IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.6.2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN WRIT PETITION No.23206 of 2006 (T) O.A.No.7740 of 1995 P.Kandasami ... Petitioner Vs. 1. The State of Tamil Nadu rep. by Secretary to Government Commercial Taxes Department Fort St. George, Madras-9 2. The Deputy Commissioner (Commercial Taxes) Madras (South) Division PAPJM Buildings (second floor) Greams Road, Madras-600 006 3. The Assistant Commissioner (Commercial Taxes) Kancheepuram-1 .. Respondents This Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus to set aside the order of the second respondent dated 29.12.1993 and made in proceedings No.P/4958/93-A-2P sofaras the applicant is concerned, to set aside the order of the third respondent dated 18.4.1994 made in proceedings No.4432/94/A-1 and to consequently promote the applicant as Assistant with effect from 29.12.1993 with due seniority and all consequential benefits. For petitioners : Mr.M.Govindaraj For respondents : Mr.T.Sreenivasan A.G.P. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner had stated that he was appointed in the Revenue Department as a Junior Assistant. Subsequently, on 9.3.1988, the petitioner was posted to the Commercial Taxes Department as a Junior Assistant. The petitioner was superseded for promotion by the impugned proceedings, dated 29.12.1993. Therefore, the petitioner had made a representation on 17.2.1994. The second respondent, by his letter, dated 8.4.1994, had informed the Assistant Commissioner of Commercial Taxes that the petitioner was not considered to be included in the list of Assistants for the year 1993, on merits. However, no reasons were given as to why the petitioner was not considered. On 18.4.1994, the Assistant Commissioner, had informed the Commercial Tax Officer, at Chengalpattu Assessment Circle, that the petitioner was not considered in the list of Assistants for the year 1993, on merits. Even though the Commercial Tax Officer was requested to communicate the information to the petitioner, it was communicated only, on 23.1.1995. Thereafter, on 22.3.1995, ten other persons, who were juniors to the petitioner, were selected as Assistants for the year 1994. It was stated that the name of the petitioner was considered for inclusion in the panel and the decision was deferred, in view of the results awaited from the Crime Branch C.I.D. Chengalpattu-MGR East District, in C.C.No.1 of 1994, under Sections 465 and 416 read with Section 511 Indian Penal Code. 2. The petitioner has further stated that in the year 1992, the petitioner had requested for being transferred to Salem Division and the concerned authority had requested the petitioner to produce a No Objection Certificate from the Tamil Nadu Public Service Commission, since Division-wise seniority had been maintained. 3. One of the friends of the petitioner had offered to help him in obtaining the No Objection Certificate. The certificate obtained was found to be false and therefore, the matter was referred to the Crime Branch and an investigation was made. Thus, it was apparent that the petitioner was superseded for promotion only on the ground that some investigation was pending before the Crime Branch. However, the petitioner was clearly aware that no disciplinary proceedings had been taken against the petitioner or any charge sheet filed before any Court. 4. The petitioner has further stated that the Government had issued G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, relating to the preparation of panel for appointment by promotion, recruitment or transfer. Instructions have been issued with regard to consideration of persons against whom enquiries are pending and specific charges had been framed or a charge sheet had been filed in criminal cases. Only in such cases, the promotion can be deferred till the proceedings were concluded. https://hcservices.ecourts.gov.in/hcservices/ Since no such proceedings or charges were pending against the petitioner, he should have been considered for inclusion in the panel for promotion for the year 1993. 5. A reply affidavit has been filed on behalf of the respondents denying the allegations made by the petitioner. 6. It has been stated that the petitioner had joined duty, on 9.3.1988, Fore Noon. The Assistant Commissioner, Chengalpattu M.G.R.District, at Kancheepuram, had submitted the nomination rolls and the seniority list of qualified Junior Assistants, as on 15.3.1993, to be promoted as Assistants. While drawing the list of Assistants for the year 1993, as on 15.3.1993, the petitioner's name was not considered and not included in the list of Junior Assistants to be promoted as Assistants, as per the Tamil Nadu Ministerial Service Rules. The reasons for the non-inclusion was due to the seriousness of the offences alleged to have been committed by the petitioner. 7. It has been further stated that according to Rule 5 of the Special Rules for the Tamil Nadu Ministerial Service Rules, the promotion shall be made on the ground of merit and ability, seniority being considered only where merit and ability are approximately equal. Based on the said rule, the name of the petitioner was considered and his name was not included as he had indulged in the wrong act of getting a bogus concurrence letter of the Tamil Nadu Public Service Commission from one S.Venkataraman by paying Rs.500/-. The said facts have been admitted by the petitioner. Thereafter, since the investigation by the Police Department was pending, the petitioner's name was not included in the list for the year, 1993. Even for the year, 1994, the list of Assistants was drawn by following Rule 5 of the Special Rules applicable to the Tamil Nadu Ministerial Service. Therefore, the petitioner's name was not considered as fit for promotion by inclusion in the list of Assistants drawn in the year, 1994. 8. It has also been submitted that the guidelines issued by the Government in G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, are supplementary to the Rules framed in the Special Rules and the general Rules. 