High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated 02.02.2007CoramThe Hon'ble Mr. Justice K.CHANDRUW.P. Nos.22389 and 24781 of 2006andM.P.No.1 of 2006 in W.P.No.22389 of 2006 andM.P.No.1 of 2006 in W.P.No.24781 of 2006 K.Shanmugasundaram.. Petitioner in W.P.No.22389 of 2006S.Kalaivanan.. Petitioner in W.P.No.24781 of 2006vs.1. The Government of Tamil NaduRep. by its SecretaryHighways DepartmentFort St. GeorgeChennai-92.The Chief Engineer (G)Highways and Rural WorksChepauk, Chennai-5 .. Respondents in both W.Ps.Petitions filed under Article 226 of the Constitution of Indiaseeking for issue of writ of Mandamus directing the second respondent togive posting orders to the petitioners in the promoted post of AssistantDivisional Engineer pursuant to the order of promotion issued inG.O.Ms.No.57 Highways (H.K.1) Department dated 17.3.2006.within timeframe. For Petitioner : Mr.V.Sanjeevi For Respondents : Mr.V.R.Thangavelu, G.A.C O M M O N O R D E RSince the facts involved in both the petitions are identical, thewrit petitions are taken together and a common order is passed.2.I have heard the arguments of Mr.V.Sanjeevi, learned counselappearing for the petitioners and Mr.V.R.Thangavelu, learned GovernmentAdvocate representing the respondents and have perused the records.3.In both the writ petitions, the petitioners are seeking for adirection to the second respondent to give posting orders to the https://hcservices.ecourts.gov.in/hcservices/ petitioners in the promoted post of Assistant Divisional Engineerpursuant to the order of promotion issued in G.O.Ms.No.57 Highways(H.K.1) Department dated 17.3.2006 within a time frame fixed by thisCourt.4.Mr.K.Shanmugasundaram, the petitioner in W.P.No.22389 of 2006,was working as an Additional Panchayat Union Engineer, PullambodyPanchayat Union at the relevant time and Mr.Kalaivanan was working asan Assistant Engineer in the National Highways Quality Control sectionat Tiruchirapalli. In the case of the petitioner in W.P.No.22389 of2006, it is stated that by G.O.Ms.No.57, Highways (HK 1) Departmentdated 17.3.2006 issued by the Government, they are to be temporarilypromoted as Assistant Divisional Engineer in Category 4 of the TamilNadu Highways Engineering Services with effect from the date of theirassumption of duty based on the posting orders issued by the ChiefEngineer, Highways Department, the petitioners' names are found asserial No.41 and 22 respectively. It is also stated that on receiptof the said order, the second respondent did not give any posting order,which prompted the petitioner in W.P.No.22389 of 2006 to write a letterdated 09.5.2006 to the second respondent stating that at the time whenthe promotion order was made, a report was sent by the Panchayat UnionCommissioner that there was no charges pending against him vide hisletter dated 02.8.2005 and, therefore, when the Government issued orderdated 17.3.2006 promoting the petitioner temporarily, there was noimpediment to assume charge. However, it is stated by him that on24.4.2006, he received a letter from the second respondent enclosing acharge memo given to him under Rule 17(B) of the Tamil Nadu CivilServices (Discipline and Appeal) Rules and according to him, thesubsequent charge memo should not be used as a tool to deny himpromotion which was accorded to him earlier. When he did not receiveany reply and when he found that 114 persons, who were found in theGovernment Order, have been given necessary posting orders, and he andthe petitioner in the other writ petition alone have been denied postingorder, which is illegal, filed the writ petition being W.P.No.22389 of2006.5.The petitioner in W.P.No.24781 of 2006 more or less had thesimilar grounds and by the very same G.O., he was promoted as AssistantDivisional Engineer and he was also not given any consequential postingorder despite a request has been made him vide letter dated 28.7.2006.He has also filed a writ petition being W.P.No.24781 of 2006 for similarrelief. 6.However, the learned counsel appearing for the petitionersfairly submitted that the petitioner in the latter writ petition, viz.,Kalaivanan, has received a proceedings from the Tribunal fordisciplinary action vide letter dated 30.3.2006 in which charges havebeen framed against him and the charge relates to violation of Rule 20(1) of the Tamil Nadu Government Servants Conduct Rules and thisinvolves misappropriation and falsification of records of the NominalMuster Rolls for the period 1998 - 2003 amounting to Rs.5,73,660/-.It is not indicated in the said order as to when the reference was made https://hcservices.ecourts.gov.in/hcservices/ to the Tribunal for disciplinary proceedings. However, the fact ofthe matter in both the cases is that the petitioners are facing seriouscharges and they are claiming the right of promotion only on the basisof the promotion order made by the Government vide G.O.Ms.No.57 Highways(HK 1) Department dated 17.3.2006. It is also an admitted fact thatboth of them have not received any posting order and it has beenwithheld for the reason that there has been disciplinary proceedingsinitiated against them. It is the contention of the learned counselfor the petitioners that the subsequent disciplinary action takenagainst them will not enable the Department to withhold givingconsequential posting orders and they are entitled to enforce the orderof the Government in this regard. 