Madras High Court
P. Stanley Paulraj vs The State Of Tamil Nadu Rep. By on 18 July, 2013
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2013
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.No.33147 of 2012
& M.P.No.1 of 2012
P. Stanley Paulraj ... Petitioner
versus
1. The State of Tamil Nadu rep. by
its Secretary to Government
Public Works Department
Secretariat
Chennai-9.
2. The Engineer in Chief (EIC Building
and Chief Engineer (General)
Public Works Department
Chepauk
Chennai-5. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records connected in letter No.10908/A1/2012-6, dated 25 September 2012 passed by the first respondent and quash the same and direct the respondents to consider the claims of the petitioner for promotion as Executive Engineer on par with juniors with all benefits.
For petitioner : Mr.G. Elanchezhian
For Respondents : Mr.R. Govindasamy
AGP
O R D E R
This writ petition is directed against the order dated 25 September 2012 on the file of the first respondent rejecting the request made by the petitioner for promotion to the post of Executive Engineer and Superintending Engineer under the pretext that disciplinary proceedings initiated by the department vide charge memo dated 24 August 2012 is pending.
2. This writ petition has got a chequered history. The petitioner has been approaching this Court time and again with a request to consider his claim for promotion. The first respondent has been denying the said request by citing one reason or the other.
Brief facts:
3. The petitioner was initially appointed as Assistant Engineer on 30 October 1979 through the Tamil Nadu Public Service Commission. He was relieved from service on 15 May 1987 on the ground that Kodumudiyar Reservoir Scheme has been disbanded. Subsequently, he was given re-posting in the year 1991. The petitioner was entitled to be promoted as Assistant Executive Engineer as per the seniority list by including his name in the panel for the year 1997-98. Though his juniors were promoted, the petitioner was not given promotion. Pendency of the charge memo dated 17 May 1993 was cited as the reason for denial of promotion. The Government ultimately imposed a punishment of stoppage of increment for three years with cumulative effect vide order dated 27 December 2001. The review petition filed by the petitioner against the said punishment was allowed by the Government vide order dated 27 January 2005. The Government set aside the punishment of stoppage of increment for three years with cumulative effect and remanded the matter back to the Chief Engineer for framing fresh charges to conduct fresh enquiry and to submit a report for passing appropriate orders. The Chief Engineer issued a charge memo dated 23 March 2005 and after conducting enquiry submitted a report to the Government. The Government considered the said report and passed an order to drop the charges. The absence of the petitioner was regularised vide order dated 20 September 2010.
4. The second respondent in the meantime issued an order of recovery against the petitioner for shortage of materials. The petitioner challenged the recovery action before the Tamil Nadu Administrative Tribunal and obtained interim stay. During the currency of the Original Application, once again promotion to the post of Assistant Executive Engineer was denied on the ground of pendency of charge memo. Even though disciplinary proceedings were completed and the petitioner was exonerated from charges, still he was not given promotion. The petitioner thereafter submitted series of representations and approached this Court time and again to consider his request for promotion and ultimately pursuant to the order dated 19 October 2010 and 8 April 2011 in W.P.Nos.2638 of 2009 and 8768 of 2011, the first respondent considered the claim of the petitioner for promotion and he was promoted to the post of Assistant Executive Engineer. An order to that effect was issued in G.O.(D) No.348, Public Works (A1) Department dated 10 October 2011.
5. The petitioner on receipt of promotion order, requested the first respondent to promote him as Executive Engineer on par with his juniors with effect from 2006. Since the matter was pending before the Tamil Nadu Public Service Commission for concurrence, he was not considered for promotion. In the meantime Thiru Krishnamoorthy Sugumar, who was junior to the petitioner was promoted as Superintending Engineer vide order dated 14 December 2011. The petitioner submitted a representation before the first respondent on 21 December 2011 to consider his request for promotion as Executive Engineer and thereafter as Superintending Engineer. However there was no response. The petitioner filed W.P.No.10828 of 2012 and this Court was pleased to pass an order directing the first respondent to consider the representation on merits. Since the representation was not considered in spite of the order passed by this Court, the petitioner filed a contempt petition before this Court. During the currency of the contempt petition, the respondents issued a fresh charge memo on 24 August 2012. Thereafter the first respondent rejected the request of the petitioner for promotion. The said order is under challenge in this writ petition.
6. The second respondent filed a counter affidavit disputing the claim made by the petitioner. According to the second respondent, the Government issued a charge memo on 24 August 2012 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The petitioner challenged the said charge memo before this Court in W.P.Nos.34089 and 34090 of 2012 and obtained interim stay. According to the second respondent, there is no question of promoting the petitioner to the post of Executive Engineer and Superintending Engineer during the currency of the fresh charge memo. Accordingly, the second respondent defended the order passed by the first respondent.
7. This writ petition was posted before me on the basis of the order passed by the Hon'ble The Acting Chief Justice. Since the petitioner is due to retire on attaining the age of superannuation on 31 July 2013, the matter was directed to be listed as the first case before me on 26 June 2013. Accordingly, I have finally heard the matter on 11 July 2013 and was reserved for judgment.
Factual Analysis:
8. The petitioner was initially appointed as Assistant Engineer on 30 October 1979. Though the petitioner was entitled to be included in the panel for the year 1997-1998 for promotion to the post of Assistant Executive Engineer, his name was not included on account of the pendency of a charge memo issued under Rule 17-b of the Tamil Nadu Civil Services (Discipline and Appeal) Rules There is no need to narrate the background facts in detail in this writ petition in view of the order passed by the Government in G.O.(D) No.348, Public Works (A1) Department dated 10 October 2011 granting promotion to the petitioner as Assistant Executive Engineer.
