K.K. Syed Masood vs The State of Tamil Nadu

V.M. Velumani, J.—This Writ Petition has been filed by the petitioner seeking for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order passed by the first respondent in his proceedings in G.O.(3D) No. 325, Agriculture (AA2) Department, dated 25.10.2007, quash the same as illegal and consequently, to direct the respondents to promote the petitioner notionally as Assistant Director of Agriculture, Deputy Director of Agriculture and Joint Director of Agriculture, w.e.f., the date on which his juniors were promoted and consequently, to direct the respondents to pay all monetary benefits arising thereon within the period that may be stipulated by this Court.

The case of the petitioner is that he was appointed as Agricultural Officer on 03.10.1974 in furtherance of the recruitment made by the Tamil Nadu Public Service Commission. He discharged his duty to the best of his ability without giving any room for complaints. While so, when he was serving as Agricultural Officer at Pavoorsathiram in Tirunelveli District, disciplinary proceeding was initiated against him and three other Officers under the provisions of the Tamil Nadu Tribunal for Disciplinary Proceedings Rules, 1955, in Departmental Enquiry No. 172/1988, dated 19.12.1988, alleging that he signed the subsidy application without verifying the genuineness of the applicants and misappropriated the subsidy amount to the value of Rs. 51.75 along with three other agricultural officers. The Tribunal for Disciplinary Proceedings, Madurai Region, concluded the enquiry in 1993 and submitted a report to the first respondent in 1993. The first respondent did not pass any orders on the report submitted by the Tribunal for Disciplinary Proceedings, Madurai. Hence, the petitioner filed O.A.No. 3350 of 1999 on the file of Tamil Nadu Administrative Tribunal, Chennai, seeking to direct the first respondent to pass orders on the disciplinary proceedings initiated against him. The Tribunal, by order dated 12.10.1999, directed the first respondent to pass final orders on the disciplinary proceedings, within a period of six months from the date of passing of the said order, failing which, the disciplinary proceedings initiated against the petitioner would automatically quashed and the petitioner would be entitled to get all consequential benefits. But, the first respondent, in his proceedings in G.O.(3D)No. 325, Agriculture (AA2) Department, dated 25.10.2007, imposing a punishment of stoppage of increment for a period of three months without cumulative effect and recovery of Rs. 11.05, being the loss alleged to have been caused by the petitioner. Aggrieved over the same, the petitioner gave representation to re-consider the order in the light of the order passed in O.A.No. 3350 of 1999. The petitioner was not considered for promotion as Assistant Director of Agriculture, during 2002-2003, Deputy Director of Agriculture during 2006-2007 and Joint Director of Agriculture during 2007- 2008 and his juniors were promoted. Further, one G.Muthudas, who was also one of the accused officer, was imposed a punishment of stoppage of increment for one year. On the representation given by the said G.Muthudas, the charges levelled against him were dropped by G.O.(3D) No. 389, Agriculture (AA2) Department, dated 10.12.2007. The petitioner was also similarly placed and the charges against him also should have been dropped. In any event, the charges levelled against him were quashed, in view of the order, dated 12.10.1999, made in O.A.No. 3350 of 1999. He should have been promoted as Assistant Director of Agriculture, Deputy Director of Agriculture and Joint Director of Agriculture during 2002-2003, 2006-2007 and 2007-2008 respectively, when his juniors viz., P.Senthamilselvan and S.Franchis were promoted. The petitioner retired on 28.02.2009 on attaining the age of superannuation. He prays to quash the impugned order, dated 25.10.2007 and consequently, to direct the respondents to promote him notionally as Assistant Director of Agriculture, Deputy Director of Agriculture and Joint Director of Agriculture with effect from when his juniors were promoted and grant of monetary benefits.

Heard, M/s. Ajmal Associates, learned counsel appearing for the petitioner and Mr.K.Guru, learned Special Government Pleader appearing for the respondents.

