IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12-10-2009 Coram THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 36269 of 2006 (O.A.No.7550/98) K. Nagarajan .. Petitioner Versus 1. The Commissioner of Municipal Administration Chennai – 5 2. The Commissioner Dharmapuri Municipality Dharmapuri .. Respondents OA No. 7550 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court and re-numbered as WP No. 36269 of 2006, which was filed under Artice 226 of Constitution of India to issue a writ of mandamus directing the first respondent herein to issue orders of promotion to the applicant as Town Planning Officer, Grade I, with effect from the date of promotion of his immediate junior, by virtue of the applicant's placement in the approved panel – Pro.Roc.No.50900/96/TP4 dated 21.08.1997 of the first respondent herein – without regard to the disciplinary proceedings initiated against the applicant in Pro.Roc.No.83694/97/C3-11 dated 25.05.1998 and grant consequential service and monetary benefits. For Petitioner : Mr. M. Ravi For Respondents : Mr. R. Neelakandan Government Advocate ORDER The petitioner was employed as Town Planning Officer, Grade II in the Dharmapuri Municipality. He filed O.A. No. 7550 of 1998 before the Tribunal seeking for a direction to the respondents to promote him to the post of Town Planning Officer, Grade I with effect from the date of promotion of his immediate junior pursuant to placing his name in the approved panel dated 21.08.1997 of the first respondent herein without reference to the disciplinary proceedings initiated against him in Pro.Roc.No.83694/97/C3-11 dated 25.05.1998 and grant consequential service and monetary benefits. 2. The petitioner contended that as against the charge memo dated 25.05.1998, he has filed O.A. No. 6376 of 1998 before the Tribunal and obtained interim stay on 12.08.1998 staying all further proceedings against him pursuant to the charge memo dated 25.05.1998. https://hcservices.ecourts.gov.in/hcservices/ Therefore, since there is an interim stay granted by the Tribunal, his name has to be included in the promotion panel. In view of the abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 36269 of 2006. 3. It is now brought to the notice of this Court that the petitioner had withdrawn the O.A. No. 6376 of 1998 by contending that he wants to face the enquiry and the same was also dismissed as withdrawn by the Tribunal. Therefore, the only basis under which promotion was claimed by the petitioner was the interim stay granted by the Tribunal in O.A. No. 6376 of 1998 on 12.08.1998 and the said O.A. No. 6376 of 1998 was also withdrawn by the petitioner. In such circumstance, the prayer sought for by the petitioner cannot be granted. Even other wise, by getting interim stay of the disciplinary proceedings will not automatically ensure to the benefit of the petitioner any promotional claim. The interim stay granted by the Tribunal or any other Court is only with reference to the disciplinary proceedings and merely the disciplinary proceedings are stayed by the Tribunal, it will not qualify the petitioner from being included in the promotional panel. This position of law has been has been dealt with by this Court in the order dated 29.09.2006 in W.P. No. 22059 of 2006 in the matter of V. Chandra, Record Clerk, Office of the Commercial Tax Officer vs. The Government of Tamil Nadu, rep. By its Secretary to Government, Personnel and Administrative Reforms Department. Para Nos. 24, 25, 26 and 27 of the said order dated 29.09.2006 can be usefully extracted as under:- 24. When this decision was once again questioned before the Supreme Court in the decision reported in (1992) 4 SCC 711 [NELSON MOTIS vs. UNION OF INDIA AND ANOTHER], the Supreme Court stated that the judgment rendered in Khem Chand's case was not erroneous and it does not require reconsideration and need not be referred to any larger Bench. In that decision, the Supreme Court dealt with a case of Rule 10(4) of the Central Rules and held that the Government servant can be kept under suspension even if he gets a decision of the court of law setting aside his original punishment and the said Rule is extracted below: "(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to https://hcservices.ecourts.gov.in/hcservices/ remain under suspension until further orders: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.” 25. While upholding the said Rule, the Supreme Court in paragraph 10 of the judgment observed as follows: "The cases which attract sub-rule (4), are thus those where the penalty imposed on the government servant is set aside on technical grounds not touching the merits of the case. Since at one stage the disciplinary authority records a finding on the charges against the government servant, which is not upset on merits, the situation is entirely different from that in the cases covered by sub-rule (3). The classification is thus founded on an intelligible differentia, having a rational relation to the object of the rules and Rule 10 (4) has to be held as constitutionally valid." 26. Therefore, reference to the above two decisions of the Supreme Court clearly shows that in the matter of Government servants ever after getting a verdict in his favour through a Court of law on technical grounds, still the authorities can decide as to the effect of the verdict of the Court and on finding that such a verdict was only in technical nature, the authorities can take further action and till such time, there will be a deemed suspension. When that is the legal position, it is not made clear as to how the impugned order of the Government is liable to be struck down as violative of Articles 14 and 16 of the Constitution of India as contended by the learned counsel for the petitioner. On the contrary, while the impugned G.O. prevents a guilty officer from getting undue promotion, yet, at the same time, guarantees promotion once the disciplinary proceedings are finally decided in favour of the said Government servant. 27. In the light of the above, there are no merits in the writ petition. The writ petition fails and the same shall stand dismissed. However, there will be no order as to costs. Since the impugned order is held to be valid in the eye of law, the further direction sought for by the petitioner to promote her cannot be granted at this stage. She will have to work out her remedy in O.A.No.676 of 2002 (subsequently transferred to this Court) and the direction as prayed for cannot be granted. In view of the https://hcservices.ecourts.gov.in/hcservices/ same, M.P.No.4 of 2006 shall also stand dismissed. 4. In the above decision, this Court has held that mere staying of charge memo will not enure automatically the benefit of promotion and upheld the guidelines issued by the Government in this regard. In view of the decision of this Court mentioned supra, this Court is of the view that non-inclusion of the petitioner's name in the promotional panel is valid. In the light of the above, no relief can be granted to the petitioner and the writ petition is liable to be dismissed. 5. Accordingly, the writ petition is dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar rsh To 1. The Commissioner of Municipal Administration Chennai – 5 2. The Commissioner Dharmapuri Municipality Dharmapuri W.P. No. 36269 of 2006 RSI(CO) EM/27.10 https://hcservices.ecourts.gov.in/hcservices/