9. Since the petitioner was promoted as Assistant Executive Engineer on 10 October 2011, it is clear that there was no charge sheet pending against him as on the said date of his promotion. The petitioner now wanted promotion to the post of Executive Engineer and Superintending Engineer taking into account the promotion given to his juniors.
10. There is no dispute that the Engineers appointed subsequent to the petitioner were all promoted as Executive Engineers. The affidavit filed in support of the writ petition contained a statement that Thiru Krishnamoorthy Sugumar, junior to the petitioner was included in the promotion panel and he was ultimately promoted as Superintending Engineer by the Government vide G.O.(D) No.428, PWD dated 14 December 2011. It was only under the said factual situation, the petitioner made a representation to promote him as Executive Engineer and thereafter as Superintending Engineer.
11. The request made by the petitioner was rejected by the first respondent on account of the pendency of charge memo dated 24 August 2012.
12. The petitioner was given promotion as Assistant Executive Engineer on 10 October 2011. There was no charge memo pending against him as on the said date. Naturally, the petitioner should have been considered for further promotion to the post of Executive Engineer and Superintending Engineer taking into account the promotion given to his juniors. The first respondent waited till the issuance of fresh charge memo on 24 August 2012 to consider his case for promotion. Initiation of disciplinary proceedings at a later point of time would not give a right to the respondents to deny promotion to the petitioner. In case there was no charge memo as on the crucial date, there was no question of denial of promotion. There were no disciplinary proceedings pending against the petitioner during the interregnum between 10 October 2011 and 24 August 2012. The respondents have no case that the petitioner is junior and his seniors alone were promoted as Executive Engineers and Superintending Engineers. The statement made by the petitioner with regard to the promotion of his juniors as Executive Engineer and Superintending Engineer were not denied by the respondent. Since the petitioner was promoted on 10 October 2011, it is implied that there were no proceedings pending against him. Nothing prevented the respondents from giving promotion to the petitioner thereafter as Executive Engineer and Superintending Engineer. The pendency of the charge memo dated 24 August 2012 should not cause prejudice to the petitioner to sustain his claim for promotion prior to the issuance of the said charge memo. The petitioner is due to retire on 31 July 2013. The unreasonable attitude taken by the respondents caused substantial prejudice to the petitioner. Each time the petitioner was made to approach this Court. The respondents have taken a vow that only in case the petitioner approaches this Court and obtain an order, his case would be considered for promotion. It is a matter of record that only during the currency of the contempt petition, the petitioner was promoted as Assistant Executive Engineer. The respondents have taken up a defense that the matter was pending before the Tamil Nadu Public Service Commission for concurrence and that was the reason for the delay in passing the order to promote the petitioner as Assistant Executive Engineer. There is no justification for the denial of promotion to the petitioner in view of the order dated 10 October 2011 promoting him to the post of Assistant Executive Engineer. In case the petitioner could be promoted as Assistant Executive Engineer, necessarily, he should be considered for promotion to the post of Executive Engineer and Superintending Engineer, taking into account the promotions given to his juniors.
13. The crucial date in this case has to be taken as 14 December 2011, the date on which Thiru Krishnamoorthy Sugumar, junior to the petitioner in the Engineering service was given promotion as Superintending Engineer. There was no charge memo pending against the petitioner as on the date on which his junior was given promotion. The representation given by the petitioner on 21 December 2011 to consider him for further promotion was kept in cold storage. It was only when this Court directed the first respondent to consider the case of the petitioner vide order dated 13 June 2012 in W.P.No.10828 of 2012 the representation was taken up for consideration. It is a matter of record that only after this Court directed consideration of the case of the petitioner for promotion, the second respondent has issued the charge memo on 24 August 2012. Therefore it is evident that either on the date of promotion of the junior of petitioner on 14 December 2011 or on the date on which representation was made for promotion and the direction issued by this Court for consideration of his case, there was no charge memo pending so as to deny him promotion. The charge memo issued long after the crucial date cannot be the reason to deny legitimate promotion.
14. The Supreme Court in Union of India & Ors. v. Sangram Keshari Nayak (2007) 4 Supreme 246 held that the right to be considered for promotion is a fundamental right and such a right brings within its purview, an effective, purposeful and meaningful consideration. The Supreme Court in Sangram Keshari Nayak found that on the day on which the Departmental Promotion Committee held its meeting, no vigilance enquiry was pending against the employee. The charge sheet was issued only after the Departmental Promotion Committee meeting. The Supreme Court upheld the order passed by the High Court directing the Government to promote the employee to the higher post from the date when his junior was promoted, notwithstanding the subsequent initiation of vigilance proceedings.
15. The first respondent was therefore not justified in denying promotion to the petitioner on the ground of initiation of disciplinary proceedings after the crucial date Disposition:
16. In the result, the impugned order is set aside and the matter is remitted to the first respondent. The first respondent is directed to consider the case of the petitioner for promotion to the post of Executive Engineer and Superintending Engineer without reference to the charge memo dated 24 August 2012. However it is made clear that the petitioner is not entitled to backwages in view of the principle "no work no pay". Since the petitioner is retiring on 31 July 2013, every effort should be taken by the first respondent to comply with this direction on or before 30 July 2013.
K.K.SASIDHARAN, J.
Tr
17. The writ petition is allowed as indicated above. Consequently, connected miscellaneous petition is closed. No costs.
Index: Yes/no 18.07.2013
Internet: Yes/no
Tr/
To
1. The State of Tamil Nadu rep. by
its Secretary to Government
Public Works Department
Secretariat
Chennai-9.
2. The Engineer in Chief (EIC Building
and Chief Engineer (General)
Public Works Department
Chepauk
Chennai-5.
Pre-delivery order in
W.P.No.33147 of 2012