of mandamus directing the respondent
to consider the representation submitted by the petitioner dated 29.08.2016
to consider his name for promotion as Assistant Revenue Officer in the
panel prepared as on 15.05.2016, within a reasonable period as may be fixed
by this Court.
For Petitioner : Mr.T.Ranganathan
For Respondent : Mr.S.Gopinathan
1
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WP.No.35374/2016
ORDER
(1) The writ petition has been filed in the nature of a mandamus, seeking
a direction to the respondent, Commissioner, Chennai City Municipal
Corporation to consider the representation given by the petitioner on
29.8.2016 and consider the petitioner for promotion as Assistant
Revenue Officer in the panel prepared on 15.05.2016.
(2) The petitioner who was working as Assessor in the Revenue
Department of the Chennai City Municipal Corporation at Zone-X at
the time of filing of the writ petition, had stated that a charge memo
under Bye-Law No.9[1] of the Chennai City Municipal Corporation
Act, Class 3 and 4 Services [Discipline and Appeal] Bye Laws, had
been issued against the petitioner herein.
(3) The crux of the charges were that though there was a target given to
each License Inspector for settlement of trade licenses in each Ward
and to achieve the target within a reasonable period of time, it was
found that the petitioner had not reached the target and thereby, a
notional loss was calculated as having been suffered by the
Corporation. This Charge Memo was issued on 22.01.2015.
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Thereafter, the explanation to the charges and other proceedings
continued. It must be kept in mind that any charge memo under Bye
Law 9[1] would invite only a minor penalty to be imposed. Pendency
of such a charge cannot be a bar for considering the said delinquent
for promotion. On the other hand, if the charges were to invite a
manor penalty, then promotion should be withheld with respect of
such a delinquent. That is not the case insofar as the petitioner is
concerned.
(4) The next promotional post was Assistant Revenue Officer. The
opportunity for such promotion or rather, the panel was drawn up on
15.05.2016. On that particular date, the charge memo which had been
issued to the petitioner, was still pending with the procedure to be
followed as any charge memo is issued, namely, an explanation to be
given and consideration of the explanation and imposition of
punishment. The punishment was imposed on 29.06.2016 and a
penalty of stoppage of increment without cumulative effect for a
period of one year was imposed on the petitioner herein.
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WP.No.35374/2016
(5) A perusal of the counter affidavit, reveals that withholding the
promotional opportunity to the petitioner was consequent to the fact
that though the panel was on 15.05.2016, the panel which had been
proposed was approved by the Council on 20.08.2016 by Resolution
No.477/2016. On that date, the punishment had already been
imposed namely on 29.06.2016. Since the punishment had been
imposed, the panel which was proposed, was not approved by the
Council. The crucial date should be the date on which the
promotional post of Assistant Revenue Officer fell vacant, i.e.,
15.05.2016. On that date, there was no punishment which had been
imposed on the petitioner. There could always be two possibilities.
The petitioner could also have been exonerated of the charges or he
could be imposed with punishment. That fact was unknown to any of
the authorities. On 15.05.2016, there was no punishment imposed on
the petitioner. It was only imposed subsequently. On the date when
the panel was to be formed, the petitioner should have been
considered. There cannot be a presumption that the petitioner would
be inflicted with punishment. That would be still worse and would
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WP.No.35374/2016
imply a pre-decision against the petitioner.
(6) The learned counsel for the petitioner placed reliance on the judgment
of a learned Single Judge of this Court in WP.No.4473/2005 dated
03.04.2006 [G.Usharani Vs. State of Tamil Nadu rep.by its
Secretary to Government, Revenue Department, Chennai-5 and
Others]. In that particular writ petition, the petitioner therein had
questioned the order of the 4th respondent therein/Collector of
Madurai, who had not included the name of that petitioner in the list
of Tahsildars for Madurai District in the year 2004. The petitioner
therein had been served with a charge memo under Rule 7[b] of the
Special Rules for the Tamil Nadu Revenue Subordinate Service.
However, the learned Single Judge, after examining the facts in detail
and the law on the point, had held as follows:-
''20. As I stated above, when once on a crucial
date the petitioner was entitled for promotion, even any
subsequent punishment cannot take away such right of
promotion. Even though, it is true that any order could
be passed subsequently even by demoting the person on
completion of disciplinary proceedings. That does not
mean that the petitioner is not entitled for promotion.
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WP.No.35374/2016
21. In view of the same, the writ petitioner is
entitled for the relief prayed for and accordingly the
writ petition is allowed with the direction to the
respondent to include the name of the petitioner in the
list of Tahsildar for Madurai District for the year 2004,
taking into consideration, the relaxation given under
G.O.Ms.No.212 Revenue Department dated 15.04.2005
with effect from 04.05.2005. There is no order as to
costs. Consequently, connected W.P.M.Ps. are closed.
On the basis of the confirmation of benefits as per the
order of this Court, the petitioner will be entitled to all
other consequential benefits.''
(7) It had been very specifically stated that on the crucial date when the
petitioner was entitled for promotion even if any subsequent
punishment came to be imposed, the petitioner's promotion avenue
should not be foreclosed and denied. The ratio applies directly to the
petitioner herein. On 15.05.2016, no punishment had been imposed.
It was imposed only subsequently on 29.06.2016. That cannot have a
bearing on the panel which fell due on 15.05.2016.
(8) A mandamus is therefore, issued to the respondents to rework the
service conditions of the petitioner herein and place the petitioner as
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having been promoted as Assistant Revenue Officer on 15.05.2016.
The entire proceedings is to be completed within a period of four
months from the date of receipt of a copy of this order.
(9) The writ petition stands allowed. No costs.
19.07.2023
AP
Internet : Yes
To
The Commissioner
Chennai City Municipal Corporation
Rippon Buildings
Chennai 600 003.
C.V.KARTHIKEYAN, J.,
AP
https://www.mhc.tn.gov.in/judis
WP.No.35374/2016
WP.No.35374/2016
19.07.2023
https://www.mhc.tn.gov.in/judis
