Madras High Court
M.Raja vs The Principal Secretary To Government ... on 11 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.17891 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 03.09.2024
ORDER PRONOUNCED ON : 11.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.17891 of 2022
and WMP(MD).No.13046 of 2022
M.Raja ....Petitioner
Vs
1.The Principal Secretary to Government of Tamil Nadu
Health and Family Welfare Department
Secretariat
Fort St.George
Chennai 600 009
2.The Director
Director of Medical and Rural Health Services
DMS Complex
Anna Salai
Chennai 600 006
3.The Joint Director of Health Services
17, VOC Road
Cantonment
Trichy 620 001 ….Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus to call for the records of the
impugned proceedings of the second respondent bearing Ref.No.
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1/14
W.P(MD).No.17891 of 2022
43452/E2/3/2022 dated 21.07.2022 and quash the same insofar as the
petitioner is concerned and to direct the second respondent to include the
petitioner's name in the impugned panel and promote the petitioner to the
post of Junior Administrative Officer and place him in serial No.17 before his
immediate Junior in the impugned panel list within a stipulated period that
may be fixed by this Court.
For Petitioner : Mr.S.Siva Ilayaraja
For Respondents : Mr.S.Shaji Bino
Special Government Pleader
ORDER
The present writ petition has been filed by an Officer Superintendent
working in the office of the third respondent challenging the impugned panel
dated 21.07.2022 for the promotion to the post of Junior Administrative
Officer wherein the name of the petitioner was included in Annexure-II on
the ground that charges under Rule 17(b) of Tamil Nadu Civil Services
(Discipline and Appeal) Rules, are pending.
2.The petitioner while he was working as an Office Superintendent was
issued with a charge memo on 11.04.2022 under Rule 17(b) of Tamil Nadu
Civil Services (Discipline and Appeal) Rules. The petitioner has submitted
his reply on 10.05.2022. An enquiry officer was appointed on 07.07.2022. On
20.02.2024, the petitioner was imposed with a punishment of postponement
of increment for three months without cumulative effect. The petitioner has
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not chosen to challenge the same and it has attained finality.
3.The petitioner is holding the post of Office Superintendent in
Government Hospital and it is a feeder category for being promoted to the
post of Junior Administrative Officer. A panel was prepared for the year
2021-2022 and the crucial date for inclusion in the said panel is 01.09.2021.
The impugned panel was published on 21.07.2022 wherein the name of the
petitioner was excluded on the ground that under Rule 17(b) of the Tamil
Nadu Civil Services (Discipline and Appeal ) Rules, charges are pending
against him on the crucial date. This panel is put to challenge in the present
writ petition primarily on the ground that the petitioner having been imposed
with a minor penalty on 20.02.2024, his seniority should be restored to the
original position and the petitioner should be promoted as a Junior
Administrative Officer by placing him in Sl.No.17 of the impugned panel.
4.According to the learned counsel appearing for the writ petitioner,
when there was no material for framing the charges under Rule 17(b) of the
Tamil Nadu Civil Services (Discipline & Appeal) Rules, charges were framed
against the petitioner under the said Rule but ultimately he was imposed only
with a minor penalty. Had the charges been framed under Rule 17(a) of Tamil
Nadu Civil Services (Discipline and Appeal) Rules on 11.04.2022, his name
would have been included in the panel prepared on 21.07.2022. In view of
the mistake committed by the authorities concerned, his promotional
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opportunity has been lost.
5.The learned counsel for the writ petitioner had relied upon a
Division Bench Judgment of our High in W.A.No.1184 of 2015 (The
Government of Tamil Nadu represented by its Secretary to Government,
Chennai and another Vs. P.Sundar) dated 07.08.2018, W.A.No.1448 of
2021 ( The Government of Tamil Nadu, Rep.by its Principal Secretary,
Department of HR & CE) and others Vs. K.Kumaresan) dated 16.11.2022
and W.A.No.846 of 2019 ( V.Visweswaran Vs. The Director of Handloom
and Textiles, Chennai and another) dated 22.06.2021 and the judgment of
the learned Single Judge of our High Court in WP(MD).No.12725 of 2011
( M.Sampoornam Vs. State of Tamil Nadu and another) dated 22.03.2013
and the judgment reported in 2009 (8) MLJ 217 (S.Kannan Vs. State of
Tamil Nadu, rep.by its Secretary to the Government and others) and the
judgment in W.P.No.9294 of 2007 (R.T.Murugesan Vs The Secretary to
Government, Agricultural Department, Chennai and another) dated
08.09.2009 and contended that the charges having been erroneously framed
under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules
is clearly in violation of the guidelines framed by the Government vide
Circular No.14353/Per.N/93-1. P &AR dated 11.03.1993.
