High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.2.2009C O R A M :THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.6464 of 2006andW.P.M.P.No.6969 of 20061.The State of Tamil Nadu, rep.by its Secretary to Government,Revenue Department,Chennai-600 009.2.The Commissioner for RevenueAdministration, Chepauk,Chennai-5.3.The District Collector,Tiruchirappalli District. .. Petitioners-vs-1.Kumaresan2.The Registrar,Tamil Nadu Administrative Tribunal,Chennai-600 104. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari to call forthe records of the Hon'ble Tamil Nadu Administrative Tribunal,Chennai, the second respondent herein pertaining to the order dated13.1.2004 made in O.A.No.100 of 2004 and quash the same.For petitioners: Mrs.Sneha, GA For respondents : No appearance *****O R D E RK.CHANDRU, J. The first petitioner is the State of Tamil Nadu and along withtwo of its subordinates have filed the present writ petition https://hcservices.ecourts.gov.in/hcservices/ challenging the order of the Tamil Nadu Administrative Tribunal madein O.A.No.100 of 2004 dated 13.1.2004. By the aforesaid order, theTribunal has granted a direction to the petitioners to include thename of the first respondent in the panel for the post of DeputyCollector and also to promote him from the date on which his juniorwas promoted. Aggrieved by the said direction, the present writpetition was filed.2. In the writ petition, notice of motion was ordered on07.3.2006 and an interim stay was also granted on the same day whichis still in force.3. The case of the petitioners was that the first respondent whowas working as a Tahsildar in Tiruchirappalli Revenue Unit wasconsidered for promotion to the post of Deputy Collector for the year1999-2000. Since at that time, charges were pending under Rule 17(b)of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, dated08.5.1999, the same was deferred. For the very same reason, his namewas not included in the panel prepared for the years 2000-2001 and2001-2002. The first respondent filed an Original Application beforethe Tamil Nadu Administrative Tribunal being O.A.No.3095 of 2002challenging the charge memo dated 06.5.1999. The Tribunal did not setaside the said charge memo. But on the contrary, directed thepetitioners to complete the departmental enquiry within a period offour months.4. It is also stated that the petitioners filed another O.A beingO.A.No.3239 of 2002 before the Tribunal for the inclusion of his namein the panel for the post of Deputy Collector for the year 2000without reference to the disciplinary action. That case is said to bestill pending.5. In the meanwhile, the District Collector by an order dated01.1.2004 passed final orders and the charges levelled against thefirst respondent was dropped. In view of the dropping of the chargememo dated 08.5.1999, the petitioner filed O.A.No.100 of 2004 seekingfor a direction to promote him to the post of Deputy Collector. Whenthe O.A. came up for admission on 13.1.2004, the Tribunal on the verysame day, after directing the learned Standing Counsel for thepetitioner Government to take notice, passed the following orderfound in paragraphs 3 and 4:-''Para 3 : The District Collector, Tiruchirappalli by hisproceedings dated 1.1.2004 has exonerated theapplicant of all the charges and further actionhas been dropped. A copy of the order passed bythe District Collector is found in page 18 of thetyped set of papers, so now the applicant has beencleared of all the charges and according toG.O.Ms.No.368, P & AR department dated the panel https://hcservices.ecourts.gov.in/hcservices/ for 1999-2000 within 15 days after his exonerationand he must be given promotion on the date fromwhich his junior was promoted.Para 4. :Therefore, a direction is issued to therespondents to include the name of the applicantin the panel and also to promote him from the dateon which his junior was promoted. Orders shall bepassed within a period of eight weeks from thisdate."It is as against this order, the present writ petition was filed andan interim stay was granted as noted elsewhere.6. It was submitted by the learned Special Government Pleaderthat the petitioner Government in due obedience with the orders ofthe Tribunal had sent proposals to the Tamil Nadu Public ServiceCommission for including the first respondent's name in the list ofDeputy Collector for the year 1999-2000. It came to the notice of theGovernment that a criminal case was registered by the Vigilance andAnti-Corruption police against the first respondent being Crime No.4of 2004 for having demanded and accepted Rs.50,000/- from oneVeeramani for the return of the EMD kept with the first respondentand that the first respondent was also arrested on the same day. Hewas also placed under suspension with effect from 10.6.2004.Therefore, in the light of the subsequent developments, the firstrespondent is not a fit person to be granted any promotion especiallywhen in the present post he is facing not only serious charges butalso criminal case and he is also kept under suspension. The learnedSpecial Government Pleader also drew the attention of this Court thatthe order of the Tribunal impugned in the writ petition was totallyerroneous and no direction can be given by the Tribunal for promotionto the post of Deputy Collector without even issuing notice to theGovernment. It was wrong on the part of the Tribunal that such adirection was given even at the admission stage by merely directingthe standing counsel to take notice.7. Reference was also made to the judgment of the Supreme Courtin State of Madhya Pradesh -vs- Srikant Chaphekar reported in AIR1993 SC 1221. Reliance was placed on the following passage found inparagraph 4 of the judgment:-''Para 4 : We are of the view that the Tribunal fell intopatent error in substituted itself for the DPC. Theremarks in the annual confidential report are basedon the assessment of the work and conduct of theofficial/officer concerned for a period of one year.The Tribunal was wholly unjustified in reaching theconclusion that the remarks were vague and of generalnature. In any case, the Tribunal out-stepped itsjurisdiction in reaching the conclusion that theadverse remarks were not sufficient to deny therespondent his promotion to the post of Deputy https://hcservices.ecourts.gov.in/hcservices/ Director. It is not the function of the Tribunal toassess the service record of a Government servant andorder his promotion on that basis. It is for the DPCto evaluate the same and make recommendations basedon such evaluation. This Court has repeatedly heldthat in a case where the Court/Tribunal come to theconclusion that a person was not considered forpromotion or the consideration was illegal than, theonly direction which can be given is to reconsiderhis case in accordance with law. It was not withinthe competence of the Tribunal, in the fact of thepresent case, to have ordered deemed promotion of therespondent." (Emphasis Added)The learned counsel also produced an order dated 10.12.2005 issued bythe third petitioner granting sanction for prosecution of the firstrespondent in terms of section 19(1)(c) of the Prevention ofCorruption Act, 1988 to prosecute the first respondent. In that viewof the matter, he prayed for setting aside the order of the Tribunalgiving time limit to promote the first respondent.8. A perusal of the record produced along with the writ petitionclearly shows that the first respondent has been chargesheeted by achargememo dated 25.10.2004 framed under Rule 17(b) of the Tamil NaduCivil Services (Discipline and Appeal) Rules. In that view of thematter, we find that it was not proper for the Tribunal to havedirected even at the stage of admission of the Original Applicationto promote the first respondent. If only a notice was ordered to thepetitioners, the subsequent development would have come to the noticeof the Tribunal. We deprecate the practice of the Tribunal ingranting a positive direction even at the stage of admission withoutcalling for return from the contesting respondents in the O.A. Asalready observed by the Supreme Court in Srikant Chaphekar case(cited supra), the Tribunal can only give direction to the Governmentto consider and it cannot give any positive direction for promotion. 9. In the light of the above, the writ petition stands allowedand the order of the Tribunal will stand set aside. However, therewill be no order as to costs. Consequently, the connectedmiscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ js ToThe Registrar,Tamil Nadu Administrative Tribunal,Chennai-600 104. 1 cc To The Government Pleader, SR.No.5009 W.P.No.6464 of 2006andWPMP.NO.6969 of 2006PUR(CO)SRA(4/3/2009)