7.In the case of the petitioner in W.P.No.22389 of 2006, it isseen from annexure 3 to the charge memo that a report was sent by theExecutive Engineer, Rural Development – cum – Assistant Project Officeras early as 25.5.2005 to the Government and that was pendingconsideration by the Government and since the Government is thecompetent authority in framing the charge memo, it had taken that time.It is a case that one wing of the Government is not aware of what theother wing is doing. Certainly, it is not open to the petitioners tocontend that there was nothing pending against them. In fact, inthe matter of granting promotion, even a contemplated disciplinaryproceedings can be taken note of as can be seen from the decisions citedherein. 8.In the case of the petitioner in W.P. No.24781 of 2006, it isseen that charges were framed by the Tribunal for disciplinaryproceedings on 30.3.2006. But as to when the reference was made tothe Tribunal is not clear and certainly, it should have been only beforethe promotion orders were issued by the Government. 9.In matter of promotion for any office under the firstrespondent, it is governed by G.O.Ms.No.368 Personnel and AdministrativeDepartment dated 18.10.1993. The subsequent amendments to the saidorder clearly state that even if the charge memo is stayed by any Court,the promotion to any post will be deferred depending upon the outcomeof the said proceedings. In the first respondent Government, there isno sealed cover procedure and therefore, the employees will have tosuffer consequences of denial of promotion when they are faced withdisciplinary action on serious charges. This is inevitableconsidering the fact that a person cannot be expected to be promotedwhile facing serious charges and in the event of his failing in thedepartmental action, it will result in a person discharging dutiesattached to higher office when he is not eligible to hold the said post.However, even after the case being bye-passed due to the pendency of anydisciplinary action or any contemplated disciplinary action, thedecisions of the Supreme Court had guaranteed the right of such anemployee and their position will be restored depending upon the outcomeof the disciplinary action taken against him. https://hcservices.ecourts.gov.in/hcservices/

10.However, Mr. V.Sanjeevi, learned counsel appearing for thepetitioners wanted to contend that once the order is issued by theGovernment, no authority subordinate to him can withhold the said orderand in the present case, the charge memos were issued subsequent to thepromotion order and, therefore, the petitioners are eligible to getpromotion order and the writ petitions should be ordered accordingly.11.However, this argument is fallacious since in the order itselfstated that it depends on the consequential posting order. It is seenthat the charges relating to commissions and omissions committed by thepetitioners were not anterior to the promotion order passed by theGovernment and it is only a formal order of framing a charge that cameto be made later and when that is brought to the notice of therespondents, it is certainly open to them to withhold the order ofpromotion.12.The learned counsel appearing for the petitioners first reliedon the decision of the Supreme Court reported in 1991 Suppl. (2) SCC 199[C.O.Arumugam and others vs. State of Tamil Nadu and others] andemphasised in paragraphs 8 and 9, which read as follows:"Para 8 : Thiru L.V.Srinivasan, respondent 4, was notincluded in the panel for promotion since there weredisciplinary proceedings then pending against him. Butwhen the panel was prepared and approved, there was nocharge framed against him. It is, therefore, not properto have overlooked his case for promotion. We therefore,direct that his case be considered for promotion on thedate on which his junior was promoted and if he is foundsuitable he must also be promoted with all consequentialbenefits.Para 9: Thiru G.P. Purushothaman, respondent 5, appearsto be an exception to the preceding norm. It is saidthat there was then charge sheet filed against him in thepending enquiry when the panel was prepared. Hisexclusion for promotion could not therefore beinappropriate. We may, however, observe that if he isexonerated in the pending enquiry, he be considered forpromotion from the date on which his junior was promotedand if found suitable he be given promotion with allconsequential benefits, but subject to seniority to bedetermined in C.A. Nos. 3815 and 3816 of 1998 pending inthis Court. We may also observe that the departmentalenquiry pending against him may be expedited."I do not know as to how these passages can have any assistance to thelearned counsel for the petitioners. The reasoning of the SupremeCourt is found in paragraph 5 of the said judgment, which is extractedbelow:"Para 5: As to the