IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:5.1.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.15786 of 2008 K.B.Venkatachalam .. Petitioner Vs. 1. The State of Tamilnadu rep. by its Secretary to Government Public Works Department Fort St.George, Chennai-9. 2. The Engineer in Chief and The Chief Engineer (General) Public Works Department Chennai-5. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records connected in Lr.No.28476/A1/2007-8, dated 15.4.2008 of the first respondent, to quash the same, and to direct the first respondent to consider the claims of the petitioner for promotion on par with the petitioner's junior with effect from 29.10.1997 onwards as Assistant Executive Engineer without reference to the punishment of stoppage of increment for two years with cumulative effect as given to others in G.O.Ms.No.344, Public Works (HK-1) Department, dated 9.5.1995 and in G.O.Ms.No.157, Public Works (H-1) Department, dated 25.2.1996. For Petitioner : Mr.P.Jayaraman, Sr.Counsel for M/s.G.Elanchezhiyan For Respondents: Mr.R.Murali Government Advocate ORDER The writ petitioner who was originally appointed as Assistant Engineer on 1.6.1978, having been selected through Tamil Nadu Public Service Commission, was subsequently promoted as Assistant Executive Engineer on 1.11.2001 and posted to K.W.S.P. Division-I Sub Division-II, Sadurangpattinam. While he was working as Assistant Engineer, he was issued a charge memo under Rule 17(b) of https://hcservices.ecourts.gov.in/hcservices/ the Tamil Nadu Civil Services (Discipline and Appeal) Rules on 31.7.1989 for an occurrence in the year 1988, when the petitioner was working as Assistant Engineer Incharge in Kalavarapalli Reservoir Project. The crux of the charge is that he has allowed wrongful overpayment to the contractor to the extent of Rs.16,971/- by way of over classification of soil in the earth work excavation and he has deviated from the scheme without orders and therefore, was responsible for constructing three numbers of drop at places. 2. The petitioner submitted his explanation and an enquiry was conducted and report filed to the effect that charges are proved. To the memo issued along with the enquiry report, the petitioner has submitted his further representation and thereafter, the first respondent has passed the order of punishment of stoppage of increment for two years with cumulative effect, besides recovery of Rs.3,456/- in G.O.(D) No.252, Public Works (E2) Department, dated 15.7.1997. 3. The petitioner was due for promotion as Assistant Executive Engineer but was not considered for the year 1997-1998 because of the pendency of charge and for the year 1998-1999 also his name was not considered because of currency of punishment and that was also the reason assigned for the year 1999-2000. He was considered for promotion and promoted as Assistant Executive Engineer on 1.11.2001 by overlooking him in three consecutive panels. 4. It is stated that in respect of Palaniyandi, S.S.Ramachandran and P.Ramalingam, Assistant Divisional Engineers, who were imposed a minor punishment of stoppage of increment and when their names were not considered for promotion during the currency of punishment and were promoted after the punishment period was over, on appeal made to the Government, the Government accepted the same and promoted them on par with their juniors, even though currency of punishment was in force. 5. It was in those circumstances, the petitioner is stated to have made a representation to the first respondent to consider him for promotion as Assistant Executive Engineer on par with his juniors, as in the cases of Palaniyandi, S.S.Ramachandran, P.Ramalingam and S.S.Karuppaiah. When the petitioner filed a writ petition, on 18.9.2007, this Court has directed the first respondent to consider the representation of the petitioner dated 6.6.2007 in the light of G.O.Ms.No.344, Public Works (HK-1) Department, dated 9.5.1995 and in G.O.Ms.No.157, Public Works (H-1) Department, dated 25.2.1996. After the contempt petition was filed, the claim of the petitioner came to be rejected by the impugned order of the first respondent dated 15.4.2008 without any valid reason. 6. The said order is assailed on the grounds that the same is arbitrary; that it was passed hastily due to the contempt of court https://hcservices.ecourts.gov.in/hcservices/ proceedings; that it was passed against G.O.Ms.No.344, Public Works (HK-1) Department, dated 9.5.1995 and in G.O.Ms.No.157, Public Works (H-1) Department, dated 25.2.1996; that the first respondent failed to consider that persons similarly placed were given promotions and the petitioner was denied and therefore, it is in violation of Articles 14 and 16 of the Constitution of India, apart from other grounds. 