Madras High Court
R.Govindasamy vs The Chief Engineer (Personnel) on 4 December, 2013
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.12.2013 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.8840 of 2011 and M.P.No.1 of 2011 R.Govindasamy .. Petitioner vs. 1.The Chief Engineer (Personnel), Tamil Nadu Electricity Board, No.144, Anna Salai, Chennai-600 002. 2.The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order of the first respondent dated 29.03.2011 in Letter No.049781/G.30/G.301/2010-5 and quash the same and consequently, direct the respondents to forthwith promote the petitioner as Assistant Accounts Officer with effect from the date on which his juniors were promoted as Assistant Accounts Officer. For Petitioner : Mr.K.Selvaraj For Respondent : Mr.P.R.Dhilip Kumar Nos.1 & 2 Standing counsel for TNEB ------- O R D E R
The Petitioner has filed the instant Writ of Certiorarified Mandamus praying for an issuance of an order by this Court in calling for the records relating to the order of the first respondent/Chief Engineer (Personnel), Tamil Nadu Electricity Board, Chennai dated 29.03.2011 in Letter No.049781/G.30/G.301/2010-5 and quash the same. Also, the Petitioner has sought for passing of an order by this Court in directing the Respondents to forthwith promote the Petitioner as Assistant Accounts Officer with effect from the date on which his juniors were promoted as Assistant Accounts Officer.
2.According to the Learned counsel for the Petitioner, the Petitioner is presently working as Accounts Supervisor in the Revenue Branch of the Executive Engineer, South, Salem. The Petitioner was originally appointed as Junior Assistant on 15.10.1979 and his qualification at the time of appointment was Pre-University Course. He passed the Accounts Test for subordinate office Part I and therefore, he was promoted as Assistant (Accounts) on 27.03.1995. Subsequently, he was promoted as Accounts Supervisor on 07.09.2007. He obtained B.Com Degree (equivalent to Accountancy Lower Grade and Higher Grade) on 16.04.1993 and as per the service regulations of Tamil Nadu Electricity Board, a staff who passed B.Com Degree is exempted from appearing for the Accountancy Lower Grade and Accountancy Higher Grade.
3.It is represented on behalf of the Petitioner, the Petitioner's next promotion is the post of Assistant Accounts Officer. The qualification for the post is either B.Com Degree or Accountancy Higher Grade as per the Tamil Nadu Electricity Service Regulations. The Petitioner having passed B.Com degree during the year 1983 is fully eligible and qualified to be promoted as Assistant Accounts Officer.
4.The Learned counsel for the Petitioner brings it to the notice of this Court that the Petitioner was placed under suspension by the order passed by the Second Respondent/ Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem dated 13.08.2008 in respect of the alleged transactions with the third party along with his neighbours in Tirunelveli City. Further, the plea taken on behalf of the Petitioner is that, the Petitioner made several representations stating that he is no way connected with the alleged transactions and he has not committed any irregularity in discharging his duties. As a matter of fact, the Second Respondent through an order dated 17.03.2010 was pleased to revoke the order of suspension and reinstated the Petitioner into service. The Petitioner was continuously working from 17.03.2010 and in fact, he was given additional charge of Assistant Accounts Officer/Revenue Branch/South/Salem-2 by the Executive Engineer, (O & M)/South/Salem-2 due to the transfer of one N.Natarajan, Assistant Accounts Officer by order dated 20.07.2010. The Petitioner is looking after the additional charge of Assistant Accounts Officer from 20.07.2010.
5.At this stage, the Learned counsel for the Petitioner submitted that the First Respondent prepared the supplementary panel for the year 2008-2009 for promotion of Assistant Accounts Officer. The crucial date of selection was 25.03.2008. Further submission of the learned counsel for the Petitioner is that since the Petitioner is fully eligible and qualified on the crucial date namely, 25.03.2008 and when there is no charge memo or departmental action as against the Petitioner on the said crucial date, his name was also included in the seniority list of Accounts Supervisor fit for promotion to the post of Assistant Accounts Officer. As a matter of fact, the First Respondent sent the list to the Second Respondent calling for suitability for being promoted as Assistant Accounts Officer. In fact, the Petitioner's name found place in the Serial No.152 in the seniority list of Accounts Supervisor. Since the Second Respondent had not forwarded the suitability report in favour of the Petitioner for being promoted for the year 2008-2009, he was not promoted.
