IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18-02-2011 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.Nos.49661 of 2006 and M.P.No.1 of 2006 W.P.No.13760 of 2008 and M.P.No.1 of 2008 and W.P.No.348 of 2010 N.Durairajan .. Petitioner in all the writ petitions. Versus 1.Government of Tamil Nadu rep. By Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 2.The Special Commissioner and Director of Survey and Settlement, "Survey House", Chepauk, Chennai-600 005. .. Respondents in W.P.No.49661 of 2006 1.Government of Tamil Nadu rep. By Secretary to Government, Revenue Department, Fort St.George, Chennai-600 009. 2.The Principal Commissioner and Director of Survey and Settlement, Survey House, Chepauk, Chennai-600 005. 3.The Special Officer (Computerisation) and Additional Director of Survey and Land Records (In-charge) Office of the Special Commissioner and Director of Survey and Settlement, Survey House, Chepauk, Chennai-600 005. https://hcservices.ecourts.gov.in/hcservices/ 4.The Assistant Director of Survey and Land Records, District Survey Unit, Collectorate, Chennai-600 001. 5.The Assistant Director of Survey and Land Records, District Survey Unit, Collectorate, Dharmapuri-5. 6.The Director, (Project.7) (C.STAR.IRS Building], Anna University, Chennai-600 025. .. Respondents in W.P.No.13760 of 2008 1. The State of Tamilnadu Rep. By The Secretary to Government, Revenue Department, Secretariat, Chennai-600 009. 2. The Additional Chief Secretary-cum- Commissioner of Survey and Settlement, Chepauk, Chennai-600 005. 3.The Additional Director of Survey and Land Records, Chepauk, Chennai-600 005. 4.The Regional Deputy Director of Survey and Land Records, Coimbatore. 5. The Assistant Director of Survey and Land Records, Dharmapuri. 6.The Assistant Director of Survey and Land Records, Collectorate, Chennai-1. .. Respondents in W.P.348/10 Prayer in W.P.No.49661 of 2006: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the first and second respondents to include the name of the petitioner in the panel for the year 2001- https://hcservices.ecourts.gov.in/hcservices/ 2002 approved in Pro.Rc.No.J3/20599/2001-02, dated 12.12.2001 of the second respondent for promotion as Inspector of Survey and Land Records notwithstanding and without reference to the orders in [1] Pro.Na.Ka.Gna.2/36756/2006, dated 28.10.2006 of the second respondent; [2] Pro.Na.Ka.No.LA2/33671/99, dated 16.12.2002, of the Additional Director of Survey and Land Records Chennai; [3] Pro.Na.Ka.No.G3/9205/97, dated 24.10.1997, of the Assistant Director of Survey and Land Records, Dharmapuri; [4] G.O.Ms.No.463, Revenue [LS 3(1)] Department, dated 30.6.2006 of the first respondent and [5] Pr.Na.Ka.No.A7/1152/2000, dated 19.2.2001 of the Assistant Director of Survey and Land Records, Chennai, and promote the petitioner as Inspector of Survey and Assistant Director of Survey and Land Records with retrospective effect from the respective dates of promotion of my immediate junior as Inspector of Survey and Land Records and Assistant Director of Survey and Land Records. Prayer in W.P.No.13760 of 2008:This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records in [1] Pro.Na.Ka.Ka.3/30965/2004(LS), dated 30.5.2008, of the second respondent; [2] Letter No.24097/LS.3(1)/02-9, Revenue Department, dated 26.11.2007 of the first respondent and [3] Pro.Na.Ka.Ka.3/30965/04/LS, dated 13.8.2004, of the third respondent, to quash the same and to issue consequential directions to the respondents 1 to 5 to allow the petitioner to continue as Deputy Inspector of Survey with all consequential service and monetary benefits including promotion. Prayer in W.P.No.348 of 2010: This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the orders passed by the Additional Director of Survey and Land Records, Chennai-5, the third respondent herein vide his proceedings number Na.Ka.La2/41193/2006, dated 26.3.2008, confirmed by the proceedings of the Additional Chief Secretary-cum-Commissioner of Survey and Settlement, Chennai-5, the 2nd respondent herein vide his proceedings number, dated Na.Ka.Gna2/26962/2008, dated 22.1.2009, and quash them as highly illegal, arbitrary, unreasonable, being violative of rules and principles of natural justice. For Petitioner : Mr.K.Venkatramani, Senior Advocate for Mr.A.R.Suresh For Respondents : Mr.S.Gopinathan (AGP) https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER In W.P.No.13760 of 2008, the petitioner had stated that the impugned orders therein reverting the petitioner from the post of Deputy Inspector of Survey and land records to that of Sub-Inspector of Survey and posting him in his parent unit in Dharmapuri District, is arbitrary, illegal and void. It had been submitted that the said orders had been passed by the respondents in the said writ petition, in a mala fide manner. There is no provision in the service rules applicable to the petitioner, enabling the respondents to pass such orders. Therefore, the respondents do not have the jurisdiction to initiate suo motu revision, reverting the petitioner from the post of Deputy Inspector of Survey. The order of reversion had been passed after a lapse of more than 10 years and therefore, it is invalid in the eye of law. In fact, the petitioner had become due for promotion, as Inspector of Survey, in the year, 2003, and for further promotion during the year, 2006. 