S.R.Shanmuga Sekaran v. The Secretary to Government, Rural Development Department, Fort St. George, Chennai-600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20-04-2009CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.29747 of 2004S.R.Shanmuga Sekaran ..PetitionerVersus1.The Secretary to Government, Rural Development Department, Fort St. George, Chennai-600 009.2.The Secretary to Government, Highways Department, Fort St. George, Chennai-600 009.3.The Chief Engineer, Highways Department, Chepauk, Chennai-5. ..RespondentsPrayer:This writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ of Mandamus,to direct the 2nd respondent to award selection grade and specialgrade for the twenty years continuous service rendered by thepetitioner and to promote the petitioner to the post of AssistantDivisional Engineer on par with his immediate juniorG.Dhakshinamoorthy who is at Serial No.63 in the Adhoc list ofAssistant Engineers/Junior Engineer communicated by the proceedings,dated 24.4.2003 and at Sl.No.47 in annexure 3 of the promotionalGO.Ms.76 (Highways Department) dated 11.4.2003, on the file of thesecond respondent with monetary and service benefit withoutconsidering the (charge memo RC.3/3620/91) T.D.P.No.29 of 1991 and togrant such further or appropriate reliefs as this Hon'ble Court maydeem fit and proper in the facts and circumstances of the case andthus render justice. For Petitioner : Mr.N.S.Nandakumar For Respondents : Mr.V.Viswanathan Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents.2. This writ petition has been filed praying for a writ ofmandamus to direct the second respondent to award selection grade andspecial grade for the 20 years of continuous service rendered by thepetitioner and to promote him to the post of Assistant DivisionalEngineer, on par with his immediate junior, G.Dhakshinamoorthy, whois at Sl.No.63 in the adhoc list of Assistant Engineers/JuniorEngineers, communicated by the proceedings, dated 24.4.2003 and atSl.No.47, in Annexure III of the G.O.Ms.No.76 (Highways) Department,dated 11.4.2003, with monetary and service benefits, withoutconsidering the charge memo, in Rc.B3/3620/91 (TDP.No.29/91).3. The learned counsel appearing on behalf of the petitioner hadstated that the petitioner had joined the service as a JuniorEngineer in the Highways Department, through the Tamil Nadu PublicService Commission, on 27.1.1977. After obtaining a Diploma in CivilEngineering he had also acquired a B.E. Degree in Civil Engineering.In accordance with the rules in force, the petitioner and 17 otherswere re-designated as Assistant Engineers, with effect from27.11.1983. The probation of the petitioner had been declared by theproceedings of the Superintending Engineer, Highways and Rural Works,Tirunelveli, dated 22.4.1994. The petitioner's service had beenregularised, with effect from the date of his appointment. Thepetitioner had also passed the departmental accounts test forofficers, on 11.5.1982. 4. It has also been stated that the petitioner had been postedin the various panchayat unions, as a Junior Engineer, from 4.6.1984to 4.6.1987. Thereafter, he had been transferred as an AssistantEngineer of the Tamilnadu Bhoodhan movement, Madurai, at Trichy andto other unions. At the time of the filing of the writ petition thepetitioner was working as an Assistant Engineer, National RuralEmployment Programme, Sub-Division, Office of the Executive Engineer,District Rural Development Agency Campus, Tirunelveli. The petitioneris entitled to be awarded selection grade on completion of 10 years,with effect from 27.11.1993 and Special Grade, with effect from27.11.2003, for promotion in terms of the policy decision of theGovernment issued with regard to the granting of such promotions, ifthe petitioner had not reached the zone of consideration.5. It has also been stated that the petitioner had reached thezone of consideration for the promotional post of AssistantDivisional Engineer during the year 2002-2003. In the adhoc list ofAssistant Engineers/Junior Engineers, communicated by the proceedingsof the Chief Engineer, Highways, dated 24.4.2003, the petitioner wasranked at Serial No.62. The immediate junior at Sl.No.63 was https://hcservices.ecourts.gov.in/hcservices/ G.Dhakshinamoorthy. From the said list 37 Assistant Engineers havebeen separated in the order of seniority and shown as persons fitfor promotion as Assistant Divisional Engineer in the Annexure I ofG.O.No.76 (Highways) Department, dated 11.4.2003. In the samecombined list, 13 juniors have been shown as persons fit forappointment as Divisional Engineers. The placement of 13 persons inthe roster of reservation has been shown in Annexure II of the saidGovernment Order. By fixing the ratio at 3:1, a combined panel ofAssistant Engineers and Junior Engineers for 50 persons have beenshown in Annexure III of the Government Order. In the process ofselection, G.Dhakshinamoorthy, who is the immediate junior of thepetitioner, is ranked at No.47. Whereas, the petitioner has been leftout. 