Madras High Court
K. Duraikkannu vs State Of Tamil Nadu on 6 February, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06/02/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.26075 of 2005
K. Duraikkannu ... Petitioner
-Vs-
State of Tamil Nadu,
rep.by its Secretary to Government,
Public Works Department,
Fort St.George,
Chennai - 9. ... Respondent
This writ petition came to be numbered by way of transfer of
O.A.No.4972 of 1999 from the file of the Tamil Nadu Administrative Tribunal
with a prayer to call for the records pertaining to the order passed by the
respondent in G.O.Ms.No.286, Public Works Dept, dated 21.5.19 99 and set aside
the same in so far as the petitioner is concerned and direct the respondent to
promote the petitioner as Assistant Executive Engineer by including his name
in the panel of 1998-1999 and confer all consequential benefits from the date
on which his junior was promoted.
!For Petitioner : Mr.C.Selvaraj, Senior Counsel
for Mr.S.Mani
^For Respondent : Mr.Sanjay Ramaswamy
Government Advocate
:O R D E R
In this writ petition, petitioner seeks to quash the G.O.Ms.No.286 Public Works Department dated 21.5.1999 and to direct the respondent to promote him as Assistant Executive Engineer by including his name in the Panel of 1998-1999 and for consequential benefits.
2. The facts of the case as set out in the affidavit are as follows.
(i) Petitioner joined the Public Works Department as Assistant Engineer on 19.12.1977. The next avenue of promotion to him is to the post of Assistant Executive Engineer. According to the petitioner, the turn for inclusion of his name in the panel for promotion came in the years 1995-1996, 1996-1997 and 1997-1998. But however, his name was not included in the panel on the ground that a charge under Rule 1 7(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules was pending against him.
(ii) It is stated in the affidavit that the charge was framed on 17.10.1988 for certain irregularities alleged to have been committed by the petitioner in the year 1982 and after conducting enquiry, final order of punishment was passed by the respondent in G.O.(3D)No.39, Public Works (E2) Department, dated 24.5.1997. The punishment imposed on the petitioner for the proven charges are, (i) stoppage of increment for one year without cumulative effect, and (ii) recovery of a sum of Rs.21,505.10 from his salary in 22 monthly installments, the first installment being Rs.505.10 and the balance 21 installments at the rate of Rs.1,000/- per month. According to the petitioner, the recovery started from the month of May, 1997.
(iii) The grievance of the petitioner in this writ petition is that in spite of final orders having been passed by the respondent as early as on 24.5.1997 and the period of punishment of withholding increment for one year also having come to an end as early as on 30.6.1998 and further when the crucial date for preparation of panel for the year 1998-1999 fell only on 1.7.1998, petitioner's name was not included in the panel. Hence the petitioner challenges the impugned G.O.Ms. No.286 Public Works Department, dated 21.5.1999 with the above mentioned prayer.
3. No counter affidavit was filed by the respondent in this case.
4. The learned Senior Counsel appearing for the petitioner submitted that the reason for non-inclusion of petitioner's name in the panel for the year 1998-99 appears to be the pendency of O.A.No.6194 of 1998 before the Tribunal. Learned Senior Counsel contended that after expiry of the period of punishment as early as on 30.6.1998, petitioner's name ought to have been included in the panel. The learned senior counsel attacked para 4 of the impugned Government Order, which reads as under, "4. The Government also accept the recommendations of the Departmental Promotion Committee and direct that the following Assistant Engineers are found 'NOT FIT' for appointment by recruitment by transfer to the post of Assistant Executive Engineer (Civil) for the year 1998-1 999.
S.No. Name of the Officer
Assistant Engineer
Thiruvalargal
1. K.Duraikannu
2. N.S.Padmanabhan
3. M.Ramasamy
4. P.Balasubramanian
5. A.Selvaraju
6. B.Venkatachalam
7. S.Meenakshisundaram
8. G.Gopal
9. G.Selvakumar"
Learned counsel submitted that the reason stated by the Departmental Promotion Committee for not recommending the name of the petitioner for inclusion in the panel is that the petitioner was not fit for recruitment by transfer to the post of Assistant Executive Engineer ( Civil) and that the currency of punishment was not cited as a reason. The learned Senior Counsel also placed reliance on the judgment of a Division Bench of this Court in W.P.No.11511 of 2002 dated 1.10.2004 ( K.Selvarajan v. The Secretary to Government, Department of Health & Family Welfare, Government of Tamil Nadu) and prayed for issuing a direction similar to the one issued in the said writ petition.