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6.In view of violation of the guidelines framed by the Government, the
charge memo as against the petitioner on 11.04.2022 should be treated as
charges framed under Rule 17(a) of Tamil Nadu Civil Services (Discipline
and Appeal) Rules and not under Rule 17(b) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules. He had further contended that if the charges
as against the petitioner are construed to be the charges under Rule 17(a), his
name would have been included in the panel along with his juniors and he
would have been promoted. By wrongly invoking Rule 17(b), his
promotional opportunity have been affected.
7.Per contra, the learned Special Government Pleader appearing for the
respondents had contended that at the time of framing charges, concerned
authority felt that the delinquency of the writ petitioner warranted major
penalty and therefore, he invoked the procedure under Rule 17(b) of Tamil
Nadu Civil Services (Discipline and Appeal) Rules. During enquiry
proceedings, when the materials were not enough to impose a major penalty,
a minor penalty has been imposed. Therefore, the charges framed under Rule
17(b) cannot be construed to be the charges under Rule 17(a). He had further
contended that as per Tamil Nadu Government Servants (Conditions of
Service) Act, 2016, the pendency of charges under Rule 17(b) of Tamil Nadu
Civil Services (Discipline and Appeal) Rules either on the crucial date or
before effecting promotion order, would be a bar to grant promotion.
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8.The learned Special Government Pleader had further contended that
on the crucial date namely 01.09.2021, there was no charge memo pending as
against the petitioner. However, when the panel was prepared on 21.07.2022,
the charge memo was pending as against the writ petitioner. The enquiry
could not be completed before granting promotion to his Juniors. Therefore,
when a charge memo was pending as against the writ petitioner under Rule
17(b), the name of the petitioner was rightly excluded from the impugned
panel. Merely because a minor penalty was imposed after enquiry, the charges
framed as against the petitioner cannot be deemed to be under Rule 17(a) of
Tamil Nadu Civil Services (Discipline and Appeal) Rules. Hence, he prayed
for sustaining the impugned panel.
9.I have considered the submissions made on either side and perused
the material records.
10.As per Clause 8 to Schedule No.XI of Tamil Nadu Government
Servants (Conditions of Service) Act, 2016, pendency of charges framed
under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules
shall be a bar for inclusion of the name in the approved list. On the other
hand as per Clause 4, issuance of show cause notice or charges framed under
Rule 17(a) against a member of service shall not be a bar for inclusion of his
name in the approved list.
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11.The Personnel and Administrative Reforms (Per-N) Department,
Government of Tamil Nadu has issued Circular No.14353/Per.N/93-1 dated
11.03.1993 has framed guidelines relating to initiation of proceedings under
Rule 17(a) or Rule 17(b) of Tamil Nadu Civil Services (Classification,
Control and Appeal) Rules, 1953 which reads as under:
“Without prejudice to the generality of situations
involving indiscipline, moral turpitude, corruption etc., charges
under rule 17(b) have to be framed in the following types of
cases for imposing any one of the major penalties:
(1) Cases in which there is reasonable ground to believe
that a penal offence has been committed by a Government
servant but the evidence forthcoming is not sufficient for
prosecution in a Court of Law. e.g.
(a)possession of assets disproportionate to the known
sources of income;
(b)obtaining or attempting to obtain illegal gratification;
(c)misappropriation of Government property, money or
shares;
(d)obtaining or attempting to obtain any valuable thing
or pecuniary advantage without consideration or for a
consideration which is not adequate etc.,
(2)Falsification of Government records.
(3)Irregularity or negligence in the discharge of official
duties with a dishonest motive.
(4)Misuse of official position for personal gain.
(5)Disclosure of secret or confidential information even
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though it does not fall strictly within the scope of the official
Secrets Act.
(6)Misappropriation of Government funds, false claims of
Travelling Allowance, reimbursement of false medical bills etc.,
Unless a major punishment is really warranted namely,
dismissal from service removal from service, compulsory
retirement or reduction to a lower rank in the seniority list or to
a lower post or time scale, framing of charges under Rule 17(b),
is not necessary and should be avoided.”
12.A perusal of the charge memo and findings of the enquiry officer as
extracted in the punishment order dated 20.02.2024 reveals that none of the
ingredients to invoke Rule 17(b) under Tamil Nadu Civil Service (Discipline
and Appeal) Rules have been made out as per guidelines issued in the circular
dated 11.03.1993. The irregularity as alleged in the charge memo has not
been proved to be with dishonest motive. Therefore, in such circumstances,
the writ petitioner ought not to have been proceeded under Rule 17(b), meant
for imposition of major penalty.
