IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-6-2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P.No.2494 of 2011 and M.P.Nos.1, 2 and 4 of 2011 N.Saravanakumar ... Petitioner Versus The Commissioner of Transport Chepauk Chennai 5. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for the relief of issuance of writ of certiorarified mandamus to call for the records of the respondent in connection with the impugned order issued by the respondent in Proc. R.No.T1/23327/2007 (E.O.No.207/07) dated 9.5.2007 and quash the same in so far as the petitioner is concerned and further direct the respondent to consider the claim of the petitioner for promotion as Motor Vehicle Inspector, Grade I without reference to the Charge Memo issued in Letter No.9206/Tr.II/2007/24 dated 17.4.2008 and promote the petitioner as Motor Vehicle Inspector, Grade I in the panel for the year 2007-08 and grant the petitioner all consequential service and monetary benefits. (prayer amended as per order dated 11.2.2011 made in M.P.No.3 of 2011 in W.P.No. 2494 of 2011) For Petitioner :- Mr.K.Venkataramani Senior Counsel for Mr.M.Muthappan For Respondents :- Mr.R.Kannan Govt. Advocate O R D E R The petitioner N.Saravanakumar, working as Motor Vehicle Inspector Grande II has come to this court by filing the present writ petition under Article 226 aggrieved by order passed by the respondent the Commissioner of Transport, Chennai seeking to quash the same with a further direction to consider his claim for promotion as Motor Vehicle Inspector Grade I without reference to the charge https://hcservices.ecourts.gov.in/hcservices/ memo issued in Letter No. 9206/Tr.II/2007/24 dated 17.4.2008 and promote him as Motor Vehicle Inspector Grade I in the panel for the year 2007-2008 with all consequential service and monetary benefits. 2. Mr.K.Venkataramani, learned Senior Counsel appearing for the petitioner submitted that the petitioner was appointed on compassionate grounds as Motor Vehicle Inspector Grade II on 24.10.2000. While the petitioner was serving as Motor Vehicle Inspector Grade II , he became due for promotion as Motor Vehicle Inspector Grade I in the panel year 2007-08, but the claim of the petitioner was overlooked on the ground that the petitioner's service was not regularised. But at the same time, the petitioner's batchmate one Ayyasamy who was appointed on 6.12.2000 was considered. Though the petitioner became eligible for promotion as Motor Vehicle Inspector Grade I in the year 2007-08, in view of non- regularisation of his service, his name was overlooked by the respondents. Again the petitioner's claim for promotion was considered for the panel year 2008-09 and once again his name was overlooked by the respondent for the same reason viz., for want of regularisation of service. Again, when his name was taken up for consideration for the panel year 2009-10, the respondent deferred the case of the petitioner on the ground that he was facing a disciplinary proceedings initiated in pursuance of G.O.D.No.436 Home (Trans.II) Dept., dated 17.4.2008. The petitioner was again overlooked for the panel year 2010-11, due to the pending disciplinary proceedings. 3. In the meanwhile the service of the petitioner was regularised by order dated 14.10.2010 passed by the respondent giving effect from the initial date of his appointment. After the order of regularisation dated 14.10.2010 regularising the petitioner with effect from the initial appointment, the petitioner made representation dated 24.1.2011 to the respondent requesting to consider his promotion in view of the fact that the petitioner was regularised by order dated 14.10.2011. As there was no response, the petitioner has come to this court with the prayer as stated above. 4. Therefore the learned Senior Counsel appearing for the petitioner while advancing his arguments on behalf of the petitioner has placed three fold submissions:- (i) Firstly it is the admitted case of both side that when the petitioner was serving as Motor Vehicle Inspector Grade II, the respondent has passed a proceeding dated 9.5.2007 informing that the petitioner has become fit for promotion to the post of Motor Vehicle Inspector Grade I. Therefore, on the crucial date viz., 15.3.2007 when the petitioner did not suffer any disciplinary proceedings, the respondent should have considered the case of the petitioner in view of subsequent regularisation passed by the respondent on 14.10.2010 giving effect from the date of his original appointment. https://hcservices.ecourts.gov.in/hcservices/ (ii) His second submission is that subsequent to the crucial date, even on the date of consideration viz., 9.5.2007, admittedly there was no charges nor disciplinary proceedings initiated or pending against the petitioner. Therefore, on these two crucial dates, when the petitioner has not given any room for any initiation of departmental proceedings or adverse entry in his service registers as mentioned by the respondent in their order that the petitioner is fit for promotion to the post of Motor Vehicle Inspector Grade I, for the reason that the regularisation order was issued only on 14.10.2010, of course with effect from the initial date of appointment and in the meanwhile for the reason he suffered a charge memo dated 17.4.2008, the respondent cannot deny the benefit of promotion to the