merits of the matter, it isnecessary to state that every civil servants has a rightto have his case considered for promotion according tohis turn and it is a guarantee flowing from Articles 14 https://hcservices.ecourts.gov.in/hcservices/ and 16(1) of the Constitution. The consideration ofpromotion could be postponed only on reasonable grounds.To avoid arbitrariness, it would be better to followcertain uniform principles. The promotion of personsagainst whom charge has been framed in the disciplinaryproceedings or charge sheet has been filed in criminalcase may be deferred till the proceedings are concluded.They must, however, be considered for promotion if theyare exonerated or acquitted from the charges. If foundsuitable, they shall then be given the promotion withretrospective effect from the date on which their juniorswere promoted."13.Thereafter, learned counsel appearing for the petitionersrelied upon the judgment of the Supreme Court reported in (1999) 5 SCC762 [Bank of India and another vs. Degala Suryanarayana] andparagraph 14 of the said judgment, which was emphasised by thepetitioner, is extracted below:"However, the matter as to promotion stands on adifferent footing and the judgments of the High Courthave to be sustained. The sealed cover procedure is now awell established concept in service jurisprudence. Theprocedure is adopted when an employee is due forpromotion, increment etc. but disciplinary/criminalproceedings are pending against him and hence thefindings as to his entitlement to the service benefit ofpromotion, increment etc. are kept in a sealed cover tobe opened after the proceedings in question are over (seeUnion of India vs K.V. Janakiraman SCC at pp.114-115:AIR at p.2013). As on 1.1.1986 the only proceedingspending against the respondent were the criminalproceedings which ended in acquittal of the respondentwiping out with retrospective effect the adverseconsequences, if any, flowing from the pendency thereof.The departmental enquiry proceedings were initiated withthe delivery of the charge sheet on 3.12.1991. In theyear 1986-87 when the respondent became due for promotionand when the Promotion Committee held its proceedings,there were no departmental enquiry proceedings pendingagainst the respondent. The sealed cover procedure couldnot have been resorted to nor could the promotion in theyear 1986-87 be withheld for the DE proceedingsinitiated at the fag end of the year 1991. The HighCourt was therefore right in directing the promotion tobe given effect to to which the respondent was foundentitled as on1.1.1986. In the facts and circumstancesof the case, the order of punishment made in the year1995cannot deprive the respondent of the benefit of thepromotion earned on 1.1.1986."14.Learned counsel further relied on the decision of the SupremeCourt reported in 2000 (7) SCC 210 [Delhi Jal Board vs. Mahinder https://hcservices.ecourts.gov.in/hcservices/ Singh] and paragraph 5 relied on by the learned counsel for thepetitioners is extracted below:"The right to be considered by the Departmental PromotionCommittee is a fundamental right guaranteed under Article16 of the Constitution of India, provided a person iseligible and is in the zone of consideration. The sealedcover procedure permits the question of his promotion tobe kept in abeyance till the result of any pendingdisciplinary inquiry. But the findings of thedisciplinary inquiry exonerating the officer would haveto be given effect to as they obviously relate back tothe date on which the charges are framed. If thedisciplinary inquiry ended in his favour, it is as if theofficer had not been subjected to any disciplinaryinquiry. The sealed cover procedure was envisaged underthe rules to give benefit of any assessment made by theDepartmental Promotion Committee in favour of such anofficer, if he had been found fit for promotion and if hewas later exonerated in the disciplinary inquiry whichwas pending at the time when DPC met. The mere fact thatby the time the disciplinary proceedings in the firstinquiry ended in his favour and by the time the sealedcover was opened to give effect to it, anotherdepartmental enquiry was started by the Department, wouldnot, in our view, come in the way of giving him thebenefit of the assessment by the first DepartmentalPromotion Committee in his favour in the anteriorselection. There is, therefore, no question of referringthe matter to a larger Bench."This decision arose out of the Rules of the Delhi Water Board whereinthe sealed cover procedure is adopted by the said Board and in thatcontext, the said judgment has been given and in no way, it will behelpful to the case of the petitioners.15.Further, the learned counsel relied upon the judgment of alearned Judge of this Court reported in 2006 W.L.R. 346 [A.Karunanidhivs. The Government of Tamil Nadu] wherein the facts of the case havebeen summarised in paragraph 2, which is reads follows:".... The reason given for consideration of petitioner'sname for inclusion in the panel was due to the pendencyof the disciplinary proceeding. According to thepetitioner, even after dropping all the said