A. Karunanidhi vs The Government of Tamil Nadu

N. Paul Vasanthakumar, J.—Prayer in the writ petition is to quash the G.O.(MS) No. 276, dated 17 .11.2005 and direct the respondent to

revise the panel prepared for the year 1997-1998 for inclusion of petitioner''s name in the appropriate place i.e., between S.Rajendran and

S.Chandrasekaran in the panel prepared for the year 2003-2004.

Petitioner entered into the service of Public Works Department after selection by the Public Service Commission as Assistant Engineer in the

year 1980. He was proceeded under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, based on a charge, which was

subsequently dropped. However, due to the issuance of charge memo under Rule 17(b), petitioner was not given promotion to the post of

Assistant Executive Engineer by the Promotion Committee during the year 1997. The reason given for non-consideration of petitioner'' s name for

inclusion in the panel was due to the pendency of the disciplinary proceeding. According to the petitioner, even after dropping all the said charges,

petitioner''s name was not included in the panel prepared for the year 2003-2004 for promotion to the post of Assistant Executive Engineer and

the stand taken was that petitioner''s name would be considered during the year 2004-2005. Petitioner challenged the said order issued in letter

No. 170177/A1/2004-1, dated 25.4.200 4 in W.P. No. 28466 of 2004 and this Court passed the following order,

However, if the grievance of the petitioner is on the ground that the petitioner after paying the instalments and the punishment was in existence, he

has been denied promotion on by the order dated 28.05.2 004, wherein the petitioner has been informed that his promotion will be considered in

the panel for the period of 2003-2004 is drawn, as the petitioner has completed the payment in instalments on 27.03.2004 and in view of the said

specific stand of the respondents,it is made clear that the name of the petitioner will be considered without reference to the impugned order for

including his name in the ensuing promotion list.

With the above observation, the writ petition is disposed of. No costs. Consequently, connected W.P.M.Ps 34575 and 34576 of 2004 is

closed.

The case of the petitioner is, in spite of the said order, petitioner''s name was not included in the panel and therefore petitioner submitted

representation for inclusion of his name in the list for the year 2003-2004, but the respondent without adhering to the rules or following the order of

this Court, issued G.O.(Ms) No. 276 P&AR Department dated 17.11.2005 and published the panel, in which also petitioner''s name is not

included and therefore the petitioner filed the present writ petition.

The grievance of the petitioner is that the charge framed against him under Rule 17(b) was dropped in the year 1999 by G.O.Ms. No. 172

PWD (E2) dated 4.5.1999 and therefore deferring of his name in the year 1997-1998 due to the pendency of the charge is bound to be

reconsidered. It is further stated in the affidavit that the said action of the petitioner in not including petitioner''s name for the year 1997-1998, even

after dropping of the charge is in violation of G.O.Ms. No. 368 P&AR Department, dated 18.10.1993, in which it is stated that if the officer is

exonerated or acquitted of the charges levelled against him, the name of such officer is to be included in the panel.

According to the petitioner, the other reason given by the respondent is that recovery proceeding was pending under Rule 17(a) of the Tamil

Nadu Civil Services (Discipline and Appeal) Rules. But the pendency of such charge cannot be held against the petitioner even according to the

Government Rules and therefore the petitioner''s name is entitled to be included in the panel for 1997-1998 in the proper place between

S.Rajendran and S.Chandrasekaran, in the panel prepared for the year 2003-2004.

I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Government Advocate.

Admittedly the charge levelled against the petitioner under Rule 17(b) was dropped through G.O.Ms. No. 172 PWD(E2) Department, dated

4.5 1999 and a copy of the said order is filed in the additional typed set of papers. The recovery proceeding initiated against the petitioner is only

under Rule 17(a) and the same is also established before this court as mentioned in the petitioner''s representation dated 4.4.2 004 submitted to the

first respondent. It is a settled law that pendency of proceeding under Rule 17(a) is not a bar for considering the name of an employee for

promotion.

This Court in W.P. No. 32007 of 2005, by order dated 7.3.2006 (K. Thirunavukkarasu v. State of tamil Nadu and Anr.), following a Division

Bench decision of this Court in W.P. No. 11511 of 2002 (K. Selvarajan v. The Secretary to Government, Department of Health & Family

Welfare, Government of Tamil Nadu, Chennai-9 and two Ors.), took a view that once 17(b) charges are dropped against an employee and the

other charge being only under Rule 17(a), the name of the employee is entitled to be included in the panel for promotion. The writ petition was

allowed with consequential directions holding that once the charges are dropped, it is automatic that the person''s name should be considered for

inclusion if there is no other legal impediment.

At this juncture I feel it relevant to refer the following two decisions of the Supreme Court.

(a) In Delhi Jal Board Vs. Mahinder Singh, , in paragraph 5, it is held as under,

... The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of

India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be

kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to

be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if

the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any

assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later

exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in

the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by

the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion

Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.

(b) In C.O. Arumugam and Ors. v. the State of Tamil Nadu and Ors. reported in 1990 (1) SLJ 185, in pararagraph 5 the Honourable Supreme

Court held thus,

As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his

turn it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable

grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been

framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They

must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the

promotion with retrospective effect from the date on which their juniors were promoted.

Applying the above propositions laid down by the Honourable Supreme Court and Division Bench of this Court, which was followed by me in

the order dated 7.3.2005 in W.P. No. 32007 of 2005, the present writ petition is allowed. The respondents are directed to include the petitioner''s

name in the panel for the post of Assistant Executive Engineer for the year 1997-1998 and place petitioner''s seniority in between S.Rajendran and

S.Chandrasekaran in the panel prepared for the year 2004-2005, if the petitioner is otherwise qualified in accordance with the rules. The

respondent shall consider the claim of the petitioner on the basis of the above direction within a period of four weeks from the date of receipt of

copy of this order and if petitioner''s claim is sustained, he shall be given notional promotion from the date when his junior S.Chandrasekaran was

given promotion with all consequential benefits.

The writ petition is allowed with the above directions. No costs. Connected WPMPs are closed.