6.The Learned counsel for the Petitioner forcibly submits that since the Petitioner was not included in the panel for the year 2008-2009 for promotion of Assistant Accounts Officer, the Petitioner made a Representation dated 19.05.2010, requesting to include his name in the panel fit for promotion to the post of Assistant Accounts Officer. The First Respondent after receipt of representation issued the proceedings dated 01.06.2010 and asked the Second Respondent to send the educational qualification of the Petitioner namely, PUC certificate, B.Com Degree certificate and mark list and other details with regard to any departmental proceedings so as to enable him to include the name of the Petitioner in the panel.
7.The Learned counsel for the Petitioner brings it to the notice of this Court that the Petitioner submitted the required certificates in issue along with a covering letter dated 12.07.2010 to the Second Respondent, which was forwarded to the First Respondent. However, the Petitioner's name was not included in the seniority list of Accounts Supervisor fit for promotion to the post of Assistant Accounts Officer for the year 2008-2009.
8.The prime submission of the Learned counsel for the Petitioner is that though there is no charge memo pending against the petitioner, name of the petitioner had not found a place in the Seniority List of Accounts Supervisor for being promoted as Assistant Accounts Officer and further the Petitioner made a submission to the First Respondent (through proper channel) on 18.09.2010, requesting him to include his name in the seniority list of Accounts Officer fit for promotion for the post of Assistant Accounts Officer. Indeed, Executive Engineer (O & M)/South/Salem-2 by proceeding dated 21.09.2010 had recommended to the Second Respondent that there was no charge memo against the Petitioner and there was no departmental proceedings as against him and recommended his name for inclusion in the panel for the year 2010-2011 for promotion as Assistant Accounts Officer.
9.Advancing his arguments, the Learned counsel for the Petitioner submits that in Board Proceedings No.316 dated 27.12.1995 (issued by the Chairman of the Tamil Nadu Electricity Board), it is categorically mentioned that where specific charges have not been framed, promotion of Board employees shall be considered on the basis of performance as on the date of consideration for promotion. Therefore, it is the specific contention of the learned counsel for the Petitioner that when there were no specific charges framed against the Petitioner on the crucial date on 25.03.2008, then the Respondents ought to have considered the case of the Petitioner for being promoted to the post of Assistant Accounts Officer from the year 2008-2009.
10.It transpires that that the Petitioner filed an earlier Writ Petition in W.P.No.22832 of 2010 praying for issuance of Writ of Mandamus, directing the Respondents to forthwith promote the Petitioner as Assistant Accounts Officer with effect from the date on which his juniors were promoted as Assistant Accounts Officer. This Court on 06.10.2010 passed the order, directing the First Respondent to pass orders on the Representation of the Petitioner dated 18.09.2010 within a period of eight weeks.
11.That apart, it is the submission of the Learned counsel for the Petitioner, even in the latest Board Proceedings dated 11.10.2010 of the Tamil Nadu Electricity Board, enjoins that mere registration of cases in courts need not be considered for being promoted. It is not in dispute that till date no charge sheet has been laid in the Criminal Case registered against the Petitioner in Cr.No.15 of 2008 under sections 406, 420, 463, 465 and 120(B) of IPC by the Tirunelveli Crime Branch Police.
12.Per contra, it is the contention of the Standing Counsel for Tamil Nadu Electricity Board that although no charge memo is pending against the Petitioner, the allegations found is serious as well as grave in nature as such Petitioner's name was not considered for promotion. In view of the pendency of Criminal case in Cr.No. 15 of 2008 under Sections 406, 420, 463, 465 and 120(B) of IPC by the Tirunelveli Crime Branch Police. Further, it is represented on behalf of the Respondents that criminal case registered against the petitioner in Cr.No. 15 of 2008 as referred to supra is still pending and as such, the Petitioner was again overlooked in the panel prepared on the crucial date 25.03.2010 which was communicated on 08.02.2011.