charges,petitioner's name was not included in the panel preparedfor the year 2003-2004 for promotion to the post ofAssistant Executive Engineer and the stand taken was thatpetitioner's name would be considered during the year2004-2005." The finding of the learned Judge, which is found in paragraph 6, readsas follows:"Admittedly the charge levelled against the petitionerunder Rule 17(b) was dropped through G.O.Ms. No.172 PDW(E2) Department, dated 4.5.1999 and a copy of the said https://hcservices.ecourts.gov.in/hcservices/ order is filed in the additional typed set of papers. Therecovery proceeding initiated against the petitioner isonly under rule 17(a) and the same is also establishedbefore this Court as mentioned in the petitioner'srepresentation dated 4.4.2004 submitted to the firstrespondent. It is a settled law that pendency ofproceeding under Rule 17(a) is not a bar for consideringthe name of an employee for promotion."I do not think the above judgment has any relevant to the facts of thepresent cases.16.On the contrary, the Supreme Court judgment referred to in1999 (5) SCC 762 [cited supra] heavily relies upon the judgment of theSupreme Court reported in 1991 (4) SCC 109 [Union of India vs.K.V.Janakiraman]. Therefore, it is necessary to examine the importof the Supreme Court decision in the present context.17.In (1991) 4 SCC 109 [Union of India and others vs.K.V.Janakiraman and others], the Supreme Court considered the issuewhether the sealed cover procedure adopted in the Central GovernmentDepartment should be resorted to even at the stage of preliminaryinvestigation or only after the charge memo or charge sheet issued tothe Government servant and it was observed as follows:"As has been the experience so far, the preliminaryinvestigations take an inordinately long time andparticularly when they are initiated at the instanceof the interested persons, they are kept pendingdeliberately. Many times they never result in theissue of any charge-memo/charge-sheet. If theallegations are serious and the authorities are keenin investigating them, ordinarily it should not takemuch time to collect the relevant evidence andfinalise the charges. What is further, if thecharges are that serious, the authorities have thepower to suspend the employee under the relevantrules, and the suspension by itself permits a resortto the sealed cover procedure. The authorities thusare not without a remedy."18.In fact, even before that, the Supreme Court in (1991) 4 SCC129 [Union of India vs. Tejinder Singh], in paragraph 4 of thejudgment, held as follows:"The appeal is accordingly allowed and the impugnedorder passed by the Central Administrative Tribunaldirecting the Union of India, Ministry of Finance toconsider the respondent for promotion to the post ofCommissioner of Income Tax, Level II, is set aside.While setting aside the impugned order of theTribunal we would like to record that the Tribunalhad no jurisdiction whatever while dealing with apetition to quash the contemplated departmentalenquiry against the respondent, to make an interim https://hcservices.ecourts.gov.in/hcservices/ order of this nature. We are also not satisfied asto the correctness of the view expressed by theTribunal that a contemplated departmental inquiry orpendency of a departmental proceeding cannot be aground for withholding consideration for promotionor the promotion itself. We are not aware of anyrule or principle to warrant such a view. As atpresent advised, we do not subscribe to the viewexpressed by the Tribunal."19.In fact, after taking into account the said decision, theState Government / the first respondent herein issued a circular inamending G.O.Ms.No.368 Personnel and Administrative Reforms Departmentdated 18.10.1993 and the amendment made by virtue of the said circularhas been amended twice by the Government by letter dated 16.6.1994 andthereafter, by letter dated 17.5.1995. 20.Under these circumstances, it is well open to the authoritiesto withhold grant of the posting order as both the petitioners arefacing serious charges and unless they are acquitted in the departmentalproceedings, they cannot claim to hold a higher post and discharge theduties attached to a higher post thereby causing considerableembarrassment to the Department. Further, the balance of convenienceis to deny them promotion and they are faced with serious disciplinaryaction and if they succeed, they can get all the benefits as areavailable to them under law and in case, if they lose the writpetitions, nothing can be done either about the recovery or about thenature of orders to be passed by them in this regard.21.In the light of the above, the writ petitions fail andthe same shall stand dismissed. However, there will be no order as tocosts. Consequently, connected Miscellaneous Petitions will also standdismissed. griSd/- Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary,Government of Tamil NaduHighways Department, Fort St. George, Chennai-92.The Chief Engineer (G)Highways and Rural Works,Chepauk, Chennai-5.+2 ccs to Mr.V.Sanjeevi,Advocate Sr.No.6204.GG(co)dcp/1.3.07 W.P.Nos.22389 & 24781 of 2006