6. It has been further stated that after effecting the promotionby way of the said Government Order the petitioner had been informedby the impugned letter, dated 7.5.2003, that his name had beenconsidered for inclusion in the adhoc list of AssistantEngineers/Junior Engineers fit for promotion/appointment to the postof Assistant Divisional Engineer, for the year 2002. However, theinclusion of the petitioner's name in the said adhoc list had beendeferred stating that the charges framed by the Tribunal fordisciplinary proceedings in its Letter No.B3/3620/91, dated 9.8.91,were pending. The petitioner has stated that the said reason givenfor the non-inclusion of the petitioner is arbitrary and devoid ofmerits.7. It has been further stated that an enquiry had been orderedwith regard to certain alleged malpractices and irregularities andthe wrongful loss of Rs.73,327.70, said to have been caused in thepurchase of mud pots, manure and in the transportation of seedlingsand in its stock. The petitioner had no responsibility or connectionin the said transactions. However, charges had been framed againstsome persons, including the petitioner and an enquiry had beenconducted. The said enquiry had been pending from the year 1991 uptoyear 2000, due to unjustifiable and unexplained delay on the part ofthe disciplinary authority concerned. The petitioner had submittedhis defence statement, dated 4.7.2000. The authority who hadconducted the enquiry had submitted the enquiry report, dated24.8.2000, to the first respondent. A copy of the enquiry report hadbeen given to the petitioner, belatedly, by a communication, dated7.2.2001, with a direction to the petitioner to submit his furtherrepresentation. Based on the said direction, the petitioner hadsubmitted his representation, dated 21.3.2001. In spite of hisfurther representations, dated 29.10.2001 and 24.12.2001, no ordershad been passed, till date.8. It has been further stated that one of the charged officials,namely, M.Kanaka Nadar, Rural Welfare Officer, Grade-II, had filedO.A.No.3463 of 1991, challenging the disciplinary proceedings on the https://hcservices.ecourts.gov.in/hcservices/ ground of delay. By an order, dated 27.11.1996, the Tamil NaduAdministrative Tribunal had directed the completion of the enquiry,within a period of four months from the receipt of the said order.However, the enquiry had not been completed within the specifiedtime. The report of the enquiry had been submitted only on or after24.8.2000. In the said circumstances, M.Kanaka Nadar, had filedO.A.No.2154 of 2002. By an order, dated 1.7.2002, the Tamil NaduAdministrative Tribunal had allowed the said application and annulledthe disciplinary proceedings. A direction had also been given by theTribunal to promote the applicant on par with his junior. The saiddirection had been implemented and the order of the Tribunal hadbecome final. Since the case of the petitioner is similar in nature,the petitioner had filed O.A.No.2973 of 2003, seeking similarreliefs. During the pendency of the original application, theTamilnadu Administrative Tribunal had become defunct and therefore,the petitioner had been constrained to file the present writ petitionbefore this Court, under Article 226 of the Constitution of India. 9. The main grounds raised by the petitioner in the present writpetition are that the disciplinary proceedings pending against thepetitioner in TDP.No.29/1991, is liable to be annulled in the lightof the reasoning contained in the order, dated 1.7.2002, made inO.A.No.2154 of 2002, due to the inordinate, unexplained delay incompletion of the disciplinary proceedings initiated against thepetitioner. The denial of promotions from the year 1986, due to thependency of the disciplinary proceedings for the occurrence that isalleged to have been happened during the year 1984-1985, is malafide, arbitrary and liable to be set aside. It is contrary to thedecision of the Supreme Court holding that the pendency of thedisciplinary proceedings cannot be a ground for not considering theincumbent, who is in the zone of consideration for promotion,especially, when he is otherwise considered fit for promotion. 10. At this stage of the hearing of the writ petition, itsubmitted by the learned counsel appearing for the petitioner thatthe petitioner had retired from service, on 31.12.2005, on hisattaining the age of superannuation, on completion of 58 years ofservice. Based on the report of the enquiry proceedings thepetitioner had been imposed with the minor punishment, of recovery ofRs.200/- from him. From the year 2003, when the petitioner had becomeeligible for promotion, there are no adverse remarks against him.Therefore, the respondents are bound to consider the request of thepetitioner for notional promotion, in accordance with G.O.Ms.76(Highways) Department, dated 11.4.2003, by including his name in therelevant panel containing the names of the eligible candidates.11. The learned Additional Government Pleader appearing onbehalf of the respondents has no objection for this Court passing anorder directing the respondents to consider the request of thepetitioner, on merits and in accordance with law. https://hcservices.ecourts.gov.in/hcservices/

12. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents,the first respondent is directed to consider the request of thepetitioner for notional promotion, as prayed for by him, inaccordance with G.O.Ms.No.76, (Highways) Department, dated 11.4.2003and pass appropriate orders thereon for granting him the notionalpromotion and the monetary benefits that would have accrued to him,if he was found to be eligible for the same, within a period oftwelve weeks from the date of receipt of a copy of this order.The writ petition is disposed of with the above directions. Nocosts.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1.The Secretary to Government, Rural Development Department, Fort St. George, Chennai-600 009.2.The Secretary to Government, Highways Department, Fort St. George, Chennai-600 009.3.The Chief Engineer, Highways Department, Chepauk, Chennai-5.+ 1 c.c. to The Government Pleader. S.R.No.16582.W.P.No.29747 of 2004SJ (CO)GSK 28.04.2009.