K. Rajamanickam v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23-10-2009CORAMTHE HON'BLE MR.JUSTICE K. CHANDRUWRIT PETITION Nos.28395 and 24617 of 2008and M.P.Nos.1 and 1 of 2008K. Rajamanickam ... Petitioner in both the petitionsvs1.State of Tamil Nadu rep by the Secretry to Government Tamil Development, Endowment and Information Department Fort.St. George, Chennai-600 0092.The Commissioner Hindu Religious and Charitable Endowment, Nungambakkam Chennai-600 034 ... Respondents in both the petitionsPrayer in W.P.No.28395 of 2008Writ Petition filed under Article 226 of the Constitution ofIndia praying this Court to issue Writ of Mandamus directing therespondents to consider the claim of the petitioner for promotion tothe post of Assistant Commissioner (HR & CE) uninfluenced by thependency of show cause notice dated 18.8.2008, issued by the firstrespondent by including the name in the current panel for promotionfor the year 2009-2010.Prayer in W.P.No.24617 of 2008Writ Petition filed under Article 226 of the Constitution ofIndia praying this Court to issue a Writ of Certiorari to call forthe entire records pertaining to the letter No.5642/AaNi2-1-2008dated 18.8.2008 on the file of the 1st respondent and quash the same.For petitioner :Mr.C. Selvaraj, SC for Mr.S. Mani For respondents : Mr.T. Chandrasekaran Spl.GP https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioner is one and the same person in both the writpetitions. In W.P.No.24617 of 2008, the prayer of the petitioner isfor setting aside the order dated 18.8.2008, wherein, the 1strespondent asked the petitioner to show cause as to why thepunishment of reduction of pay to the bottom stage in the time scalein the post of Executive Officer, Grade I for two years withoutcumulative effect, cannot be imposed on the petitioner. 2. In W.P.No.28395 of 2008, the petitioner sought for adirection to the respondent to consider his claim for promotion tothe post of Assistant Commissioner (HR & CE) uninfluenced by thependency of the show cause notice dated 18.8.2008 issued by the1st respondent by including his name in the current panel forpromotion for the year 2009-2010.3. It is seen from records that the petitioner was given aCharge Memo under Rule 17(b) of Tamil Nadu Civil Service (Disciplineand Appeal) Rules, at the time when the petitioner was working asExecutive Officer Grade-I in Arulmigu Masaniamman Temple, Anaimalai,Coimbatore District. Pursuant to his explanation, an enquiry wasconducted. The Enquiry Officer found that out of 28 charges, ChargeNos.1 to 4, 6,7,9 and 13 were proved. But the additional charges 1 to15 were held not proved. Based upon the said findings, thepetitioner was imposed with a penalty of stoppage of increment fortwo years without cumulative effect. The petitioner was permitted tofile a statutory appeal, if he so desired.4.As against the original punishment, the petitioner earlier hadfiled a statutory appeal to the Government and for the reasons bestknown, he had withdrawn the said appeal. This Court is not inclinedto go into the motive for the withdrawal of the said appeal.5. However, the State Government in exercise of its power underRule 36 of Tamil Nadu Civil Service (Discipline and Appeal) Rulesdecided to enhance the punishment and issued the impugned Show CauseNotice. It is for the petitioner to give proper explanation to theshow cause notice. Unless the State Government comes to a conclusionone way or other, the question of interfering with a show causenotice at this stage does not arise. 6. The learned senior counsel appearing for the petitionerraised two contentions. The first contention was that whileexercising power under Sec.36 of Tamil Nadu Civil Service (Disciplineand Appeal) Rules, the State Government had not indicated the reasonfor issuing the show cause notice. 7. A perusal of Rule.36 of Tamil Nadu Civil Service (Disciplineand Appeal) Rules does not show that any such requirement is to be https://hcservices.ecourts.gov.in/hcservices/ made. On the contrary, in the impugned notice , the State Governmenthad stated that the punishment imposed already is not sufficient forthe proved misconduct and hence the Government had decided to enhancethe punishment by the exercise of its suo moto powers. That itself isthe sufficient indication about the mind of the Government. 8. The second ground raised by the learned senior counsel wasthat in the show cause notice, there is no indication by the StateGovernment that it had consulted the Tamil Nadu Public ServiceCommission. The requirement that Public Service Commission has to beconsulted in terms of Article 320(3) of The Constitution of India isnot mandatory. Even in cases where such a consultation does not takeplace that will not vitiate the action of the State Government. Thelearned senior counsel for the petitioner relied on the judgment ofthe Hon'ble Supreme Court in the case of Union of India vs T.V. Patelreported in 2007 (4) SCC 785, wherein it is held as follows:24. He also referred to the decision of thisCourt in MD, ECIL v. B. Karunakar4 where this Courtdealt with the non-furnishing of the inquiry reportto the delinquent officer. The facts of theaforesaid decision are distinguishable from thefacts of the case at hand. The aforesaid decisionsare not relevant for the purpose of adjudication ofthe case at hand.25. In view of the law settled by the ConstitutionBench of this Court in Srivastava1 we hold that theprovisions of Article 320(3)(c) of the Constitutionof India are not mandatory and they do not conferany rights on the public servant so that the absenceof consultation or any irregularity in consultationprocess or furnishing a copy of the advice tenderedby UPSC, if any, does not afford the delinquentgovernment servant a cause of action in a court oflaw In any event, if there was such requirement, thequestion of infraction will arise only when theState Government passes final order. In thepresent cases, we are dealing only with the showcase notice. 9. In the light of the same, the writ petition in WP.NO.24617stands dismissed.10. W.P.NO.28395 of 2008 is for grant of promotion to the postof Assistant Commissioner (HR & CE) without reference to the showcause notice, The said Show Cause Notice has been upheld inW.P.No.24617 of 2008. https://hcservices.ecourts.gov.in/hcservices/

11. In the light of the same, the prayer for inclusion of thename in the current panel for promotion for the year 2009-2010 whencharges are pending and a show cause notice issued was also pending,cannot be countenanced by this Court.12. Therefore, both these writ petitions are dismissed. Nocosts. Consequently, connected Mps are closed. Sr Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar To1.The Secretry to Government Tamil Development, Endowment and Information Department Fort.St. George, Chennai-600 0092.The Commissioner Hindu Religious and Charitable Endowment, Nungambakkam Chennai-600 034 + 1 cc to M/s. S. Mani, Advocate SR.55939+ 1 cc to Government Advocate SR.55901 W.P.NOs.28395 and 24617 of 2008SR(CO)EU 30.10.2009.