IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.06.2009 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN W.P. No.6809 of 2007 (T) (O.A.No.200 of 2002) D.Silatham Selvaraj ... Petitioner Vs 1 The Commissioner and Secretary to Government, Health and Family Welfare Dept., Secretariat, Chennai 9. 2 The Director of Medical and Rural Health Services, Chennai 6. ... Respondents This petition came to be numbered on transfer of O.A.No.200 of 2002 from the file of the Tamil Nadu Administrative Tribunal, to call for the records connected with the impugned order passed by the second respondent in R.Dis.No.31/E9/2/2000 dated 10.02.2000 and quash the same and consequently direct the second respondent to promote the applicant as Superintendent from the date on which his next junior was promoted as Superintendent with all other attendant monetary and other service benefits. For Petitioner : Mr.Rengaramanujam For Respondents : Mr.Edwin Prabhakar, A.G.P. O R D E R The petitioner is challenging the order passed by the second respondent in R.Dis.No.31/E9/2/2000 dated 10.02.2000 and seeks to quash the same and consequently direct the second respondent to promote the applicant as Superintendent from the date on which his next junior was promoted as Superintendent with all other attendant monetary and other service benefits. 2 The petitioner was appointed as Junior Assistant and joined on 15.12.1972 in the medical department. When he was working as https://hcservices.ecourts.gov.in/hcservices/ Junior Assistant in Ramanathapuram, a charge memo dt.23.05.1986 was issued by the second respondent alleging that he misguided his higher officer by putting up an Office Note to the District Medical Officer and thereby caused a loss of Rs.16,093.60. The petitioner submitted his explanation denying the charges and according to him he never put up any office note as alleged in the charge memo. In the enquiry conducted, the enquiry officer found that the charges were not proved. Accepting the enquiry report the first respondent came to the conclusion that the charges were not proved and issued a warning and instructed the petitioner to guard himself from such lapses in future. 3 The petitioner was due for promotion in the year 1988 and all his juniors were promoted in the year 1988 itself. His name could not be considered for promotion as the disciplinary proceedings were pending against him. In the meantime, apart from passing the departmental examination a pass in the D.O.M. Test was also included for qualifying to hold the post of Assistant. This was challenged by some affected persons before the Tribunal in the year 1989 and on 23.05.1991 the Tribunal passed final orders in those applications. Thereafter, a revised panel was prepared with those who are qualifying upto 15.03.1991, since the crucial date of promotion to the post of Assistant is 15th March every year. Based on the above list as on 15.03.1991, a revised panel for the vacancy for the year 1988 to 1991 was prepared and separate panels for each of the above years were drawn by the second respondent on 22.06.1992. The petitioner was included in the panel for promotion to the post of Assistant for the year 1988-89. However, he was promoted in the year 1992 only and joined as Assistant on 16.11.1992. The petitioner made a representation to the second respondent claiming for promotion as Assistant from the date on which his immediate junior was promoted but the same was rejected by the second respondent on 13.05.1996. The petitioner made another representation on 15.12.1998 and this was also rejected by the second respondent on 10.02.2000 stating that the G.O. and the Government letter on which the petitioner placed his reliance are not applicable. Aggrieved by the order dt.10.02.2000 passed by the second respondent the petitioner approached the Tribunal to quash the order dt.10.02.2000 and to promote him from the date on which his immediate junior was promoted as Assistant i.e., from 15.04.1988, with all consequential benefits. 4 I have heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents. I have also gone through the entire documents available on record. 5 The learned counsel for the petitioner submits that against the charge memo dt.23.05.1986, an enquiry was conducted and the enquiry officer in his report clearly stated that there is no https://hcservices.ecourts.gov.in/hcservices/ recorded evidence to prove the charges framed against the petitioner. Accepting the report, the first respondent also held in his order dt.19.11.1990 that the charge was not proved at all. However, a warning was administered to guard the petitioner against such lapses in future. The learned counsel submits that his name was not considered for the post of Assistant when it was due as the disciplinary proceeding was pending against him. When he was exonerated from the charges, the respondents then should consider his name for promotion on the date when his immediate junior was promoted. But the warning administered on 19.11.1990 was put against him and he was promoted in the year 1992 only. The learned counsel seriously contends that the warning is not a punishment under Rule 8 of the Tamil Nadu Civil Services (C.C.A.) Rules and therefore the order of the second respondent is to be set aside and the petitioner is to be promoted with all consequential reliefs. 6 I find force in the submission made by the learned counsel for the petitioner and I reject the contra arguments made by the learned Additional Govt. Pleader. 7 Admittedly, the petitioner name was not considered when his immediate junior was promoted as Assistant on 15.04.1988 as disciplinary proceedings were pending against him. After the enquiry was over, the enquiry officer gave a clear chit to the petitioner which was also accepted by the first respondent in his order dt.19.11.1990. Even though the first respondent held that the charge was not proved he chose to administer a warning to guard the petitioner against such lapses in future. This issuance of warning is put against the petitioner for his retrospective promotion. 8 I am of the considered view that this issuance of warning should not be held against the petitioner for considering the petitioner to the post of Assistant on or from 15.04.1988 when his immediate junior was promoted. Once the petitioner came out unscathed in the disciplinary proceedings and once the respondents concluded that the charges are not proved, then the petitioner's name should be considered for promotion when it became due irrespective of the fact that a warning was administered in the very same order in which disciplinary authority accepted the findings of the enquiry officer that the charges are not proved. Hence, I have no hesitation in setting aside the order of the second respondent dt.10.02.2000 and accordingly, set aside. Further, the second respondent is directed to promote the petitioner to the post of Assistant and further to the post of Superintendent as and when his immediate junior was promoted as Assistant and Superintendent. The petitioner is also entitled to all the benefits including the monetary benefits and the respondents are directed to consider and promote the petitioner as https://hcservices.ecourts.gov.in/hcservices/ indicated above within the period of four months from the date of receipt of copy of this order. 9. In the result, the writ petition is allowed in the above terms. No cost. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vaan To 1 The Commissioner and Secretary to Government, Health and Family Welfare Dept., Secretariat, Chennai 9. 2 The Director of Medical and Rural Health Services, Chennai 6. 1 cc to Government Pleader, SR. 26612 W.P.No.6809/2007 (O.A.No.200 of 2002) VS (CO) kk 15/12 https://hcservices.ecourts.gov.in/hcservices/