2. It had also been stated that, pursuant to the directions issued by the Tamil Nadu Administrative Tribunal, in its order, dated 1.8.1997, in O.A.No.4182 of 1997, the panel of candidates eligible for promotion for the year, 1996, had been reissued, on 20.4.1998. In fact, the petitioner had not suffered any punishment during the year, 1996. As such, he would have been eligible for being considered for promotion, if the panel had been prepared at that time. It had also been stated that the respondents had acted in a mala fide manner only due to the fact that the petitioner had approached the Tamil Nadu Administrative Tribunal to establish his rights, which he was entitled to, as per law. It had also been stated that the respondents 1 to 3 ought to have noted that the charge memo, dated 28.1.1998, mentioned in the impugned orders had been issued, long after the crucial date, which was 25.4.1996. 3. In W.P.No.49661 of 2006, the petitioner had stated that the first and the second respondents therein ought to have seen that both the disciplinary proceedings, which had resulted in the orders of punishment, dated 24.10.1997 and 16.12.2002, based on the alleged delinquencies, said to have been committed by the petitioner, relating to the year, 1996, were well beyond the check period of five years and the currency of the punishment. Therefore, they cannot be shown as an impediment for the promotion of the petitioner as Inspector of Survey and Land records. Further, the disciplinary proceedings initiated against the petitioner, under Section 17(b) of the The Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, had ended in a minor punishment being imposed on the petitioner, by the order, dated 16.12.2002. https://hcservices.ecourts.gov.in/hcservices/ 4. It has also been stated that the respondents had failed to follow the guidelines issued by the Government Circular No.14353/93- 1, P & A.R. [Per.N] Department, dated 11.3.1993. Further, there has been an inordinate and unexplained delay in the disposal of the disciplinary proceedings, which had ended in the orders of punishment, dated 7.3.1997 and 14.11.2000. Therefore, they had been set aside and the matter had been remitted back for being considered afresh. In such circumstances, the petitioner ought to have been considered for promotion, as claimed by him. 5. In W.P.No.348 of 2010, it has been stated that the petitioner had been appointed, initially, as a field surveyor, on 26.12.1973. He was promoted as a Sub Inspector of Survey, on 9.11.1982. Later, he had been promoted as a Deputy Inspector of Survey, on 20.4.1998. It has been further stated that while the petitioner was working as a Town Sub Inspector of Survey, Hosur Municipality, from 14.11.1994, he had been transferred by the proceedings of the fifth respondent, dated 12.6.1996. The petitioner had challenged the said order of transfer before the Tamil Nadu Administrative Tribunal , in Chennai. He had also obtained an order of interim stay of the impugned transfer order. Thereafter, the fifth respondent had developed animosity towards the petitioner. Therefore, he had issued a charge memo, dated 28.1.1998, stating that the petitioner had subdivided the lands in Survey Nos.295/3, 296/3 and 599 without the sanction of the Tahsildar concerned and that he had added to the files certain applications relating to the sub division of certain other survey numbers. 6. It had also been stated that the petitioner had not submitted the relevant records, within the stipulated time and that he had been involved in several malpractices by forging documents. It had also been alleged that certain irregularities had been committed by the petitioner, in respect of Survey No.1188, in Sennathur Village, wherein a Thar road had been laid. Thus, the petitioner had acted in a manner unbecoming of a government servant. Thereafter, on 2.3.1998, the petitioner had made a representation asking for the relevant records, in order to submit his explanation. On receipt of the records, the petitioner had submitted his explanation, on 15.6.1998, denying the charges. The fifth respondent had appointed an enquiry officer at Chennai. The said enquiry officer could not conduct the enquiry, as the relevant records pertaining to the charges were at Dharmapuri. Thereafter, the fifth respondent had appointed the Divisional Inspector of survey, Krishnagiri, as the enquiry officer, by his proceedings, dated 11.9.1998. https://hcservices.ecourts.gov.in/hcservices/ 7. The petitioner had made a representation, on 3.11.1998 