IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.09.2008 CORAM THE HONOURABLE Mr. JUSTICE K.VENKATARAMAN Writ Petition Nos.17527 and 17528 of 2008 and M.P.No.1 to 3 and 1 to 3 of 2008 G.Nithyanandhan ... Petitioner in WP No.17527/08 L.T.Palanisamy ... Petitioner in WP No.17528/08 Vs. 1.The Government of Tamilnadu, Through its Secretary to Govt., Agriculture Department, St. George Fort, Chennai. 2.The Director of Horticulture and Plantation Crops, Chepauk, ... Respondents Chennai. in both petitions. Writ petitions have been filed under Article 226 of The Constitution of India to issue a Writ of certiorari to call for the records pertaining to the impugned proceedings of the second respondent in P. AP.1/19001/2007-2 dated 18.07.2008 reverting the petitioner from the post of Assistant Director of Horticulture to Horticulture Officer and quash the same. For Petitioner : Mr.N.R.Chandran, S.C., for Mr.VR.Shanmuganathan, in both petitions. For Respondents : Mr.P.S.Raman, Addl.A.G., assisted by Ms.Lita Srinivasan, G.A. COMMON ORDER In the above writ petitions, the petitioners challenge the impugned proceedings of the second respondent dated 18.07.2008 reverting them from the post of Assistant Director of Horticulture to the Horticulture Officer. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the petitioners in nutshell is set out here under:- (a) The petitioners joined in the service of the respondent department on 02.02.1981 and 04.02.1981 respectively as Horticulture Officers. By the proceedings of the Tribunal for Disciplinary Proceedings, Coimbatore, vide TDP Case No.9 of 2007, proceedings were initiated against the petitioners and 27 other officers of the department in which they have been made as accused Nos.29 and 16 respectively. The allegations against the petitioners are that they have abetted the main accused person to commit the malpractice. Even the charges themselves do not say that they did the same knowingly. The charges are baseless. (b) While so, pending charges on the disciplinary proceedings, the petitioners were promoted as Assistant Director of Horticulture by proceedings dated 31.12.2007 considering their services. While so, to their shock and surprise, the second respondent passed an order dated 18.07.2008 quoting G.O.Ms.No.233 Agriculture Department dated 17.07.2008 stating that 24 officers already promoted are reverted and out of them 18 were promoted by mistake without taking into account the senior officers available and 6 of them are now reverted as disciplinary proceedings are pending against them. The said Government Order has not so far been published and is kept secretly by the respondents and it is not made available to anybody. Hence, the petitioners are constrained to challenge the proceedings of the second respondent dated 18.07.2008 intimating them about the reversion alone. (c) The grounds of challenge are:- (i) the order of reversion is in violation of principles of natural justice; (ii) It has been passed in an arbitrary and mechanical manner and without application of mind; (iii) Pendency of the disciplinary proceedings is not a ground for reverting the petitioners, especially when they were promoted during the pendency of the disciplinary proceedings; (iv) There is no legal bar or prohibition for promoting a Government Servant during the pendency of the disciplinary proceedings. Thus, there is no legal necessity to revert the petitioners. (d) The impugned proceedings are violative of Article 14 of Indian Constitution as it is discriminatory. https://hcservices.ecourts.gov.in/hcservices/ 3. Counter affidavit had been filed on behalf of the respondents along with an application for vacating the interim order that has been granted by this Court, wherein the following facts have been set out:- (a) A policy decision was taken by the Government to integrate the extension activities of the Department of Agriculture, Horticulture, Agricultural Marketing and Seed Certification, so as to offer all extension inputs to farmers at one point easily. Accordingly orders have been issued in G.O.Ms.No.537, Agriculture Department dated 24.12.2007. In order to maintain equitable opportunity of promotion, the shortfall of posts of 509 Assistant Directors of Agriculture / Assistant Director of Horticulture under restructure has to be met by way of upgradation of equal number of posts from among the existing Feeder category of Agricultural Officers/ Horticulture Officers / Agricultural Officer (Research) by following combined seniority based on the regularization of their services at the entry level post. Thus, it was decided to prepare a temporary panel from the combined senior list of Agricultural Officers / Horticultural