Madras High Court
Selvi Kavitha Ramu vs State Of Tamil Nadu on 8 December, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CAV ON 25/04/2014
DATED: 08/12/2014
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
W.P.No.15985 of 2008 and
M.P.No 2 of 2008
Selvi Kavitha Ramu,
Deputy Collector, Excise Supervisory Officer,
Empee Breweries,
Kuthambakkam,
Tiruvallur District. ... Petitioner
vs.
1.State of Tamil Nadu
rep.by it's Secretary to Government,
Revenue Services Department,
Fort St.George, Chennai-600 009.
2.The Special Commissioner and
Commissioner of Revenue
Administration Department,
Ezhilagam, Chennai-600 005.
3.State of Tamil Nadu,
rep.by it's Secretary to Government,
Public (Special-A) Department,
Fort St.George, Chennai-600 009. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records relating to the order of the third respondent in G.O.Ms.No.12, Public (Special.A) Department, dated 07.01.2008 and quash the same in so far as it fails to include the name of the petitioner in the temporary panel of District Revenue Officer for the year 2007 and consequently include the petitioner in the said panel with all consequential benefits.
For Petitioner : Mr.M.Ramadoss
For Respondents : Mr.T.N.Rajagopalan,
Special Government Pleader
* * * * *
O R D E R
The prayer in the writ petition is for issuance of a writ of certiorarified mandamus to quash G.O.Ms.No.12, Public (Special.A) Department, dated 07.01.2008, passed by the third respondent in so far as it fails to include the name of the petitioner in the temporary panel list of District Revenue Officer for the year 2007 and consequently to direct the respondents to include her name in the said panel with all consequential benefits.
2. The short facts of the case are as follows:
The petitioner submits that she is working as Deputy Collector, having been selected by the Tamil Nadu Public Service Commission for Grade-I Service in the Government of Tamil Nadu. During March, 2004, she was posted as Revenue Divisional Officer at Chingleput. That on 26.07.2004, she suspended one K.Arumugam, who was serving as Village Administrative Officer at Chenkundram Village in Chingleput Taluk, and after his suspension, she called for a report from the concerned Tahsildhar for framing of charges. However, he did not give any report as he could not find any proper evidence as against the said Arumugam. The charge levelled against the said Arumugam was that he stayed away from duty for more than three months. Thereafter, the said Arumugam gave a representation to her stating that he should be reinstated in service as he was under suspension for more than one year. Considering the family circumstances of the said Arumugam and the facts and circumstances of the case that no specific report had been received against him, non-availability of sufficient Village Administrative Officers in Tambaram Taluk at that time and the Village Administrative Officer of Chitlapakkam Village, namely, Govindarajan, had been arrested, she has reinstated him in service in the vacant post.
3. Further, the petitioner submits that on 03.10.2006, the second respondent framed the following charges against her:
i. Ordering reinstatement of K.Arumugam, Village Administrative Officer, who was under suspension for grave charges and who was having Tambaram as his native Village, in violation of the orders issued in G.O.Ms.No.864, Revenue Department, dated 10.08.1992;
ii. Issuing appointment order arbitrarily in violation of Government Order during the period, when general transfers are not permitted without prior permission from the District Collector as per G.O.Ms.No.864, Revenue Department, dated 10.08.1992;
iii. Ordering appointment of K.Arumugam, Village Administrative Officer, without getting prior permission of the Election Commission, while a ban issued by the Election Officer was in force;
iv. Creating an irksome situation to the Government by giving appointment in violation of the Rules and Regulations when several petitions have been received requesting for appointment in Tambaram Taluk by candidates, who have Tambaram as their native place.
4. Further, the petitioner submits that no motive has been alleged against her for ordering reinstatement and therefore in the absence of any ill-motive, it could not be considered to be a misconduct. She submitted an explanation, dated 30.10.2006, to the second respondent and the second respondent came to the conclusion that all the charges levelled against her have been proved and hence, by order, dated 23.01.2007, issued penalty of censure. Though in the normal course censure should not have any effect on her promotional prospects, by way of abundant caution, she preferred an appeal before the first respondent against the order of censure. But, the first respondent, by the impugned order dated 19.03.2008, dismissed the appeal preferred by her. In the meanwhile, by G.O.Ms.No.12, Public Department, dated 07.01.2008, the Government included 49 Deputy Collectors in the temporary panel of District Revenue Officer during 2007 and 43 of them are junior to her. Therefore, she has been prejudiced by the order of censure inasmuch as she has been overlooked for promotion to the post of District Revenue Officer and hence she has filed this writ petition seeking the relief as stated above.
