Madras High Court
The Secretary To Government Of Tamil ... vs R.K. Sevaraj And The Registrar, Tamil ... on 25 February, 2008
Author: P.K. Misra
Bench: P.K. Misra, K. Chandru
ORDER P.K. Misra, J.
1. Heard the counsels appearing for the parties. The present writ petition has been filed by the State Government against the order of the Tribunal, where under, the Tribunal has issued a positive direction for promoting the present respondent No. 1 from the post of Tahsildar to the post of Deputy Collector. The Tribunal has referred to the fact that on the crucial date of consideration, there was no departmental proceedings pending against the petitioner. However the Tribunal has completely lost sight of the fact that by the time the question of actual promotion came up, the departmental proceedings containing charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules were pending. In this context the Tribunal even though had referred to G.O. Ms. No. 368 Personnel and Administrative Reforms Department dated 18.10.1995, it has completely misdirected itself relating to the applicability of Paragraph 5 of G.O. Ms. No. 368 referred above. Para 5 of the said G.O. is to the following effect:
If specific charges are framed and charge sheet is filed in the original case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included in the panel.
2. The Tribunal has referred to Rule 39(d) of the Tamil Nadu State Subordinate Services Rules, which is to the following effect:
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.
3. We do not think that this Rule, which apparently is only an enabling provision, can be construed to be a mandate for giving promotion to the persons against whom charges have been framed in a departmental proceedings.
4. The Tribunal has referred to the Government Letter No. 52511/3/99-1, Personnel and Administration Department dated 1.10.1999 to the following effect:
pendency of charge framed It should be held against under Rule 17(b) of Tamil Nadu the officer and inclusion Civil Services (D & A) Rules. deferred until finalisation of the disciplinary proceedings
5. By referring to the above, the Tribunal concluded that:
...pendency of charge framed under Rule 17(b) T.N.C.S. (D&A) Rules should be held against the officers for the inclusion of their names in the panel and not for deferment of promotion.
6. However such clarification does not take away the effect of Paragraph 5 of G.O. Ms. No. 368 Personnel and Administrative Reforms Department dated 18.10.1995. It only relates to the consideration of inclusion in the panel whereas Paragraph 5 of G.O. Ms. No. 368 Personnel and Administrative Reforms Department dated 18.10.1995 specifically covers the case where the name has been included but because of the subsequent events, the promotion is actually deferred.
7. A careful reading of Paragraph 5 of G.O. Ms. No. 368 makes it clear that even if the name of the person is included in the panel, if at the time of actual promotion, any specific charges are framed or any departmental proceedings are pending, the person concerned shall not be promoted, not withstanding the fact that his name has been included in the panel. Ignoring such specific instruction, the Tribunal has given a positive direction for promotion. Unfortunately at the time of considering the interim application also the Division Bench had lost sight of this Paragraph 5.
8. Be that as it may, Law is well settled that the interim order will have effect till the matter is finally decided. It appears that taking advantage of the said interim order, the first respondent has been temporarily promoted as Deputy Collector by G.O.(D) No. 389 Revenue dated 26.5.2005. The said Government Order was issued stating that the said promotion is without prejudice to the final out come of the writ petition.
9. Having regard to all these relevant aspects, we quash the order passed by the Tribunal and observe that respondent No. 1 shall be reverted to the post of Tahsildar. It is however made clear that, in case, ultimately the first respondent is exonerated in the departmental proceedings, he will be given the benefit of promotion in accordance with the instructions, more particularly as per Paragraph 5 of G.O. Ms. No. 368 Personnel and Administrative Reforms Department dated 18.10.1995.
10. With the above observation, the writ petition is allowed. Consequently the connected WPMP is closed. No costs.