Officers / Agricultural Officer (Research). (b) The Government had approved in G.O.Ms.No.548 Agriculture dated 28.12.2007, a list of 509 candidates for inclusion in the temporary penal for promotion to the upgraded post of Assistant Director of Agriculture / Assistant Director of Horticulture. Subsequently, on examination of representations of Senior Agricultural Officer, whose names were not included in the said temporary upgradation panel, the names of 24 eligible senior Agricultural Officers have been included in the said panel at the appropriate place and in that process, the names of six ineligible Officers against whom disciplinary proceedings are pending, were deleted and 18 junior most persons were reverted as Horticulture Officers. The petitioners were facing charges and hence, they have been reverted. The Government issued an order in G.O.Ms.No.233 Agriculture Department dated 17.07.2008 deleting the names of six Horticultural Officers / Agricultural Officers from the approved temporary panel. Basing on the said Government Order, the Director of Horticulture and Plantation Crops in his proceedings dated 18.07.2008 has ordered to relieve them from the post of Assistant Director of Horticulture and posted them as Horticulture Officers. The petitioners are coming under the said category. There is no such case of promotion of persons against whom disciplinary proceedings are pending as alleged by the petitioners and hence, it is baseless and made without actual facts. Thus, the counter affidavit sought for the dismissal of the writ petition. 4. Rejoinder affidavit had been filed by the petitioners, wherein the following facts have been set out:- https://hcservices.ecourts.gov.in/hcservices/ Several employees of the respondent department have been promoted to various posts pending disciplinary proceedings and none of them have been reverted as the petitioners. The allegations levelled against the petitioners related to a period long back and the enquiry and the disciplinary proceedings were initiated long back and they have not been completed. Therefore, as per the decision of the Hon'ble Apex Court and this Court and as per the rules, they have been promoted subject to the result of the said proceedings. Till such proceedings are over, the respondents are not supposed to revert them back and the same would amount to reduction in rank and a punishment even before the conclusion of the disciplinary proceedings. The reduction creates stigma on the petitioners and now they will be placed below in seniority behind their juniors. 5. Mr.N.R.Chandran, learned Senior Counsel appearing for the petitioners made the following submissions:- (a) Though disciplinary proceedings are pending against the petitioners before the Tribunal for disciplinary proceedings, Coimbatore, the petitioners have been promoted since there is no legal bar or prohibition for promotion during the pendency of the disciplinary proceedings; (b) The order of reversion had been passed without due notice to the petitioners and without giving any opportunity to them and hence, it is violative of the principles of natural justice. (c) Though disciplinary proceedings are pending against few officers, they have been promoted whereas the petitioners have been reverted citing disciplinary proceedings, which is a clear discrimination. 6. On the contrary, Mr.P.S.Raman, learned Additional Advocate General appearing for the respondents has made the following contentions:- (a) The pendency of the disciplinary proceedings against the petitioners would disentitle them from getting an order of promotion. (b) Since disciplinary proceedings are pending against the petitioners, which is a fact known to them and the petitioners have been promoted without reference to those disciplinary proceedings by mistake, now, they have been reverted and hence giving notice to them would be an empty formality. Hence, on that said ground, the impugned order of reversion need not be set aside. https://hcservices.ecourts.gov.in/hcservices/ (c) Absolutely no officers against whom disciplinary proceedings are pending, have been given promotion and hence, the discrimination alleged by the petitioners are totally without any basis. 7. I have considered the submissions made by the learned Senior Counsel appearing for the petitioners and the learned Additional Advocate General appearing for the respondents. 