IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.8.2010 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.NOs.47332 of 2006 and 8520 of 2007 (O.A.No.1733/00 & 1374/02) W.P.No.47332 of 2006 V.R.Balasubramanian Son of P.Ramasamy Executive Officer Grade II, Town Panchayat Krishnaroyapuram Karur District .. Petitioner Vs 1.The Director of Town Panchayat Kuralagam, Chennai 108 2.The District Collector Karur .. Respondents W.P.No.8520/2007 V.R.Balasubramanian Son of P.Ramasamy Executive Officer Grade II, Town Panchayat Krishnaroyapuram Karur District .. Petitioner Vs 1.Government of Tamil Nadu rep. By Secretary to Government Municipal Administration and Water Supply Department Chennai 600 009 2.The Director of Town Panchayat Kuralagam,Chennai 108 3.The District Collector Karur .. Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ Petition No.47332/2006 came to be numbered under Article 226 of the Constitution of India by way of Transfer of O.A.No.1733/2000 from the file of the Tamil Nadu Administrative Tribunal with the prayer to issue a writ of Certiorarified Mandamus to call for the records of the first respondent in Na.Ka.No.26835/94/A1 dated 4.1.2000 quash the same and direct the respondents to include the name of the applicant in the panel and to promote the applicant herein to the post of Executive Officer Grade I, immediately without prejudice to the applicant's claim for retrospective promotion from 1994, ie, the date of promotion of immediate junior. Writ Petition No.8520/2007 came to be numbered under Article 226 of the Constitution of India by way of Transfer of O.A.No.1374/2002 from the file of the Tamil Nadu Administrative Tribunal with the prayer to issue a writ of Certiorarified Mandamus to call for the records of the first respondent relating to G.O.(D) No.411, Municipal Administration and Water Supply Department, dated 20.07.2000, quash the same and issue directions to the respondents herein to refund the amount of Rs.6,884/- remitted by him with 18% interest. for petitioner in both the W.Ps. : Mr.M.Ravi for respondents in both the W.Ps. : Mr.V.Manoharan Government Advocate ORDER The petitioner V.R.Balasubramanian came to the Tamil Nadu Administrative Tribunal by filing O.A.No.1733/2000 seeking a prayer to call for the records of the first respondent-Director of Town Panchayat, Kuralagam, Chennai -600 108 passed in Na.Ka.No.26835/94/A1 dated 4.1.2000 so as to quash the same, consequently to issue a direction to include the petitioner's name in the panel and promote him to the post of Executive Officer Grade I without prejudice to the petitioner's claim for retrospective promotion from 1994, i.e., the date of promotion of immediate junior. 2. (i) The petitioner was originally appointed as Junior Assistant in Punjai Thottakurichi Panchayat in Karur District and his subsequent joining duty on 01.05.1967, he was promoted as Executive Officer Grade II with effect from 03.06.1992. After his promotion, he was reverted back to the post of Junior Assistant in view of the order dated 25.02.1994 passed by the Tamil Nadu Administrative Tribunal in O.A.Nos.3623 and 3704 of 1992 filed by V.Manoharan and P.Ramamoorthy respectively. Once again the petitioner was posted back as Executive Officer Grade II in https://hcservices.ecourts.gov.in/hcservices/ Krishnaroyapuram Town Panchayat, Karur District by order of the Director of Town Panchayat passed in Proceedings Na.Ka.10298/95/A2 dated 31.05.1995. Since the petitioner was reverted by order dated 04.10.1994 passed by the Director of Town Panchayat, in pursuance of the order of the Tribunal passed in O.A.Nos.3623/1992 and 3704/1992 dated 25.2.1994 reverting him as Joint Assistant from the post of Executive Officer Grade II, the said order dated 04.10.1994 reverting the petitioner was challenged. (ii) Subsequently, the Director of Town Panchayat initiated disciplinary proceedings under Rule 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules in connection with some alleged irregularities occurred during the petitioner's period of service as Junior Assistant in Pallapatti Town Panchayat from November 1985 to October 1986 and from January 1987 to April 1989. Disciplinary proceedings were initiated against two others, namely, Thiru R.Angamuthu, who was the Executive Officer of the said Panchayat and C.Palanivel, who was the Electrician, for the same irregularities. By G.O.(D).No.423, Municipal Administration and Water Supply, dated 04.08.1998, Thangamuthu was imposed with the punishment of recovery of Rs.100/- per month from his monthly pension and he was further directed to pay Rs.10,296/- being 50% of the loss of Rs.20,593/- sustained by the Panchayat. Similarly, another staff, namely C.Palanivel, Electrician also was imposed with the punishment of stoppage of increment for one year with cumulative effect. But in the case of the petitioner alone the enquiry was not over. Therefore, the learned counsel for the petitioner would submit that since the real responsible persons for committing irregularities were punished by way of initiation of disciplinary proceedings and since the disciplinary proceedings in respect of the petitioner alone was pending in respect of the period during which he worked as a Junior Assistant and thereafter he has been promoted to the post of Executive Officer Grade II and also served in the said post from June 1992 to October 1994 and again from 25.11.1995 till the date of filing the O.A., there is no justification to defer his promotion on the ground of pendency of the proceedings. Therefore, he filed O.A.No.5442/1999 seeking direction to the authorities to consider the representation