IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.08.2011 CORAM: THE HON'BLE MR.JUSTICE T.RAJA W.P.No.12287 of 2008 and M.P.No.2 of 2008 V.Chandra ... Petitioner Vs. 1. The Commissioner and Director of Social Welfare Department of Social Welfare, Chennai – 600 005. 2. The District Project Officer, Child Development Officer, Cuddalore, Cuddalore District. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India for the issuance of writ of certiorari, to call for the records of the 1st respondent in pursuant to the impugned charge memo reference Na.Ka.No.69181/Nir. 8(1)/2001, dated 20.08.2003 and quash the same. For Petitioner : Mr.P.R.Thiruneelakandan For Respondents : Mrs.Lita Srinivasan, Government Advocate. ORDER The present writ petition is directed against a Charge Memo dated 20.08.2003 issued by the Commissioner and Director of Social Welfare Department with inordinate delay of 20 years from the date of appointment of the petitioner and she is having only 4 years to retire from service and now, the remaining period of service is one year that is totally unsustainable in law. 2. The learned counsel appearing for the petitioner has submitted that the petitioner joined as a Child Organizer called as Balasevika on 05.12.1975 at Parur, Chidambaram Taluk on temporary basis. At the time of appointment, she was paid a sum of Rs.30/- as wage per month and was also paid a sum of Rs.20/- as an additional wage. The respondent, issued a circular dated 24.12.1975 to conduct a Training Programme for the post of Balasevika, from 01.01.1976 to 31.03.1976. In response to the https://hcservices.ecourts.gov.in/hcservices/ circular, the petitioner participated in the Training Programme successfully and the respondent issued a certificate for having undergone the training. On completion of the training, she was relieved on 31.03.1976 for the reason that she had successfully completed the training. After completion of the training, the respondent placed her as Balasevika at Parur, Chidambaram Talum. She was working as a Balasevika at Chidambaram Taluk till 1984. In the year 1984, the Government issued the order for implementation of Phase V of the Project Nutrition Delivery Service in all blocks of Changalpattu, North Arcot and Ponamaravathy Block of Pudukottai District with the assistance of the field staff, namely, Supervisors. At that point of time, to select the Supervisors from the panel of Balasevika, the first respondent again issued the interview letter dated 09.04.1984 to the petitioner to attend the interview for the post of Female Supervisor, which was created under the above said Tamil Nadu Integrated Nutrition Project. Since the petitioner received the interview letter, she participated in the interview and produced all her original certificates before the Selection Committee. On perusing the original certificates, the petitioner was appointed as Supervisor under Rule 10 (a) (I) of the General Rules of the Tamilnadu State and Subordinate Service Rules in the scale of Rs.350-10-420-15-600. After the appointment, she was deputed to undergo training from 19.05.1984 to 17.07.1984 at Shri Avinashilingam, Home Science College, Coimbatore, where she participated in the training. On completion of the training, she was relieved from the training on 17.07.1984. After completion of the training, the petitioner was posted as Supervisor on temporary basis at Polur by proceedings dated 05.07.1984 of the first respondent. 3. After three years, the Government issued G.O.Ms.No.331 dated 24.02.1987 to regularize the services of the Supervisors in the respondent Department. On the basis of the said G.O., the first respondent regularized the service of the petitioner as Supervisor in the respondent Department by an order dated 14.09.1987. Subsequently, in the year 2000, the petitioner applied for the course of Foundation-I in Annamalai University and she got certificate for that course. Therefore, the learned counsel appearing for the petitioner has submitted that since the petitioner got certificate for the Foundation Course from the Annamalai University as per G.OMs.No.219 of 1988, the said course is equivalent to Higher Secondary for the purpose of entry into the public services in the state. Therefore, the petitioner has got requisite educational qualification even today. When the matter stands as above, the first respondent issued a charge memo dated 20.08.2003 in Na.Ka.No.69181/Nir.8(1)/2001 for the allegation that the petitioner got appointment on 19.05.1984 as Supervisor without having basic qualification of SSLC pass, by concealing the fact that she was a SSLC failed candidate. 