Madras High Court
S.Ganapathy vs The Commissioner Of Commercial on 21 June, 2006
Author: P.Jyothimani
Bench: P.Jyothimani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/06/2006 CORAM :
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION (MD) No.18 of 2004 S.Ganapathy .... Petitioner Vs
1.The Commissioner of Commercial Taxes, Chepauk, Chennai 600 005.
2. The Deputy Commissioner (CT) (ENF) Tirunelveli. .... Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorari calling for the records relating to the order of the 1st respondent dated 14.7.2004 issued in proceedings No.EE2/29519/03/I and the order of the 2nd respondent dated 23.7.2004 issued in Proc.Toc.No.A1.11614/04 and to quash the same.
!For Petitioner ... Mr.K.Vellaichamy ^For Respondents ... Ms.Jessi Jeeva Priya Special Government Pleader :ORDERS This writ petition is filed challenging the order of the first respondent, viz. the Commissioner of Commercial Taxes dated 23.07.2004. Under the impugned order, the first respondent has passed an order of reversion against the petitioner reverting him as Assistant Commercial Tax Officer from Deputy Commercial Tax officer and posted him as Superintendent in the Office of the Commercial Tax Officer-I , Tuticorin.
2. The case of the petitioner is that while the petitioner was working as Assistant Commercial Tax Officer, certain charges were framed against him on 25.5.2000. In the panel of promotion for the post of Deputy Commercial Tax Officer for the year 1999, the crucial date for promotion is 1.3.1999, in which the petitioner's name was also included. Thereafter, by an order dated 7.7.2000, the first respondent has issued an order of promotion as Deputy Commercial Tax officer to the petitioner as well as to the other candidates. Subsequently, by the impugned order dated 23.07.2004, the first respondent has chosen to revert the petitioner as Assistant Commercial Tax Officer from Deputy Commercial Tax Officer on the ground of pendency of charge memo framed against the petitioner dated 25.5.2000 stating that it was not brought to the notice of him. As per the guidelines issued in Government Lr.Ms.No.248, personnel and Administrative Reforms (S) Department dated 20.10.1997, pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, should be held against the officer concerned. It was on these two grounds, the impugned order came to be passed by reverting the petitioner. Admittedly, before passing the impugned order, no notice was also given to the petitioner.
3. Learned Special Government Pleader filed a counter affidavit. The main reliance is placed on the letter dated 20.10.1997 issued by the Government. As per the said letter, according to the respondent, the guidelines categorically states that the pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, should be held against the concerned officer and therefore his name should not be included in the panel of promotion. According to the respondents, it was only based on the guidelines issued by the Government, the respondents have acted which cannot be found fault with. That apart, the counter proceeds to mention about the seriousness of the charges framed against the petitioner. As far as the knowledge about the pendency of the charge of the first respondent is concerned, the same was sought to be justified on the ground of mistake.
4. Mr.Vellaichamy, learned counsel for the petitioner would submit that the first respondent cannot disown the responsibility by merely saying that the pendency of charge memo was not brought to his notice. In that regard, learned counsel for the petitioner would submit that in fact, the charge memo was framed by the Deputy Commissioner of Commercial Taxes on 25.5.2000. The crucial date for promotion to the post of Deputy Commercial Tax officer for the year 1999 was 1.3.1999, but the charge memo itself was framed against the petitioner only on 25.5.2000. There is absolutely no bar for the purpose of including of name of the petitioner in the promotion panel. Further, learned counsel for the petitioner would contend that the authority cannot expect the petitioner to tell about the charge memo which is pending against him. It is relevant to point out that even the charge memo framed by the Deputy Commissioner, Commercial Taxes Department has been informed by the Deputy Commissioner, Commercial Taxes Department to the first respondent, as it is seen in the charge memo itself and therefore it can never be said that as the first respondent had no knowledge about the pendency of the charge memo.
5. Learned counsel for the petitioner would submit that as far as the letter of the Government dated 20.10.1997 is concerned, it is only an executive instruction and it cannot supersede the statutory rules. While it is true that the said letter dated 20.10.1997 would state that in respect of the officers against whom the charges are pending, their names need not be included in the next promotion post, the contention of the learned counsel for the petitioner is as follows:
6. Learned counsel for the petitioner would contend that at that time, the relevant statutory rule which was in existence was Tamil Nadu State and Subordinate Services Rules, especially Rule 39 of the said Rules which contemplate the power on the part of the authority to give promotion, specifically enables the appointing authority to promote him temporarily even a person against whom an enquiry into allegations of corruption or misconduct is pending and it also proceeds to say that even a regular promotion can be given in suitable cases and it is vested with the appointing authority. Such enabling power was given to the appointing authority on the date when the instructions were given on 20.10.1997. The said instructions cannot be taken into consideration since that cannot supersede the statutory rule as stated above.
7. Mr. K.Vellaichamy, learned counsel for the petitioner further contends that a reference with regard to the original order of promotion dated 7.7.2000 issued by the first respondent himself would say that the first respondent has considered every aspect of every one of the candidates who have been promoted on that date and having been satisfied with the candidates including the petitioner found fit for promotion, such promotion order was passed. Therefore, the order passed by the first respondent himself in promoting the petitioner as Deputy Commercial Tax officer as early as 7.7.2000 has to be considered as a promotion with application of mind and there is absolutely no reason warranting the reversion of the same. Further, learned counsel for the petitioner would submit that in any event, having given promotion to the petitioner from 7.7.2000 and the petitioner has been permitted to work in the promoted post and also retired as Deputy Commercial Tax officer on 30.4.2006, it is not open to the first respondent to pass the impugned order by reverting him, which is arbitrary and illegal conduct.