dated 23.8.1999 for his promotion. Accordingly, the Tribunal passed an order dated 22.9.1999 directing the authority to consider his representation and pass orders in the light of the order passed by the Tribunal dated 22.9.1999. The first respondent by order dated 04.1.2000 rejected the case of the petitioner to consider his name for promotion. The said order dated 04.1.2000 passed by the first respondent, Director of Town Panchayat is under challenge. (iii) The learned counsel for the petitioner further submits that the promotion to the post of Executive Officer Grade I is due to the petitioner legitimately in the year 1994 itself. Since the same is now deferred and postponed on account of pendency of the disciplinary proceedings, the action of the respondent rejecting the https://hcservices.ecourts.gov.in/hcservices/ petitioner's legitimate claim for promotion, is violation of Articles 14 and 16 of the Constitution. (iv) The learned counsel for the petitioner further contends that even if any punishment is imposed against the petitioner, that cannot be an impediment for promotion as the correctness is related to the period 1986-1989 i.e., 5 years prior to the crucial date. Therefore, the impugned order dated 4.1.2000 rejecting the request for promotion with retrospective effect from 1994 should be liable to be set aside. On that basis, he prays for allowing the writ petition by quashing the impugned order dated 4.1.2000. 3. (i) Per contra, the learned Additional Government Pleader appearing for the respondents would submit that when the petitioner was promoted as Executive Officer Grade II from the post of Junior Assistant by order dated 26.3.1992 he had not qualified the prescribed departmental tests for promotion as Executive Officer Grade II on the crucial date in which the panel for promotion of Executive Officer Grade-II was approved. The crucial date being 1.3.1991, even well before the crucial date, since the petitioner was temporarily promoted, subsequently he was reverted to the post of Junior Assistant on 04.10.1994. That order of reversion was challenged by the petitioner by filing O.A.No.5278/1994 on the file of the Tamil Nadu Administrative Tribunal. Subsequently, during the year 1995 the petitioner was granted promotion depending upon the vacancy arrived in the year 1995, after taking into account the passing of departmental tests of the petitioner in Office Roc No.10298/95 A2 dated 31.5.1995. In the meanwhile, charges were framed against the petitioner and the said charge memo was issued for the irregularities committed by him as per the report of the Vigilance and Anti-Corruption department under Rule 17(b) of Tamil Nadu Civil Service (D&A) Rules. The petitioner was given all reasonable opportunites and after his submission of his explanation to the charge sheet and his participation in the enquiry, the enquiry officer found him guilty and thereupon, the disciplinary authority, after accepting the report of the enquiry officer, issued a final order in G.O.(D) No.411, MAWS Department on 20.7.2000 withholding of his periodical increment for two years with cumulative effect and also for the recovery of a sum of Rs.6,884/- towards the amount equal to one-third of the loss of Rs.20,592/- caused to the Pallapatti Town Panchayat. In view of the order of punishment dated 20.7.2000 as there was a legal bar not to grant any promotion in view of G.O.Ms.No.368, Personal and Administrative Reforms dated 18.10.93 read with Government Letter No.248, Personnel and Administrative Reforms Department dated 20.10.1997 stating that the promotion cannot be given to an individual if the punishment is under currency period of punishment, his name has to be deferred for promotion until the currency period of punishment is concluded. (ii) In the present case, the currency of the punishment was run https://hcservices.ecourts.gov.in/hcservices/ upto 20.7.2002. Therefore, till 2002 the case of the petitioner's promotion cannot be considered. However, the petitioner also filed one O.A.No.5442/1999 on the file of the Tamil Nadu Administrative Tribunal. The learned Tribunal by order dated 22.9.1999 issued a direction to consider the petitioner's representation dated 23.8.1999 and pass orders in accordance with law within a period of four months. Accordingly, the petitioner's representation was considered and rejected by order dated 4.1.2000 which is challenged in the present writ petition. Since the petitioner at the time of initial promotion to the post of Executive Officer Grade II, having not passed the requisite departmental tests for Executive Officer Grade II on the crucial date, namely, 1.3.91, he was reverted back. Subsequently, the petitioner was subjected to disciplinary proceedings which ended with the punishment of withholding of his periodical increment for two years with cumulative effect and recovery of Rs.6,884/- equal to one-third of the amount of Rs.20,592/- towards loss caused to Pallapatti Town Panchayat. When the punishment dated 20.7.2000 came to be over only on 20.7.2002, the case of the petitioner for promotion cannot be considered and on that basis he prayed for dismissal of the writ petition. 4. Heard the learned counsel appearing for both sides. 