4. The petitioner was originally appointed as Child Organizer namely Balasevika at Parur, Chidambaram District when she was SSLC failed candidate. The respondent Department did not prescribe any https://hcservices.ecourts.gov.in/hcservices/ Educational Qualification when the petitioner submitted her original certificates even at the time of selection to the post of Supervisor. After completion of eight years, the respondent issued the interview letter dated 09.04.1984 to the petitioner to attend the interview for the post of Female Supervisor. In response to the interview letter, she participated in the interview and produced all original certificates before the Selection Committee. The respondent, only having seen that the petitioner got sufficient experience as Child Organizer namely Balasevika, promoted her to the post of Supervisor under Rule 10 (a) (I) of the General Rules of the Tamilnadu State and Subordinate Service Rules. Therefore, the question of concealing the educational qualification as alleged by the respondent would not arise. However, the respondent, after accepting the explanation of the petitioner, closed the enquiry in the year 2004 itself. Subsequently, once again, after 3 years on 12.03.2007, the respondent issued a suspension order to the petitioner for the said charge memo dated 20.08.2003. Therefore, the petitioner filed a writ petition in W.P.No.14557 of 2007 before this Court and this Court, after seeing the suspension order dated 12.03.2007 issued by the respondent for the allegation that the petitioner concealed her educational qualification at the time of appointment, held that the action of the respondent was belated one with an inordinate delay of more than 20 years and this Court granted stay of the suspension order. Once again, the respondent issued another enquiry notice dated 05.05.2008 for the very same charge memo. When the matter was already seen by this Court, the respondent issued another charge memo dated 20.08.2003, for the very same charges framed in the earlier charge memo, and the same is a planned and motivated harassment against the petitioner and on that basis, the petitioner has filed the present writ petition. 5. The main contention raised by the learned counsel for the petitioner is that at the time of appointment of the petitioner as Child Organizer namely Balasevika on 05.12.1975, there is no rule specifying about the basic educational qualification for the post of Balasevika. However, when the petitioner was SSCL failed candidate, the respondent appointed her temporarily and after undergoing the training, she was made to continue in the post of Balasevika and subsequently, after completion of 8 years, when the Government issued the order for implementation of Phase V of the project Nutrition Delivery service in all blocks of Chenkalpat, North Arcot and Ponamaravathy Block of Pudukottai District with the assistance of the field staff, namely, Supervisors, the respondent issued the interview letter dated 09.04.1984 to the petitioner to attend the interview for the post of female supervisors. When the respondent issued the interview letter dated 09.04.1984, the question of concealing the educational qualification of the petitioner would not arise. More than that, when the petitioner herself was appearing before the Selection Committee at the time of interview, she produced all original certificates before the Selection Committee in the year 1984, even now, it shows that the petitioner was SSLC failed candidate. Therefore, the Selection Committee was very well aware of the Educational Qualification of https://hcservices.ecourts.gov.in/hcservices/ the petitioner even in the year 1984, i.e. at the time of her appointment to the post of Supervisor. Having accepted the educational qualification and finding that the petitioner was in possession of 9 years experience as Balasevika, they promoted her as Supervisor under Rule 10 (a) (I) of the General Rules of the Tamil Nadu State and Subordinate Service Rules and since then she has been working (in the respondent department) and completed her entire services except 4 years to reach her age of superannuation. When the petitioner got 4 years of service to reach her age of superannuation, issuing the charge memo with the allegation that the petitioner misrepresented her educational qualification is wholly misplaced and misconceived. In any event, he pleaded that as per the ratio laid down by the Apex Court in P.N.Parameswaran vs. State of Tamil Nadu, if the department initiated any belated action by issuing any charge memo with the delay of more than 10 years, for initiating any belated department action without any sufficient reason for delay, such belated enquiry would amount to harassment to the Government employee, on that basis, he pleaded that the issuance of the present belated charge memo is wholly unsustainable in law, accordingly, he prayed for quashing the impugned charge memo. 6.Secondly, the learned counsel appearing for the petitioner argued that when the respondent issued a charge memo dated 20.08.2003 in Na.Ka.No.69181/Nir.8(1)/2001, the petitioner submitted her detailed explanation stating clearly that she was appointment as Supervisor by disclosing her original certificates before the Selection Committee and the certificates are even now available with the respondent Department which clearly shows that in the year 1984, the petitioner was SSLC failed candidate and if it would be the case, the question of concealing the fact that she was SSLC failed candidate would not arise. 