asking the fifth respondent to appoint a different enquiry officer, as the person appointed as the enquiry officer was working under the fifth respondent. However, the fifth respondent had himself conducted the enquiry and had come to the finding that the charges alleged against the petitioner had been proved. The third respondent, without considering the explanation submitted by the petitioner, had imposed the punishment of stoppage of increment, with cumulative effect, for six months, including the leave period, by his proceedings, dated 26.2.2001. The petitioner had filed an appeal against the said order, to the second respondent, on 26.2.2001. Since, no order had been passed on the said appeal, for nearly five years, the petitioner had filed a writ petition before this Court, in W.P.No.27175 of 2006, to direct the second respondent to consider and pass orders on the appeal filed by the petitioner. This Court, by its order, dated 12.9.2006, had directed the second respondent to pass appropriate orders on the said appeal, within the period of eight weeks stipulated by this Court. 8. Pursuant to the order passed by this Court, the second respondent had passed an order, dated 28.10.2006, holding that there was a flaw in the order of the third respondent, dated 14.11.2000 and therefore, the said order had been set aside and the matter had been remitted back to the third respondent to pass appropriate orders, by following the proper procedures, from the stage from which the flaw had occurred. Thereafter, the third respondent had issued an order, dated 18.12.2006, appointing the fifth respondent as an enquiry officer. Based on the enquiry report, the third respondent had imposed the same punishment on the petitioner, which had been imposed on him by his earlier order, dated 14.11.2000 vide proceedings, dated 26.3.2008. Challenging the said order of the third respondent, the petitioner had filed an appeal before the second respondent, on 30.6.2008. The second respondent had rejected the appeal filed by the petitioner, by his proceedings, dated 22.1.2009, without considering the points raised by the petitioner in the said appeal. 9. The learned counsel for the petitioner had submitted that the order of the third respondent, dated 26.3.2008, and the order of the second respondent, dated 22.1.2009, are arbitrary, illegal and void. The said orders are contrary to the principles of natural justice and the service rules applicable to the petitioner. He had also submitted that the third respondent had failed to consider the fact that the fifth respondent had not conducted the departmental enquiry, as per the procedures contemplated under the relevant service rules. The petitioner had not been given a fair opportunity to submit his explanation. Further, the explanation submitted by the petitioner, on 26.10.2007, had not been taken into consideration, before the fifth respondent had submitted the enquiry report stating that the charges https://hcservices.ecourts.gov.in/hcservices/ leveled against the petitioner had been proved. The second and the third respondents had failed to consider the claim of the petitioner that the fifth respondent had acted as a judge in his own cause, by conducting the enquiry, in spite of the fact that the fifth respondent, who had issued the charge memo, dated 28.1.1998, had also opted to conduct the enquiry, contrary to the procedures established by law and in violation of the principles of natural justice. 10. The learned counsel had also submitted that no reasons had been given for each and every charge in the impugned orders. He had also submitted that the petitioner should have been in the post of Inspector of Survey and Land Records, from the year, 2002, and he would have retired, on 30.9.2009, as Assistant Director of Survey and Land Reforms. It is only due to the punishment imposed on him, by way of the impugned proceedings, he had not been promoted in the regular course. He had also submitted that the impugned orders had been passed without affording a fresh opportunity of hearing to the petitioner. 11. In the counter affidavit filed on behalf of the respondents, the averments and allegations made in the affidavits filed in support of the writ petitions had been denied. It has been stated that prior to 1.10.1966, there were two sets of Special Rules applicable to those working in the respondent department, namely, the special rules for the Survey and Land Records, Subordinate (Temporary) Services and the Special Rules for the Survey and Land Records Subordinate Services. The persons appointed under the temporary service rules were taken to regular establishment on completion of two years of service, provided they possessed the minimum general qualification and if they had passed the required departmental tests. As issues regarding regularization and fixation of seniority had arisen, guidelines had been issued by the Board of Revenue (S.E.), Chennai, in B.P.No.102/75, dated 25.2.1975. 