8. The petitioners admittedly joined in the service of the respondent department as Horticulture Officers. They have been promoted as Assistant Director of Horticulture by proceedings dated 31.12.2007. Pursuant to G.O.Ms.No.548 Agriculture Department dated 28.12.2007, the Government had approved a list of 509 candidates for inclusion in the temporary panel for promotion as Assistant Director of Agriculture / Horticulture. In pursuance of the said order of promotion, the petitioners have joined services. However, it is stated on the side of the respondents that representations were received from several Agricultural Officers stating that though they were fully qualified for promotion and they have been overlooked and juniors have been promoted. It is also averred on behalf of the respondents that those representations were examined in detail and it has been found that 24 candidates, who were seniors to the candidates included in the temporary list, have been left out inadvertently. It was also found that 6 candidates, who are not fit to be included in the temporary list as Assistant Director of Agriculture in view of the reason that disciplinary proceedings are pending against them, have been included in the temporary panel. To rectify the defects, the seniors who are left out, have been accommodated and included in the temporary list of Assistant Director of Agriculture in their appropriate places as per G.O.Ms.No.233 Agriculture Department dated 17.07.2008. The petitioners were reverted, according to the respondents, because of the disciplinary proceedings pending against them, which was not noted at the time of promoting them. 9. It is, however, contended on behalf of the petitioners that though disciplinary proceedings are pending against them, that will not be a bar to promote them as Assistant Director of Horticulture. Further, it has been pleaded that though charge memos were pending against several persons, they have been accommodated and promoted whereas the petitioners have been demoted. Further, it has been averred that even assuming that such reversion has to take place, the same should have been done after due notice to the petitioners and thus, the principles of natural justice have been violated. 10. When it is not disputed by the petitioners that disciplinary proceedings are pending against them, they cannot claim promotion automatically. Pendency of the disciplinary proceedings under Rule 17 (b) would disentitle them from inclusion of their name https://hcservices.ecourts.gov.in/hcservices/ in the panel for promotion. It is averred on behalf of the respondents that without noting the disciplinary proceedings pending against them, by mistake, the petitioners have been promoted and action has been taken against the officer, who has passed orders promoting the petitioners. As stated already, since disciplinary proceedings are pending against the petitioners, they are not entitled for promotion automatically. 11. Then, the next question that arises for consideration is whether before ordering reversion, the petitioners shall be put on notice about the same and whether the failure to issue notice to them, would be violative of principles of nature justice. Though it is urged on the side of the petitioners that such notice is necessary, I am not inclined to accept the said contention for the reason that it is not the case of the petitioners that no disciplinary proceedings are pending against them. It cannot be the contention on the side of the petitioners that knowingly well about the disciplinary proceedings, they have been considered for promotion and promoted as Assistant Directors of Horticulture. It is averred on the side of the respondents that the petitioners have been included in the list of promotion by mistake and an action had been taken against the concerned officer for including the name of the petitioners. When such is the position, even assuming that notice has to be issued to the petitioners before an order of reversion, it would be only an empty formality, as contended by the learned Additional Advocate General appearing for the respondents. In view of the same, I am of the considered opinion that though normally such orders of reversion could be done only after following the principles of natural justice by issuing notice to the concerned persons, considering the above facts and circumstances, the failure to issue such notice does not vitiate the order passed by the respondents reverting the petitioners. 