IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.9.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.1240 of 2009 M.G.Sundaresan ..Petitioner Vs. 1. The Government of Tamil Nadu rep. by its Secretary P.W.D. Department Fort St.George, Chennai-600 009. 2. The Engineer-in-Chief and Chief Engineer (General), P.W.D., P.W.D., Chepauk Chennai – 600 005. 3. The Superintending Engineer Water Resource Organisation, PWD, Penniayar Basin Circle, Tiruvannamalai. 4. The Executive Engineer, PWD Water Resource Organisation Upper Pennaiyar Basin Dharmapuri-5. ..Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Mandamus as stated herein. For Petitioner : Mrs.G.Thilakavathi For Respondents : Mr.V.Arun Additional Government Pleader ORDER This writ petition is filed for a direction against the second respondent to pass appropriate orders as per the proceedings dated 30.3.2005 and promote the petitioner in the category of Junior Draughting Officer and grant appropriate fitment of scale of pay as Junior Draughting Officer with monetary benefits in terms of the representation dated 27.9.2008. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The petitioner was recruited in the Public Works Department in the year 1978 as Blue Print Operator. He was promoted as Assistant Draughtsman in the said department along with 33 other persons. While the services of other Assistant Draughtsmen promoted along with the petitioner were regularized, the petitioner was not considered on the ground of want of qualification. He was reverted to the post of Blue Print Operator. He approached this Court by filing W.P.No.4627 of 1985 and by virtue of the order of stay he continued to work as Assistant Draughtsman in Dharmapuri. 2.2. When the Government in the year 1999 has granted relaxation with respect to age as well as qualification of the persons like the petitioner who were reverted from the post of Assistant Draughtsmen to Blue Print Operator, the petitioner was not considered on the basis that the above case was pending in the High Court. He again approached the Tamil Nadu Administrative Tribunal, Chennai by filing O.A.No.2246 of 2003 wherein a direction was given that the petitioner's case also should be considered for the purpose of relaxation. However, in the meantime, the petitioner was transferred to the reverted post. When that was questioned, the Tribunal dismissed the same and ultimately, the Government by G.O.Ms.No.426, Public Works Department, dated 12.7.2004 has relaxed the rules with reference to age and qualification and regularized the service of the petitioner as Assistant Draughtsman with effect from 10.12.1979. Meanwhile, the second respondent, as per the seniority list, has promoted juniors to the petitioner as Junior Draughting Officer due to the reason that it was only in 2004 the service of the petitioner was regularized in the post of Assistant Draughtsman. According to the petitioner, his seniority should have been S.No.9, viz., immediately below his senior – K.Duraivel, who was granted promotion as Junior Draughting Officer in the year 1995. 2.3. It was only after regularisation of his service on 12.7.2004 as per the Government Order stated above, the ultimate order of promotion as Assistant Draughtsman was issued by the fourth respondent on 31.7.2004. The petitioner has made representation ventilating his grievance on 16.12.2004 and the second respondent in his proceedings dated 30.3.2005, having felt that the petitioner should have been promoted as Junior Draughting Officer, has recommended to the third respondent, who is the appointing authority. However, without implementing the recommendation of the second respondent, the petitioner was issued a charge memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules for unauthorised absence from duty for the period from 24.9.2001 to 18.2.2004. 2.4. It is the case of the petitioner that the transfer proceedings were subject matter of challenge before the High Court, which was disposed finally on 4.7.2003 directing the petitioner to join the transferred place, that he was arrested under TESMA and https://hcservices.ecourts.gov.in/hcservices/ imprisoned for a period of 9 months and that he could join only after recovering from medical illness. In the said disciplinary proceedings final order was passed on 19.5.2006 imposing a punishment of reduction of pay for three months at Rs.100/- per month, which was modified on 6.7.2006 reducing the punishment of reduction of pay for two months at Rs.100/- per month and the petitioner has retired from service on superannuation on 31.7.2006. 2.5. As per the recommendations of the second respondent dated 30.3.2005, the benefits have not been paid to the petitioner and the petitioner was deprived of his promotional opportunities which he should have got in 1995 itself. Till the date of retirement the petitioner was not conferred the promotion as Junior Draughting Officer, which post he should have been granted on 12.6.1995, when his immediate senior was promoted. In these circumstances, the present writ petition has been filed for the relief stated supra. 3.1. The third respondent, in the counter affidavit, while admitting that the petitioner was appointed as Blue Print Operator in the year 1978; that the petitioner was subsequently promoted as Assistant Draughtsman and reverted along with 32 persons as Blue Print Operator; that by virtue of the order of stay granted by this Court, the petitioner continued as Assistant Draughtsman in Dharmapuri; and that the Government has granted relaxation with respect to age and qualification in respect of 33 persons who were reverted, has stated that in respect of the petitioner the relaxation in respect of age and qualification was not granted because the matter was pending before the Court. 3.2. It is also admitted that on the basis of the direction of the Court, the Government passed G.O.Ms.No.426, Public Works Department, dated 12.7.2004 extending similar benefit of relaxation with respect to age and qualification to the petitioner and the service of the petitioner was regularized with effect from 10.12.1979 as an Assistant Draughtsman. 