13.When the disciplinary authority invokes Rule 17(b) proposing to
impose a major penalty, but later after enquiry, if the enquiry officer arrives at
a finding that the materials are not enough to invoke Rule 17(b) and
proceeds to impose a minor penalty, it should be construed that the
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disciplinary proceedings were initiated only under Rule 17(a) of Tamil Nadu
Civil Services (Discipline and Appeal) Rules.
14.The Hon'ble Division Bench of our High Court in WA(MD).No.
1184 of 2015 (The Government of Tamil Nadu and another Vs. P.Sundar)
dated 07.08.2018 in Paragraph No.11 has held as follows:
“11. Adverting to the facts of the present case we find that
none of the charges framed against the respondent would fall within
the parameters laid down in the guidelines issued by the
Government. This being so we do not think that the appellants were
justified in framing charges under Rule 17(b) even for minor
delinquencies and thereby denying promotion to the respondent.
We must point out that even though the Disciplinary Authority has
found the respondent guilty of the charges imposed only a minor
punishment of stoppage of increment that too without cumulative
effect. The said punishment by itself does not operate as a bar for
promotion. If so the appellants cannot by framing charges for
trivial derelictions under Rule 17(b) deprive promotion to the
respondent.”
15.The Hon'ble Division Bench in a judgment in W.P.No.19144 of
2004 (The Secretary to Government Vs. S.Nithiyanandam and another)
dated 07.12.2004 in Paragraph No.8 has held as follows:
“8.The learned counsel for the petitioner has contended that
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these guidelines cannot supersede the statutory rules and when the
statutory rules are in existence, any Government instruction or
guidelines issued contrary to the Government Rules, has to be
ignored. There cannot be any dispute that the Executive instructions
of Government can only be supplemental to the statutory rules,
where statutory rules are silent and such instructions cannot
supplant the rules. In the present case, the instructions are intended
to be used only as supplemental and they are not intended to
supersede the statutory Rules. In the absence of conflict between the
guidelines and the statutory rules, the Disciplinary Authority, while
issuing the charge memo, was required to keep in mind the
guidelines.”
16.The learned Single Judge of this Court in a judgment reported in
WP(MD).No.12725 of 2011 (M.Sampoornam Vs. State of Tamil Nadu and
another) dated 22.03.2013 in Paragraph No.12 has held as follows:
“12.In the light of catena of decisions referred to above,
having gone through the facts and circumstances and material
papers available on record, I am of the view that the respondents
could have framed the charges against the petitioner only under
rule 17(a) and not under rule 17(b) of the Tamil Nadu Civil
Services (Discipline & Appeal) Rules, it being a minor
delinquency, as per the guidelines issued by the Government and
the proceeding would not be a bar in promoting the petitioner,
subject to the result of the departmental proceeding. It is also
brought to the notice of this Court that the petitioner is on the
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verge of retirement and if she is not promoted that will adversely
affect her legitimate right, since the departmental proceeding was
initiated after a lapse of 2+ years after the occurrence and
pending for more than three years.”
17.In view of the judgment of the Hon'ble Division and that of the writ
Court as cited supra, by erroneously framing charges under Rule 17(b) of
Tamil Nadu Civil Services (Discipline and Appeal) Rules, a member of a
service cannot be deprived of his right on promotion citing pendency of
charges under Rule 17(b), especially when ultimately he is imposed with a
minor penalty. When a minor penalty is imposed, it should always be deemed
that the charge memo issued to a member of service should have been issued
only under Rule 17(a) and not under Rule 17(b) of Tamil Nadu Civil Services
(Discipline and Appeal) Rules. Otherwise though a minor penalty is imposed
on culmination of the enquiry, the employee would have sustained all
damages that would have occurred to him by virtue of proceedings under
Rule 17(b).
18.In view of the above said deliberations, the panel impugned in the
writ petition is set aside insofar it excludes the name of the petitioner. The
respondents are directed to include the name of the petitioner in the
impugned panel and promote him to the post of Junior Administrative Officer
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on the date on which his immediate juniors were promoted. Since the charges
have been erroneously framed under Rule 17(b) instead Rule 17(a) of Tamil
Nadu Civil Services (Discipline and Appeal) Rules, the petitioner would be
entitled to the salary in the promoted post from the date of his notional
promotion.
19. The writ petition is allowed to the extent as stated above. No costs.
Consequently, connected miscellaneous petition is closed.
11.09.2024.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
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To
1.The Principal Secretary to Government of Tamil Nadu
Health and Family Welfare Department
Secretariat
Fort St.George
Chennai 600 009
2.The Director
Director of Medical and Rural Health Services
DMS Complex
Anna Salai
Chennai 600 006
3.The Joint Director of Health Services
17, VOC Road
Cantonment
Trichy 620 001
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
11.09.2024
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