12. The next contention of the learned Senior Counsel appearing for the petitioners is that though disciplinary proceedings are pending against some of the officers, they have been promoted and in the case of the petitioners, pendency of departmental proceedings are shown to revert them. However, it has been clearly stated by the respondents that none of the officers against whom disciplinary proceedings are pending, have been considered for promotion. It is stated on behalf of the respondents that -- (i) as regards C.Renganathan, V.Sekar, A.Syed Anser Basha and P.Vijayalakshmi, Agriculture officers, from the preliminary report submitted by the Director of Vigilance and Anti Corruption, it is found that the allegations against them are held not proved and the Government had accepted the findings of the enquiry officer. Hence, they have been considered for inclusion in the panel for promotion. https://hcservices.ecourts.gov.in/hcservices/ (ii) In respect of B.B.Raman, K.N.Mani, B.K.Nagaraj, P.Devaraj and S.Madhevoo, it is submitted on behalf of the respondents that on the policy decision taken by the Government that there should be no recruitment to the post of Field Demonstration Officers in future, the incumbents of the post of Field Demonstration Officers were upgraded in a phased manner. Hence, it is only a re- designation of the post of Field Demonstration Officer as Assistant Agricultural Officers. (iii) As regards Thiru Syed Kadhar Oli, he is not one among the persons whose names have been considered for inclusion in the combined seniority list of 509 persons approved for promotion to Assistant Director of Agriculture / Assistant Director Horticulture posts approved in G.O.Ms.No.548 Agriculture dated 28.12.2007. The said person while working as Deputy Director of Horticulture, filed a writ petition in W.P.No.26000 of 2007 before this Court seeking a direction to consider his name for promotion to the post of Joint Director of Horticulture. Based on the orders of this Court in the said writ petition, he was given promotion as Director of Horticulture. (iv) As far as Thiru Halldurai, Horticulture Officer is concerned, he is not one among the persons whose names have been considered for inclusion in the combined seniority list of 509 persons referred to above. No charges have been framed against him and hence, he was included in the temporary panel for the year 2003- 04. (v) As far as Thiru Marappan, Assistant Director of Agriculture is concerned, he is not one among the persons whose names have been considered for inclusion in the combined seniority list of 509 persons approved for promotion. By filing a writ petition in W.P.No.6102 of 2008, he sought for promotion as Deputy Director of Agriculture from his present level post of Assistant Director of Agriculture. This Court, by an order dated 11.03.2008, directed the first respondent viz., the Secretary to Government, Agriculture Department, to consider and dispose his representation dated 31.12.2007 and the Government after careful consideration, rejected his request in view of the pendency of the disciplinary proceedings against him. (vi) In respect of Thiru Raja Mohamed, his name was not included in the combined seniority list of 509 persons referred to above on account of the pendency of vigilance case and departmental action. In the writ petition filed by him in W.P.No.3614 of 2008, by an order dated 14.08.2008, this Court directed the Secretary to Government, to consider his claim without reference to the charge memo issued. Accordingly, necessary action is taken by the Government. https://hcservices.ecourts.gov.in/hcservices/ (vii) In respect of R.Krishnamoorthy, Assistant Agriculture Officer, no charge has been framed against him and hence, he has been promoted to the upgraded post of Deputy Agricultural Officer. (viii) As regards Thiru C.Ramalingam, Assistant Agriculture Officer, he has already retired from service on attaining the age of superannuation and as regards Thiru Murugan, he has already retired voluntarily as Assistant Agriculture Officer. (ix) As far as Thiru Dharman, Assistant Agriculture Officer is concerned, no charges have been framed against him and he was considered for promotion to the upgraded post of Deputy Agricultural Officer. 13. Thus, the respondents have come out with a clear case that none of the persons, who have been shown in the reply affidavit, have been promoted pending disciplinary proceedings against them. 14. Considering the totality of the circumstances, I am of the considered opinion that the order of reversion challenged by the petitioners does not require any re-consideration by this Court for the reasons stated above. 15. In the result, both the writ petitions are liable to be dismissed and accordingly, dismissed. However, there is no order as to costs. Consequently, connected petitions are closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar sbi To 1.The Secretary to Govt., Government of Tamilnadu, Agriculture Department, St. George Fort, Chennai. 2.The Director of Horticulture and Plantation Crops, Chepauk, Chennai. +2 ccs To Mr.VR.Shanmuganathan,, Advocate, SR.54632 W.P.Nos.17527 and 17528 of 2008 ksk [co] gkg/7.10 https://hcservices.ecourts.gov.in/hcservices/