9. It has also been submitted that only by following Rule 5 of the Special Rules for Tamil Nadu Ministerial Services and Rule 36(b) (i) of the General Rules for Tamil Nadu State and Subordinate service, the list of Junior Assistants, qualified as Assistants, was drawn for the years 1993-1994, considering the merit and ability of each of the candidates. Therefore, there is no merit in the claims made by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 10. The learned counsel appearing for the petitioner had submitted that there was no departmental enquiries against him nor any disciplinary proceedings initiated by the authority concerned. Further, no charges were framed or a charge sheet filed in any criminal case against the petitioner, till date. In the criminal case in C.C.No.2293 of 1996, against one A.S.Venkatraman, wherein the petitioner was examined as a witness for the prosecution, the accused had been acquitted. In such circumstances, the petitioner ought to have been included in the list of persons to be promoted for the post of Assistants for the year 1993 itself, in view of G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993. 11. The learned counsel appearing for the petitioner had further submitted that there are no other allegations against the petitioner for the non-inclusion of his name in the list for the years 1993-1994, except that there was an alleged investigation by the Crime Branch of the Police Department. Such vague allegations cannot be sustained, considering the decisions of the various Courts of law. Even if serious allegations are made and when criminal charges have been framed and if such cases are pending, the concerned persons could be considered for promotion with retrospective effect, once such allegations or charges are proved to be false and unsustainable. In the present case, no such allegations or charges were made or framed against the petitioner. 12. The learned counsel appearing for the petitioner had further submitted that a mere pendency of some investigation would not by itself justify the non-inclusion of the petitioner's name for promotion to the post of Assistant. In such circumstances, the reliefs sought for by the petitioner ought to be granted by this Court, as they are reasonable and in accordance with law. 13. The learned counsel appearing for the petitioner has relied on the decision of a Division Bench of this Court in S.MUTHUSAMY Vs. PRINCIPAL DISTRICT JUDGE ((2005) 2 M.L.J. 232), in support of his contentions. 14. In the said case, the Division Bench of this Court had held as follows: "It is clear that (i) mere pendency of preliminary enquiry is not a bar in considering the claim of the person for promotion; (ii) promotion can be withheld only in those cases where charge memo/charge sheet was issued to the employee/person; (iii) pendency or contemplated initiation of disciplinary proceedings against a https://hcservices.ecourts.gov.in/hcservices/ candidate must be considered to have absolutely no impact upon to his right to be considered; and (iv) if the disciplinary proceedings had not reached the stage of framing of charge after prima facie case is established, the consideration for the promotion to a higher or selection grade post cannot be withheld merely on the ground of pendency of such disciplinary proceedings. By applying the above mentioned principles, at the relevant time of consideration though certain complaints had been made against the petitioner, they were only at the preliminary stage and without a "charge memo" the promotion cannot be rejected/withheld. It is also relevant to note that it is not the claim of the first respondent namely, Principal District Judge that he had perused the personal file and Confidential Reports of the petitioner and that he had already got certain entries of adverse remarks or demerits or lack of ability. The impugned order discloses that the first respondent has denied promotion to the petitioner merely on the ground that preliminary enquiry on the two complaints against him is pending." 15. The learned Additional Government Pleader appearing for the respondents has not been in a position to show that the non- inclusion of the name of the petitioner in the list for the years 1993-1994, for promotion to the post of Assistant, is due to the pendency of an enquiry or a criminal charge against the petitioner. 16. In view of the submissions made by the learned counsel appearing for the parties concerned and on a perusal of the records available before this Court, this Court is of the considered view that the non-inclusion of the petitioner in the list for the year 1993-94, cannot be held to be valid, in view of the fact that the respondents have not been in a position to show that serious charges were pending against the petitioner or that he was found guilty of such charges. There was no enquiry conducted against the petitioner nor any criminal charge sheet filed for the alleged procurement of a bogus No Objection Certificate. Mere pendency of an investigation cannot be held to be sufficient reason for such non-inclusion. There is nothing shown on behalf of the respondents to substantiate or sustain the claims made on their behalf. https://hcservices.ecourts.gov.in/hcservices/ 17. In such circumstances, the respondents are directed to consider the petitioner for promotion to the post of Assistant as though his name had been included in the list of qualified Junior Assistants for the year 1993-1994, and to grant him the promotion to the next higher post of Assistant. Thereafter, if the petitioner is found to be eligible for such further promotions, the respondents shall place the petitioner in the appropriate promoted post to which he would have been eligible, with due seniority, and with all consequential monetary benefits and other benefits that may be due to such promoted post. The respondents are further directed to complete the process, as noted above, and pass appropriate orders thereon, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition stands allowed as stated above. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan To: 1. The Secretary to Government The State of Tamil Nadu Commercial Taxes Department Fort St. George, Madras-9 2. The Deputy Commissioner (Commercial Taxes) Madras (South) Division PAPJM Buildings (second floor) Greams Road, Madras-600 006 3. The Assistant Commissioner (Commercial Taxes), Kancheepuram-1 1 cc to Mr.R. Parthiban, Advocate, SR. 29617 1 cc to Government Pleader, SR. 29984 WRIT PETITION No.23206 of 2006 (T) O.A.No.7740 of 1995 SSV (CO) kk 8/8 https://hcservices.ecourts.gov.in/hcservices/