5. The respondents have filed their counter affidavit stating that the Collector, Kancheepuram District, vide letter dated 06.11.2005, has brought to the notice of the second respondent that the petitioner, while working as Revenue Divisional Officer, Chengalpattu, has committed certain lapses, in the issue of posting and transfer of the Village Administrative Officer, without taking into the account the ban order of the Election Commission of India and also has deviated from the instructions issued in G.O.(Ms) No.864, Revenue Department, dated 10.08.1992, wherein certain guidelines have been prescribed for observance while resorting to transfer of Village Administrative Officers. The petitioner, vide proceedings dated 26.07.2004, has placed one K.Arumugam, Village Administrative Officer, Sengundram Village, Chengalpattu Taluk, under suspension, based on the allegations received from the Villagers and also for the unauthorized absence from duty. Since the suspension period of the said Village Administrative Officer exceeded six months, pending finalization of the charges framed under Rule 17(b) of Tamil Nadu Civil Service (Discipline & Appeal) Rules against him, vide proceedings, dated 08.09.2005, she reinstated him into service and posted him to Sithalapakkam Village, Tambaram Taluk. The Collector, Kancheepuram District, has reported that the said K.Arumugam is native of Nallathu Village in Tirukazhukundram Taluk and that the action of the petitioner has to be viewed seriously for her highly irregular action.
6. Further, the respondents submit that the second respondent, after examining the report of the Collector, Kancheepuram District, with connected records, vide proceedings, dated 03.10.2006, initiated disciplinary action, under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, for the following lapses against her:
i. Pursuant to the revocation of suspension of one K.Arumugam, she posted him as Village Administrative Officer in Sithalapakkam Village in Tambaram Taluk, when he does not belong to Tambaram Taluk, in violation of the norms prescribed in G.O.(Ms) No.864, Revenue Department, dated 10.08.1992.
ii. Though orders were issued in G.O.(Ms) No.864, Revenue Department, dated 10.08.1992, stating that prior permission of the Collector should be obtained for ordering transfer during non-transfer period, she had issued the posting orders in deviation to the above Government Instructions.
iii. She issued postings to K.Arumugam, Village Administrative Officer, when the ban imposed by the Election Commission of India was in force.
iv. She caused embarrassment to the District Administration by issuing postings in Tambaram Taluk in violation of norms and procedures, when many applications seeking transfer to native Taluk viz., Tambaram Taluk were under consideration.
v. By the above acts, she had violated Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules.
Though no ill-motive has been pointed out against the petitioner in ordering reinstatement of the said K.Arumugam, Village Administrative Officer, she ought to have followed the procedures and guidelines prescribed in G.O.(Ms) No.864, Revenue Department, dated 10.08.1992. But, without adhering to the guidelines and instructions and without getting the prior approval of the District Collector, Kancheepuram, she, while working as Revenue Divisional Officer, Chengalpattu, had reinstated the said K.Arumugam into service and posted him as Village Administrative Officer, Sithalapakkam Village, when there were many applications pending requesting transfer to native places, particularly, to Tambaram Taluk and more particularly the ban orders imposed by the Election Commission of India while in force.
7. Further, the respondents submit that the explanation, dated 30.10.2006, submitted by the petitioner was examined by the second respondent with all relevant records. However, as she had acted in violation of the prescribed guidelines and all the lapses were held proved against her, the second respondent, vide proceedings, dated 23.01.2007, imposed punishment of censure on her. Aggrieved by the punishment of censure, she preferred an appeal, on 24.04.2007, before the first respondent and the first respondent, after consultation with the Tamil Nadu Public Service Commission, vide G.O.(D) No.132, Revenue (Ser.2(2)) Department, dated 19.03.2008, has rejected the appeal petition as no grounds were put-forth by her. Since the punishment of censure was in force, her name was not included in the panel of District Revenue Officer for the year 2007. Therefore, the present writ petition is not maintainable either in law or on facts. That apart the punishment of censure was imposed on her with reference to the materials available on records and hence there is no arbitrary, illegal and violative of Articles 14 and 16 of the Constitution.