7. In the counter affidavit filed by the respondents, it is stated that by virtue of the charge framed against the petitioner it amounts to lack of integrity and betrayal of professional ethics and therefore, violation of Rule 20 of the Tamil Nadu Government Servants' Conduct Rules, 1973 and hence, disciplinary action was initiated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 8. It is also stated that in respect of one of the charges regarding location of three drops it was not decided by the Executive Engineer. It is stated that when the report of the Enquiry Officer was forwarded, the petitioner has accepted the same as is evident from his representation dated 22.11.1996 and therefore, the petitioner cannot now turn round to question the same. 9. It is stated that due to the currency of punishment on the crucial date, the petitioner's name was deferred. The deferral was made based on G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993 and there was no delay on the part of the department and the delay during enquiry was on account of the petitioner and that by the conduct of the petitioner loss has been caused to the Government and for the same irregularities one Assistant Executive Engineer, Thiru V.Kannan was penalised with pension cut of Rs.90/- per month for one year with cash recovery of Rs.4253/- from his death-cum-retirement gratuity and therefore, the impugned order came to be passed and the same is in accordance with law. 10. In the further affidavit, the petitioner stated by referring to Government letter dated 28.6.1996 and also letter No.248, dated 20.10.1997 to the effect that he is entitled to promotion as Assistant Executive Engineer for the year 1997-1998 even though currency of punishment was in force. 11. Under the charge memo issued on 31.7.1989 an order of punishment was passed against the petitioner on 15.7.1997 and it was stoppage of increment for two years with cumulative effect. Therefore, it is the case of the department that for the year 1997- 1998 the petitioner was not considered for the post of Assistant Executive Engineer because of the pendency of the charge and for the years 1998-1999 and 1999-2000 the petitioner was not considered https://hcservices.ecourts.gov.in/hcservices/ because of the currency of punishment and was granted promotion as Assistant Executive Engineer on 1.11.2001. 12. In the impugned order of the first respondent, which was passed based on the representations of the petitioner dated 6.6.2007 and 3.10.2007, it was informed that after the petitioner's promotion as Assistant Executive Engineer on 26.10.2001, as per the Rules he would be eligible for consideration to the post of Executive Engineer only after completion of five years of service in the post of Assistant Executive Engineer stating that his name will be considered for inclusion in the panel for the post of Executive Engineer during the year 2006. The impugned order also says that none of the juniors as per the inter-se seniority in G.O.(D) No.383, Public Works Department, Dated 29.10.2001 has been promoted as Executive Engineers. 13. The petitioner who has made his representation on 6.6.2007, has raised objection that he should have been considered for promotion to the post of Assistant Executive Engineer during the years 1997, 1998 and 1999. Therefore, he requested the respondents to consider him for promotion as Executive Engineer by treating as if he was promoted as Assistant Executive Engineer in the year 1997-1998 itself. When he approached this Court by filing W.P.No.26431 of 2007, by order dated 18.9.2007, this Court has passed the following order: "3. Considering the facts and circumstances of the case and also considering the orders passed by this Court referred to above, I direct the first respondent to consider the representation of the petitioner dated 6.6.2007 on merits and in the light of the G.O.Ms.No.344, Public Works (HK-1) Department, dated 9.5.1995 and in G.O.Ms.No.157, Public Works (H-1) Department, dated 25.2.1996 within a period of eight weeks from the date of receipt of a copy of this order." 14. When the panel of Assistant Executive Engineers was prepared and inter-se seniority list was published in G.O.(D) No.383, Public Works Department, Dated 29.10.2001, admittedly, the petitioner has not raised any objection. The conduct of the petitioner in waiting for nearly seven years even for making representation claiming promotion to the post of Assistant Executive Engineer in the year 1997-1998 itself is a sufficient ground to reject the claim of the petitioner. 