Madras High Court
N.Ganesan vs The Chairman-Cum-Managing Director on 20 April, 2010
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 20.04.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P. NO. 9264 OF 2004 N.Ganesan .. Petitioner - Vs - The Chairman-cum-Managing Director Tamil Nadu Civil Supplies Corporation Ltd. 42, Thambusamy Road Kilpauk, Chennai 600 010. .. Respondent Writ Petition filed for the issuance of a writ of certiorarified mandamus calling for the records of the respondent herein relating to his order passed in Rc. No.H2/86791/03 dated 12.11.2003 and quash the same and direct the respondent to include the petitioner's name in the panel of Quality Inspector for the year 1992 and promote the petitioner with all consequential promotion and service benefits. For Petitioner : Mr. V.Sanjeevi For Respondents : Mr. C.Selvaraj ORDER
The short issue involved in the present writ petition is whether the petitioner against whom there was no charge on the crucial date, i.e., 1st Oct., 1992, could be denied from being included in the panel for promotion to be drawn on 1st Oct., 1992 on the ground that he was issued charge memo on 12th Oct., 1992 and, subsequently, he was imposed minor punishment of stoppage of increment for two months on 18th Nov., 1992.
2. The brief facts of the case is that the petitioner was appointed as a Bill Clerk on 18th Jan., 1980 and joined the service of the Tamil Nadu Civil Supplies Corporation Ltd. (hereinafter referred to as 'Corporation'). After serving in the Corporation till 1982 as Bill Clerk, on 12th Feb., 1982, he was appointed as Assistant Quality Inspector. Even at the time of filing the present writ petition in the year 2004, he was working as Assistant Quality Inspector at Chidambaram Godown in Manalur. After completing more than 10 years of service in the cadre of Assistant Quality Inspector, he became eligible for further promotion to the post of Quality Inspector as he has passed all the requisite departmental tests. His promotion to the post of Quality Inspector will be made on the basis of State-wide seniority. The crucial date for acquiring the qualification for inclusion in the panel of Quality Inspector for the year 1992 is 1st Oct., 1992. The respondent Corporation, for drawal of state level promotion panel for Quality Inspector for the year 1992, called for suitability report from all the regions. Following the letter from the respondent Corporation, the Senior Regional Manager, Cuddalore Region, sent the suitability report to the Head Office for inclusion of the petitioner's name in the panel of Quality Inspector for the year 1992, as there was no charges pending against the petitioner as on 1st Oct., 1992. The Head Office has also drawn the panel for promotion in their proceedings in Rc.No.H2/76059/92 dated 4th Nov., 1992 and the same was also directed to be published. But, curiously, the petitioner's name was not included in the said panel. On verification, it was found that his name was shown in the rejection list on the ground that charges were pending against the petitioner on the date of drawal of the panel.
A charge memo alleging reimbursement of medical bill for a sum of Rs.1,197.70 by producing bogus bill was issued on 12th Oct., 1992. Subsequently, the Senior Regional Manager, Cuddalore Region, also passed an order dated 18th Nov., 2002, imposing punishment of stoppage of increment for two months without cumulative effect. Since the charges were not grave in nature, the omission to include the petitioner's name in the panel of Quality Inspector for the year 1992 was not correct. Therefore, the petitioner filed an appeal before the Joint Managing Director, Tamil Nadu Civil Supplies Corporation, Chennai, on 20th Nov., 1992. Since there was a long delay in disposal of the petitioner's appeal, for about 9 years, the petitioner sent representation dated 28th Feb., 2000, to the respondent praying for inclusion of his name in the panel of Quality Inspector for the year 1992, but the respondent, in its proceedings Rc.No.25517/2000/E11 dated 24th May, 2001, rejected the representation of the petitioner without considering his legitimate request and the fact that he was fully entitled for inclusion of his name in the promotion panel of Quality Inspector for the year 1992, as there was no charge memo pending on the crucial date, i.e., 1st Oct., 1992. Finally, the respondent rejected the appeal filed by the petitioner by his proceedings in Rc.No.H2/86791/2003 dated 12th Nov., 2003, negativing the request of the petitioner for inclusion of his name in the panel of Quality Inspector for the year 1992. Aggrieved by the said order, the present writ petition has been filed.