8. The respondents submit that though the petitioner has contended that the reinstatement of the said K.Arumugam would not be a misconduct within the scope of Conduct Rules, she has failed to see that the said K.Arumugam is not a native of Tambaram Taluk and that he should not have been posted in a sensitive village outside his native Taluk. Therefore, the action of the petitioner is an aberration and against the provisions of G.O.(Ms) No.864, Revenue Department, dated 10.08.1992. Hence, the impugned order is maintainable in law. In the order of suspension, dated 26.07.2004, issued by the petitioner, she has stated that K.Arumugam, Village Administrative Officer, had not stayed in the Village posted and that he had unauthorizedly absented himself from duty. Further, the said K.Arumugam had not attended the instruction classes conducted by the Revenue Divisional Officer with the issue of new family cards and that he was not obeying the instructions of the superiors. When the said Village Administrative Officer was placed under suspension for the said serious lapses, while reinstating him, the petitioner as the appointing authority and the Revenue Divisional Officer, Chengalpattu, ought to have ensured that the individual should not be posted in a sensitive Village that too when he was not a native of Tambaram Taluk. As per the instructions issued in G.O.(Ms) No.864, Revenue Department, dated 10.08.1992, the petitioner should have obtained prior permission of the District Collector for issuing transfer order to a Village Administrative Officer during non-transfer period. She has issued the posting order while ban order of the Election Commission for transfer and postings of officials was in existence. The lapses committed by the petitioner have been clearly stated in the show cause notice issued to her by the second respondent on 03.10.2006. All the five lapses were held proved against the petitioner, the punishment of censure was imposed by the second respondent. Therefore, the contentions of the petitioner are liable to be rejected as devoid of merits.
9. Further, the respondents submit that as per the Government orders in force, any punishment, other than censure imposed on an officer, within a period of five years prior to the crucial date and a punishment of censure within a period of one year prior to the crucial date or the punishment of censure imposed after the crucial date, but before actual promotion, shall be held against the officer. In such a case, the officer's name shall be passed over. Since the punishment of censure imposed on the petitioner by the second respondent on 23.01.2007 was in potential on the crucial date for the drawal of District Revenue Officer's panel for the year 2007, her name was not included in that panel. Only for the lapses held proved, the petitioner was imposed with the punishment of censure by the second respondent vide proceedings, dated 23.01.2007, and the same was confirmed by the first respondent, vide G.O.(D)No.132, Revenue Services (2(2)) Department, dated 19.03.2008 after rejecting the appeal petition preferred by her. For the reasons stated supra, the petitioner is not entitled for inclusion in the panel of District Revenue Officer for the year 2007. Hence, they prayed for dismissal of this writ petition.
10. The highly competent counsel Mr.M.Ramadoss appearing for the petitioner submits that the petitioner has been appointed in Grade I Service by the Tamil Nadu Public Service Commission in the month of March 2004. The petitioner had suspended one Mr.K.Arumugam, who was serving as Village Administrative Officer at Chengundram Village. Thereafter, a report was called from the concerned Taluk Tahsildar and the said report did not give conclusive evidence. Further, the Villagers had levelled allegations against the said Arumugam without supporting material evidence or any circumstantial evidence. Under the circumstances, the petitioner had issued reinstatement order in favour of the said Village Administrative Officer and posted him in the vacant post. The petitioner's reinstatement order cannot be treated as new appointment or transfer. As such, the petitioner had not violated the G.O.Ms.No.864, Revenue Department, dated 10.08.1992. Besides, the said order will not run against the ban-order of election commission.
11. The highly competent counsel appearing for the petitioner further submits that the Chief Secretary to Government had prepared the temporary panel of District Revenue Officers for the year 2007, wherein, the petitioner's name had not been included. Further, in the said list, the names of 49 Deputy Collectors are included in the panel for promotion and 43 of them are junior to the petitioner. Hence, the highly competent counsel entreats the Court to grant relief to the petitioner for her promotion with retrospective effect from the day on which 49 Deputy Collectors were promoted.
12. The highly competent Special Government Pleader Mr.T.N.Rajagopalan appearing for the respondents submits that at the time of preparing the panel for promotion as District Revenue Officers for the year 2007, the petitioner was facing disciplinary proceedings and was issued a punishment of censure. Therefore, the petitioner's name had not been included in the said panel. As such, the promotion proceedings in G.O.Ms.No.12, Public (Special.A) Department, dated 07.01.2008, had been published without including the petitioner's name.