Learned counsel for the petitioner reiterated the averments made in the affidavit. He argued that the respondents did not pass orders within six months from 12.10.1999. Therefore, the charge memo was automatically quashed on 11.04.2000. Hence, the impugned order is invalid and illegal. Secondly, the learned counsel argued that the respondents dropped the charges against the co-accused-G.Muthudas, who was also similarly placed, like the petitioner. The respondents have dealt with the case of the petitioner differently, which is discriminatory. In support of his submission, he relied on the following Judgments:

(i) State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in 2010 (5) SCC 783;

(ii) P.V. Mahadevan Vs. M.D., Tamil Nadu Housing Board, ;

(iii) M.V. Bijlani Vs. Union of India (UOI) and Others, ;

(iv) R.Rajasekar Vs. Secretary to Government, Agricultural Department, Chennai and Others reported in 2009 (3) MLJ 108.

Per contra, the learned Special Government Pleader appearing for the respondents argued that the writ petition is liable to be dismissed on the ground of delay and laches. The learned Special Government Pleader pointed out that according to the petitioner, the charges were quashed automatically on 11.04.2000 and the charges against G.Muthudas was dropped on 10.12.2007 and the petitioner did not take any action within the reasonable time from 11.04.2000. But, now, he claims the benefit after nine years. The learned Special Government Pleader also contended that the petitioner did not claim promotion while he was in service, which clearly shows that the he is not willing to shoulder higher responsibilities and as he did not seek promotion at the earliest, is not entitled to any monetary benefits, if he was given notional promotion.

Normally, the delay in approaching the Courts for relief is to be considered strictly and a person, who approaches the Court according to his whims and fancies on his chosen time, is not entitled to get any relief. But, in this case, the loss said to have been caused by the petitioner is very meagre amount and the role of the petitioner is only to counter sign the application. Further, the Tamil Nadu Administrative Tribunal, Chennai, passed an order, dated 12.10.1999 in O.A.No. 3350 of 1999, granting six months'' time to the respondents to pass final orders. It was made clear that the failure to pass final order, would automatically result in the charge memo being quashed. Admittedly, the respondents did not pass final orders within the time granted by the Tribunal. Therefore, as rightly contended by the learned counsel for the petitioner that there was no charges pending against the petitioner after 11.04.2000. The additional factor in favour of the petitioner is that the charges against the co-accused were dropped.

In State of Uttar Pradesh and Others Vs. Raj Pal Singh reported in 2010 (5) SCC 783, the Hon''ble Supreme Court held as follows:-

Though, on principle the ratio in aforesaid cases would ordinarily apply, but in the case in hand, the High Court appears to have considered the nature of charges levelled against the five employees who stood charged on account of the incident that happened on the same day and then the High Court came to the conclusion that since the gravity of charges was the same, it was not open for the disciplinary authority to impose different punishments for different delinquents. The reasoning given by the High Court cannot be faulted with since the State is not able to indicate as to any difference in the delinquency of these employees.

It is undoubtedly open for the disciplinary authority to deal with the delinquency and once charges are established to award appropriate punishment. But when the charges are same and identical in relation to one and the same incident, then to deal with the delinquents differently in the award of punishment, would be discriminatory. In this view of the matter, we see no infirmity with the impugned order requiring our interference under Article 136 of the Constitution.

The ratio laid down by the Hon''ble Supreme Court in 2010(5) SCC 783 (cited supra) is squarely applicable to the present case. Hence, the impugned proceedings of the first respondent, dated 25.10.2007 is hereby quashed. As far as the consequential direction is concerned, the learned Special Government Pleader appearing for the respondents rightly contended that the petitioner did not seek promotion, while he was in service without shouldering higher responsibility and without discharging duties of higher officer, he is not entitled to any monetary benefits.

Learned Special Government Pleader for the respondents also contended that due to delay and laches, the petitioner is not entitled to even the notional promotion.

This Court has already held that the delay is not fatal to this case, due to the nature and circumstance referred to above. Therefore, this Court directs the respondents to consider the case of the petitioner on merits for promotion to the post of Assistant Director of Agriculture, Deputy Director of Agriculture and Joint Director of Agriculture, if he is otherwise eligible. If he is found eligible, dehors the charge memo, notional promotion to be given to him. However, it is made clear that the petitioner will not be entitled to any difference in salary payable in the higher post. The respondents are directed to calculate and fix the notional salary as on 28.02.2009 and refix the pension payable to the petitioner from 01.03.2009. The respondents are also further directed to complete the process within three months from the date of receipt of a copy of this order.

In the result, the Writ Petition is allowed quashing the impugned order of the first respondent. No costs.