P.V.Mahadevan, Chief Engineer(Retired)Tamil Nadu Housing Board v. The Secretary to Government, Housing and Urban Development Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23.12. 2009CORAM:- The Hon'ble Mr. Justice R. SUDHAKAR Writ Petition No. 29395 of 2007P.V.Mahadevan, Chief Engineer(Retired)Tamil Nadu Housing Board71, 28th Cross Street, Indira Nagar,Chennai 20. .. PetitionerVs1. The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai.92. The Managing Director, Tamil nadu Housing Board, No.493, Anna Salai, Nandanam,Chennai.35. .. Respondents . . . Prayer: The writ petition filed under Article 226 of theConstitution of India praying for a writ of Certiorarified mandamusto call for the records connected with the proceedings of thesecond respondent in Letter No.PT-1/10265/2001 dated 22.09.2006,quash the same insofar as para 2 dealing with notional promotionis concerned and leave open the other issues for a separateproceedings and consequently, to direct the respondents herein toaccord notional promotion to the petitioner to the post of ChiefEngineer with effect from 01.06.2000, namely, the date of promotinghis immediate junior and disburse all the consequential service,revised terminal, pensionary and monetary benefits arises onaccount of notional promotion and pay all the arrears. For Petitioner : Mr. K.Rajkumar For respondents : Mr. V.Manoharan, Govt.Advocate (R1) Mr.A.Vijayakumar (TNEB)(R2) . . . https://hcservices.ecourts.gov.in/hcservices/ O R D E R The Writ Petition has been filed seeking to quash theproceedings of the second respondent in Pa.Tho.Nu.1/29403/99-2dated 31.05.2000 and to promote the petitioner as Chief Engineer(City Zone), Tamil Nadu Electricity Board with effect from the dateon which one V.Shenbagarajan came to be promoted and for allconsequential attendant service benefits.2. In W.P.No.8853 of 2000, the petitioner challenged thevery same proceedings No.1/29403/99-2 dated 31.05.2000 and soughtfor a direction to promote the petitioner in the post of ChiefEngineer,(City Zone) in the Tamil Nadu Electricity Board with effectfrom the date on which one Shenbagarajan came to be promoted asChief Engineer (City Zone), TamilNadu Electricity Board and praysfor all consequential benefits. In the said writ petition, theDepartment's stand was that the charges under Section 37-b of theTamil Nadu Housing Board Service Regulations was pending andtherefore, the case of the petitioner was not considered. The saidstand was rejected by the learned single Judge in the decisionrendered on 09.01.2001 and has observed as follows:" Following the position of law as laid down bythe Supreme Court as well as this Court asstated above, without going into the merits ofthe case, the order impugned in this writpetition dated 31.05.2000 has to be quashedand the same is hereby quashed and respondentsNo.1 and 2 are hereby directed to consider thename of the petitioner herein for promotion tothe post of Chief Engineer (City Zone), TamilNadu Housing Board and pass appropriate ordersas per law."3. The matter was taken up on appeal in W.A.No.297 of 2001by the Tamil Nadu Housing Board and in W.A.No.331 of 2001 by thesaid Shenbagarajan. By way of an interim order dated 14.09.2001, theBench passed the following directions:" 2.The charges framed against the firstrespondent/delinquent have been pending for thelast two decades. No satisfactory explanationis forthcoming as to why the enquiry has notbeen completed. We had occasion to pass an orderon 05.09.2001 laying down the legal positionand directing the appellant to consider his casefor promotion favourably, in the light of thedecision of the Supreme Court reported in Stateof Punjab VS Chaman Lal Goyal (1995(2) Supreme https://hcservices.ecourts.gov.in/hcservices/ Court Cases 570). However, the appellant has nowconfronted this Court with an order dated08.09.2001 without reference to the DivisionBench Order dated 05.09.2001 and the decisionof the Supreme Court referred to therein, thatthe charges framed are still pending (?) and thepunishment is under currency and request forpromotion cannot be accepted as per theguidelines referred in para 3 of the saidorder. 