13. From the above discussions, this Court is of the view that:-
(i) The petitioner had not appointed one Mr.K.Armumugam, Village Administrative Officer as an initial appointment and further the Village Administrative Officer had not been transferred, but the Village Administrative Officer had only been reinstated and posted at Chitlapakkam Village, wherein a post was kept vacant. As such, the petitioner's proceedings dated 08.09.2005 does not run against the G.O.Ms.No.864, Revenue Department, dated 10.08.1992.
(ii) In the instant case, as per G.O.Ms.No.864, Revenue Department, dated 10.08.1992, prior permission of the concerned Collector is not required since the Village Administrative Officer has been reinstated in his original position, on the basis of the allegations not being proved within the specified period, but he had not been transferred during the non-transferrable period, but only posted in the vacant place. Transfer is applicable for situations where an employee working in a present place is shifted to some other destination. As such, in the instant case the question of transfer does not arise. Hence, the petitioner has not violated the ban order of election commission.
(iii) The petitioner had reinstated the Village Administrative Officer through her proceedings Mu.Mu.No.5533/2004-B dated 08.09.2005. Therefore, the said proceedings does not cover new appointments or transfer. Therefore, the petitioner's proceedings does not run against the ban order imposed by the Election Commission of India, which was in force at the time of the reinstatement of the Village Administrative Officer.
(iv) The petitioner had not caused any irregularities or embarrassment to the District Administration by issuing reinstatement order to the suspended Village Administrative Officer, viz., Mr.K.Arumugam in the Taluk of Tambaram. This kind of Administrative Orders of the petitioner is not violating any norms and procedures when many applications seeking transfer to native Taluk viz., Tambaram Taluk were under consideration. The petitioner's order will not be prejudicial to the applicants who are seeking transfer at Tambaram Taluk.
(v) The petitioner's administrative order dated 08.09.2005 which had been passed in favour of Mr.K.Arumugam, the Village Administrative Officer, does not in any way show that the petitioner is not honest and not done her duty with sincerity. Therefore, the charge No.5 had not been proved on the basis of any documentary proof about the dishonesty, negligence of duty or insincerity. Therefore, 20(1) of the Tamil Nadu Government Servants Conduct Rules, 1973 have not been breached.
(vi) The reinstatement order had been passed by the petitioner while the Disciplinary Proceedings is pending against the said Village Administrative Officer under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. If the respondents were not satisfied with the petitioner's administrative order / proceedings dated 08.09.2005, then the Collector of the concerned District and the respondents herein ought to have proceeded with the pending finalization of charge levelled against the said Village Administrative Officer. As such, the impugned order in G.O.No.(D) No.132, Revenue Services Department, dated 19.03.2008, confirming the order of the second respondent / Special Commissioner and Commissioner of Revenue Administration Department does not have any force and hence the same order is not fit to be operated upon.
14. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side and on perusing the impugned G.O. issued by the third respondent and the views of this Court as mentioned above (i) to (vi), this Court allows the above writ petition. Consequently, this Court directs the third respondent herein to include the name of the petitioner in the panel of District Revenue Officer for the year 2007 in G.O.Ms.No.12, Public (Special.A) Department, dated 07.01.2008 with all the consequential benefits, with retrospective effect on par with the 49 Deputy Collectors in the temporary panel of District Revenue Officers for the year 2007, within a period of three months from the date of receipt of a copy of this order.
15. This Court further observes that the connected writ petition in W.P.No.15984 of 2014 is allowed. As such, the petitioner is entitled to receive her promotion without any break. If the respondents are not satisfied with this Court order in the above writ petition, they are at liberty to file an appeal on condition that they give promotion to the petitioner on par with that given to the 49 candidates.
16. In the result, the above writ petition is allowed. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
08/12/2014
(2/2)
Index : Yes/No.
Internet : Yes/No.
r n s
Note : Issue order copy on 12.06.2015
To:
1. The Secretary to Government,
Government of Tamil Nadu,
Revenue Services Department,
Fort St.George, Chennai-600 009.
2.The Special Commissioner and
Commissioner of Revenue
Administration Department,
Ezhilagam, Chennai-600 005.
3. The Secretary to Government,
Government of Tamil Nadu,
Public (Special-A) Department,
Fort St.George, Chennai-600 009.
C.S.KARNAN, J.
r n s
Pre-Delivery Order in
W.P.No.15985 of 2008 and
M.P.No 2 of 2008
08/12/2014
(2/2)