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2001 DIGILAW 1393 (MAD)

Secretary to Government v. K. Kolappapillai

2001-11-22

MALAI SUBRAMANIAN, V.S.SIRPURKAR

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Judgment :- V.S. Sirpurkar, J. 1. This writ petition is filed by the Government against the judgment of the Tribunal, whereby the Tribunal has allowed the application by the first respondent herein. The first respondent herein joined the services in the year 1964 as Motor Vehicle Inspector Grade II, was promoted to the post of Motor Vehicle Inspector Grade 1 in 1969, and was further promoted to the post of Regional Transport Officer in 1986. While he was so working in that post at Tirunelveli, three charges came to be framed against him and the charge memo was served on him on 3.1.94. In the meantime, however, there was a proposal to grant promotions and a departmental promotion committee was formed. Further promotion of the first respondent would have been to the post of Deputy Transport Commissioner. The crucial date for this purpose was 1.7.95, The first respondent was not considered for this promotion and his deputy and junior to him was promoted on 14.2.97. 2. The first respondent, therefore, came before the Tribunal complaining of his supersession and for a direction for promotion. The first respondent’s case before the Tribunal was that the departmental promotion committee had failed to take into consideration the letter dated 28.6.96 by which it was decided that any punishment in a departmental enquiry would be ignored, if the incident upon which that punishment has been given has occurred more than five years prior to the crucial date. The first respondent pointed out before the Tribunal that all the incidents on the basis of which the departmental enquiry was instituted and he was ultimately punished on 18.2.97 were prior to the year 1990 and as such according to him, either the pendency of the departmental enquiry on the crucial date or the subsequent punishment awarded to him could not have been viewed against him, depriving him of the promotion. 3. The Tribunal firstly directed the Government by its interim order to consider the case of the first respondent. That however, was not acceded to and ultimately final order came to be passed by the Tribunal on 19.8.97 whereby the Tribunal allowed the application. However, while allowing the application the Tribunal had again directed the Government to consider the question of promotion and to pass appropriate orders within a time frame. That however, was not acceded to and ultimately final order came to be passed by the Tribunal on 19.8.97 whereby the Tribunal allowed the application. However, while allowing the application the Tribunal had again directed the Government to consider the question of promotion and to pass appropriate orders within a time frame. Now, in fact if the Tribunal’s order is to be looked at, it is clear that the Tribunal had directed the Government to promote the first respondent with effect from 14.2.97 which was the date when his immediate junior was promoted. This thing becomes clear from the last two sentences of the Tribunal’s order suggesting that the cash benefits of the promotion etc. should be paid to the first respondent because he had already been superannuated on 30.4.97. However, for the reasons best known to it the Government interpreted that order and passed a fresh order dated 22.12.97 again reiterating the same position relying on G.O.Ms.No.368. P&AR(S) Department, dated 18.10.93 pertaining to the consideration of the persons against whom departmental enquiries were pending and again held that the first respondent was not entitled to the promotion as per the orders of the Tribunal. The first respondent moved a contempt application which prompted the Government to change its stand and challenge the original final order of the Tribunal by way of present writ petition. 4. Learned Additional Government Pleader appearing for the petitioners has urged before us that in fact on the crucial date i.e. on 1.7.95 departmental enquiry was pending because a charge memo was served against him on 3.1.94 and therefore, his name was not considered and promotion to his junior was awarded on 14.2.97, According to the learned Addl. Govt. Pleader this was the import of G.O. Ms. No,368 and the Government was undoubtedly right in acting as per that G.O. However, learned counsel for the first respondent brought to our notice that the claim of the first respondent did not depend upon G.O. Ms. No.368 and it entirely depended upon the letter dated 28.6.96 wherein a clear cut stand was taken by the Government by way of a policy decision that punishments if awarded within five years of the crucial date would be ignored in case the incidents on the basis of which those punishments had taken place were more than five years old from 1.7.95 i.e. the crucial date. When specifically asked about this position, the learned Addl. Govt. Pleader could not explain as to how a departure could be made by the Government from its own policy reflected in the letter dated 28.6.96. In our opinion, the question of consideration of the first respondent s request for his inclusion of name in the panel all the more becomes unnecessary because of the subsequent order passed by the Tribunal directing the Government to take into consideration the name of the first respondent. That was the order almost in the nature of the final order. Therefore, the question of inclusion of the name of the first respondent no more remains. Thereafter the only question is as to whether the first respondent could have been avoided to be promoted on the basis of the order of the punishment. There also the Tribunal had taken care by relying on the aforementioned letter dated 28.6.96. Nothing could be shown by the Addl. G ovt. Pleader against that letter either before the Tribunal or before us. In that view it must be held that the Tribunal was absolutely right in relying upon that letter and directing the Government to ignore that letter. Be that as it may, the Tribunal’s order will have to be confirmed even if the Government has passed subsequently the order dated 22.12.97 which will have to be held as an otiose order and non-existent as it is patently in breach of the final order passed by the Tribunal. 5. With the result the writ petition is dismissed and the first respondent shall be entitled to all the benefits as directed by the Tribunal. No costs. Consequently, W.M.P.No. 17865 of1998 is also dismissed.