1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:15.07.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.7844 of 2011 And M.P.(MD).No. 1 of 2011 Dr.K.Senthilvelan ... Petitioner -Vs- 1. The Director of Medical & Rural Health Services Chennai - 6 2. Dr.D.Geetha Assistant Surgeon Primary Health Centre Keelasevalpatti Sivaganga 3. Dr.R.Aarthi Assistant Surgeon Primary Health Centre Kondur Villupuram ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus calling for the records relating to the impugned show cause of the first respondent dated 03.07.2007 issued in the reference No. 53919/SCI/3/2007 and quash the same and to direct the first respondent to place the petitioner's name below the second respondent serial No.549 Dr.D.Geetha, C.M.L.No. 8253 and above the third respondent Dr.R.Aarthy, Serial No. 550, C.M.L.No. 8258 and promote the petitioner to the post of Senior Civil Surgeon from the date on which the petitioner's Juniors were promoted and granting such other and further relief. For Petitioner : Mr.V.Vellaiswamy For Respondents : Mr.T.S.Mohamed Mohideen Additional Government Pleader O R D E R Challenge in this Writ Petition is to a show cause notice, dated 03.07.2007, issued by the Director of Medical & Rural Health Services, Chennai - 6, the first respondent herein, under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, calling for explanation from the writ petitioner for certain lapses. https://hcservices.ecourts.gov.in/hcservices/ 2 2. According to the petitioner, he has submitted his explanation, on 31.08.2007 and till date, no orders have been passed. It is his further contention that except the above, no other disciplinary proceedings were pending nor punishment imposed. While that be so, when the Director of Medical & Rural Health Services, Chennai - 6, the first respondent herein, prepared a panel of Assistant Civil Surgeons in General line, qualified for the promotion to the post of Senior Civil Surgeon, during the counseling, his name has not been included, by taking into consideration his Re-fitment seniority, C.M.L.No. 8255/2005. No reasons have been assigned for not including his name for promotion. It is the further contention of the petitioner that as per the Civil Medical List, the petitioner should have been placed below the second respondent and above the third respondent. It is the further case of the petitioner that though a representation, dated 01.07.2011 was sent to the Director of Medical & Rural Health Services, Chennai - 6, the first respondent herein, stating that the proceedings under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot be put against him for inclusion in the Civil Surgeon panel, the same remains unanswered and hence, the present Writ Petition. 3. Considering the averments and the relief sought for, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader was put on notice and heard. 4. He fairly submitted that pendency of disciplinary proceedings under Rule 17(a) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot be a bar for inclusion for promotion to a higher post provided the petitioner is otherwise qualified. He also submitted that if the representation of the petitioner, dated 01.07.2011, is acknowledged and still pending on the file of the Director of Medical & Rural Health Services, Chennai - 6, the first respondent herein, the same would be considered and appropriate orders would be passed. The submissions of the learned Additional Government Pleader is placed on record. 5. Heard the parties and perused the materials available on record. 6. It is well settled legal position that disciplinary proceedings initiated under Rule 17(a) Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot be held against the Government Servant for inclusion of his name for promotion to a higher post. 7. Reference can be made to the decision of this Court in W.P.No.32007 of 2005, by order, dated 7.3.2006, (K.thirunavukkarasu V. State of Tamil Nadu and another), wherein following a Division Bench decision of this Court in W.P.No.11511 of 2002 (K. Selvarajan v. The Secretary to Government, Department of Health &amp; Family Welfare, Government of Tamil Nadu, Chennai-9 and two others), a learned Single Judge has to taken a view that once 17(b) charges are dropped against an employee and the other charge being only under Rule 17(a), the name of the employee is entitled to be included in the panel for promotion. In Thirunavukkarasu's case, the writ petition was allowed with consequential directions holding that once the charges are dropped, it is automatic that the person's name should be considered for inclusion, if there is no other legal impediment. Even the Government Order in G.O.Ms.No.368, https://hcservices.ecourts.gov.in/hcservices/ 3 Personnel and Administrative Reforms Department, dated 18.10.1993, makes it clear that a charge under 17(a) of the abovesaid Rules cannot be held as a bar against a Government servant for inclusion in the panel. 8. In view of the above decision, even assuming that a Government Servant is facing disciplinary proceedings under Rule 17(a) of the Discipline and Appeal Rules, that would not stand as an embargo, impediment for inclusion of his name, at the appropriate place in the seniority list unless, the petitioner is downgraded in the seniority, on account of any punishment. 9. Facts disclose that the petitioner has not been imposed with any punishment of reduction in rank or seniority, assigned by the Tamil Nadu Civil Commission, as per Rule 35-aa of the Tamil Nadu State and Sub- Ordinate Services Rules, which reads hereunder:- "The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade; Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed: Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter- se-seniority: Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age". 10. Though the petitioner has sought for a Mandamus to the respondents, to place him below the second respondent and above the third respondent, private respondents in this Writ Petition, the relief of Mandamus cannot be granted. Straight away, in as much as, no notice has been ordered to the private respondents and on the facts of this case, this Court deems it fit that it is suffice, a direction is issued to the Director of Medical & Rural Health Services, Chennai, to dispose of the representation of the petitioner, dated 01.07.2011 and take appropriate decision, in the light of the discussion stated supra. 11. Material on record shows that earlier by proceedings, dated 03.07.2007, the Director of Medical & Rural Health Services, Chennai - 6, the first respondent herein, has taken disciplinary action, for which, the petitioner is stated to have submitted his explanation on 31.08.2007. Keeping the proceedings pending for such a long time, would certainly cause agony and hardship. https://hcservices.ecourts.gov.in/hcservices/ 4 12. In such view of the matter, a direction is issued to the first respondent, to pass orders on the disciplinary proceedings, dated 03.07.2007, within a period of two weeks from the date of receipt of a copy of this order. 13. It is made clear that the revision of seniority has be done within the abovesaid time frame and if required respondents 2 and 3 may be put on notice. 14. With the above said directions, the Writ Petition is disposed of. Consequently, connected Miscellaneous Petition is closed. No costs. vsg Sd/- Assistant Registrar[AS] /True copy/ Sub Assistant Registrar To 1. The Director of Medical & Rural Health Services Chennai - 6 2. Dr.D.Geetha Assistant Surgeon Primary Health Centre Keelasevalpatti Sivaganga 3. Dr.R.Aarthi Assistant Surgeon Primary Health Centre Kondur Villupuram +1 cc to Special Government Pleader, SR.No.23358. +1 cc to Mr.K.Vellaiswamy, Advocate SR.No.23046. W.P.(MD).No.7844 of 2011 And M.P.(MD).No. 1 of 2011 Dated:15.07.2011 4P/6C RPB 19.07.2011[I.T.] https://hcservices.ecourts.gov.in/hcservices/