P.Sreenivas Sundar v. The Secretary to Government Public Works Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 06-01-2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.Nos.22393 and 24123 of 2008and connected miscellaneous petitions......P.Sreenivas Sundar... Petitioner in both WPs.vs.The Secretary to GovernmentPublic Works DepartmentFort St.GeorgeChennai 600 009.... Respondent in both WPs.Writ petitions filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamus andMandamus as stated therein.For petitioner: Ms.P.Selvi GeorgeFor respondent: Mr.P.S.Raman,Addl.Advocate General assisted by Mrs.Lita Srinivasan, Government Advocate ..COMMON ORDERThe writ petitioner in both the cases is one and the same. InW.P.No.22393 of 2008, the writ petitioner seeks to quash the G.O.(D) No.461 Public Works (A2) Department, dated 5.9.2008 by whichthe post of the petitioner as Superintending Engineer was upgradedas Special Chief Engineer and also to direct the respondent topromote the petitioner as a Chief Engineer. In W.P.No.24123 of2008, the petitioner seeks a direction against the respondent toconsider the representation of the petitioner dated 12.9.2008 bywhich he seeks for refixation of his pay from 1998-99 onwards asExecutive Engineer then as Superintending Engineer and thereafteras Chief Engineer with effect from 30.6.2006 onwards.2. The petitioner joined in the respondent Department asAssistant Engineer on 4.10.1972 and his services were regularisedafter he appeared in the examinations conducted by the Tamil NaduPublic Service Commission with effect from 4.10.1972. He waspromoted as Assistant Executive Engineer in November, 1984. Whilehe was working as Assistant Executive Engineer (Building) atNagercoil in 1993, the Government has proposed to instal steamlaundry equipments in 16 Government Hospitals. Out of the estimatesanctioned by the Chief Engineer viz., Rs.55,00,000/- for the saidwork, Rs.37 lakhs was earmarked for procurement of steam laundryequipments based on the tentative estimate prepared and the https://hcservices.ecourts.gov.in/hcservices/ Government has also released the fund in March, 1993. 3. It is the case of the petitioner that the SuperintendingEngineer, Madurai under whom he was working chose to split themachinery portion of the work into four parts casting less thanRs.10 lakhs each and called for quotations from Co-operativeSocieties registered under Tamil Nadu Khadi and Village IndustriesBoard, Chennai and supply orders were given to four Co-operativeSocieties by the Superintending Engineer. On the basis ofvigilance enquiry, investigation was ordered against theSuperintending Engineer including prosecution. The Government hasinitiated disciplinary proceedings against the petitioner being theAssistant Executive Engineer and other Executive Engineers underRule 17(b) of T.N.C.S. (D & A) Rules, 1976 for obeying orders ofthe Superintending Engineer and issuing cheques to the Co-operative Societies. The petitioner has submitted his explanation.The disciplinary proceedings were not concluded in spite of lapseof three years and in the meantime, the petitioner became eligiblefor promotion for the post of Executive Engineer in 1998. Due tothe pendency of proceedings, the petitioner's name was overlookedand his junior was promoted. 4. It was, three years after the issue of charge sheet, anEnquiry Officer was appointed on 18.2.1999 and to the EnquiryOfficer's report which was communicated on 26.5.2000, thepetitioner submitted his explanation. It was on 5.4.2002, therespondent passed orders of punishment against the petitioner ofstoppage of increment for one year without cumulative effect. Thereview filed was rejected by the Government on 10.12.2004. Thesaid punishment was challenged by the petitioner in W.P.No.26973 of2007 and this Court, by order dated 18.6.2008, set aside thepunishment imposed on the petitioner holding that the charges arenot maintainable. Since the respondent has not restored thepetitioner's original seniority in the category of ExecutiveEngineer, for the inclusion of his name in the panel ofSuperintending Engineer for 2005-06, he filed W.P.No.11084 of 2006.Both the writ petitions were allowed by this Court with directionto the respondent to promote the petitioner as SuperintendingEngineer from the date of promotion given to his juniors and alsoto give subsequent promotion as Chief Engineer if found eligible.The petitioner was due to retire on superannuation on 31.10.2008.In the panel for Chief Engineer issued in G.O.