petitioner to the post of Motor Vehicle Inspector Grade I. (iii) Thirdly, he has further submitted that though the order dated 14.10.2010 regularising the service of the petitioner with effect from the initial date of appointment is a belated one for which the petitioner cannot be held responsible. Had the respondent passed the regularisation order before the crucial date or before the date of consideration the petitioner's name would have been properly considered for the promotional post of Motor Vehicle Inspector Grade I . Since the respondent has taken belated time in passing the regularisation order dated 14.10.2010 giving the benefit of regularisation from the date of initial date of appointment, subsequent issuance of charge memo dated 17.4.2008 cannot work against the petitioner for getting the benefit of promotion to the post of Motor Vehicle Inspector Grade I for the reason that he kept his service records very clear as on the crucial date viz., dated 15.3.2007 and also on the date of consideration dated 9.5.2010. 5. In support of his submissions the learned Senior Counsel appearing for the petitioner also relied on the judgment of the Supreme Court in DELHI JAL BOARD VS. MAHNDER SINGH (2000 (7) SCC 210) for the proposition that if a promotee kept his service records clear on the crucial date as well as on the date of consideration, any other subsequent departmental proceedings initiated by way of issuance of charge sheet would not come in the way of giving him the benefit of promotion . On this basis, the learned Senior Counsel appearing for the petitioner prayed for setting aside the impugned proceedings by allowing the present writ petition. 6. Heavily opposing the said prayer Mr.R.Kannan, learned Government Advocate appearing for the respondent submitted that the petitioner was appointed as Motor Vehicle Inspector Grade II on compassionate ground by G.O. No.962 Home (Transport) dated 24.10.2000. The petitioner joined duty on 29.12.2000, however, the https://hcservices.ecourts.gov.in/hcservices/ service of the petitioner was not regularised. The relevant date that has to be taken into consideration for the purpose of considering the incumbent for promotion to the post of Motor Vehicle Inspector Grade I is the crucial date viz., 15.3.2007 followed by the date of consideration viz., 9.5.2007. Admittedly, on these dates viz., the crucial date as well as the date of consideration in view of his non-regularisation of his service, the petitioner was not legally entitled to get promotion. However, he suffered a charge memo issued by the respondent on 17.4.2008. During the pendency of the charge memo, the respondent issued the regularisation order dated 14.10.2010 regularising the service of the petitioner giving the benefit with effect from the original date of appointment. According to him, it does not mean that the order dated 14.10.2010 regularising the service of the petitioner giving effect from the original date of appointment will help the petitioner for the simple reason that the petitioner in between suffered a charge memo on 17.4.2008. Therefore, even before the order of regularisation was passed by the respondent on 14.10.2010, since the petitioner suffered a charge memo on 17.4.2008, the case of the petitioner cannot be considered for promotion, on that basis he further argued that the respondent has rightly passed the impugned order and it does not call for interference by this court. This argument advanced by the learned Government Advocate appearing for the respondents may not deserve consideration for more than one reasons. 7. Firstly, the petitioner on the date of crucial date viz., 15.3.2007 did not suffer or face any departmental proceedings at the hands of the respondent. Even on the date of consideration i.e. 9.5.2007 no departmental proceedings or adverse entry was pending against the respondent. Admittedly in view of keeping clear records by the petitioner on these two dates the Commissioner of Transport in his proceedings dated 9.5.2007 has clearly mentioned that the petitioner is fit for promotion for the post of Motor Vehicle Inspector Grade I. But in the said order it has been mentioned that the service was not regularised. However, such non-regularisation of service cannot be equated with the departmental proceedings. Subsequently even that defect of non-regularisation came to be rectified by the order of the respondent dated 14.10.2010 giving effect from the date of initial appointment. Therefore, when the case of the petitioner was considered on the crucial date i.e. 15.3.2007 followed by the date of consideration on 9.5.2007 since the respondent has issued the regularisation order dated 14.10.2010 giving benefit with effect from the initial appointment the case of the petitioner in the light of the ratio laid down by the Apex Court in the case of DELHI JAL BOARD VS. MAHINDER SINGH (2000 (7) SCC 210) should be considered. The ratio laid down by the Apex Court in the said judgment states that if an incumbent aspiring for promotion, is able to keep his service records very clear on the date of crucial date followed by the date of consideration, any subsequent https://hcservices.ecourts.gov.in/hcservices/ departmental proceedings would not come in the way of giving him the benefit promotion. Therefore, it is useful to refer to the relevant paragraph of the judgment of the Apex Court, 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 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 anterior selection. There is, therefore, no question of referring the matter to a larger Bench. 