IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.8404 of 2009 P.Kanniyakumari .. Petitioner Vs. 1.The Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Fort St. George, Chennai-600 009. 2.The Director of Rural Development and Panchayat Raj Department, Panagal Building, Saidapet, Chennai-600 015. 3.The Secretary, Tamilnadu Public Service Commission, Government Estate, Chennai-600 002. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order of the first respondent issued in G.O.(D)No.13, RD&PR Department, dated 09.01.2009 and quash the same and to direct the first respondent to restore the seniority of the petitioner in the post of Assistant Director with effect from 30.8.2005 and consequently to consider the petitioner for promotion as Joint Director. For Petitioner : Mr.Vijay Narayan, SC for M/s.R.Parthiban For Respondents : Mr.V.Subbiah, Spl.G.P. for RR 1 and 2 Ms.C.N.G.Ezhilarasi for R-3 ORDER The writ petition is filed by the petitioner seeking to set aside the order of the first respondent State made in G.O.(D)No.13, Rural Development and Panchayat Raj Department, dated 09.01.2009 and after setting aside the same seeks for a direction to the first respondent to restore the seniority of the petitioner in the post of https://hcservices.ecourts.gov.in/hcservices/ Assistant Director with effect from 30.8.2005 and for consequential direction to consider her for promotion to the post of the Joint Director. 2.The writ petition was admitted on 29.4.2009. Pending the writ petition, this court had ordered notice in the application for interim direction. Subsequenlty, the said application was closed by an order dated 21.10.2009. On notice from this court, on behalf of first and second respondents, a counter affidavit, dated Nil (January, 2010) was filed. The petitioner has filed a rejoinder, dated 22.2.2010. 3.Heard the arguments of Mr.Vijay Narayan, learned Senior Counsel leading for Mr.R.Parthiban, learned counsel appearing for the petitioner, Mr.V.Subbiah, learned Special Government Pleader for respondents 1 and 2 and Ms.C.N.G.Ezhilarasi, learned counsel for third respondent. 4.The case of the petitioner are as follows: The petitioner was appointed as a Block Development Officer in the year 2000 and her seniority was fixed at serial No.2327. On 4.5.2001, a charge memo under Rule 17(a) was issued by the District Collector, Thanjavur. On 6.7.2005, a punishment order was issued by the Collector. On 16.8.2005, a panel for the post of Assistant Director was prepared and the petitioner's name was shown at Serial No.18. On 30.8.2005, while promotions were given to the post of Assistant Director, the petitioner's name did not find in the order of posting. She had filed an appeal against the punishment order. The Director of Rural Development by an order dated 22.11.2005 had revoked the punishment and the matter was remanded back to the District Collector. The District Collector, by an order dated 12.12.2005 had again punished the petitioner and issued same order. On 28.12.2005, the name of the petitioner was deleted from the panel for the post of Assistant Director. In the meanwhile, her junior got promoted to the post of Assistant Director on 20.1.2006. The Director of Rural Development had cancelled the punishment order once again by a further order dated 20.5.2006 and dropped all charges and that her seniority was restored. On 13.7.2006, she was promoted as an Assistant Director. On 21.7.2006, she had joined the post of the Assistant Director. On 29.11.2006, the petitioner had made a representation to the State Government to fix her seniority on par with her junior as the punishment order issued under Rule 17(a) was set aside by the Director of Rural Development. Once again, the petitioner made a further representation on 20.12.2006 to the second respondent to fix her seniority. 5.In the meanwhile, a panel for the post of the Joint Director was prepared on 1.3.2008 and the petitioner's name was included in Sl.No.31 in the panel for the post of the Joint Director. The total https://hcservices.ecourts.gov.in/hcservices/ number of posting sanctioned was 19. But the list of 12 Joint Directors was approved under Rule 39(a)(1) on 2.6.2008 and once again on 30.7.2008, a further list of 5 other Joint Directors was approved under Rule 39(a)(1). Even though 19 posts were approved by the Committee, the State Government had filled up only 17 posts leaving the other posts vacant. On 14.11.2008, the petitioner was transferred from Thanjavur to Bhavanisagar as Lecturer in the Regional Institute of Rural Development. On 9.1.2009, once again promotions were given to her juniors who were not in the panel for promotion and no panel was prepared and published. Further, no intimation was given to the petitioner. On the date of preparation of panel, I.e., 09.01.2009, no charge or punishment was pending against the petitioner. A mere show cause notice issued under Rule 17(a) dated 22.1.2009 was not a bar for promotion. The petitioner was once again issued with penalty of stoppage of increment for one year without cumulative effect by the Director of Rural Development on 30.5.2009. The petitioner had filed a writ petition before this court being W.P.No.11365 of 2009 and that writ petition was allowed on 26.6.2009. The punishment was also set aside and the matter was remanded. The petitioner further submitted a detailed explanation on 14.7.2009. Once again, the Director of Rural Development had passed an order of stoppage of increment for six months without cumulative effect on 19.10.2009. 