3. From the aforesaid narration, we find that thepromotion has been denied to the first respondentonly on the ground that the charges are stillpending. We are not at all satisfied with theaforesaid state of affairs. We are of theopinion that the first respondent has been deniedpromotion which is otherwise legitimate due tohim.4. Accordingly, we issue a direction to thesecond respondent to promote the first respondentto the post of Chief Engineer, Tamil NaduElectricity Board forthwith. However, we make itclear that the aforesaid promotion will abide bythe result of this writ appeal." 4. Consequent to the said order of the Division Bench,the petitioner was promoted as Chief Engineer on 12.12.2001. Thegrievance of the petitioner is that he should have been given thebenefit of promotion on and from the date on which the saidShenbagarajan was given promotion as Chief Engineer i.e. on orfrom 01.06.2000. When the petitioner has made such a claim throughan advocate notice, the same has been rejected by the respondent-TamilNadu Housing Board by its reply dated 22.09.2006 in LetterNo.Pt-1/10265/2001 and the same is under challenge in this writpetition. The reason given in the letter by the Housing Board is asunder:"As per Government rules in force which is followedby Tamil Nadu Housing Board, pendency of chargesunder 37(b) and punishment in currency is a bar forpromotion, however, based on the direction of FirstBench of the Hon'ble High Court the Government inG.O.Ms.No.491, dated 11.12.2001 have ordered thatthe promotion is subject to the final order on theW.A.297/2001. The W.A has been dismissed asinfructuous stating that he has already been promotedas Chief Engineer with effect from 01.06.2000 needsno consideration. If he desires he can make anappeal to the Government." https://hcservices.ecourts.gov.in/hcservices/ The reason given in the reply letter by the Housing Board that thepromotion to the post of Chief Engineer has been given as per theorder in W.A and the promotion was not given during the relevanttime in view of the charges under Section 37(b) is pending, cannotbe sustained for the following reason. The learned single judge while disposing of the WritPetition on 09.01.2001, was of the clear view that thependency of the charges under Section 37(b) cannot be areason to deny the promotion and the Government wasdirected to grant the benefit to the petitioner.5. The promotion was granted to the petitioner as per thedirection of the First Bench and the petitioner is however, entitledto the relief as directed by the learned single Judge. Theconsequences of such direction is clarified by the judgment of theApex Court in 602 SC 1334 (para 11 ad 23). In this case, in terms ofthe order of the learned single Judge, the petitioner is entitled topromotion and consequential benefits. The pendency of the chargesunder Section 37(b), at the relevant time cannot be a ground to denythe entitlement due to the petitioner as on the date ofconsideration. The petitioner will be entitled to promotion on parwith his junior and the relevant date of promotion is the date onwhich his junior was promoted (i.e) on 01.06.2000. The petitioner,who is senior to the said Shenbagarajan will be entitled to thesame benefit and there cannot be an artificial date, namely12.12.2001. The interpretation given by the Housing Board in itsletter dated 22.09.2006 is legally not sustainable and is contraryto the decision of the learned single Judge. The petitioner isentitled to promotion with effect from 01.06.2000 and to allconsequential benefits thereto. 6. In the result, the Writ Petition is allowed and theimpugned letter is quashed. The respondent is directed to givepromotion to the petitioner with effect from 01.06.2000 and to giveall consequential benefits thereto and the said exercise shall becompleted within a period of 12 weeks from the date of receipt of acopy of this order. No order as to costs. PALSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai.92. The Managing Director, Tamil nadu Housing Board, No.493, Anna Salai, Nandanam,Chennai.35. + 1 cc to M/s. A. Vijayakumar, Advocate SR No.71534+ 1 cc to Government Pleader, SR No.71693KS(CO)SR/2.2.2010 W.P. No. 29395 of 2007