3. Per contra, learned counsel appearing for the respondent contends that the prayer of the petitioner for inclusion of his name in the promotion panel cannot be considered in view of the respondent Corporation's circular No.E1/71754/88 dated 5th July, 1988, which says that if charges are framed subsequent to the crucial date and pending disposal of charges before the panel is drawn, then the case of those employees cannot be considered for inclusion in the panel irrespective of the nature of the charges. Therefore, in the light of the abovesaid circular, the petitioner's name was not included in the panel of Quality Inspector for the year 1992 for the simple reason that disciplinary action was initiated by the then Senior Regional Manager, Cuddalore, for misconduct committed by the petitioner vide charge memo dated 12th Oct., 1992, which culminated in the imposing of penalty of stoppage of increment for two months without cumulative effect by order dated 18th Nov., 1992. Though his name was recommended by the Senior Regional Manager, Cuddalore, but subsequently, on account of the misconduct, his name was not included in the panel for the year 1992. However, after the punishment of stoppage of increment for two months without cumulative effect, the petitioner's name was subsequently included in the panel for the year 1997 and he was promoted as Quality Inspector on 25th Feb., 1998, and, therefore, the contention of the petitioner that he was free of any charge as on the crucial date, i.e., 1st Oct., 1992, and, therefore, he should have been included in the panel despite has no merit and on that basis prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. The crucial date for preparing the promotional panel of Quality Inspector for the year 1992 is 1st Oct., 1992 as evidenced by Regulation 27 of the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989. When there was no charge pending against the petitioner as on the crucial date for drawing the panel for promotion, the contention of the petitioner that his name should be included in the panel of Quality Inspector for the year 1992, as on that date he was fully qualified and eligible and entitled for promotion, needs to be accepted. Though the petitioner suffered minor penalty of stoppage of increment for two months without cumulative effect, for the charges framed subsequently, which admittedly took place after the crucial date, namely, 1st Oct., 1992, the same cannot have any bearing for not including his name in the panel for promotion in the year 1992. Even if it is presumed that the petitioner has suffered minor penalty and, therefore, as per the circular dated 5th July, 1988, if charges framed subsequent to the crucial date and pending disposal of charges before the panel is drawn, then the case of those employees cannot be considered for inclusion in the panel irrespective of the nature of charge also, will not disentitle the petitioner from getting his name included in the promotion panel, since he has not suffered any major penalty, but only a minor penalty of stoppage of increment for two months without cumulative effect.
6. Even the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989, dealing with the effect of pendency of charges, enquiry and punishment for inclusion in a panel for promotion has been dealt with in guidelines issued in G.O. Ms. No.368 P&AR Dept., dated 18th Oct., 1993 read with Government Letter No.243 P&AR Dept., dated 20th Oct., 1997 and subsequent amendments. S.No.6 of the above said abstract clearly mentions that the pendency of the charges framed under Rule 17 (a) of the Tamil Nadu Civil Supplies Corporation (Discipline & Appeal) Rules need not be held against the officer irrespective of the seriousness of the delinquency.
When the abstract of the Tamil Nadu Civil Supplies Corporation Employees Service Regulations, 1989 is very clear, the respondents are not right in denying the benefit of promotion to the petitioner to the post of Quality Inspector for the year 1992. In fact, his name was recommended for the year 1992, but subsequently in view of the charge memo issued, his name has not been considered for inclusion in the panel. Reliance was also placed on the judgment of this Court in A.Karunanidhi Vs The Government of Tamil Nadu (2006 WLR 346), wherein this Court has held that it is a settled law that pendency of a proceeding under Rule 17 (a) is not a bar for considering the name of an employee for promotion. Besides that, on the crucial date for drawal of panel, there is neither any charge memo nor disciplinary proceeding pending against the petitioner. In such circumstances, as ruled by the Apex Court in Delhi Jal Board Vs Mahinder Singh (2000 (7) SCC 210), the right to be considered by the DPC is a fundamental right guaranteed under Art. 16 of the Constitution of India, provided a person is eligible and is within the zone of consideration. In the present case also, on the crucial date, i.e., 1st Oct., 1992, the petitioner was eligible for and was within the zone of consideration. Therefore, this Court is of the considered view that the impugned order passed by the respondents deserves to be quashed.
7. Accordingly, the impugned order dated 12th Nov., 2003 passed by the respondent in Rc. No.H2/86791/03 is quashed and the writ petition is allowed. Resultantly the respondents are directed to include the name of the petitioner for promotion to the post of Quality Inspector in the panel prepared for the year 1992. There shall be no order as to costs.
20.04.2010 Index : Yes Internet : Yes GLN To The Chairman-cum-Managing Director Tamil Nadu Civil Supplies Corporation Ltd. 42, Thambusamy Road Kilpauk, Chennai 600 010. T.RAJA, J. GLN PRE-DELIVERY ORDER IN W.P. NO. 9264 OF 2004 Pronounced on 20 .04.2010