IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.04.2011 CORAM The Hon'ble Mr.Justice T.Raja W.P.No.1940 of 2011 and M.P.No.1 of 2011 A.Anbalagan .. Petitioner Vs. 1.State of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Fort St.George, Chennai – 600 009. 2.The Principal Secretary and Commissioner of Revenue Administration, Chepauk, Chennai – 600 005. 3.The District Collector, Nagapattinam District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Mandamus, directing the respondents to include the name of the petitioner in the panel for the year 2008-2009 for the post of Deputy Collector and to give promotion as Deputy Collector on par with the petitioner's Junior with effect from 09.04.2009, as per the order dated 17.09.2007, made in W.P.No.10411 of 2003, with all consequential service and monetary benefits. For Petitioner : Mr.T.Chellapandian for M/s. S. Mani For Respondents: Mrs.Lita Srinivasan 1 to 3 Govt. Advocate O R D E R The petitioner has filed the present Writ Petition seeking for the issuance of Writ of Mandamus, directing the respondents to include the name of the petitioner in the panel for the year 2008- 2009 for the post of Deputy Collector and to give promotion as Deputy Collector on par with his junior viz., Munusamy, with https://hcservices.ecourts.gov.in/hcservices/ effect from 09.04.2009, as per the order dated 17.09.2007, passed by this Court in W.P.No.10411 of 2003, with all consequential service and monetary benefits. 2. Mr.T.Chellapandian, the learned counsel appearing for the petitioner submitted that the petitioner joined the service as a Typist through Tamil Nadu Public Services Commission on 20.10.1984. Thereafter, he was promoted to the post of Assistant on 4.12.1992. After six years, he was further promoted to the post of Head Assistant in the year 1998, which is equal to the cadre of Deputy Tahsildar. Once again in the year 1999, he was promoted to the post of Deputy Tahsildar, but subsequently, he was reverted to the post of Assistant on 14.05.2001. 3. The case of the petitioner is that 12 persons, including the petitioner, who were working as Assistant, were temporarily promoted as Deputy Tahsildar under Rule 39 ( a) (i) of the Tamil Nadu State and Subordinate Service Rules and after the procurement was over, by an order dated 15.05.2001, the petitioner was reverted to the post of Assistant, but his juniors, who were promoted to the post of Deputy Tahsidars, were allowed to hold the post. Challenging the same, the petitioner filed an application in O.A.No.3460 of 2001, before the Tamil Nadu Administrative Tribunal. But the same was dismissed by the Tribunal. 4. Aggrieved against the said order, the petitioner filed a petition being W.P.No.10411 of 2003, before this Court and this Court in and by its order dated 17.09.2007, given a direction for inclusion of the petitioner's name in the 1997 panel and to consider him for promotion to the post of Deputy Tahsildar, with effect from 15.09.1997, fixing his seniority at an appropriate place. 5. In pursuant to the order passed by this Court in W.P.No.10411 of 2003, the respondents also passed an order dated 11.01.2010, in G.O.(2D) No.11 Revenue ( Ser3(2)) Department. Thereafter, the grievance of the petitioner is that when the respondents have given the benefits, as per the order passed by this Court in the above said Writ Petition, including the name of the petitioner in the approved list of Deputy Tahsildar for the year 1997, and they have given notional promotion as Deputy Tahsildar, on par with his junior viz., Munusamy, with monetary benefit from the year 1997, vide order dated 11.01.2010, passed in G.O. (2D) No.11 Revenue (Ser3(2)) Department. Subsequently, when they considered giving further promotion to the petitioner and his junior Munusamy, the respondents should have continued to give the promotional benefits to the petitioner on par with his junior. But when the petitioner's Junior viz., Munusamy, was given promotion on 09.04.2009 for the post of Deputy Collector, for the year 2008-09, the same was denied to the petitioner. Therefore, the https://hcservices.ecourts.gov.in/hcservices/ petitioner has come forward to this Court by filing the present Writ Petition. 