7. Thirdly, it was further argued that had the respondent not selected the petitioner to the post of Supervisor, the petitioner would have continued as Child Organizer without facing any problem. Having called for interview in the year 1984 by interview letter dated 09.04.1984 cannot blame that the petitioner misrepresented her false educational qualification to the respondent. When the respondent themselves sent an interview card on 09.04.1984 and thereafter, when the petitioner while producing the original certificates to the selection committee admitted her educational qualification that she was only SSLC failed candidate, the respondent ought to have taken decision in the year 1984 itself whether her educational qualification was sufficient to promote the petitioner to the post of Supervisor. Without taking action in the year 1984, issuing the charge memo in the year 2003 is wholly unsustainable in law. Even in the issuance of Charge memo dated 20.08.2003, the petitioner submitted her detailed explanation and her explanation was accepted by the disciplinary authority, therefore, they closed the enquiry in the year 2004. Again after three years, all of sudden, issuing the present charge memo repeating the earlier charges from the earlier charge memo dated 20.08.2003 which was abandoned after completion of enquiry would https://hcservices.ecourts.gov.in/hcservices/ amount to double jeopardy. 8. Finally, it was argued that when the allegation against the petitioner states that she got appointment on 19.05.1984 as Supervisor without having basic qualification SSLC pass by concealing the fact that she was a SSLC failed candidate, such allegation is untenable, from the face of the SSLC Certificate Ref.B.152961 because a copy of the same is even now available with the respondent. The petitioner was issued with the interview letter dated 09.04.1984, to attend the interview for the post of Supervisors, for which, the petitioner appeared before the Selection Committee and produced her original certificates before the said Committee. Based on which, it is very clear that at the time of interview, the petitioner was a SSLC failed candidate. Therefore, the question of concealing the educational qualification of the petitioner for the purpose of securing promotional post will never arise in the case of the petitioner. Even if it is presumed for the sake of argument that the petitioner had altered the SSLC certificate bearing Ref No.B152961 to show that the petitioner passed SSLC for securing more mark, then the respondent was right in issuing charge memo alleging that the petitioner concealed the fact that she passed SSLC examination, but, the respondents do not have any such case since the SSLC original certificate also shows that she is a SSLC failed candidate. Therefore, the issuance of charge memo impugned herein is liable to be quashed. Further the charge memo dated 20.08.2003 issued after the alleged lapse relating to her appointment in the year 1984, is hopelessly suffered by inordinate delay of 20 years. There is no explanation whatsoever offered by the respondent for such inordinate delay in initiating the disciplinary proceedings from the date of joining of the petitioner in the department in 1975 as Balasevika, when the respondent themselves on seeing 9 year experience possessed by the petitioner, called for interview by sending interview letter dated 09.04.1984 for the post of Female Supervisor. 9. Further it was contended that till the year 1984, the basic qualification for the post of Supervisors was only SSLC either pass or fail, though the respondents in the charge sheet have stated that the basic qualification for the said post is SSLC pass. Therefore, it is the duty of the respondent to prove that the SSLC was the basic qualification for the post of Supervisor even in the year 1984. Even assuming that the SSLC is the basic qualification to the post, the petitioner at no point of time has suppressed or concealed any fact. As she had clearly mentioned that she was SSLC failed candidate and the same has been recorded in the service record that she was SSLC failed candidate, the question of alleging that the petitioner has concealed the fact that she was SSLC failed candidate is totally unfair and unjustifiable in law. 10. After all these facts, it was submitted that the petitioner has not committed any lapse and as she has got only one year service to retire from service, the belated charge memo issued against the petitioner is liable to be quashed in the light of ratio laid down by the Honourable Apex Court in P.V.Mahadevan vs. https://hcservices.ecourts.gov.in/hcservices/ M.D., Tamil Nadu Housing Board reported in 2005 (4) CTC 403. 