IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.No.859 of 2010 and M.P.No.1 of 2010 M.Manoharan ... Petitioner Vs. The District Collector, (PD Section), Coimbatore District ... Respondent Writ petition has been filed under Article 226 of the Constitution of India for issuance of a writ of mandamus directing the respondent to include the name of the petitioner in the list of Block Development Officer for the year 2009-2010 in the appropriate place with all consequential benefits such as retrospective promotion, refixation of pay, arrears of salary, etc. For petitioner : Mr.V.Suthakar For respondent : Mr.B.Vijay, G.A. O R D E R The petitioner has approached this Court, with a prayer for issuance of a writ in the nature of mandamus, directing the respondent to include the name of the petitioner, in the list of Block Development Officer for the year 2009-2010 at appropriate place, with all consequential benefits, such as retrospective promotion, refixation of pay, arrears of salary, etc. 2. The stand of the petitioner is that he is working as Deputy Block Development Officer (Adi-Dravidar), Sulur Block, Coimbatore District. The next avenue of promotion for the post of Deputy Block Development Officer is that of Block Development Officer. The petitioner being the senior most person in the cadre of Deputy Block Development Officer, is eligible for further promotion. 3. That the District Collector, Coimbatore District published a seniority list of Block Development Officer as on 01.01.2009 wherein the petitioner was assigned Sl.No.6. Though the petitioner was in the zone of consideration, his name was not https://hcservices.ecourts.gov.in/hcservices/ included in the panel, for the reason that charges were framed against the petitioner vide Roc.No.5027/09/T3 dated 14.7.2009 under Rule 17(b) Tamil Nadu Civil Services (D & A) Rules. 4. A perusal of the list of Deputy Block Development Officers not included in the Block Development Officer Panel for the year 2009-2010 shows that name of petitioner was not included, due to pendency of charges which reads as under: SL. No. Seniority Number in the feeder category (Dy. BDO) Name and Date of Retirement Tvl/Tmt. Present post and status Remarks 1 2 3 4 5 2 16/ 2008 K.Manogaran 28.2.2014 Dy. B.D.O Pollachi (North) Charges framed vide Roc. No.5027/09/T3 Dt.14.7.2009 under rule 17(b) of TNCS (D&A) rules is pending 5. The case of the petitioner is that on submission of reply to charge sheet, the competent authority dropped the charges against the petitioner, therefore there is no impediment in the promotion of the petitioner. 6. The petitioner therefore, prays for issuance of a writ in the nature of mandamus, directing the respondent to include the name of the petitioner in the panel list for promotion. 7. The learned counsel for the State on the other hand submitted, that though charges referred to in the order vide which his name was not included in the panel were dropped, but subsequently, another charge memo under Rule 17(b) of Tamil Nadu Civil Service (Disciplinary and Appeal Rules) was issued to the petitioner, which is still pending. Therefore, the name of the petitioner cannot be included in the panel list for promotion. 8. In support of this contention, the learned counsel for the State placed reliance on the G.O.Ms.No.368 dated 18.10.1993. The relevant portion of the G.O. reads as under: "If specific charges are framed or charge sheet is filed the criminal case before actual promotion, the person concerned shall not be promoted notwithstanding the fact that his name has been included in the panel. " https://hcservices.ecourts.gov.in/hcservices/ 9. The learned counsel for the petitioner on the other hand, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India and others Vs. K.V.Jankiraman and others ((1991)4 SCC 109) to contend, that even pending departmental enquiry, the name of the petitioner is required to be considered for promotion as the respondents will be at liberty to follow sealed cover procedure. The contention of the learned counsel for the petitioner is that pendency of the charge memo, cannot be a ground for not inclusion of the name of the petitioner, in the panel for promotion. 10. The contention of the learned counsel for the petitioner that after dropping charges, the petitioner was entitled to be included in the panel, and this right could not be defeated by issuing second charge memo cannot be accepted. Rule 17(b) of Tamil Nadu Civil Service (Disciplinary and Appeal Rules) stipulates that person against whom charges under 17(b) are pending, is not to be included in the panel for promotion. 11. The G.O. referred to above, would further shows that even person whose name is included in the panel, cannot be considered for promotion, in the event of issuance of subsequent charge memo under Rule 17(b) of Tamil Nadu Civil Service (Disciplinary and Appeal Rules). 12. The right of the employee facing charges is protected under the rules, as in the event of exoneration from the charges, employee becomes entitled to be considered for promotion from the due date with all consequential benefits. 13. In view of the specific rules, the judgment of the Hon'ble Supreme Court, on which reliance is placed by the learned counsel for the petitioner will not be applicable to the facts of this case. 14. It is also not disputed, that the petitioner has not challenged the subsequent charge memo, which is pending enquiry. The writ of mandamus against provision of law cannot be issued. Consequently, this writ petition is dismissed, but with no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vaan https://hcservices.ecourts.gov.in/hcservices/ To The District Collector, (PD Section), Coimbatore District. 1 cc To The Government Pleader, SR.10636/10 1 cc To Mr.V.Suthakar, Advocate, SR.10184/11. W.P.No.859 of 2010 and M.P.No.1 of 2010 SV(CO) PMK.28.2.2011 https://hcservices.ecourts.gov.in/hcservices/