(D) No.371 PublicWorks (A1) Department, dated 4.8.2008, the petitioner's name wasnot included and that was challenged in W.P.No.19240 of 2008. Byorder dated 8.9.2008, the respondent cancelled the punishmentearlier awarded to the petitioner on 5.4.2002 and the subsequentreview order issued in G.O.(D) No.758 Public Works Department dated12.10.2004. By the impugned G.O.(D) No.461, Public Works (A2)Department dated 5.9.2008, the respondent has upgraded the post ofSuperintending Engineer as Special Chief Engineer. The grievanceof the petitioner is that upgrading of the post of SuperintendingEngineer as that of Special Chief Engineer cannot be termed to bein accordance with the orders passed by this Court in writpetitions. https://hcservices.ecourts.gov.in/hcservices/

5. In the counter affidavit filed by the respondent, therespondent has clearly stated that pursuant to the order of thisCourt, by resorting to original seniority, the petitioner wasordered to be entitled for notional promotion as ExecutiveEngineer, Superintending Engineer and Chief Engineer if he isfound eligible. According to the respondent, as perG.O.Ms.No.245, Public Works (A2) Department, dated 8.8.2007, aSuperintending Engineer is fit for promotion as Chief Engineer inPublic Works Department provided he has a minimum period of oneyear of left over service before retirement at the time of actualpromotion. Since the petitioner was having less than one year leftover service, having been promoted as Superintending Engineer on12.3.2003, he was found not eligible for the actual promotion tothe post of Chief Engineer who is the Head of Public WorksDepartment. It is further stated by the respondent that inaccordance with the contents of G.O.Ms.No.631, Public Works (A2)Department dated 23.10.1997, the petitioner was given appointmentas Special Chief Engineer, Public Works Department with the samemonetary benefit as that of Chief Engineer from the actual date ofassumption of charge of the post. The respondent has also statedthat the petitioner has not chosen to join in the post of SpecialChief Engineer till his date of retirement and therefore on31.10.2008 the petitioner retired as Superintending Engineer andthere is no lapse on the part of the respondent. It is also statedthat the petitioner has been actually promoted as Special ChiefEngineer with the same monetary benefit as that of Chief Engineerand the petitioner was duly considered for promotion and appointedas Special Chief Engineer according to his eligibility conditionsas per Special Rules. 6. At the outset, it has to be noted that admittedly, thepetitioner has not taken charge as Special Chief Engineer of therespondent Department till the date of his retirement viz.,31.10.2008 and on the said date he remained as SuperintendingEngineer. It is also relevant to point out that it is the specificcase of the petitioner in the affidavit filed that fixation ofseniority in respect of the petitioner is correct, however theorder of upgradation upgrading the post of Special Chief Engineercannot be termed as strict compliance of the orders of this Court.In this regard, it is relevant to note that in W.P.Nos.26973 of2007 and 11084 of 2006 filed by the petitioner, while setting asidethe order of punishment on the basis that the charges are notmaintainable, this Court passed the following order:"In the light of the above finding of the EnquiryOfficer as well as the findings given by me, I hold that thecharge memo issued against the petitioner is notmaintainable and the consequential punishment ofwithholding increment for one year without cumulative effectimposed on the petitioner by the disciplinary authority asconfirmed in review, is liable to be set aside.17. In W.P.No.11084 of 2006, petitioner has prayed toquash the order dated 13.3.2006 passed by the fistrespondent declining to restore his original seniority inthe category of Executive Engineer and for subsequent https://hcservices.ecourts.gov.in/hcservices/ inclusion in the panel of Executive Engineers fit forpromotion as Superintending Engineer for 2005-2006. Thesaid order was passed by the first respondent on the basisof pendency of 17(b) charges against the petitioner as wellas the order of punishment imposed on the petitioner. Thesaid charges having been found unsustainable and thepunishment order having been set