13.The contention advanced on behalf of the Respondents is that the Petitioner was involved in Cr.No.15 of 2008 as referred to supra, which is serious in nature and only for that reason he was not considered for promotion. It comes to be known through a letter dated 18.01.2011 of the Second Respondent addressed to the First Respondent that a criminal case in Cr.No.15 of 2008 is pending investigation for receipt of Forensic Science Laboratory report.
14.The Learned counsel for the Petitioner relies on the judgment in W.A.No.115 of 2008 dated 10.04.2008 between E.Pitchaimari and The Special Commissioner and Transport Commissioner, Chepauk, Chennai-15 wherein this Court in pargraphs 3 to 5 has observed as follows:
"3.The stand of the Department in the writ petition was to the effect that on the crucial date for consideration i.e., on 15.03.2007, a charge memo under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules was pending. So far as the above aspect is concerned, we have gone through the materials on record and also the file, which was produced by the Special Government Pleader. It appears that even though a signed document is available in the file, which was apparently signed on 07.09.2006 by the previous Transport Commissioner, the fact remains that the charge memo was issued under the signature of the subsequent Transport Commissioner, with the date 10.07.2007 and it was actually served on 28.07.2007 on the petitioner.
4.In AIR 2007 SC Pg.1706 (Coal India Limited & Others Vs. Saroj Kumar Mishra), the Supreme Court, after referring to several decisions, has observed as hereunder:
"A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued."
5.In the present case, the earlier charge memo, which had been signed had not been issued and similarly, the present charge memo, even though signed on 10.07.2007, was actually issued, so far as the appellant is concerned, only on 28.07.2007. Therefore, it cannot be said that on the date when the panel was prepared i.e., on 15.03.2007, any charge memo was pending."
15.Also in the aforesaid Division Bench judgment in paragraphs 7 and 8 it is observed as under:
"7.The other contention of the learned counsel for the respondent is to the effect that even assuming that no charge memo was pending when the appellant was promoted and when the juniors to the appellant were promoted, as of today, a charge memo is pending and therefore, the appellant should not be given the benefit of promotion.
8.The learned counsel for the appellant has rightly contended that even though mere inclusion of name in the panel for promotion would not confer any right to be promoted on a particular date, atleast, on the date on which the juniors were promoted, i.e., on 28.06.2007, a right accrued to the appellant to be promoted. On the said date, atleast, it cannot be said that any charge memo was pending. Therefore, the appellant should have been promoted with effect from that date. As observed by the Supreme Court in AIR 2007 SC 1706 (cited supra), merely because a person is promoted, the employer is not in a helpless situation. Therefore, it will be always open to the concerned employer to continue with the disciplinary proceedings and pass orders in accordance with law and obviously, the promotion by virtue of the order of the Court will not stand in the way."
16.In the aforesaid detailed qualitative and quantitative discussion and also, this Court on a careful consideration of the entire concepts of the facts and circumstances of the case in an attendant fashion (which floats on the surface) comes to an inevitable and inescapable conclusion that as on the crucial date namely, 25.08.2008 for selection to the post of Assistant Accounts Officer no FIR was pending against the Petitioner and also no charges were framed against him. As on date, no charges have been framed against the Petitioner by the Respondents in regard to his purported involvement in Cr.No.15 of 2008 on the file of the Tirunelveli Crime Branch Police in respect of the offences under Section 406, 420, 463, 465 and 120(B) of IPC.
17.At this stage, a mere running of the eye over the contents of Board proceedings dated 11.10.2010 latently and patently indicate that under the caption "EFFECT OF PENDENCY OF VIGILANCE ENQUIRY/CHARGES ON INCLUSION IN A PANEL FOR PROMOTION" in Serial.Nos.1 and 2, it is mentioned as under:
S.No. Nature of Enquiry/Charge Effect 1 Preliminary or detailed enquiry undertaken by DV & AC other D.P. Authority.
Need not be held against the officer/employee for inclusion in the panel.2
Regular cases/Registered cases by the DV & AC.
Mere registration of cases in courts need not be held against the officer/employee. But, if charge sheet has been filed in the Criminal case, it should be held against the officer/employee.
