Madras High Court
K. Thirunavukkarasu vs State Of Tamil Nadu on 7 March, 2006
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07/03/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.32007 of 2005
K. Thirunavukkarasu ... Petitioner
-Vs-
1. State of Tamil Nadu,
rep.by the Secretary to the Government,
Co-Operation, Food and
Consumer Protection Department
Secretariat, Chennai 600 009.
2. The Registrar of Co-Operative Societies,
Kilpauk,
Chennai 600 010. ... Respondents
This writ petition came to be numbered by way of transfer of
O.A.No.5350 of 2000 from the file of the Tamil Nadu Administrative Tribunal
with a prayer to direct the respondents to include the name of the petitioner
in the panel of Deputy Registrars of Co-Operative Societies for the year
1998-99 issued by the first respondent in G.O.Ms.No.94, Co-Operation, Food and
Consumer Protection Department dated 19.5.2000 according to the feeder
category seniority of the petitioner.
!For Petitioner : Mr.S.Vadivelu
For Respondents : Mr.R.Lakshminarayanan
Government Advocate
:O R D E R
Prayer in the writ petition is to include petitioner's name in the panel of Deputy Registrars of Co-Operative Societies for the year 1998 -99 issued by the first respondent in G.O.Ms.No.94, Co-Operation, Food and Consumer Protection Department dated 19.5.2000 according to the feeder category seniority of the petitioner.
2. The brief facts necessary for disposal of the writ petition are as follows,
(a) Petitioner entered into the service of the Co-Operative Department on 16.9.1970 and subsequently promoted as Senior Inspector. On 21 .4.1988 he was further promoted as Co-operative Sub Registrar and he has been serving as such for more than 12 years.
(b) The case of the petitioner is that his name was due for inclusion in the panel of Deputy Registrar for the year 1998-99, which was issued by the first respondent in G.O.Ms.No.94, dated 19.5.2000, but his name was not included, whereas number of his juniors were included in the above panel.
(c) Petitioner stated in the affidavit that from 8.6.1981 to 15.9.19 82 he was working as Senior Inspector/Special Officer in the Kumbakonam Co-Operative Urban Bank and after nearly eight years, that is on 2 8.11.1989, a charge memo under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued and also a criminal case in C.C.No.21 of 1993 was filed against him and one Haridoss. Subsequently the petitioner was acquitted of the charge by judgment dated 8.11.1995, but in the departmental proceedings, the Joint Registrar, Tanjore Region passed an order on 29.4.1998 and imposed a punishment of stoppage of increment for a period of six months and the said punishment was given effect from 1.7.1998. The appeal filed against the said order was dismissed on 18.5.1999 and the revision before the Government was also rejected on 11.4.2000.
(d) Petitioner further states that he served as Co-Operative SubRegistrar in Myladuthurai during the period from 22.8.1991 to 30.9.1993 and for a delinquency said to have been taken place during the said period a charge memo under rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued alleging that the petitioner gave promotion to an employee by name Anantharaman without the approval of the Deputy Registrar of Co-Operative Societies and also made consequential promotion of another employee by name Murugan. The another charge was that the petitioner paid an increment of Rs.25/- to an employee instead of Rs.20/-, the excess amount was however recovered from the concerned employee. For the said charges, the petitioner was imposed with the punishment of stoppage of increment for one year without cumulative effect by proceeding dated 31.12.1994. On appeal, the Joint Registrar reduced the punishment of stoppage of increment from one year to six months without cumulative effect by proceedings dated 4.7.1997. The revision filed before the Registrar of Cooperative Societies was dismissed. In the further revision filed before the Government, no order was passed.
(e) Petitioner further states that the stoppage of increment for six months was implemented from 1.7.1995. The crucial date for consideration of panel of Deputy Registrar of Co-Operative Societies by the department is 1.10.1997. Thus, according to the petitioner as on 1.10 .1997, the punishment of stoppage of increment for the period of six months dated 31.12.1994 was not in currency and in fact the punishment was imposed only on 29.4.1998 for the alleged lapse, which took place in 1981-82, nearly 18 years before the crucial date. Petitioner also states that as per the instructions issued by the Government in letter No.52716/S/99-1 dated 1.10.1999 for the irregularity that occurred five years prior to the crucial date, punishment need not be held against the officer. Citing the said Government letter, petitioner is seeking to include his name in the panel of Deputy Registrar.
(f) According to the petitioner, the stoppage of increment for a period of six months imposed on the petitioner on 31.12.1994 in respect of Myladuthurai Urban Bank was already given effect to from 1.7.1995 and that the said punishment was over. In so far as the punishment of stoppage of increment for six months dated 29.4.1998 in respect of Kumbakonam Urban Bank relates to an event that took place 18 years before and that too the charge memo was issued under rule 17(a). As per the instructions issued by the Government referred to above, if the incident took place prior to five years, the punishment should be ignored and the delay in passing the order in respect of the charge memo dated 28.11.1989, that is nine years in respect of incident which had taken place 18 years before and which ended in punishment of stoppage of increment for a period of six months, cannot be held against the petitioner. Therefore, the petitioner prayed to include his name in the panel which was drawn taking note of 1.10.1997 as crucial date.
3. The respondents have been served as early as in the year 2000, but no counter affidavit was filed either before the Tribunal or before this Court to controvert the averments made in the affidavit.