12. The seniority lists had to be revised based on the modified dates of regularisation, as per the guidelines issued in the said Board proceedings. In such circumstances, the panels could not be prepared between the years 1965 and 1980. Only in the year 1980, two panels of Deputy Inspectors of Survey and Land records were published, one containing the names of persons, who were promoted to the said post prior to 25.2.1975, and another containing the names of persons promoted after 25.2.1975, which is the date of the Board proceedings. Based on the order passed by this Court, on 30.11.1979, in W.P.No.2738 of 1977, which had been based on the decision of the Supreme Court, in S.K.Ghosh Vs. Union of India, (AIR 1968 SC 1385), the preparation of the lists had been done with a view to protect the interests of actual seniors, who were appointed prior to 1.10.1966. https://hcservices.ecourts.gov.in/hcservices/ 13. While so, the Tamil Nadu Administrative Tribunal, in its order, dated 1.8.1997, made in O.A.No.4182 of 1997, had held that the Board Proceedings, in B.P.No.102/75, dated 25.2.1975, only lays down the guidelines and it would not overrule the provisions of the special rules. Therefore, the panels prepared for the posts of Deputy Inspector of Survey and Land Records, for the years 1993 and 1996 had to be revised. Further, the revision of the panels for the years 1994 and 1995 had to be immediately revised and issued. Revisions of the panels involving a large number of persons till 1992, involving a large number of persons had been placed before the Government. 14. It had also been stated that the contention of the petitioner that there was no disciplinary proceedings pending against him and there was no currency of punishment during his entire career, till the year 1996 is not correct, in view of the fact that certain punishments had been imposed on the petitioner and that there were also certain charges pending against him. Even on the date of the preparation of the revised panel, on 20.4.1998, there were certain punishments and charges pending against him. 15. It has also been stated that, as per the guidelines under Item II(4) under Government Letter Ms.No.248, Personnel and Administrative Reforms, (S) Department, dated 20.10.1997, issued subsequent to the Government Order, in G.O.Ms.No.368, Personnel and Administrative Reforms, dated 18.10.1993, charges framed under Rule 17(b) of The Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, and the punishments awarded after the crucial date and till the date of the issue of the panel shall also be taken into consideration for assessing the suitability of the officer for being included in the panel. It has also been stated that as on 20.4.1998, i.e. the date of the publication of the panel the petitioner had been imposed with the following punishments: "i) Censure awarded as per proceedings of the Assistant Director of Survey and Land Records, Dharmapuri in Na.Ka.G3/19313/94, dated 5.5.95, for irregular maintenance of Records and Registers while he was working as Sub Inspector of Survey at Uthangarai Taluk Office. ii) Censure awarded as per proceedings of the Assistant Director of Survey and Land Records, Dharmapuri in Na.Ka.G3/3678/96, dated 31.10.1996, for not obeying the orders of the higher officials while he was working as Sub Inspector of Survey at Hosur Taluk Office. iii) Awarded stoppage of increment for three years with cumulative effect as per proceedings of the Assistant Director of Survey and Land Records, Dharmapuri in https://hcservices.ecourts.gov.in/hcservices/ Na.Ka.G3/3580/97, dated 16.9.1997, for having created bogus records and submitting false report as changes of sub- division made, whereas the corrections have been made only in village chitta and `A' Register without making any corrections in the village Field Measurement Book." 16. It had also been stated that the petitioner’s name could not be considered upto the year 2003 due to the reasons are as follows: Sl.No Year of D.I.S panel Panel released order and date Reason for non inclusion in the D.I.S. panel 1 1996(revised panel) J3/17974/98, dated 20.4.98 2 1997 J3/26047/98, dated 22.1.99 3 1998 J3/10881/99, dated 27.8.99 4 199 J3/49950/99, dated 24.7.2000 5 2000 J3/28310/2000, dated 12.1.2001 The petitioner was awarded stoppage of increment for three years with cumulative Effect as per the orders of the Assistant Director of Survey and Land Records, Dharmapuri in Na.Ka.G3/3580/97, dated 16.9.1997. Due to this punishment his name could not be included in the D.I.S. Panel for the year from 1996 till 2000. 6 2001 J3/26676/01, dated 18.4.2002 1. Awarded stoppage of increment for six months with cumulative effect as per orders of the Additional Director of Survey in proedings Na.Ka.La2/10471/99, dated 14.11.2000. 