18.At this stage, this Court worth recollects and recalls the decision of V.K.Gupta Vs. Municipal Corporation of Delhi in 1993 Labour & Industrial Cases at page 55 and at special page 56 wherein in paragraphs 3 to 5, it is observed and laid down as follows:
"3.The Division Bench of this Court in the aforesaid judgment had also laid down "mere contemplation for initiating disciplinary proceedings is no bar for giving promotion to the petition. The bar is only when disciplinary proceedings have been initiated by issue of a charge-sheet."
4.Counsel for the respondent, on the other hand, has not been able to show any law to the contrary. He has merely stated that it is a selection post and the respondent could appoint any one. There could be some substance in this contention only if there were lessor number of posts and they were considering each candidate's merit and selecting some out of those. That is not the case here. Here there were 7 posts and there were 7 candidates and the petitioner and another Mr.R.K.Jain were ignored on the sole ground of vigilance cases being pending against them. Such action is clearly contrary to the law laid down by Hon'ble the Supreme Court in the aforesaid ruling as also what had been held by the Division Bench of this Court.
5.In these circumstances, I allow the writ petition and issue a writ of mandamus directing the respondent to promote the petitioner to the post of Superintending Engineer on adhoc basis like the other five persons who were so appointed with effect from 22.11.1990 with all consequential benefits including pay and allowance etc. In the circumstances of the case, there will be no order as to costs."
19.This Court aptly points out the decision of the Hon'ble Supreme Court in Life Insurance Corporation of India and Others Vs. Jagmohan Sharma and Others [(1998) 9 Supreme Court Cases 219 & 220], wherein in paragraph 6, it is observed and held as under:
"6.In the facts, as noticed by the learned Single Judge, in our opinion, the appropriate direction would have been to the appellants to consider the case of Respondent 1 for his promotion to the post of Assistant Divisional Manager/Senior Branch Manager from the date his juniors from amongst Respondents 5 to 67 in the writ petition were promoted on the same criteria on which those respondents were promoted. We, therefore, modify the direction of the learned Single Judge, as noticed above, and direct that the appellants shall consider the case of Respondent 1 for his promotion with effect from the date his juniors from amongst Respondents 5 to 67 in the writ petition were promoted and if found fit for promotion, to grant to him all the consequential benefits. The consideration of Respondent 1 for promotion shall be on the same basis and on such material as was considered for promoting Respondents 5 to 67. The needful shall be done by the appellant within three months. The order of the Division Bench dismissing the LPA shall also, thus, stand modified accordingly. The appeal is allowed and disposed of to the extent indicated above. No costs."
20.To put it succinctly, that there was no FIR against the Petitioner on the crucial date namely, 25.03.2008 when for the selection to the post of Assistant Accounts Officer and also that no charges were pending against him and also when he was very much fully eligible and qualified on the said date 25.03.2008, then it is not open to the Respondents to pass the impugned order dated 29.03.2011 by not considering his request to promote him as Assistant Accounts Officer. Even otherwise the denial of promotion to the Petitioner as Assistant Accounts Officer by the Respondents is per se illegal and invalid in the eye of law. Viewed in that perspective, this Court, interferes with the impugned order dated 29.03.2011 passed by the First Respondent and set asides the same in the interest of justice. Consequently, the Writ Petition succeeds.
21.Resultantly, the Writ Petition is allowed leaving the parties to bear their own costs. Consequently, the impugned order is set aside for the reasons assigned in this Writ Petition. The Respondents are directed to consider the case of the Petitioner for his promotion as Assistant Accounts Officer with effect from the date on which his juniors were promoted and if he found fit for promotion, to grant him all monetary and consequential attendant benefits within a period of six weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is also closed.
04.12.2013 Index :Yes Internet:Yes DP To
1.The Chief Engineer (Personnel), Tamil Nadu Electricity Board, No.144, Anna Salai, Chennai-600 002.
2.The Superintending Engineer, Salem Electricity Distribution Circle, Tamil Nadu Electricity Board, Salem.
M.VENUGOPAL.J, DP W.P.No.8840 of 2011 and M.P.No.1 of 2011 04.12.2013