3.3. It is also stated that when the seniority list was drafted in June, 1995, the petitioner's name was not included due to the currency of punishment at that time and that the petitioner made representation on 16.12.2004 to include his name in the seniority list for the post of Junior Draughting Officer. The said representation along with the proposal of the second respondent was forwarded to the third respondent on 30.6.2006 for further orders and the third respondent has passed orders stating that since disciplinary proceeding against the petitioner was pending from November 2005 and the period from May, 2006 to July, 2006 was treated as punishment period, the petitioner's name could not be included in the seniority list. https://hcservices.ecourts.gov.in/hcservices/ 3.4. It is also admitted that the petitioner has attained age of superannuation on 31.7.2006. It is also stated that charge memo was issued for unauthorised absence from 24.9.2001 to 18.2.2004 and due to currency of punishment, he was not included in the seniority list and an order has already been passed in this regard on 24.7.2006. 4. On the facts and circumstances of the case, it is clear that the petitioner has been conferred with the benefit of Assistant Draughtsman with effect from the due date, viz., 10.12.1979, of course as per the Government Order in G.O.Ms.No.426, Public Works Department, dated 12.7.2004. The grievance of the petitioner is that when the petitioner has been conferred the same benefit as that of other 32 Assistant Draughtsmen who were reverted as Blue Print Operators with effect from the due date, viz., from 10.12.1979, he should be treated on par with the other persons for the purpose of next avenue of promotion to the post of Junior Draughting Officer. His immediate senior, one K.Duraivel, was in the seniority list drawn on 12.6.1995 and he was granted the benefit of promotion in the year 1995 itself. Therefore, when once the petitioner has been conferred benefit as Assistant Draughtsman from December, 1979, he should have been included in the list for promotion to the post of Junior Draughting Officer for the year 1995. It is not the case of the respondents that any disciplinary proceeding was pending on the crucial date for inclusion of the name of the petitioner for promotion to the post of Junior Draughting Officer in the year 1995. The case of the respondents is that the petitioner's regularisation as Assistant Draughtsman with effect from 10.12.1979 itself was passed only on 12.7.2004. 5. The second respondent, by proceedings dated 30.3.2005, has recommended that the period between 11.9.2001 to 17.2.2004 should be treated as leave subject to other Government Rules and based on the Government Order in G.O.Ms.No.426, Public Works Department, dated 12.7.2004, by which the petitioner was directed to be regularized with effect from 10.12.1979, directed the third respondent to take appropriate action. It was by order dated 19.5.2006, the third respondent has passed order on the disciplinary proceeding regarding the unauthorised absence by reducing the pay by Rs.100/- per month for two months, viz., May and June, 2006 and thereby ordering the regularisation of the leave between 24.9.2001 and 18.2.2004. When that order has become final, it is not known as to how the respondents can construe that during the relevant period of consideration for promotion to the post of Junior Draughting Officer, viz., in the year 1995 and also on the actual date of promotion of the petitioner's junior to the said post, any charge memo was pending against him. It is unfortunate that the third respondent has not taken action as per the proposal of his superior, viz., the second respondent dated 30.3.2005, as stated above. https://hcservices.ecourts.gov.in/hcservices/ 6. After the order of punishment was passed by the third respondent on 19.5.2006, since the petitioner had to retire on superannuation on 31.7.2006, the third respondent has passed another order on 6.7.2006 in modification of the order dated 19.5.2006, reducing the salary of the petitioner to the next below stage and by that punishment the pensionary benefits of the petitioner were affected. However, the petitioner was permitted to retire on 31.7.2006 stating that no disciplinary proceedings or punishment is pending. Be that as it may, taking note of the fact that the proposal of the second respondent dated 30.3.2005 addressed to the third respondent has not been considered, the petitioner has made representation to all the respondents on 27.9.2008. 7. A cursory glance of the entire issue involved in this case shows that on the relevant date, viz., the crucial date or the date of consideration for promotion to the post of Junior Draughting Officer, which was in 1995, there was no charge pending against the petitioner and in such circumstances, I am of the considered view that the third respondent ought to have passed order granting notional promotion to the petitioner as Junior Draughting Officer from the year 1995, when the immediate junior to the petitioner was promoted. The subsequent charges issued cannot have any bearing on the right of consideration for promotion on the crucial date as well as the date of consideration for promotion to the post of Junior Draughting Officer. 8. In such view of the matter, the respondents are directed to pass appropriate orders on the basis of the representation of the petitioner dated 27.9.2008 and the proposal of the second respondent dated 30.3.2005 and based on the above said observation, by conferring the benefit due to the petitioner as Junior Draughting Officer from the year 1995 with all benefits, if there are no other legal impediments and such order shall be passed by the third respondent within a period of twelve weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To 1. The Secretary to Government of Tamil Nadu P.W.D. Department Fort St.George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Engineer-in-Chief and Chief Engineer (General), P.W.D., P.W.D., Chepauk Chennai – 600 005. 3. The Superintending Engineer Water Resource Organisation, PWD, Penniayar Basin Circle, Tiruvannamalai. 4. The Executive Engineer, PWD Water Resource Organisation Upper Pennaiyar Basin Dharmapuri-5. + 1 c.c. to M/s. G. Thilakavathi, Advocate. S.R.No.47653. W.P.No.1240 of 2009 PUR (CO) GSK 29.09.2009. https://hcservices.ecourts.gov.in/hcservices/