IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.04.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.30509 and 30510 of 2006 (O.A.Nos.567, 185 of 1997 S.Thirunavukkarasu .. Petitioner in both the petitions Vs. Government of Tamil Nadu represented by the Chief Secretary to Government, Public (Special-A) Department, Fort St. George, Chennai-9. .. Respondent in W.P.No.30509 of 2006 Government of Tamil Nadu, represented by the Secretary to Government, P & AR Department, Fort St. George, Chennai-9. .. Respondent in W.P.No.30510 of 2006 W.P.No.30509 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to G.O.Ms.No.1410, Public Special-A Department, dated 4.12.1996 (A-6) and after scrutiny thereof, direct the respondent to include the name of the applicant in the appropriate place in the impugned panel with reference to his seniority in the feeder category of Deputy Secretaries and give promotion to the applicant as Joint Secretary, from the date on which his immediate junior has been promoted as Joint Secretary, with all attendant , service and monetary benefits. W.P.No.30510 of 2006 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to (1) G.O.(3D)No.8, P & AR (Q) Department, dated 22.6.1995 (A-5); and (2)G.O.(3D) No.3, P & AR (Q) Department, dated 28.2.1996 (A-7) and to quash the same. For Petitioner : Mr.K.V.Anandakrishnan For Respondents : Mr.P.Gurunathan, GA https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner in both the writ petitions is the same person. He was working as Deputy Secretary to the Government in the Social Welfare Department. Just 7 months before his retirement, he filed O.A.Nos.185 of 1997 and 567 of 1997 before the Tamil Nadu Administrative Tribunal. These two O.As. stood transferred to this court on the abolition of the Tribunal and were renumbered as W.P.Nos.30509 and 30510 of 2006. 2.In The first O.A., the petitioner challenged the order of the Government G.O.(3D) No.8, P & AR Department, dated 22.6.1995 and G.O.(3D) No.3, P & AR Department dated 28.02.1996. By the order, dated 22.6.1995, the petitioner was issued with punishment of censure. The charge against the petitioner was that while he was working as Under Secretary to the Government, Animal Husbandry Department, he did not close the attendance and he attended the office late in as many as 16 days within a period of three months. After getting explanation from the Charge memo framed under Rule 17 (a) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules, the said punishment was given to him. The explanation offered by the petitioner was that his late comings were not intentional and beyond his control. The respondent State rejected his explanation and observed that he was given repeated oral warnings by the then Secretary to Government. 3.As against the said order of punishment, the petitioner preferred a review petition, dated 17.7.1995. The Government rejected the review petition by passing an order dated 28.02.1996. In doing so, the Government took the advice of the Tamil Nadu Public Service Commission. It is these two orders which are challenged in the first O.A. 4.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 27.06.1997. In the reply affidavit, it was stated that in terms of the office procedure that each Under Secretaries to Government should sign the attendance register maintained in his room and also close the attendance register by affixing his initial at the end. The said register will have to be sent to the Deputy Secretary/Joint Secretary by 10.15 a.m. The petitioner had thereby not only violated the office procedure, but also did not keep himself as role model in doing so. 5.The Supreme Court in its judgment in CHAIRMAN & MANAGING DIRECTOR, V.S.P. AND OTHERS Vs. GOPARAJU SRI PRABHAKARA HARI BABU reported in 2008 5 SCC 569 had held that the High Court exercising power under Article 226 in dealing with the proportionality of the punishment is very limited. In paragraphs 20 and 21 of its judgment, it was held as follows: "20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only https://hcservices.ecourts.gov.in/hcservices/ on sympathy or sentiments. (See Maruti Udyog Ltd. v. Ram Lal; State of Bihar v. Amrendra Kumar Mishra; SBI v. Mahatma Mishra4; State of Karnataka v. Ameerbi5; State of M.P. v. Sanjay Kumar Pathak6 and Uttar Haryana Bijli Vitran Nigam Ltd. v. Surji Devi7.) 21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. (See Sangfroid Remedies Ltd. v. Union of India.)" 6.Though the petitioner tried to argue that the Government did not apply its mind independently, but was largely influenced by the recommendations of the T.N.P.S.C., the records produced do not substantiate the same. The Supreme Court in its judgment in RAM GOPAL CHATURVEDI Vs. STATE OF MADHYA PRADESH reported in 1969 (2) SCC 240 had held as follows: "7. It was argued that the impugned order was invalid as it was passed without consulting the State Public Service Commission under AAticle 320(3)(c) of the Constitution. There is no merit in this contention. The case of State of U.P. v. M.L. Srivastava1 decided that the provisions of Article 320(3)(c) were not mandatory and did not confer any rights on the public servant and that the absence of consultation with the State Public Service Commission did not afford him a cause of action." Therefore, even if there was no consultation with the T.N.P.S.C., it will not result in the petitioner attacking the non consultation process before this court. In the present case, the petitioner was supplied with the copy of the advice given by the TNPSC along with the penalty order. Therefore, the W.P.No.30510 of 2006 deserves to be dismissed. 7.In W.P.No.30509 of 2006, the prayer is to challenge the G.O.Ms.No.1410, Public Special Department, dated 04.12.1996. The petitioner seeks inclusion of his name in the panel fit for promotion to the post of Joint Secretaries to Government (Non I.A.S.) for the year 1996-97. The panel consists of 29 and the petitioner's name has been omitted. Though the petitioner contended that his overall rating in the A.C.R. is very good for the relevant year, that by itself cannot be a ground for getting promoted to the next higher post. In the present case, the petitioner faced with a charge memo and also awarded a punishment of censure. Though it is contended that a censure cannot operate as a bar for promotion, there is nothing wrong in the respondents taking into account the over all performance of the petitioner before including his name in the promotion panel. Inasmuch as the petitioner was imposed with a punishment for his habitual late attendance, he cannot claim as a https://hcservices.ecourts.gov.in/hcservices/ matter of right that promotion should be given notwithstanding his over all performance as observed by his superiors. Therefore, this W.P. also deserves to be dismissed. 8.In the light of the above legal precedents and also the factual matrix of the case, the writ petitions are misconceived and devoid of merits. Accordingly, they are dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Chief Secretary to Government, Government of Tamil Nadu Public (Special-A) Department, Fort St. George, Chennai-9. 2.The Secretary to Government, Government of Tamil Nadu, P & AR Department, Fort St. George, Chennai-9. 2 ccs to Mr.K.V. Anantha Krishnan, Advocate, SR. 16305, 16306 W.P.NOS.30509 AND 30510 OF 2006 SSN (CO) kk 27/4 https://hcservices.ecourts.gov.in/hcservices/