Madras High Court
The Chief Engineer (Agricultural ... vs M.Selvaraj on 4 January, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
W.A.(MD).No.935 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.01.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
AND
THE HON'BLE MR.JUSTICE C.KUMARAPPAN
W.A.(MD).No.935 of 2016
and
C.M.P.(MD).No.5563 of 2016
The Chief Engineer (Agricultural Engineering),
Nandanam,
Chennai – 600 035. .. Appellant/Respondent
Vs.
M.Selvaraj,
Drill Supervisor,
O/o. the Assistant Executive Engineer,
Agricultural Engineering Department,
Krishna Nagar, Manojpatti Road,
Thanjavur,
Thanjavur District. .. Respondent/Petitioner
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying to
set aside the order dated 13.10.2015 made against W.P.(MD).No.18365 of
2015 and allow the Writ Appeal.
Page 1 of 8
https://www.mhc.tn.gov.in/judis
W.A.(MD).No.935 of 2016
For Appellant : Mr.A.K.Manikkam
Special Government Pleader
For Respondent : Mr.Thalaimutharasu
JUDGMENT
DR.G.JAYACHANDRAN,J.
and
C.KUMARAPPAN,J.
This Writ Appeal is preferred by the State being aggrieved by the
order passed in W.P.(MD).No.18365 of 2015 dated 13.10.2015.
2. Brief facts involved in this case are that the first respondent is the
writ petitioner. While he was serving as Drill Supervisor, he caused an
accident causing death of a person, whose family has claimed compensation
and succeeded in M.C.O.P.No.483 of 2012. 5% of the award amount was
sought to be recovered from the respondent/petitioner herein. The writ
petitioner was given liberty to pay the amount in 18 installments. When this
process was pending, the panel for promotion to the post of Diesel
Mechanic cum Fitter for the year 2014-2015 was prepared and the name of
the respondent was not included in the panel, though he was fully eligible,
https://www.mhc.tn.gov.in/judis
for the reason that the disciplinary proceedings under Rule 17(a) of the
Tamil Nadu Civil Services (Discipline and Appeal) Rules was pending
against him.
3. When this order came to be challenged, this Court disposed of the
Writ Petition by directing the appellant to include the name of the
respondent and promote him as Diesel Mechanic cum Fitter from the year
2014 without reference to the departmental proceedings initiated under Rule
17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. This
order was passed for the reason that on the crucial date, i.e., 01.04.2014,
there was no departmental proceedings pending against the writ petitioner
or there was no currency of punishment in the form of recovery of loss and
therefore, the name of the respondent/writ petitioner ought not to have been
withheld by not including his name in the panel for promotion to the post of
Diesel Mechanic cum Fitter for the year 2014-2015.
4. The said order is impugned in the present Writ Appeal by the State
on the ground that any loss caused to the Government is subject matter of
https://www.mhc.tn.gov.in/judis
recovery and such recovery process is deemed to be a pendency of
disciplinary proceedings.
5. The Secretary to Government, Personnel and Administrative
Reforms (S) Department, vide communication dated 03.03.2003, had
clarified the position stating that currency of punishment imposed in the
form of recovery of loss will continue till the loss so caused is recovered in
full and the name of the individual, who suffers punishment of recovery of
loss, should not be included in the panel until the entire recovery of loss is
effected. Subsequently, Personnel and Administrative Reforms (S)
Department issued G.O.Ms.No.22, dated 24.02.2014, wherein, Rule 4(a) of
the General Rules for the Tamil Nadu State and Subordinate Services was
clarified and a notification was issued to the effect that the procedure for
preparation of approved list and consideration of members for inclusion in
the approved list should take note of the pendency of recovery proceedings
as currency of punishment.
https://www.mhc.tn.gov.in/judis
6. Relying upon the above proceedings, the learned Special
Government Pleader appearing for the appellant submits that the accident
involving a death of a person occurred on 05.07.2011 and FIR was
registered at Gandarvakottai Police Station on the same day. Thereafter, a
memo was issued to the respondent on 20.12.2012. The
delinquent/respondent replied to the same on 10.01.2013. Thereafter, award
in the Motor Accident Claim Petition was passed by the Motor Accident
Claims Tribunal, Pudukkottai on 10.06.2014. Pursuant to that, recovery
proceedings was initiated on 14.11.2014. Therefore, it is contended by the
learned Special Government Pleader that the observation of the learned
Single Judge in the impugned order is incorrect. The proceedings was
initiated even before the preparation of panel and as per G.O.Ms.No.22
dated 24.02.2014 and the earlier clarification of the Government, the name
of the respondent/writ petitioner was withheld and now the writ petitioner
has already retired from service. Hence, there is no reason or justification to
include his name in the panel for promotion to the post of Diesel Mechanic
cum Fitter for the year 2014-2015.
https://www.mhc.tn.gov.in/judis
7. On consideration of the rival submissions and the facts involved in
this case, though on plain reading of the Service Rules, it appears that
pendency of recovery of loss to the Government till the entire amount is
recovered, would disentitle the delinquent seeking inclusion of his name in
the promotional panel, when we look into the facts of the case and the
reason for recovery, we find that the recovery proceedings was initiated
pursuant to the award passed by the Motor Accident Claims Tribunal for the
accident caused by the writ petitioner and the department itself has directed
him to pay the 5% of the award amount in 18 installments and the recovery
process has also commenced. If strict interpretation of the Rule and the
submission of the learned Special Government Pleader is accepted, then for
1 ½ years, the name of the respondent/writ petitioner cannot be included in
the promotional panel. In fact, for two years, his name will not be included
in the promotional panel and he will be deprived of his career prospects. If
the loss is incurred due to some misconduct or breach of trust, the pendency
of recovery process could have been viewed strictly by this Court. Since the
recovery process is only due to the alleged negligence and accident, the
respondent/writ petitioner, who is already subjected to punishment of
https://www.mhc.tn.gov.in/judis
recovery of 5% of the award amount, shall not be further punished by way
of being deprived of his promotion. At the same time, the State cannot be
mulcted with financial burden and provide backwages on notional
promotion to the writ petitioner for service, which he has not rendered.
8. In view of the above, the impugned order passed in W.P.(MD).
No.18365 of 2015 dated 13.10.2015 is set aside. Accordingly, the Writ
Appeal is partly allowed directing the appellant herein to give notional
promotion to the respondent as Diesel Mechanic cum Fitter just above his
immediate junior and re-fix his pensionary benefits and pay the difference
of his pension in 18 installments, preferably within a period of nine (9)
months. There shall be no order as to costs. Consequently, connected
miscellaneous petition stands closed.
(G.J.,J.) (C.K.,J.)
04.01.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
Lm
https://www.mhc.tn.gov.in/judis
DR.G.JAYACHANDRAN,J.
and
C.KUMARAPPAN,J.
Lm
04.01.2024
https://www.mhc.tn.gov.in/judis