aside, petitioner isentitled to succeed and therefore the impugned order in theabove writ petition is also set aside. The first respondentis directed to promote the petitioner as Executive Engineerwith effect from 1998-1999 notionally without monetarybenefit and subsequently promote him as SuperintendingEngineer from the date of promotion given to his juniors asSuperintending Engineer and also give subsequent promotionas Chief Engineer, if he is found eligible. Since there isdelay on the part of the petitioner in challenging the orderof punishment, petitioner is not entitled to get monetarybenefits. Petitioner is due to retire from his service on31.10.2008. Taking note of the said fact, the firstrespondent is directed to pass orders as directed above,within a period of four weeks from the date of receipt ofcopy of this order."7. It is relevant to point out that the direction given bythis Court in respect of promotion to the petitioner as ChiefEngineer was only subject to his eligibility and as far as thepromotion as Superintending Engineer is concerned, there was apositive direction to give the same from the date of promotion tohis juniors and as far as the promotion to the post of ExecutiveEngineer is concerned, it was directed to be given notionally from1998-1999. In the light of the specific order of this Court, itcannot be stated that the impugned order is against the terms ofthe order passed by this Court in the above said writ petitions. 8. The fact that as per the Rules, a person to be ChiefEngineer must have one year of left over service from the date ofretirement is not in dispute. In this regard, the necessaryamendment as found in G.O.(Ms) No.245, Public Works (A2) Departmentdated 8.8.2007 is as follows: "In the said Special Rules, in Part II, under the heading'Branch I – Public Works' in the Table under rule 5, abovethe category 'Superintending Engineer' in column (1) and theentries relating thereto in columns (2) and (3)respectively, the entries 'Chief Engineer', 'promotion' and'must have a minimum period of one year of left over servicebefore retirement at the time of actual promotion' shall beinserted in columns (1), (2) and (3) respectively."On the facts of the case, it is seen that from the date ofpromotion of petitioner as Superintending Engineer till the date ofretirement, there was less than one year period and therefore, thecontents of the impugned order that it was due to that reason, thepetitioner became not eligible to be appointed as Chief Engineerand by treating the petitioner's case as a special case, theSuperintending Engineer post was upgraded as Chief Engineer and the https://hcservices.ecourts.gov.in/hcservices/ petitioner was promoted to be posted as Special Chief Engineer arenot illegal or cannot be termed as against law. A reference to theimpugned order makes it clear that the said appointment of thepetitioner as Special Chief Engineer has in fact been made as perthe direction given by this Court as stated above. However, in myconsidered view, because the petitioner has not chosen to join thepost of Special Chief Engineer after upgradation of the post, itcannot be stated that the petitioner is not entitled for thebenefits to retire as Special Chief Engineer on the date ofsuperannuation viz., 31.10.2008.9. It is also relevant at this point to note that it is thecategorical stand of the respondent that the petitioner is entitledto the benefits of Chief Engineer even though the post ofSuperintending Engineer was upgraded as Special Chief Engineer. Insuch view of the matter, there is absolutely no illegality in theimpugned order of the respondent. In view of the same, the writpetition W.P.No.22393 of 2008 stands dismissed, however, with adirection to the respondent to treat the petitioner as havingretired as Special Chief Engineer with the benefits due as per law.In this view, the respondent shall consider the representation ofthe petitioner dated 12.9.2008 and pass appropriate ordersexpeditiously, in any event within a period of four weeks from thedate of receipt of copy of this order. W.P.No.24123 of 2008 isordered accordingly. No costs in both the writ petitions.Connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhToThe Secretary to GovernmentPublic Works DepartmentFort St.GeorgeChennai 600 009.1 cc To M/s. Selvi George, Advocate, SR.5861 cc To The Government Pleader, SR.496W.P.Nos.22393 & 24123/2008MA(CO)SRA(19/01/2009)