8. On the other hand learned Special Government Pleader placing reliance on the letter of the Government dated 20.10.1997 would state that the first respondent is bound by the letter dated 20.10.1997. Learned Government Pleader is unable to controvert the stand taken by the counsel for the petitioner that it was the Tamil Nadu State and Subordinate Services Rules, which was in existence at that point of time and how that rule supersede by an administrative instruction dated 20.10.1997.
9. I have considered the rival submissions and perused the entire records.
10. At the outset,as rightly contended by the learned counsel for the petitioner, it cannot be said that the first respondent. while passing the promotion order. was either misled or any mistake has been committed for many reasons. One of such reason is that the promotion order passed by the first respondent dated 7.7.2000 is not relating to the petitioner alone. It relates to many number of candidates who have been promoted from the post of Assistant Commercial Tax Officer to Deputy Commercial Tax Officer. The words used in the promotion order would show that it was only after having found that the candidates including the petitioner found fit to next promotion of Deputy Commercial Tax Officer, such promotion order was passed.
11. Therefore, I am of the considered opinion that any mistake can be a reason for the purpose of setting aside the said order, especially, in the circumstance that the impugned order came to be passed without even affording opportunity to the petitioner to enable him to give explanation of his own case. Further, the reasoning given in the impugned order as if the pendency of the charge memo has not been brought to the notice of the first respondent before passing the promotion order on 7.7.2000, is absolutely unsustainable. Admittedly, the crucial date for preparation of panel for the post of Deputy Commercial Tax officer for the year 1999 was 1.3.1999 and at that time, there was no charge pending against the petitioner. As seen in the record, the charge itself was framed by the Assistanct Commissioner, Commercial Taxes only on 25.5.2000, which is one year after the crucial date. In such circumstances, looking into any angle, it cannot be said that in the panel for 1999, the petitioner's name was included by mistake. While so, the reasons adduced by the first respondent, as if the pendency of charge dated 25.5.2000 was not brought to his notice is not sustainable.
12. That apart, as seen from the record, even the charge memo dated 25.5.2000 itself has been marked to the first respondent and it was only for the first respondent to take cognizance and it is not for the petitioner to tell him that some charge is pending against him. In respect of the letter dated 20.10.1997, reliance has been heavily placed on the side of the respondent . It is an admitted position that at the time when the promotion was given on viz. 7.7.2000, the Tamil Nadu State and Subordinate Service Rules was in existence. Under Rule 7(b) of the said rule contemplates the powers of the authorities to give promotion to suitable posts. Rule 39(d) of the said Rule is reads follows:
"39(d): Where it is necessary to promote an officer against whom an enquiry into allegations of corruption or misconduct is pending the appointing authority may promote him temporarily pending enquiry into the charges against him. The competent authority shall have discretion to make regular promotion in suitable cases"..
13. While the said statutory rule was in force, a specific question was asked to the learned Special Government Pleader as to how the Government letter dated 20.10.1997 can be taken into consideration as if it has superseded the statutory rule. There is no reply from the learned Special Government Pleader. There is absolutely no difficulty to come to the conclusion that in the presence of statutory rule, the letter dated on 20.7.1997 cannot be a guiding factor at all. In view of the same, the order impugned passed by the first respondent on this ground is also not sustainable.
14. There is also another circumstance in this case. Admittedly the promotion given to the petitioner as Deputy Commercial Tax Officer was conferred on 7.7.2000 and there was no objection at that point of time and in fact the petitioner was allowed to retire on 30.4.2006. After conferring such benefit, after lapse of nearly four years, reversion order which is impugned in this writ petition, came to be passed. A reading of the affidavit filed in opposition of the writ petition and the contention of the learned counsel for the respondents would show that the mistake is imputed on some of the officials for the purpose of conferring promotion to the petitioner as Deputy Commercial Tax Officer.
15. The law is well settled in this aspect. Normally when an official has been conferred with the benefit of promotion as well as with the pay scale and the same has been enjoyed for a considerable period, it is not open to the authority later to decide against him, on the basis that a mistake has been committed by giving promotion or pay fixation . That was decided by the Division Bench of this Court in D.Palavesamuthu Vs. Tamil Nadu Administrative Tribunal represented by its Registrar, Chennai and others ((2006) 1 M.L.J.143. The Hon'ble Division Bench of this Court while placing reliance on the judgment of the Apex Court reported in 1995 A.I.R. S.C.W. 1780 (Sahib Ram Vs. State of Haryana) has laid down the dictum as follows:
"Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner."
16. Since the Judgment of the Division Bench was based on the Judgment of the Hon'ble Supreme Court, I feel it is relevant to extract the dictum laid down by the Supreme Court in Sahib Ram's case . The Hon'ble Supreme Court has declared the law as follows:
"..... It is not on account of any misrepresentation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant..."
17. In this case also, it can never be said that, there was any misrepresentation on the part of the petitioner or any suppression made by him. As stated earlier, the order of promotion dated 7.7.2000 is legal, since the order of promotion in respect of many candidates were considered on merits.
18. In such circumstances, as laid down by the Hon'ble Supreme Court, even assuming there is a fault on the part of the authorities in wrongly construing any provision, that cannot be held against the petitioner, especially in the circumstances that the petitioner has been conferred the benefit to which he is entitled under law and also allowed to be promoted as per order dated 7.7.2000.
19. Under such circumstances, the impugned order is unsustainable and liable to be set aside and the same is set aside The writ petition stands allowed. No costs. It is made clear that the petitioner has to be given all the terminal benefits which he is entitled to, and such benefit should be given to him within a period of eight weeks from the date of receipt of a copy of this order. No Costs. Consequently, WP.Mp.No.21 of 2004 is closed.
To
1.The Commissioner of Commercial Taxes, Chepauk, Chennai 600 005.
2. The Deputy Commissioner (CT) (ENF) Tirunelveli.