6.The contention of the petitioner was that even the penalty order dated 19.10.2009 is not a bar for promotion. Hence it was prayed that the Government order in G.O.(D)No.13, RD&PR Department, dated 09.01.2009 should be set aside. In the said Government order, which was for promotions, posting and transfer orders, there were as many as 8 names were found and they were issued promotion and posting orders. 7.In the counter affidavit filed by the State, it is stated that the allegation that her name was dropped from the panel for the post of Assistant Director for the year 2003-04 was incorrect. In fact her name was taken up for consideration for inclusion in the panel. It was included by G.O.(D)No.420, RD Department, dated 16.8.2005. But since the punishment of stoppage of increment for six months was imposed by the District Collector, Thanjavur by proceedings dated 6.7.2005, her name stood deleted from the panel by G.O.Ms.No.168, RD Department, dated 28.12.2005 as per the guidelines issued by the State Government. The allegation that the Government had prepared an another panel in G.O.(D)No.438, RD Department, dated 30.8.2005 and her name was excluded was also incorrect. In fact, the said G.O is only the posting order issued consequent upon the panel for the year 2003-04 and not the second panel. The punishment imposed by the District Collector was once again sent back to the District Collector since a defect was found. The Collector by an order dated 12.12.2005 had imposed a penalty of stoppage of increment for six months without cumulative effect. On appeal, the second respondent https://hcservices.ecourts.gov.in/hcservices/ had set aside the punishment on 20.5.2006. 8.It was stated that the petitioner's name was included once again in the panel for the post of the Assistant Director by G.O.(4D) No.10, RD Department, dated 7.7.2006. She was posted as an Assistant Director (Audit), Nagapattinam by G.O.(D)No.413, RD Department, dated 13.7.2006. The Commissioner for Rural Development by his proceedings dated 19.10.2009 had imposed a penalty of stoppage of increment for six months without cumulative effect for having given a false report regarding the irregularities committed by the President of Kuruvikarambal Village Panchayat and that was in currency. The currency of punishment was considered as a bar for including her name in the panel. In the year 2008-09, 43 Assistant Directors' name were considered for promotion as Joint Directors of Rural Development on the basis of the estimated vacancies fixed by the Government as 26 vide G.O.(D)No.256, RD &PR Department, dated 28.4.2008. The Government had issued a letter dated 19.12.2008 for granting temporary promotion for 26 Assistant Directors as Joint Directors. The petitioner had not reached the zone of consideration. Hence her name was not considered. In the year 2009-2010, once again 42 Assistant Directors' name were taken up for consideration based on the estimated vacancies fixed by the Government as 17 vide G.O.(D) No.258, Rural Development and Panchayat Raj (E1) Department, dated 15.5.2009. The Government gave promotion to 17 Assistant Directors as joint Directors of Rural Development. The petitioner's name was not considered since she was not in the zone of consideration. 9.It was further stated that the petitioner had filed a writ petition in W.P.No.11365 of 2009 challenging the punishment of stoppage of increment. This court by an order dated 26.6.2009 had set aside the punishment and gave liberty to the respondent to afford reasonable opportunity and proceed with the enquiry. As per the order passed by this court, an explanation was called for and it was held that the charges were proved and once again, a penalty of stoppage of increment for six months was awarded by the Commissioner on 19.10.2009. Therefore, she became ineligible for promotion to the post of the Joint Director for the year 2009-2010. Hence her name was not considered. Regarding the submission that her juniors were promoted, the same was denied. It was indicated that they had joined the post of the Assistant Directors much earlier to the petitioner. It is under these circumstances, it was contended that the petitioner did not have any right for getting promoted as per the prayer. 10.In the reply affidavit filed by the petitioner, she had stated that in the inter-se seniority in the category of Block Development Officer, she is senior and therefore, her seniority was not maintained. She was overlooked consistently from the year 2003-04 for being included in the panel for one reason or other. The punishment of stoppage of increment for six months imposed cannot be https://hcservices.ecourts.gov.in/hcservices/ a bar for promotion. 