5. Per contra, Mr.Sanjay Ramaswamy, learned Government Advocate argued that when the panel was prepared, the punishment imposed on the petitioner as per G.O.(3D)No.39, dated 24.5.1999 was in operation, in which not only stoppage of increment without cumulative effect for a period of one year was imposed, but an order to recover a sum of Rs.2 1,505.10 in 22 monthly installments from the salary of the petitioner was also passed and hence the Departmental Promotion Committee was perfectly justified in not including the petitioner's name in the panel for 1998-98.
6. I have considered the submissions made by the learned Senior Counsel appearing for the petitioner as well as the learned Government Advocate. As contended by the learned Senior Counsel, the stoppage of increment for one year without cumulative effect was over as early as on 30.6.1998, that is, before the crucial date for preparation of panel for promotion. However, as rightly contended by the learned Government Advocate, the punishment of recovery of a sum of Rs.21,505.10 in 22 monthly installments was in operation on the date when the panal was prepared. Now the point for consideration is whether the order of recovery made against the petitioner is to be treated as a punishment.
7. Rule 8(v) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules reads as under, "Rule 8 - PENALTIES: The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon every person who is a member of the civil service of the State and every person holding a civil post under the State specified in Rule 2, namely:-
(i) .....
(ii) .....
(iii) .....
(iv) .....
(v) Recovery from pay of the whole or part of any pecuniary loss
caused to the State Government or the Central Government or to any Government Company or Organisation or Local Authority or to a Local Body, while on deputation, by negligence or breach of orders."
A perusal of the order of punishment passed against the petitioner discloses that the recovery of Rs.21,505.10 was ordered to make good the loss caused by the petitioner to the Government by his action of unauthorised removal of materials from the stores at Tiruvannamalai on 30.8.1982, without knowledge of his superiors, for his personal benefits. The learned senior Counsel appearing for the petitioner argued that as per the amendment issued by the Government in its letter No.5 2511/S/99-1 Secetariat, Chennai, dated 1.10.1999, if an officer was imposed with any of the punishments within the check period for irregularities/delinquencies which occurred five years prior to the crucial date, such punishment need not be held against him. But, the said amendment was clarified subsequently by the Government in its letter No.52716/S/99-1 Secretariat, Chennai, dated 1.10.1999, which reads as under, "The existing Para 4 II(3) shall be substituted as follows:
"Whenever an officer is undergoing any punishment, other than Censure, on the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for the panel. If the currency of punishment continues at the time of subsequent consideration for the next panel(s), he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After the completion of its currency, no punishment should be held, once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion.
In respect of 'Censure' the guidelines issued in paragraph 4 II(2) of the letter second cited shall be followed."
Yours faithfully Sd/-
for Chief Secretary to Government"
From the above amendment it is clear that whenever an officer is undergoing any punishment other than 'Censure' on the crucial date or on the date of consideration, irrespective of the time of occurrence of the irregularity, his name shall be passed over and if the currency of the punishment continues at the time of subsequent consideration for next panels, his name should still be passed over. Only after completion of the currency of punishment the name of such officer shall be considered for inclusion in the panel. In short, the name of an officer can be included in the panel for promotion only when an order of Censure is passed against him, irrespective of the time of occurrence of the irregularity, and in all other cases of punishment, his name shall be passed over till the expiry of punishment period.
8. The Judgment of the Division Bench of this Court in W.P.No.11511 of 2002 dated 1.10.2004 (K.Selvarajan v. The Secretary to Government, Department of Health & Family Welfare, Government of Tamil Nadu), cited by the learned Senior Counsel, has no application to the facts of this case. In the present case, the punishment awarded against the petitioner is not only withholding of increment without cumulative effect for one year, but also recovery of a sum of Rs.21,505.10 in 22 monthly installments from the salary of the petitioner towards the pecuniary loss caused to the State Government and the said recovery was in operation during the time when the Departmental Promotion Committee considered the names of candidates for preparation of panel for promotion for the year 1998-99. Therefore, there is no error or illegality in not including the petitioner's name in the panel for the year 1998-99.
9. In view of the reasons stated above, I hold that no interference is called for in the impugned G.O.Ms.No.286, Public Works (A1) Department, dated 21.5.1999 and consequently the writ petition is dismissed. No costs.
vr To The Secretary to Government, Public Works Department, Fort St.George, Chennai 9.