2.Censure awarded as per orders of the Assistant Director of Survey and Land Records, Chennai, in A7/1152/2000, dated 19.2.2001. Due to the above punishments his name could not be considered for the D.I.S.panel for the year 2001. https://hcservices.ecourts.gov.in/hcservices/ Sl.No Year of D.I.S panel Panel released order and date Reason for non inclusion in the D.I.S. panel 7 2002 Nil Panel J3/52725/01, dated 16.5.2003 17. It had also been stated that there is no substance in the allegation of the petitioner that his name had not been included in the panel for the post of Deputy Inspector of Survey, due to the mala fide reasons, as he had filed an original application, in O.A.No.3001 of 1996, before the Tamil Nadu Administrative Tribunal, challenging the order of transfer issued to him. 18. In view of the submissions made in the affidavit filed in support of the writ petitions and in the counter affidavits filed on behalf of the respondents and in view of the submissions made by the learned counsels appearing on behalf of the parties concerned, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner, in the present writ petitions. 19. It is clear that the name of the petitioner could not be considered for being added in the panel for being promoted as Deputy Inspector of Survey due to the pendency of the punishments, which had been imposed on the petitioner. It is also noted that sufficient reasons have been given by the respondents in the impugned orders, contrary to the claims of the petitioner. Further, it cannot be said that the petitioner had not been given sufficient opportunity to raise his objections, in respect of the allegations made against him. From the records available before this Court, it is seen that the petitioner had been given sufficient opportunity to defend himself against the allegations. 20. It is also noted that the enquiry officer, who had conducted the enquiry after the matter had been remitted back, by the order of appellate authority, dated 28.10.2006, was not the same person, as the one who had issued the charge memo. Once it is found that the petitioner had been given sufficient opportunity of hearing and if the principles of natural justice had been followed in a substantial measure, it would not be open to the petitioner to challenge the impugned proceedings stating that there was violation of the principles of natural justice, unless it is clearly shown that there was substantial prejudice caused to him. https://hcservices.ecourts.gov.in/hcservices/ 21. In such circumstances, this Court is of the considered view that the concept of principles of natural justice cannot be strictly applied as a straightjacket formula, in all circumstances and in all situations. Further, it can neither be like an unruly horse, nor like a run-away train sans control or direction. It should rather be, atleast to a reasonable extent, flexible and elastic to suit the varying exigencies of the situation, providing the healing touch needed in the application of the law and in serving the ends of justice. They apply differently in different situations, as necessitated by the facts and circumstances of each case, and with an amount of caution and care. 22. In the present case, it is seen from the records placed before this Court that the petitioner had retired from service, on 30.9.2009. Even though the enquiry report is said to have been submitted by the enquiry officer, who is also the disciplinary authority, it is seen that the penalty had been imposed on the petitioner by a higher authority. As such, the contentions raised on behalf of the petitioner cannot be countenanced. Since, the writ petitions are devoid of merits, they stand dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar csh To 1. The Secretary to Government, Government of Tamil Nadu Revenue Department, Fort St.George, Chennai-600 009. 2.The Special Commissioner and Director of Survey and Settlement, "Survey House", Chepauk, Chennai-600 005. 3.The Principal Commissioner and Director of Survey and Settlement, Survey House, Chepauk, Chennai-600 005. https://hcservices.ecourts.gov.in/hcservices/ 3.The Special Officer (Computerisation) and Additional Director of Survey and Land Records (In-charge) Office of the Special Commissioner and Director of Survey and Settlement, Survey House, Chepauk, Chennai-600 005. 4.The Assistant Director of Survey and Land Records, District Survey Unit, Collectorate, Chennai-600 001. 6.The Director, (Project.7) (C.STAR.IRS Building], Anna University, Chennai-600 025. 7. The Additional Chief Secretary-cum- Commissioner of Survey and Settlement, Chepauk, Chennai-600 005. 8.The Additional Director of Survey and Land Records, Chepauk, Chennai-600 005. 9.The Regional Deputy Director of Survey and Land Records, Coimbatore. 10. The Assistant Director of Survey and Land Records, Dharmapuri. 11.The Assistant Director of Survey and Land Records, Collectorate, Chennai-1. + 3 cc to Mr.A.R. Suresh Sr.12400 to 12402 + 1 cc to Government Sr.12284 W.P.Nos.49661 of 2006 (batch) NSM(CO) eu 2.5.11 https://hcservices.ecourts.gov.in/hcservices/