IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 02.2.2009 C O R A M : THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.6464 of 2006 and W.P.M.P.No.6969 of 2006 1.The State of Tamil Nadu, rep. by its Secretary to Government, Revenue Department, Chennai-600 009. 2.The Commissioner for Revenue Administration, Chepauk, Chennai-5. 3.The District Collector, Tiruchirappalli District. .. Petitioners -vs- 1.Kumaresan 2.The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600 104. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records of the Hon'ble Tamil Nadu Administrative Tribunal, Chennai, the second respondent herein pertaining to the order dated 13.1.2004 made in O.A.No.100 of 2004 and quash the same. For petitioners : Mrs.Sneha, GA For respondents : No appearance ***** O R D E R K.CHANDRU, J. The first petitioner is the State of Tamil Nadu and along with two of its subordinates have filed the present writ petition https://hcservices.ecourts.gov.in/hcservices/ challenging the order of the Tamil Nadu Administrative Tribunal made in O.A.No.100 of 2004 dated 13.1.2004. By the aforesaid order, the Tribunal has granted a direction to the petitioners to include the name of the first respondent in the panel for the post of Deputy Collector and also to promote him from the date on which his junior was promoted. Aggrieved by the said direction, the present writ petition was filed. 2. In the writ petition, notice of motion was ordered on 07.3.2006 and an interim stay was also granted on the same day which is still in force. 3. The case of the petitioners was that the first respondent who was working as a Tahsildar in Tiruchirappalli Revenue Unit was considered for promotion to the post of Deputy Collector for the year 1999-2000. Since at that time, charges were pending under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, dated 08.5.1999, the same was deferred. For the very same reason, his name was not included in the panel prepared for the years 2000-2001 and 2001-2002. The first respondent filed an Original Application before the Tamil Nadu Administrative Tribunal being O.A.No.3095 of 2002 challenging the charge memo dated 06.5.1999. The Tribunal did not set aside the said charge memo. But on the contrary, directed the petitioners to complete the departmental enquiry within a period of four months. 4. It is also stated that the petitioners filed another O.A being O.A.No.3239 of 2002 before the Tribunal for the inclusion of his name in the panel for the post of Deputy Collector for the year 2000 without reference to the disciplinary action. That case is said to be still pending. 5. In the meanwhile, the District Collector by an order dated 01.1.2004 passed final orders and the charges levelled against the first respondent was dropped. In view of the dropping of the charge memo dated 08.5.1999, the petitioner filed O.A.No.100 of 2004 seeking for a direction to promote him to the post of Deputy Collector. When the O.A. came up for admission on 13.1.2004, the Tribunal on the very same day, after directing the learned Standing Counsel for the petitioner Government to take notice, passed the following order found in paragraphs 3 and 4:- ''Para 3 : The District Collector, Tiruchirappalli by his proceedings dated 1.1.2004 has exonerated the applicant of all the charges and further action has been dropped. A copy of the order passed by the District Collector is found in page 18 of the typed set of papers, so now the applicant has been cleared of all the charges and according to G.O.Ms.No.368, P & AR department dated the panel https://hcservices.ecourts.gov.in/hcservices/ for 1999-2000 within 15 days after his exoneration and he must be given promotion on the date from which his junior was promoted. Para 4. : Therefore, a direction is issued to the respondents to include the name of the applicant in the panel and also to promote him from the date on which his junior was promoted. Orders shall be passed within a period of eight weeks from this date." It is as against this order, the present writ petition was filed and an interim stay was granted as noted elsewhere. 6. It was submitted by the learned Special Government Pleader that the petitioner Government in due obedience with the orders of the Tribunal had sent proposals to the Tamil Nadu Public Service Commission for including the first respondent's name in the list of Deputy Collector for the year 1999-2000. It came to the notice of the Government that a criminal case was registered by the Vigilance and Anti-Corruption police against the first respondent being Crime No.4 of 2004 for having demanded and accepted Rs.50,000/- from one Veeramani for the return of the EMD kept with the first respondent and that the first respondent was also arrested on the same day. He was also placed under suspension with effect from 10.6.2004. Therefore, in the light of the subsequent developments, the first respondent is not a fit person to be granted any promotion especially when in the present post he is facing not only serious charges but also criminal case and he is also kept under suspension. The learned Special Government Pleader also drew the attention of this Court that the order of the Tribunal impugned in the writ petition was totally erroneous and no direction can be given by the Tribunal for promotion to the post of Deputy Collector without even issuing notice to the Government. It was wrong on the part of the Tribunal that such a direction was given even at the admission stage by merely directing the standing counsel to take notice. 7. Reference was also made to the judgment of the Supreme Court in State of Madhya Pradesh -vs- Srikant Chaphekar reported in AIR 1993 SC 1221. Reliance was placed on the following passage found in paragraph 4 of the judgment:- ''Para 4 : We are of the view that the Tribunal fell into patent error in substituted itself for the DPC. The remarks in the annual confidential report are based on the assessment of the work and conduct of the official/officer concerned for a period of one year. The Tribunal was wholly unjustified in reaching the conclusion that the remarks were vague and of general nature. In any case, the Tribunal out-stepped its jurisdiction in reaching the conclusion that the adverse remarks were not sufficient to deny the respondent his promotion to the post of Deputy https://hcservices.ecourts.gov.in/hcservices/ Director. It is not the function of the Tribunal to assess the service record of a Government servant and order his promotion on that basis. It is for the DPC to evaluate the same and make recommendations based on such evaluation. This Court has repeatedly held that in a case where the Court/Tribunal come to the conclusion that a person was not considered for promotion or the consideration was illegal than, the only direction which can be given is to reconsider his case in accordance with law. It was not within the competence of the Tribunal, in the fact of the present case, to have ordered deemed promotion of the respondent." (Emphasis Added) The learned counsel also produced an order dated 10.12.2005 issued by the third petitioner granting sanction for prosecution of the first respondent in terms of section 19(1)(c) of the Prevention of Corruption Act, 1988 to prosecute the first respondent. In that view of the matter, he prayed for setting aside the order of the Tribunal giving time limit to promote the first respondent. 8. A perusal of the record produced along with the writ petition clearly shows that the first respondent has been chargesheeted by a chargememo dated 25.10.2004 framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. In that view of the matter, we find that it was not proper for the Tribunal to have directed even at the stage of admission of the Original Application to promote the first respondent. If only a notice was ordered to the petitioners, the subsequent development would have come to the notice of the Tribunal. We deprecate the practice of the Tribunal in granting a positive direction even at the stage of admission without calling for return from the contesting respondents in the O.A. As already observed by the Supreme Court in Srikant Chaphekar case (cited supra), the Tribunal can only give direction to the Government to consider and it cannot give any positive direction for promotion. 9. In the light of the above, the writ petition stands allowed and the order of the Tribunal will stand set aside. However, there will be no order as to costs. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ js To The Registrar, Tamil Nadu Administrative Tribunal, Chennai-600 104. 1 cc To The Government Pleader, SR.No.5009 W.P.No.6464 of 2006 and WPMP.NO.6969 of 2006 PUR(CO) SRA(4/3/2009) https://hcservices.ecourts.gov.in/hcservices/