11.Mr.Vijay Narayan, learned Senior Counsel referred to a judgment of the Supreme Court in Coal India Ltd. And others Vs. Saroj Kumar Mishra reported in AIR 2007 SC 1706 = (2007) 9 SCC 625 for contending that promotions can be withheld or kept in abeyance only in terms of valid rule. In this connection, a reference was made to paragraph 10 of the said judgment which reads as follows: “10.Both, the first appellant as also Mahanadi Coalfields Ltd. are “State” within the meaning of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a State is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior court, the extant rules operating in the field must necessarily be construed in the light of the constitutional scheme of equality.” 12.Similarly, the learned Senior Counsel referred to an another judgment of the Supreme Court in Delhi Jal Board Vs. Mahinder Singh reported in (2000) 7 SCC 210 for contending that the right to be considered by the DPC is a fundamental right guaranteed under Article 16 of the Constitution, which is only subject to condition that the employee is eligible and is within the zone of consideration. He referred to the following passage found in paragraph 5 of the said judgment which reads as follows: “5.The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed https://hcservices.ecourts.gov.in/hcservices/ cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.” Therefore, it was contended that either pendency of proceedings under Rule 17(a) or minor penalty awarded cannot be a ground to deny her promotion. 13.In both the decisions cited by the petitioner, the right of the Government servant to be considered for promotions and not a right for promotion as such was held to be the fundamental right. The respondents have given valid reasons for not promoting her. Though in the first instance her name was in the panel, in the second time, she was actually undergoing penalty. Even if it is minor penalty, considering that the post in which she seeks for promotion is one of the highest rank in the department, it is open to the respondents to either bypass the petitioner's seniority or to pass over her case from being promoted. Hence there is no case made out to entertain the writ petition. 14.There is yet another fact in which the petitioner cannot rightfully maintain the writ petition. It is the non joinder of proper and necessary parties before impugning the Government Order in promoting her so-called juniors. As noted already, the petitioner claimed that she is senior most than comparing the other persons whose names were in the promotion and posting order. In the absence of any one being made as parties either individually or in representative capacity, the writ petition cannot be maintained and is liable to be rejected on this short ground. 15.In this context, the attention of the petitioner is drawn to the judgment of the Supreme Court in Prabodh Verma v. State of U.P. reported in (1984) 4 SCC 251. 16.The Supreme Court subsequently had followed the Probadh Verma's case (cited supra) in Suresh v. Yeotmal Distt. Central Coop. Bank Ltd. reported in (2008) 12 SCC 558. The relevant passage found in paragraphs 15 and 16 may be usefully extracted below: https://hcservices.ecourts.gov.in/hcservices/ 15. Respondent 1 is a cooperative society. It has its own rules and bye-laws. The service rules framed by Respondent 1 stand approved by the Registrar. We have noticed hereinbefore that in the seniority list published in the year 1995, the position of the appellant was at Sl. No. 4. Those candidates whose names appeared at Sl. Nos. 2 and 3 were not impleaded as parties in the said proceeding. In their absence, the dispute could not have been effectively adjudicated upon. 16. This Court in Rashmi Mishra v. M.P. Public Service Commission1 observed: (SCC pp.728-29, para 16) “16. In Prabodh Verma2 this Court held: (SCC pp.273-74, para 28) “28. … The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh’s petition were the State of Uttar Pradesh and its officers concerned. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties—not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh’s writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.’ (See also All India SC & ST Employees’ Assn. v. A. Arthur Jeen3 and Indu Shekhar Singh v. State of U.P.)” 17.Further, the Supreme Court once again reiterated the principle laid down in Prabodh Verma's case vide its decision in Tridip Kumar Dingal v. State of W.B.,(2009) 1 SCC 768 and reliance can be made on the following passage found in paragraph 41, which reads as follows: 41.Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the employment exchange and they were selected and https://hcservices.ecourts.gov.in/hcservices/ appointed in 1998-1999. The candidates who were unable to get themselves selected and who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the original application, which was not done. In any case, some of them ought to have been arrayed as respondents in a “representative capacity”. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside. 18.In the light of the above, the writ petition is liable to be rejected. Accordingly, the writ petition will stand dismissed. No costs. Vvk sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Fort St. George, Chennai-600 009. 2.The Director of Rural Development and Panchayat Raj Department, Panagal Building, Saidapet, Chennai-600 015. 3.The Secretary, Tamilnadu Public Service Commission, Government Estate, Chennai-600 002. +1 CC to Mr. R. Parthiban, Advocate, Sr.No.63714 W.P.NO.8404 of 2009 SGL (CO) BMD https://hcservices.ecourts.gov.in/hcservices/