15. The reference made by the petitioner in his representation to G.O.Ms.No.344, Public Works (HK-1) Department, dated 9.5.1995 and G.O.Ms.No.157, Public Works (H-1) Department, dated 25.2.1996 are relating to the restoration of seniority in respect of Assistant Divisional Engineers in Highways Engineering Services and therefore, there is absolutely no reason to correlate those government orders in https://hcservices.ecourts.gov.in/hcservices/ respect of various individuals to the facts of the petitioner's case. Even otherwise, those were cases where the Assistant Divisional Engineers who were reverted were restored to their seniority considering their past conduct and confidential reports, apart from the fact that they were the cases where the punishment was censure or stoppage of increment for one year without cumulative effect. In the case of the petitioner, in the disciplinary proceedings, the Government passed final order in G.O.D.No.252, Public Works (E2) Department, dated 15.7.1997, by which the Government has directed the punishment of stoppage of increment for two years with cumulative effect, besides recovery of Rs.3,456/-, as under: "5. The Government have once again examined the case with all connected records thoroughly and independently in light of the view of Tamil Nadu Public Service Commission and the further representation of the Accused Officer. They hold the two charges framed against Thiru Venkatachalam, Assistant Engineer as proved and decided to impose the punishment of stoppage of increment for 2 years with cumulative effect besides recovery of Rs.3456/- on him. They direct that the punishment of stoppage of increment for two years with cumulative effect besides recovery of Rs.3456/- be imposed on Thiru Venkatachalam, Assistant Engineer, P.W.D. This period of stoppage of increment is inclusive of the period if any spent on leave. This will affect his pension. Further the aforesaid amount of Rs.3456/- (Rupees three thousand four hundred and fifty six only) shall be recovered in seven monthly instalments at the rate of Rs.456/- in the first instalment and at Rs.500/- p.m. in the subsequent six instalments. Recovery shall start from the pay for the month of July 97." 16. Admittedly, the petitioner has accepted this punishment and when the panel was drawn for the year 1997-1998 of course the charges were pending and during 1998-1999 and 1999-2000 there was currency of punishment, which fact is not in dispute. As I have stated earlier, the petitioner cannot correlate with the two other cases mentioned above which are factually different. In such circumstances, when the petitioner's promotion as Assistant Executive Engineer in the year 2001 remained unchallenged, there is absolutely nothing to interfere with the impugned order of the first respondent which was passed based on the claim of the petitioner for the next promotion as Executive Engineer. Further, in the impugned order, by quoting Rule 5, the first respondent has stated that after expiry of five years from the date of promotion as Assistant Executive Engineer, the claim of the petitioner would be considered, which, in my considered opinion, is neither perverse nor illegal. https://hcservices.ecourts.gov.in/hcservices/ 17. It is admitted that on the crucial date for promotion to the post of Assistant Executive Engineer for the year 1997-1998, viz., 15.7.1997, charges were pending against the petitioner and therefore, for subsequent two years also the petitioner was not considered due to the currency of punishment and thereafter, he was promoted as Assistant Executive Engineer on 1.11.2001. It is settled law that currency of punishment is a bar for considering for the next promotion. Therefore, the claim of the petitioner for promotion to the post of Assistant Executive Engineer either in the year 1997-1998 or 1998-1999 or 1999-2000 cannot be accepted. The said rejection is also in accordance with G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993. 18. But, the issue to be decided is by taking 2001 as the year of promotion of the petitioner as Assistant Executive Engineer even as per the impugned order of the first respondent, by applying Rule 5, the petitioner would be entitled to be considered for the next promotional post of Executive Engineer after the completion of five years. If the crucial date for promotion to the post of Executive Engineer is 18.12.2007, as submitted by the learned Senior Counsel for the petitioner, I do not see any impediment on the part of the respondents in considering the name of the petitioner for promotion to the post of Executive Engineer for the year 2007-2008. In such view of the matter, even though I do not propose to interfere with the impugned order of the first respondent, I am of the considered view that the first respondent should be directed to consider the case of the petitioner for promotion to the next promotional post of Executive Engineer for the year 2007-2008, if there are no other legal impediments. In the result, the writ petition stands dismissed, however with a direction to the respondents to consider the case of the petitioner for the next promotional post of Executive Engineer for the year 2007-2008 based on the seniority of the petitioner, as per Rule 5 referred to in the impugned order, if there are no other legal impediments and pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ sasi To: 1. The Secretary to Government State of Tamilnadu Public Works Department Fort St.George, Chennai-9. 2. The Engineer in Chief and Chief Engineer (General) Public Works Department Chennai-5. 1 cc To Mr.G.Elanchezhiyan, Advocate, SR.723 W.P.No.15786 of 2008 AR(CO) sra 08.01.2010 https://hcservices.ecourts.gov.in/hcservices/