11. Finally, it was submitted that the petitioner has rendered 10 years of service as Balasevika from 1975. She was promoted as Supervisor on 09.04.1984 and thereafter, she completed 26 years of service as Supervisor, in total she has rendered 36 years of service. Besides she is in the verge of retirement and she is due to retire on 31.04.2012. Therefore, she is having only 11 months of remaining service. In these circumstances, as the respondent on an earlier occasion, after issuing earlier charge memo dated 20.08.2003, even after appointing the Enquiry Officer and on completion of enquiry on 20.05.2004, after obtaining the petitioner's explanation, had dropped further proceedings for the reasons best to known them, the present charge memo repeating the earlier allegations is wholly unsustainable in law. On that basis, he has prayed for quashing the impugned charge memo. 12. A detailed counter has been filed by the respondent opposing the said submissions. It was contended by the learned Government Advocate that the petitioner while serving as Balasevika has obtained the promotional post of Supervisor by suppressing the fact that she has got the minimum required qualification namely SSLC pass, as prescribed in the Tamil Nadu State and Subordinate Rules Part I and Part II Schedule I and in Adhoc Rules issued in G.O.Ms.No.164, Social Welfare Department Dated 08.08.1985. For having violated the Government Servant Conduct Rules 1973, charges have been framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules vide charge memo No.69131 / Admn 8- 1/2001 dated 20.08.2003. Adding further, it was stated that the petitioner has not passed SSLC at the time of her appointment as Community Nutrition Supervisor. Therefore, she is not eligible for being appointed to the promotional post. But her name was erroneously included in the panel of Child Welfare Organizer / Balasevika. As a result, she was promoted in the post of Community Nutrition Supervisor (Grade II) by an order dated 11.05.1984. Subsequently, she was also declared to have completed her probation on 04.08.1986 by another proceeding dated 14.09.1987 by the Directorate. Later on, on verification of the petitioner's SSLC Marks, it was found that she has not passed SSLC at the time of appointment as Supervisor Grade II and therefore, a memo was issued to the petitioner on 19.09.2002 seeking her explanation. 13. While replying to the charge memo, the petitioner also submitted that she did not pass SSLC examination in the year 1974 at the time of her appointment as Balasevika. But subsequently, when she appeared before the Selection Committee at the time of interview for selection to the Post of Supervisor, her educational certificates were thoroughly examined. Though the respondent did not insist upon the petitioner to appear for the interview and she had not passed the SSLC examination, the petitioner was allowed to participate in the interview and subsequently, after thorough examination, she was appointed as Supervisor on temporary basis under Rule 10(a) (1) of General Rules of the Tamil Nadu State and Subordinate Service Rules. Subsequently, her services were https://hcservices.ecourts.gov.in/hcservices/ regularized in the post of Supervisor on 04.09.1997 on the basis of the same qualification and experience possessed by the petitioner. After the demise of the petitioner's husband on 03.09.2001, the petitioner passed the first year foundation course through Annamalai University in the year 2001. Therefore, on that basis, it was contended by the learned Government Advocate that the petitioner in her admission, had admitted the fact that she had not passed the SSLC examination when she appeared in the Interview for the promotional post as Supervisor on 09.04.1984. In view of the fact that the petitioner has committed serious misconduct, the respondent department initiated departmental proceedings by issuing the charge memo dated 20.08.2003. Since the petitioner did not cooperate with the Enquiry Officer, the Enquiry Officer could not complete the enquiry. After three years, the respondent found that the petitioner has failed to possess the requisite qualification for the post of Supervisor. Therefore, she was suspended from service by an order dated 12.03.2007. Aggrieved against the same, she filed a Writ Petition in W.P.No.14557 of 2007 to quash the proceedings dated 12.03.2007 and this Court by its order dated 14.05.2008, granted interim stay of the suspension order. Based on the said interim order passed by this Court, the respondent revoked the suspension order and reinstated the petitioner by an order dated 20.07.2007. After the reinstatement, due to her non cooperation with the Enquiry Officer, the enquiry is still pending, therefore, the petitioner was called for enquiry by an order dated 11.05.2004 to appear before the Enquiry Officer with relevant records on 20.05.2004. But, she failed to attend the enquiry. Thereafter, the respondent appointed another enquiry officer to conclude the enquiry by his proceedings dated 10.03.2008 and the enquiry officer had also sent a letter to the petitioner informing her to appear for an enquiry on 08.05.2008. But the petitioner did not attend the enquiry on 08.05.2008. Therefore, the enquiry is still pending. 14. With this background, he further contended that it is an admitted case that from the date of appointment of the petitioner as Supervisor, she did not possess the basic qualification of SSLC pass, therefore, she is not eligible or entitled to continue in the said post. If the petitioner is allowed to continue in the said post as against the Rule, this would amount to giving a premium to a wrong candidature, who failed to possess the requisite qualification on the date of her appointment to the post of Supervisor on 09.04.1984. 