T.M. Parameswari vs The District Collector (Chennai) Singaravelar Maligai

M.M. Sundresh, J.—The petitioner herein is working as a Junior Assistant. The promotional avenue for the post of Junior Assistant is Assistant. The crucial date for the preparation of panel for the promotional post is 15.03.2013. By the Government order passed in G.O.(2D) No. 139 dated 29.03.2012, it has been decided to take disciplinary action against the petitioner and some other delinquent officers. The charge memo has been issued to the petitioner on 06.02.2014 and served her on 09.03.2014 and the petitioner''s name was not included in the panel for promotion for the year 2013 as drawn by the proceedings dated 30.04.2013 on the ground that charges were contemplated at that relevant point of time against her. Challenging the order dated 30.04.2013 by which the petitioner was informed that her name was not included in the panel of Revenue Assistant in view of the contemplation of charges under Rule 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules as per the G.O (2D) No. 139, Revenue [Ser.10(1)] Department, dated 30.04.2013, the present writ petition has been filed.

The learned counsel appearing for the petitioner submitted that the facts are not in dispute as admittedly on the crucial date, there was no charge memo pending against the petitioner and only a disciplinary proceeding was initiated against the petitioner as indicated in impugned order and hence, the petitioner is entitled to be considered for the promotional post as per the Government Order passed in G.O. Ms.No.368, P&AR (S) Department, dated 18.03.1993 and Letter No. 248, P & AR (S) Department dated 20.10.2014 by way of amendment to Rule 4(a). The above said Government Order and the letter have been given statutory backing with retrospective effect. Even otherwise, in the absence any statutory rule, the administrative instruction would govern the field. In support of his contention, learned counsel relies upon a decision rendered by this Court in G. Venkatachalam Vs. Special Commissioer and Commissioner of Revenue Administration and Another, .

The learned Government Pleader based upon the Counter Affidavit filed by the first respondent submitted that in view of the Government Order in G.O.(2D) No. 139, Revenue [Ser.10(1)] Department dated 29.03.2012, which was issued for taking Disciplinary Action against the petitioner and other Government Servants contemplating departmental proceedings, the petitioner''s name was not included in the list drawn for the promotional post of Revenue Assistant and therefore, no interference is required.

A Departmental proceedings would start by way of issuance of a charge memo. Admittedly, in the case on hand, no charge memo was issued on the crucial date or on the date of passing of the impugned order. The charge memo has been issued only on 06.02.2014 and served on the petitioner on 19.03.2014. The Government Order passed in G.O. Ms.No.368, P & AR (S) Department dated 18.03.1993 while dealing with the preparation of panel states as follows:

"1.As per orders in the Government Order sixth read above, in the case of pending enquiries including Vigilance enquiries and in cases where specific charges have been framed, promotions and appointments shall be considered on the basis of the performance of the officers coming under the zone of selection as on the date of consideration for promotion / appointment as revealed through the Personal Files/Record Sheets and the seriousness of the punishments, if any previously imposed."

In Letter Ms.No.248, dated 20.10.1997, the following stand has been taken:

Subsequently, a Government Order was passed in G.O. Ms.No.22, P & AR (S) Department dated 24.02.2014 wherein the following amendment has been introduced to Rule 4(a) coming under Schedule - VII and Rule (1-E):

"II. Consideration of members for inclusion in the approved lists:

(1) In cases where enquiry (except Tribunal for Disciplinary Proceedings enquiry) including preliminary or detailed enquiry by the appropriate Investigating Authority is pending against a member of service and no specific charges have been framed, promotion or appointment of such member of service shall be considered on the basis of the merit revealed through Annual Confidential Reports, Record Sheets and Punishments imposed. In cases where specific charges have been framed or charge sheet has been filed in criminal case against a member of service, promotion or appointment of such member of service shall be deferred till such proceedings are concluded. On exoneration or acquittal from the charges a member of service shall be considered for promotion or appointment with retrospective effect from the date on which his immediate junior was promoted, if he is otherwise qualified for such promotion.

"(1-E) The remittal orders issued by the Government directing the appropriate authority to initiate disciplinary action against a member of service shall not be a bar for inclusion of his name in the approved list. If charges are framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules as a result of such remittal orders, the name of the member of service shall not be considered for inclusion in the approved list."

Considering the above, this Court is of the view that the petitioner is entitled to succeed. The Government Order passed in G.O. Ms.No.22, P & AR (S) Department dated 24.02.2014 has taken note of in the earlier Government Order dated 18.03.1993 and the letter dated 20.10.1997. The said position as available in the year 1993 has been allowed to continue even thereafter. Admittedly, in the case on hand, the petitioner''s name was not included mainly on the ground of contemplation of enquiry. In other words, charge sheet was not issued on the crucial date or on the date of passing of the impugned order. Considering the said issue, this Court in G. Venkatachalam Vs. Special Commissioer and Commissioner of Revenue Administration and Another, was pleased to held as follows:

" 12. Reliance is also placed on the judgment of the Hon''ble Supreme Court in the case of Coal India Ltd. and Others Vs. Saroj Kumar Mishra, , laying down, that merely on the ground of pendency of vigilance case against an employee, he cannot be deprived of promotion. Finally, reliance is placed on the judgment of the Hon''ble Supreme Court in C.O. Arumugam and Others Vs. State of Tamil Nadu and Others, , laying down as under:

"5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 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 principles. 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."

The writ petition is opposed by the learned Government Advocate, by contending, that the petitioner was rightly not considered for promotion, as enquiry was contemplated against him, rather he was served with charge memo on 04.10.2007, which resulted in holding petitioner guilty of charges, and a minor punishment of censure was awarded. Therefore, this writ petition is not competent, as petitioner cannot claim promotion due to punishment of censure.

On consideration, this Court finds, that the defense of the respondents cannot be accepted. It is well settled law, that an employee can only be deprived the right to be considered for promotion during pendency of departmental proceedings, if pending on the crucial date or even before the order of promotion is passed. The competent authority has no right to deny the right of promotion, merely on the basis of contemplated enquiry, when no charge sheet is issued to the employee till the order of promotion is passed.

The petitioner in this case has been denied the right of promotion without any basis whatsoever, as admittedly there was no charge sheet pending against him either on the crucial date of preparation of panel or on the date of promotion of persons junior to the petitioner.

Consequently, this writ petition is allowed. The impugned orders are quashed, and the writ in the nature of Mandamus is issued, directing the respondents to promote the petitioner as Deputy Tahsildar from the date of his immediate junior was so promoted with all consequential benefits."

Accordingly, this writ petition is allowed and the impugned order dated 30.04.2013 made in proceedings No. A2/Pdl.329/2013 is set aside. Consequently, the respondents are directed to include the name of the petitioner in the panel drawn for the year 2013 to the promotional post of Revenue Assistant and promote the petitioner to the said post from the date of promotion of her immediate junior with all attendant and consequential benefits including the arrears of salary within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.