D.Silatham Selvaraj v. The Commissioner and Secretary to Government, Health and Family Welfare Dept., Secretariat, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.06.2009CORAMTHE HONOURABLE MR.JUSTICE S.RAJESWARANW.P. No.6809 of 2007 (T)(O.A.No.200 of 2002)D.Silatham Selvaraj... Petitioner Vs1 The Commissioner and Secretary to Government, Health and Family Welfare Dept., Secretariat, Chennai 9.2 The Director of Medical and Rural Health Services, Chennai 6. ... RespondentsThis petition came to be numbered on transfer of O.A.No.200 of2002 from the file of the Tamil Nadu Administrative Tribunal, tocall for the records connected with the impugned order passed bythe second respondent in R.Dis. No.31/E9/2/2000 dated 10.02.2000 andquash the same and consequently direct the second respondent topromote the applicant as Superintendent from the date on which hisnext junior was promoted as Superintendent with all other attendantmonetary and other service benefits. For Petitioner : Mr.RengaramanujamFor Respondents : Mr.Edwin Prabhakar, A.G.P.

O R D E R The petitioner is challenging the order passed by the secondrespondent in R.Dis. No.31/E9/2/2000 dated 10.02.2000 and seeks toquash the same and consequently direct the second respondent topromote the applicant as Superintendent from the date on which hisnext junior was promoted as Superintendent with all other attendantmonetary and other service benefits.2 The petitioner was appointed as Junior Assistant and joinedon 15.12.1972 in the medical department. When he was working as https://hcservices.ecourts.gov.in/hcservices/ Junior Assistant in Ramanathapuram, a charge memo dt.23.05.1986 wasissued by the second respondent alleging that he misguided hishigher officer by putting up an Office Note to the District MedicalOfficer and thereby caused a loss of Rs.16,093.60. The petitionersubmitted his explanation denying the charges and according to himhe never put up any office note as alleged in the charge memo.

Inthe enquiry conducted, the enquiry officer found that the chargeswere not proved. Accepting the enquiry report the first respondentcame to the conclusion that the charges were not proved and issueda warning and instructed the petitioner to guard himself from suchlapses in future.3 The petitioner was due for promotion in the year 1988 andall his juniors were promoted in the year 1988 itself. His namecould not be considered for promotion as the disciplinaryproceedings were pending against him. In the meantime, apart frompassing the departmental examination a pass in the D.O.M. Test wasalso included for qualifying to hold the post of Assistant. Thiswas challenged by some affected persons before the Tribunal in theyear 1989 and on 23.05.1991 the Tribunal passed final orders inthose applications. Thereafter, a revised panel was prepared withthose who are qualifying upto 15.03.1991, since the crucial date ofpromotion to the post of Assistant is 15th March every year.

Basedon the above list as on 15.03.1991, a revised panel for the vacancyfor the year 1988 to 1991 was prepared and separate panels for eachof the above years were drawn by the second respondent on22.06.1992. The petitioner was included in the panel for promotionto the post of Assistant for the year 1988-89. However, he waspromoted in the year 1992 only and joined as Assistant on16.11.1992. The petitioner made a representation to the secondrespondent claiming for promotion as Assistant from the date onwhich his immediate junior was promoted but the same was rejectedby the second respondent on 13.05.1996. The petitioner madeanother representation on 15.12.1998 and this was also rejected bythe second respondent on 10.02.2000 stating that the G.O. and the Government letter on which the petitioner placed his reliance arenot applicable. Aggrieved by the order dt.10.02.2000 passed by thesecond respondent the petitioner approached the Tribunal to quashthe order dt.10.02.2000 and to promote him from the date on whichhis immediate junior was promoted as Assistant i.e., from15.04.1988, with all consequential benefits.4 I have heard the learned counsel for the petitioner and thelearned Additional Government Pleader for the respondents.

I havealso gone through the entire documents available on record. 5 The learned counsel for the petitioner submits that againstthe charge memo dt.23.05.1986, an enquiry was conducted and theenquiry officer in his report clearly stated that there is no https://hcservices.ecourts.gov.in/hcservices/ recorded evidence to prove the charges framed against thepetitioner. Accepting the report, the first respondent also heldin his order dt.19.11.1990 that the charge was not proved at all. However, a warning was administered to guard the petitioner againstsuch lapses in future. The learned counsel submits that his namewas not considered for the post of Assistant when it was due as thedisciplinary proceeding was pending against him. When he wasexonerated from the charges, the respondents then should considerhis name for promotion on the date when his immediate junior waspromoted. But the warning administered on 19.11.1990 was putagainst him and he was promoted in the year 1992 only.

The learnedcounsel seriously contends that the warning is not a punishmentunder Rule 8 of the Tamil Nadu Civil Services (C.C.A.) Rules andtherefore the order of the second respondent is to be set aside andthe petitioner is to be promoted with all consequential reliefs.6 I find force in the submission made by the learned counselfor the petitioner and I reject the contra arguments made by thelearned Additional Govt. Pleader.7 Admittedly, the petitioner name was not considered when hisimmediate junior was promoted as Assistant on 15.04.1988 asdisciplinary proceedings were pending against him. After theenquiry was over, the enquiry officer gave a clear chit to thepetitioner which was also accepted by the first respondent in hisorder dt.19.11.1990. Even though the first respondent held thatthe charge was not proved he chose to administer a warning toguard the petitioner against such lapses in future.

This issuanceof warning is put against the petitioner for his retrospectivepromotion.8 I am of the considered view that this issuance of warningshould not be held against the petitioner for considering thepetitioner to the post of Assistant on or from 15.04.1988 when hisimmediate junior was promoted. Once the petitioner came outunscathed in the disciplinary proceedings and once the respondentsconcluded that the charges are not proved, then the petitioner'sname should be considered for promotion when it became dueirrespective of the fact that a warning was administered in thevery same order in which disciplinary authority accepted thefindings of the enquiry officer that the charges are not proved. Hence, I have no hesitation in setting aside the order of thesecond respondent dt.10.02.2000 and accordingly, set aside. Further, the second respondent is directed to promote thepetitioner to the post of Assistant and further to the post of Superintendent as and when his immediate junior was promoted as Assistant and Superintendent.