4. The learned counsel for the petitioner argued that the petitioner's name was left or passed over due to the pendency of the charge memo issued under Rule 17(a) of the Tamil Nadu Civil Services ( Discipline and Appeal) Rules and as per the government letter dated 20.10.1997 , pendency of the charge framed under Rule 17(a) need not be held against the Officer, irrespective of the seriousness of the delinquency and only in respect of the pendency of charges framed under rule 17( b), the name of a candidate can be deferred from consideration. Learned counsel also submitted that whenever there is currency of punishment on the crucial date, name should be passed over at the time of first consideration, irrespective of the time of occurrence of the irregularity and if the currency of the punishment continues at the time of subsequent consideration for the next panel, then the name can be included in the panel on the basis that his name should not be passed over for the second time on account of the same punishment. Relying upon the said clause in the Government Letter dated 20.10.1997, the learned counsel for the petitioner argued that as on 1.10.1997, the crucial date, there was no punishment and only the charge under rule 17 (a) was pending.
5. The learned Government Advocate argued that in view of the pendency of the charge memo, the name of the petitioner was deferred from consideration.
6. I have considered the submissions made by the learned counsel for the petitioner as well as the learned Government Advocate. In so far as the punishment imposed for the charge issued under rule 17(b) is concerned, the punishment period was already over. In so far as the panel published in the year 2000, as rightly contended by the learned counsel for the petitioner, the crucial date was not only 1.10.1997 , but there was no punishment and the punishment imposed was only on 29.4.1998. The only charge pending against the petitioner on the crucial date was the one issued under rule 17(a). Therefore there is no justification on the part of the respondents in not considering the petitioner's name for inclusion in the panel prepared and published in G.O.Ms.No.94, dated 19.5.2000, wherein the crucial date was admittedly 1.10.1997. The said Government Letter clearly establishes the right of the petitioner for inclusion of his name in the panel since the charge pending was only under rule 17(a). The earlier punishment imposed against the petitioner was not only over, but also the charge relates to the period 18 years prior to the crucial date. Therefore, the same cannot be an impediment for consideration of petitioner's name for inclusion in the panel as on 1.10.1997.
7. A more or less similar matter was considered by this Court in W. P.No.11511 of 2002 (K.Selvarajan v. The Secretary to Government, Department of Health & Family Welfare, Government of Tamil Nadu, Chennai-9 and two others) and a Division Bench of this Court by order dated 1.10.2004 held as follows, ".... we feel interest of justice would be served by directing the respondents to consider the case of the petitioner for inclusion in the panel prepared in December, 1999, if the same was not considered during the said year and thereafter, give notional promotion to the petitioner, if the facts and circumstances so warrant."
8. Taking guidance from the above cited order of the Division Bench, I am of the view that the prayer of the petitioner to include his name in the panel of Deputy Registrar of Co-operative Societies for the year 1998-99 issued by the first respondent in G.O.Ms.No.94, Cooperation, Food and Consumer Protection Department, dated 19.5.2000 according to the feeder category seniority of the petitioner is bound to be accepted taking note of the crucial date as 1.10.1997.
9. At this juncture, learned counsel for the petitioner submitted that the petitioner retired from service as early as on 31.5.2005 and if his name is to be included and promotion given, it can be given only notionally for the purpose of fixing his correct pay and allowances.
10. As the petitioner has already retired from service on 31.5.2005 itself, the respondents are directed to include the name of the petitioner in the panel of Deputy Registrar of Co-operative Societies for the year 1998-99 according tot he feeder category seniority of the petitioner and if found fit to be promoted, petitioner may be given notional promotion, fix the pay and allowances and calculate the arrears and pay the same to the petitioner within a period of six weeks from the date of receipt of copy of this order.
The writ petition is ordered in the above terms. No costs.
vr To
1. The Secretary to the Government, Co-Operation, Food and Consumer Protection Department Secretariat, Chennai 600 009.
2. The Registrar of Co-Operative Societies, Kilpauk, Chennai 600 010.
W.P.M.P.No.8307 of 2006in W.P.No.32007 of 2005 N. PAUL VASANTHAKUMAR, J.
The above petition is filed to modify paragraphs 9 and 10 of the order dated 7.3.2006 made in W.P.No.32007 of 2005.
2. The petitioner has filed an affidavit on 27.3.2006, wherein it is stated that the petitioner is due to retire from service only on 31 .5.2006 instead of 31.5.2005 and accordingly prayed this Court to modify the order dated 7.3.2006 made in W.P.No.32007 of 2005.
3. Taking note of the submission made by the learned counsel for the petitioner only, the order dated 7.3.2006 has been passed and accordingly, in the operative portion of the judgment i.e. in paragraph 9 of the order, it is stated that the petitioner retired from service as early as on 31.5.2005 and if his name is to be included and promotion given, it can be given only notionally for the purpose of fixing his correct pay and allowances and in paragraph 10 it is stated that the petitioner having already retired from service on 31.5.2005 itself, the respondents are directed to include the name of the petitioner in the panel of Deputy Registrar of Co-operative Societies for the year 1998-99 according to the feeder category seniority of the petitioner and if found fit to be promoted, petitioner may be given notional promotion, fix the pay and allowances and calculate the arrears and pay the same to the petitioner within a period of six weeks from the date of receipt of copy of that order.
4. In view of the fact that the petitioner is due to retire only on 31.5.2006 as stated in the affidavit referred to above, paragraphs 9 and 10 of the order dated 7.3.2006 made in W.P.No.32007 of 2005 is modified as follows:
"The respondents are directed to include the name of the petitioner in the panel of Deputy Registrar of Co-operative Societies for the year 1998-99 according to the feeder category seniority of the petitioner and if found fit to be promoted, petitioner shall be given promotion, fix the pay and allowances and calculate the arrears and pay the same to the petitioner, if he is eligible to be promoted, within a period of six weeks from the date of receipt of copy of this order."
31.3.2006 msk