8. On another occasion this court has considered a similar case in W.P.No. 1277 of 2009 (P.Chinnadurai Vs. The Secretary to Government, Commercial Taxes and Registration Department) dated 15.9.2009 and held that when there was no charge memo pending on the crucial date as well as the date of consideration, subsequently, merely because a second charge memo was issued cancelling the earlier charge memo, the petitioner will not lose his right of being considered for inclusion in the panel. It is useful to refer paragraph 17 of the said unreported judgment which is extracted as under:- 17. It is relevant to point out that on the crucial date viz., 1.4.1999 for inclusion in the panel for District Registrar for the year https://hcservices.ecourts.gov.in/hcservices/ 1999-2000 or on the date of consideration viz., 3.4.2003 or the date of actual promotion to the petitioner's junior viz., 30.4.2003, there was no charge memo pending, except , of course, the criminal case which subsequently ended in acquittal on 26.12.2007. In such circumstances, merely because a second charge memo was issued on 17.11.2008 by cancelling the earlier charge memo dated 28.4.2004, it does not mean that the petitioner will be losing his right of being considered for inclusion in the panel for the year 1999-2000 for District Registrar, if he is otherwise suitable. That was also the view taken by the Division Bench of this court consisting of R.Jayasimha Babu,J and F.M.Ibrahim Kalifulla,J, in the unreported judgment in W.P.No.21007 of 2001 (The State of Tamil Nadu rep. By its Secretary to Government and another Vs. C.Nagappan and another) by judgment dated 28.2.2002 and the relevant portion of the judgment is as follows:- "The legal position remaining thus, the learned Government Pleader appearing for the writ petitioners would contend that though the panel related to the year 1995, the drawal of the same was made only on 31.12.1996, that on 2.12.1996 yet another charge sheet came to be issued to the first respondent herein and in the circumstances, since as on the actual date of drawal of the list, i.e. on 31.12.1996 there was a charge memo pending against the first respondent, by virtue of the amended Rule to Rule 17(b), the name of the first respondent was not rightly included in the promotion panel for Forest Rangers. We are unable to accept the said contention raised on behalf of the petitioners. In fact though this contention was very much available with the petitioners, the same was not raised before the Tribunal. In any event, when admittedly, the panel related to the year 1995 and when even according to the petitioners themselves, the consideration of the various Foresters, who were appointed up to 31.12.1994 with reference to whom alone, service particulars were called for by the proceedings dated 3.8.1995 for the purpose of the drawal of panel for promotion during the year 1995, the present stand of the petitioners that irrespective of the said factual position, the subsequent charge memo issued on 2.12.1996 should also be taken into account, and thereby delete https://hcservices.ecourts.gov.in/hcservices/ the name of the 1st respondent from the drawal of the panel of the year 1995 is not only not justified but cannot be said to be an action, which is in consonance with law. As held by the Honourable Supreme Court that when once the disciplinary proceedings in the earlier inquiry ended in favour of the delinquent, the said subsequent action cannot come in the way of giving him the benefit of the assessment by the earlier Departmental Promotion Committee in his favour in the anterior selection." 9. Considering the above ratio, if I look at the case of the petitioner as mentioned above, on the crucial date i.e. 15.3.2007 and also on the date of consideration viz., 9.5.2007, there was no charge memo pending against the petitioner. In view of non- regularisation of the service of the petitioner, his name was not considered for giving him promotion to the post of Motor Vehicle Inspector Grade I. However, as submitted by the learned Senior Counsel appearing for the petitioner since the respondent has declared the probation of the petitioner on 4.5.2011, I do not find any impediment in giving a direction to the respondent to consider the case of the petitioner for promotion to the post of Motor Vehicle Inspector Grade I. In view of the fact that the respondent having declared the probation of the petitioner and also having regularised the service with effect from the date of his initial appointment, the respondent shall promote the petitioner as Motor Vehicle Inspector Grade I. The said exercise shall be completed by the respondent within a period of six weeks from the date of receipt of copy of this order. Accordingly, the writ petition stands allowed. Consequently, the connected M.Ps are closed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar krr/ To The Commissioner of Transport, Chepauk, Chennai 5. 2 cc To Mr.M.Muthappan, Advocate, SR.32256 1 cc To The Government Pleader, SR.35886 W.P.No.2494 of 2011 BKY (CO) RH (25.7.11) https://hcservices.ecourts.gov.in/hcservices/