IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.09.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.39868 of 2006 (O.A.No.774 of 1998) R.RAGHURAMAN [ PETITIONER]/Applicant Vs THE STATE OF TAMIL NADU REP.BY THE SECRETARY TO GOVT. P & AR DEPARTMENT, FORT ST.GEORGE,CHENNAI-9. [RESPONDENT]/Respondent Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Declaration, to declare as unconstitutional and contrary to statutory rules instructions in Para 2-II(iv) of G.O.Ms.No.368 P & AR Department dated 18.10.1993 (A-4) and consequently direct the respondent to substitute the following instructions instead of Para 2-(II)(iv):- "(iv) The consideration of persons against whom enquiries are pending and specific charges have been framed or charge sheet has been filed in criminal cases" The provisions of General Rule 39(d) and the guidelines summarised in Govt.Lr.(Ms)No.687,P&AR Dept.dt.28.12.89 be followed. For Petitioner : Mr.K.V.Srinivasaraghavan For Respondents: Mr.R.Neelakantan,G.A. O R D E R The petitioner was working as Regional Transport Officer at Thanjavur. He filed O.A.No.774 of 1998 challenging the guidelines issued by the Government in G.O.Ms.No.368 P & AR department dated 18.10.1993. He was aggrieved by the following portion of the Government Order : "2.II.(iv)Consideration of persons against whom enquiries are pending and specific charges have been framed or charge sheet has been filed in criminal cases.--(1)As per orders in the Government Order sixth read above, in the case of pending enquiries including Vigilance enquiries and in cases where specific charges have not been framed, promotions and appointments shall https://hcservices.ecourts.gov.in/hcservices/ be considered on the basis of the performance of the officers coming under the zone of selection as on the date of consideration for promotion/appointment as revealed through the Personal Files/Record Sheets and the seriousness of the punishments, if any previously imposed. In cases where specific charges have been framed or charge sheet has been filed in criminal case, promotion/appointment of such persons shall be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable with reference to all relevant criteria, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted." 2. The petitioner wanted the said paragraph to be set aside on the ground that it is unconstitutional and contrary to the statutory rules. The statutory rule that is referred to Rule 39(d) Tamil Nadu State and Subordinate Service Rules reads as follows: "39(d) Where it is necessary to promote an office against whom an enquiry into allegations of corruption or misconduct is pending the appointing authority may promote him temporarily pending enquiry into the charges against him. The competent authority shall have discretion to make regular promotion in suitable cases." 3. According to the petitioner, G.O.Ms.No.368 P & AR department is in the form of an Executive Order whereas Rule 39(d) is statutory rule framed under Article 309 of the Constitution of India and therefore in so far it contravenes the rule concerned, it should be held to be unconstitutional. This argument presupposes that the Government Order and the Rule are operating on the same field. While Rule 39(d) refers to temporary promotions G.O.Ms.No.368 P & AR Department dated 18.10.1993 is with reference to preparation of panel for promoting persons to an higher post on regular basis. Preparation of panel presupposes existence of posts and therefore the Government issued certain guidelines so that different officers do not operate the promotional norms in their own way and that will be uniformity. 4. In the Government Order, apart from several guidelines, in Paragraph 6, it is clearly stated that if a person is facing a vigilance enquiry, and in cases where specific charges have not been framed, promotions or appointments shall be considered on the basis of performance of officers coming under the zone of consideration. It was also stated that where there are specific charges have been framed and charge sheet has been filed in criminal cases, promotions and appointments of such persons shall be deferred till the proceedings are completed. 5. It is not clear as to how the petitioner can attack the said guidelines as unconstitutional or illegal. The Supreme Court https://hcservices.ecourts.gov.in/hcservices/ in Union of India v. K.V.Jankiraman reported in (1991) 4 SCC 109 held that in considering an employee for promotion, the relevant authority is entitled to take into consideration the penalties imposed on him including censure up to the date when such consideration takes place. Though the said judgment was rendered in the case of penalty, the Supreme Court in the same year in Arumugam vs. State of Tamil Nadu reported in 1991 (supp)(1)SCC 199 has held that withholding a promotion on reasonable ground is permissible. 6. Therefore, it is not open to the petitioner to state that notwithstanding serious charges or on account of a criminal case pending, he should be promoted in terms of Rule 39(d). The Government order sets out elaborate guidelines. In the present case, in case where no charges are framed it provides for consideration for promotion. Only when charges are framed then only the promotion is deferred. Therefore, no person can be said to be aggrieved by such guidelines. This Court is unable to see any contradiction between the Executive instruction and the statutory rule framed. As set out earlier, the statutory rules operates altogether in a different area. In any event having regard to the subsequent pronouncement of the Supreme Court, it cannot be said that Rule 39(d) can still held to be constitutional sub-serving the cause of Articles 14 and 16 of the Constitution. 7. In the light of the above, the writ petition is misconceived and lacks in merits. Accordingly the same stands dismissed. No costs. svki Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To THE SECRETARY TO GOVT. THE STATE OF TAMIL NADU P & AR DEPARTMENT, FORT ST.GEORGE,CHENNAI-9. +1 cc to the Government Pleader SR.44151. W.P.No.39868 of 2006 (O.A.No.774 of 1998) SP (CO) EU 17.09.2009. https://hcservices.ecourts.gov.in/hcservices/