Judgment · High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.10..2009CORAM:THE HONOURABLE MR. JUSTICE R.SUDHAKARW.P. No.4346 of 2008.......V.ArumugamIndl. Co-operative Officer/Special Officer, Betherked INDCO Tea Factory Ltd.,Nilgiris. ...Petitioner Vs.

The State of Tamil Nadu, rep. By The Secretary to Government, Small Industries Department, Fort St. George, Chennai.9.

The Industries Commissioner and Director of Industries and Commerce, Chepauk, Chennai.5.

S. Sankar4.G. Jayapal5.R.Sivaprakasam6.K. Ramaswamy(R3 to R6 impleaded as per order dt. 27.2.2008 in MP No.3/2008) ... RespondentsPrayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the respondents to include the name of the petitioner in the panel for the post of Assistant Director of Industries and Commerce for the year 2006-2007and consequently to direct the respondents to appoint the petitioner as Assistant Director of Industries and Commerce for the year 2006-2007. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. U. Karunakaran for M/s. G. Periyaperumal For Respondents : Mrs. C.K.VishnupriyaAddl. Govt. Pleader – R1-R2 No Appearance – R3 to R6

O R D E RThis writ petition is filed by the petitioner to direct the respondents to include the name of the petitioner in the panel for the post of Assistant Director of Industries and Commerce for the year 2006-2007 and consequently to direct the respondents to appoint the petitioner as Assistant Director of Industries and Commerce for the year 2006-2007. 2. The petitioner was appointed as Industrial Co-operativeOfficer, which is the feeder category to the post of AssistantDirector, Industries and Commerce. The petitioner was eligible for promotion for the vacancies that arose in the year 2001. Itappears that the final proposal was not approved and the post was not filled up. The proposals were called for to prepare the panel for the year 2006-2007. The crucial date for preparing the panel asper Rule 2 of Section 19, Special Rules for the Tamil NaduIndustries Service (corrected upto 31.12.1999) is 15.4.2006.

Rule 2reads as follows:-" 2. A Crucial date for preparation of panel:-The crucial date on which the candidates shall possess the qualifications prescribed for the post, by promotion by transfer or by recruitment by transfer for purposes of inclusion in the annual list of approved candidates for appointment to such post shall be the 15th April of every year. "3. In the meanwhile, the petitioner was issued with the charge memo dated 20.4.2006, under Rule 17(a) of Tamil Nadu CivilServices (Discipline and Appeal) Rules (herein after referred to as"The Rules), and the charges related to default in payment of provident fund and failure to remit the employees contribution and certain other allegations which are not relevant for the present case. An explanation was submitted by the petitioner on 16.6.2006and the second respondent / Industries Commissioner and Director of Industries and Commerce by an order dated 11.12.2006 found that the petitioner was guilty of charges 1 and 2 and was exonerated with https://hcservices.ecourts.gov.in/hcservices/ regard to charge No.3.

He imposed the punishment on the petitioner as follows:-" For the charges held proved, I order withholding the next increment of V. Arumugam, Industrial Co-operativeOfficer, for a period of three months without cumulative effect. This will be exclusive of the period spent on leave. "Aggrieved thereby, an appeal was filed and the same is pending. However, the punishment imposed on the petitioner was given effect to during the period commencing from 1.7.2007 to 30.9.2007.

The present writ petition has been filed by the petitioner stating that his name has not been included in the promotion panel so as to appoint him as the Assistant Director of Industries and Commerce. An interim injunction was sought for against the respondents to refrain from publishing the panel for appointment to the post of Assistant Director of Industries and Commerce without including the name of the petitioner and such an order was granted and the same was vacated at the behest of one of the co-employee of the petitioner, who was about to retire. Whilepassing the interim order dated 28.2.2008, the Court directed the authorities to consider the name of the petitioner along with others for inclusion in the panel without reference to 17(a) charges. It is now pleaded by the petitioner that such order was not implemented and the writ petition itself has to be taken up for final disposal.

It is now stated by the learned counsel for the petitioner that the writ petitioner is about to retire in December2009 and therefore, sought for early disposal of the case.

Learned Additional Government Pleader as well as the counsel for the petitioner brought to the attention of the Court the various Government Orders, which will cover the present case.

On going through the Government orders and the Rulesstated above, it is clear that the name of the employees need not be excluded from the panel on the crucial date when there is no charge pending.

In this case, on the crucial date (i.e.) on 15.4.2006,no charges were pending. The charge memo was issued on 20.4.2006and the punishment was imposed on 11.12.2006. On the date of consideration i.e. on 12.2.2008, the punishment imposed was suffered during the period from 1.7.2007 to 30.9.2007. Therefore, the officer in this case was not undergoing the punishment on the crucial date i.e. on 15.4.2006 or on the date of consideration i.e.On 12.2.2008. There was no need to omit his name while preparing https://hcservices.ecourts.gov.in/hcservices/ the panel. The requirement under the Rules is that the charges should not be pending on the crucial date and the punishment should not be in force on the crucial date or the date of consideration. As has been stated above, none of the above said situation prevailed during the relevant time for omitting the name of the petitioner at the time of preparing the panel. To be more explicit, the charge memo was issued on 20.4.2006, punishment was suffered between 1.7.2007 to 30.9.2007 and therefore, on the crucial date that is on 15.4.2006 and the date of consideration that is on12.2.2008, there is no restraint on the respondents in including the name of the petitioner in the panel for promotion to the next higher post. The respondents have not produced any other Rule or Government Order to show that even where charges under Section 17(a) of the Rules are issued subsequent to the crucial date, the name has to be omitted. In any event, on the date of consideration, the punishment has already been suffered and therefore, there is no justification for withholding the name of the petitioner from the panel for promotion in the year 2006-07. The denial of such reliefis arbitrary and contrary to the Rules. The petitioner is entitled to the relief.

The respondents are therefore directed to include the name of the petitioner in the appropriate and relevant panel for promotion to the post of Assistant Director, Industries and Commerce. Such exercise shall be completed on or before 30.11.2009.This writ petition is ordered accordingly. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarraTo1. The State of Tamil Nadu, rep. By The Secretary to Government, Small Industries Department, Fort St. George, Chennai.9. https://hcservices.ecourts.gov.in/hcservices/

2. The Industries Commissioner and Director of Industries and Commerce, Chepauk, Chennai.5.+1cc to the Govt. Pleader Sr 55545+1cc to Mr.U.Karunakaran, Advocate Sr 55087MDR(CO)km/16.11. WP No. 4346 of 2008