6. The learned counsel appearing for the petitioner submitted that when the respondents have accepted the case of the petitioner and complied with the order dated 17.09.2007, passed by this Court in W.P.No.10411 of 2003, and also gave promotion on par with his junior-Munusamy and when the said Munusamy, was subsequently given promotion on 09.04.2009, the petitioner also should have been given promotion as on 09.04.2009, as there was no charge or departmental proceedings pending against the petitioner. Though the petitioner was issued with charge memo dated 19.09.2010, under Rule 17 (b) of Tamil Nadu Civil Service ( Discipline and Appeal) Rules, ( hereinafter referred to as 'the Rules') when the respondents have given promotion to his junior Munusamy, on 09.04.2009, the charge memo dated 19.09.2010, under Rule 17 (b) of the Rules, cannot be a bar to the petitioner from getting his name included along with the said Munusamy. As the respondents have not done so, a direction may be given, as prayed for. 7. Opposing the said prayer, Mrs.Lita Srinivasan, the learned Government Advocate appearing for the respondents submitted that the case of the petitioner cannot be considered for two reasons. Firstly, this Court by an order dated 17.09.2007, passed in W.P.No.10411 of 2003, has specifically mentioned not to include the persons, who are junior to the petitioner at the time of considering his case to include the name for the post of Deputy Tahsildar and subsequently, when he was given promotion as per the order passed in G.O. (2D) No.11, Revenue (Ser3(2)) Department dated 11.01.2010, unfortunately, due to pendency of charges framed under Rule 17(b) of the Rules, the case of the petitioner was not considered. 8. Secondly, it was contended that if a person is issued with any charge memo and finally gets acquitted from the charge, he is entitled to get all the promotional benefits. Therefore, the petitioner is not going to suffer any prejudice, if he is made to wait till the departmental proceedings are over, for which he was issued with a charge memo dated 19.09.2010, under Rule 17 (b) of the said Rules. This Court does not find any force in the arguments advanced by the learned Government Advocate. The reason being that this Court by order dated 17.09.2009, passed in W.P.No.10411 of 2003, has specifically considered the case of the petitioner and finally issued a direction for inclusion of the petitioner's name in the 1997 panel and to consider him for promotion to the post of Deputy Tahsildar, with effect from 15.09.1997. 9. Accepting the said order referred to supra, the respondents have also passed orders in G.O.(2D) No.11 dated 11.01.2010. On the basis of the said Government Order, the case of https://hcservices.ecourts.gov.in/hcservices/ the petitioner was allowed by the respondents. When the matter stands thus, the admitted case of the petitioner is that he was given promotion on par with his junior Munusamy. Admittedly, the petitioner's junior Munusamy, was given promotion on 09.04.2009. On the said date, when they considered the case of the said Munusamy, as there is no departmental proceedings pending or any charge memo issued against the petitioner, the case of the petitioner in terms of the settled legal position ought to have been considered by the respondents. 10. It is no doubt true that the arguments advanced by the learned Government Advocate shows that the charge memo dated 19.09.2010, was issued under Rule 17 (b) of the Rules against the petitioner. Since the said charge memo was issued only after giving promotion to the petitioner's Junior Munusamy, I do not find any force in the arguments advanced by the learned Government Advocate, in denying promotional benefits to the petitioner, inasmuch as the G.O.Ms.No.368 Personnel and Administrative Reforms Department dated 18.10.1993, clearly says that in cases where specific charges have been framed or charge sheet has been filed in criminal case, only then promotion of such person shall be deferred till the proceedings are concluded. But in the instant case, when the petitioner's junior Mr.Munusamy, was given promotion on 9.4.2009, there is no charge framed or pending against him, as admittedly noted above, a charge memo dated 19.09.2010, of Rule 17 (b) of T.N.C.S.(D & A ) Rule was issued only in the year 2010. Therefore, as held by a Learned Division Bench of this Court in W.A.No.115 of 2008, dated 10.04.2008, followed by yet another order passed by a Learned Single Judge in W.P.No.19690 of 2008 dated 06.09.2008 ( K.Duraikannu Vs. State of Tamil Nadu) I am of the considered view that since no charge was pending on the date when his junior was given promotion, the petitioner's name is bound to be included in the panel and he is also entitled to get promotion on par with his junior. 11. In the result, the Writ Petition is allowed and the respondents are directed to include the name of the petitioner in the panel drawn for the year 2008-2009 for the post of Deputy Collector and to give promotion as Deputy Collector on par with the petitioner's Junior viz., Munusamy, with effect from 09.04.2009. However, there shall be no order as to costs. consequently, connected Miscellaneous Petition is closed. sd Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1) The Secretary the Government of Tamilnadu, Revenue Department, Fort St.George, Chennai – 600 009. 2) The Principal Secretary and Commissioner of Revenue Administration, Chepauk, Chennai – 600 005. 3) The District Collector, Nagapattinam District. + 1 cc to M/s. S. Mani, Advocate SR No.29588 + 1 cc to Government Pleader, SR No.30820 KJ(CO) SR/3.6.2011 W.P.No.1940 of 2011 https://hcservices.ecourts.gov.in/hcservices/