5. (i) Prima facie, the petitioner while serving as Junior Assistant even well before qualifying himself in the prescribed departmental tests for promotion as Executive Officer Grade II on the crucial date 1.3.1991, he was promoted as Executive Officer Grade II by order dated 26.3.1992. The petitioner also joined as Executive Officer Grade II on 3.6.1992. The petitioner was not qualified on the crucial date 1.3.1991, in which the panel for promotion for the Executive Officer Grade II was approved. The other qualified officers for the Executive Officer Grade-II, N.Manoharan and P.Ramamoorthy filed two O.A.Nos.3623 and 3704/1992 respectively. In view of the order passed by the Tribunal in the abovesaid Original Applications, the petitioner was reverted rightly back to the post of Junior Assistant with effect from 25.10.1994. This was admitted by the petitioner in his own affidavit. When he was reverted only after the order passed by the Tribunal in two other Original Applications filed by better qualified persons, on the ground that the petitioner did not possess the qualification for the post of Executive Officer Grade II. However, the petitioner filed O.A.No.5278/1994 on the file of the Tamil Nadu Administrative Tribunal challenging the order of reversion. In the meanwhile the petitioner also acquired the qualification. Therefore, he was again given promotion depending upon the vacancy arose during the year 1995 by order dated 31.5.1995. In the meanwhile. the petitioner received the charge memos for having committed irregularities and caused loss of Rs.20,592/- to the Pallapatti Town Panchayat when he was serving there as reported by Vigilance and Anti-Corruption Department in their report dated 02.12.1995. The petitioner also after submitting his explanation to https://hcservices.ecourts.gov.in/hcservices/ the charge issued under Rule 17 (b) of the Tamil Nadu Civil Service (Discipline and Appeal)Rules, having dissatisfied with the explanation, the disciplinary authority after holding enquiry and after giving all opportunities which the petitioner was entitled to, imposed the punishment of stoppage of periodical increment for two years with cumulative effect and also passed an order of recovery of Rs.6,684/- towards the amount equal to one-third of the loss of Rs.20,592/- caused to Pallipatti Town Panchayat. (ii) The impugned order of punishment dated 20.7.2000 still have its full effect for two years, till 20.7.2002. As per G.O.Ms.No.368, Personal and Administrative Reforms Department dated 18.10.1993 readwith Government letter dated 248, Personal and Administrative Reforms Department dated 20.10.1997 the promotion legally cannot be given to the petitioner since he has suffered the charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal)Rules till he completes the said punishment on 20.7.2002. Only after 20.7.2002, the petitioner's name has to be taken into consideration for subsequent promotion. As per the detailed guidelines for preparation of panel, with regard to currency of punishment it is stated as under: (Letter No.50543/S/2003-4 Personnel & Administrative Reforms(S) Department dated 17.3.2004) "3.Currency of Punishment : $ Whenever an Officer is undergoing any punishment, other than Censure, on the crucial date or on the date of consideration, then irrespective of the time of occurrence of the irregularity, his name should be passed over for that panel. If the currency of punishment continues at the time of subsequent consideration for the next panel(s), he should still be passed over on the grounds that an officer should not be considered for promotion or promoted during the currency of any punishment. After the completion of its currency, no punishment should be held, once again, against an official even it falls within the check period of any panel, if it has already been held against the official on any earlier occasion. $(Substituted in Letter No.52716/S/99-1(Personnel & Administrative Reforms(S) Department dated 1.10.1999) 4.$$ It is further clarified that charges framed under rule 17(b) of Tamil Nadu Civil Services(Discipline & Appeal) Rules and any of the punishments awarded after the crucial date and before actual promotion shall also be held against the officer. $$(Substituted in Letter No.67652/S/2002-6, Personnel & Administrative Reforms(S) Department dated 27.8.2003) https://hcservices.ecourts.gov.in/hcservices/ 5.The currency of punishment imposed in the form of recovery of loss will continue till the loss so caused is recovered in full. As such, in cases where punishment of recovery of loss is ordered the name of that individual should not be included in the panel until the entire recovery of loss is effected. But in this case, the disciplinary action was initiated under Rule 17 (b) of Tamil Nadu Civil Service (D&A) Rules and final orders was issued on 20.7.2000 withholding of periodical increment for two years with cumulative effect and also for recovery of a sum of Rs.6,884/- towards the amount equal to one-third of the loss of Rs.20,592/- caused to the Pallapatti Town Panchayat. Thus, the petitioner is not eligible for promotion until the currency of the punishment period is over. Therefore, the question of making allegation by challenging the impugned order dated 4.1.2000 that the name of the petitioner is overlooked for the post of Executive Officer Grade II during the year 1989 pending finalisation of the charges under Rule 17(b) which finally came to be over by order dated 20.7.2000 is not sustainable in law. 6. Therefore, this Court finds no merits and both these writ petitions are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sal To 1.The Secretary to Government, Government of Tamil Nadu, Municipal Administration and Water Supply Department Chennai 600 009 2.The Director of Town Panchayat Kuralagam,Chennai 108 3.The District Collector Karur. 1 cc To Mr.M.Ravi, Advocate, SR.64312 1 cc To The Government Pleader, SR.64628 W.P.NOs.47332/2006 and 8520/2007 NSM(CO)PMK.20.9.2010 https://hcservices.ecourts.gov.in/hcservices/