Madras High Court
G.Venkatachalam vs The Special Commissioner And on 5 March, 2013
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 05.03.2013
THE HONBLE MR. JUSTICE VINOD K.SHARMA
W.P.No.16168 of 2009
and MP.Nos.1 & 2 of 2009
G.Venkatachalam .. Petitioner
-vs-
1. The Special Commissioner and
Commissioner of Revenue Administration,
Revenue Administration, Disaster Management
and Mitigation Department,
Ezhilagam, Chennai-600 005.
2. The District Collector,
Chennai District,
Chennai-600 001. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari, calling for the records relating to the proceedings of the Special Commissioner and Commissioner of Revenue Administration, Chenn, the 1st respondent made in Rc.No.Ser.3(1)/40534/07 dated 17.12.2007 in confirming the proceedings of the District Collector, Chennai District, Chennai, the 2nd respondent made in A1/Pdl.352/2006-4 dated 03.03.2007 quash the same and direct that the petitioner is deemed to have been promoted with effect from the date on which his immediate juniors come to be promoted to the post of Deputy Tahsildar with all consequential service, monetary, attendant benefits including seniority and disburse the arrears accrued thereon.
For Petitioner : Mr. K.Rajkumar
For Respondents : Mr.P.Karthikeyan
Govt. Advocate
*****
O R D E R
The petitioner prays for issuance of a writ in the nature of Certiorari to quash the order passed by the competent authority, rejecting the claim of petitioner for promotion to the post of Deputy Tahsildar, on contemplated departmental enquiry in charges of misconduct as also the order passed in appeal upholding the order of rejection.
2. The admitted facts are that the petitioner is a selection grade Assistant in the Revenue Department. The petitioner was appointed as Junior Assistant on 23.09.1983 and was promoted as Assistant on 05.12.1994.
3. The petitioner was awarded selection grade in the post of Assistant in May 2005. The next channel of promotion from the post of selection grade Assistant is to the post of Deputy Tahsildar, which is category-II post falling under Tamil Nadu Revenue Subordinate Service.
4. The appointment to the post is by way of transfer on the basis of seniority in the Tamil Nadu Ministerial Service. The crucial date for drawing of panel for the purpose of appointment by transfer is 15th September of each year.
5. It is pleaded case of petitioner, that in the seniority list of Assistant, published by the District Collector, the ranking of the eligible persons who were seniors and juniors to the petitioner is as follows:
Sl.No.30 - Mr.N.R.Sekar - Senior
Sl.No.31 - Mr.G.Venkatachalam - Petitioner
Sl.No.35 - Mr.K.Parthasarathy - Immediate Junior got promoted
6. The petitioner was fully qualified for appointment by transfer, as he had passed all the department tests, prescribed in Rule 7 of the Tamil Nadu Revenue Subordinate Services as on the crucial date of 15th September, 2006.
7. The District Collector accordingly prepared a panel of Assistants fit for promotion to the post of Deputy Tahsildar for the year 2006. This panel was published for promotion of 31 persons as Deputy Tahsildar. Though the petitioner was fully eligible and fell within the zone of consideration, his name was not included in the panel, though persons senior as well as junior of the petitioner were included.
8. On enquiry, the petitioner was informed, that the name of petitioner was not included in view of contemplated charges against the petitioner under Rule 17 (b) of the Tamil Nadu Civil Services (D & A) Rules, The petitioner was given liberty to file appeal against this decision, which the petitioner filed and it was also dismissed.
9. The petitioner has challenged the impugned orders of non-inclusion of his name in the panel for promotion, as also dismissal of appeal primarily, on the ground, that it is admitted case of the parties, that crucial date for preparation of panel is 15th September 2006. It is admitted, that persons included in the panel were appointed by transfer as Deputy Tahsildar on 21.03.2007 and that on both the dates, there was no charge memo pending against the petitioner, nor there was any order of punishment awarded.
10. Learned counsel for the petitioner vehemently contends, that the impugned orders on the face of it, are arbitrary and amount to colourable exercise of power, as merely based on contemplated enquiry, person could not be denied promotion.
11. In support of this contention, learned counsel for the petitioner has placed reliance on the judgment of the Honble Delhi High Court in Govt. of NCT of Delhi and ors. Vs. M.P.Shah, 2010 (4) SLR 312, laying down, that promotion of an employee cannot be withheld, merely because charge sheet is contemplated against him, when the promotion was effected.
12. Reliance is also placed on the judgment of the Honble Supreme Court in the case of Coal India Ltd. and others vs. Saroj Kumar Mishra, 2007 (4) SLR 75, 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 Honble Supreme Court in C.O.Arumugam and others vs. State of Tamil Nadu and others, 1991 Supp. (2) SCC 199, 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."
13. 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.
14. 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.
15. 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.
16. 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.
17. No costs. Consequently, connected Miscellaneous petitions are closed.
05.03.2013 Index: Yes Internet: Yes ar VINOD K.SHARMA, J., ar To
1. The Special Commissioner and Commissioner of Revenue Administration, Revenue Administration, Disaster Management and Mitigation Department, Ezhilagam, Chennai-600 005.
2. The District Collector, Chennai District, Chennai-600 001.
W.P.No.16168 of 200905.03.2013