15. Heard both sides. 16. The petitioner was appointed as Balasevika in the Social Welfare Department on 05.12.1975. At the time of her appointment, she was only SSLC failed candidate. For the post of Balasevika, there is no minimum educational qualification prescribed by the respondent. Therefore, she continued in service as Balasevika / Child Organizer till 1984. When the Government issued the order for implementation of Phase V of the project Nutrition Delivery Service, the respondent Department decided to promote those https://hcservices.ecourts.gov.in/hcservices/ persons, who were working as Balasevikas. On obtaining their willingness, the committee was constituted on 09.04.1984. Only the said Selection Committee promoted the petitioner as Supervisor in the Tamil Nadu integrated Nutrition Project on the basis of having long service of 9 years as Balasevika, temporarily under 10 (a) (i) of General Rules of Tamil Nadu State and Subordinate Service Rules in the scale of Rs.350-10-420-15-600. After her appointment as Supervisor, she was also deputed to undergo the training from 19.05.1984 to 17.07.1984 at Shri Avinashilingam, Home Science College, and Coimbatore. The petitioner also participated in the training programme. On completion of the training programme, she was relieved from the training programme on 17.07.1984 and thereafter, she was again posted as Supervisor on temporary basis at Polur by an order dated 05.07.1984. Thereafter, the Government issued G.O.Ms.No.331 dated 24.02.1987, to regularize the service of the Supervisors in the respondent Department. Only on the basis of the said G.O.Ms.No.331, the respondent regularized the service of the petitioner as Supervisor by an order dated 14.09.1987. At the time of selection for the post of Supervisor, the petitioner had produced her original SSLC certificates bearing Reference No.B151961 that has been referred in the charge memo which shows that the petitioner was SSLC failed candidate. 17. While so, the allegations made against the petitioner that she concealed her educational qualification that she was a SSLC failed candidate at the time of her appearance in the interview held for the promotional post as Supervisor on 09.04.1984 were not correct. The Selection Committee has also considered the original certificates of the petitioner that are even now kept with the respondent Department. That SSLC Certificate also shows that the petitioner is old SSLC failed candidate. Therefore, it is an admitted case that the selection committee was aware of this fact that the minimum educational qualification for the post of Supervisor was SSLC pass but the petitioner was selected to the said post on the basis of report given by the Selection Committee constituted for selection of the candidate to the post of Supervisor in Tamil Nadu Integrated Nutrition Project, hence, it is not open to the respondent to contend that the petitioner deliberately concealed her educational qualification that she was a SSLC failed candidate. In any event, when the respondent issued a charge memo on 20.08.2003 alleging that the petitioner has committed misconduct violating the Government Servant Conduct Rules 1973, they have not further prosecuted the said enquiry even in the year 2004 itself. It appears that the petitioner had submitted her explanation to the charge memo dated 20.08.2003 stating that she had not concealed her original qualification and that she was only a SSLC failed candidate and the petitioner's SSLC original certificates were also received by the respondent at the time of appointment of the petitioner. The Enquiry Officer also did not find any fault with her, as a result, the Disciplinary Authority did not take any final decision in pursuant to the explanation submitted to the charge memo dated 20.08.2003. After closing the enquiry in 2004, it is not open to the respondent to reopen the enquiry by issuing a second charge memo which is impugned in the https://hcservices.ecourts.gov.in/hcservices/ present writ petition against the petitioner on the ground that the petitioner failed to participate in the said enquiry. This argument does not find any force, inasmuch as if the petitioner failed to appear for the enquiry, the Enquiry Officer could have proceeded exparte. Leaving that legal court, they cannot issue another belated charge memo hopelessly suffered by huge delay of 10 years. Besides the petitioner had rendered 10 years of service as Balasevika, thereafter, she had completed 20 years of service as Supervisor, in total she had rendered 36 years of service. Now, she is having 11 months of remaining service to retire from 31.04.2012. 18. One another important fact needs to be mentioned herein is, on her appointment as Supervisor in the year 1984, her educational qualification was recorded in her Service Record as old SSLC failed. Thereafter, the respondents have regularized the service of