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2006 DIGILAW 2779 (MAD)

Anthony Harry v. State of Tamil Nadu & Others

2006-10-17

K.SUGUNA

body2006
Judgment :- (Prayer: The application in O.A. No. 736/2002 filed before the Tamil Nadu Administrative Tribunal to direct the respondents to include the applicant/petitioner's name in the appropriate place in the panel of eligible Inspectors for the recruitment of DSP by transfer of service in G.O.Ms. NO. 1026 dated 15.10.2001 of the Department of Home (Police 2) has been transferred to the file of this Court and renumbered as W.P. No. 37909 of 2005.) Initially, the petitioner had filed O.A. No. 736/2002 on the file of the Tamil Nadu Administrative Tribunal for the issue of a direction directing the respondents to include his name in the panel prepared for appointment by way of recruitment by transfer to the post of Deputy Superintendent of Police for the year 2000-2001 issued in G.O.Ms. No. 1026 Home (Police 2 )Department dated 15.10.2001 and the same has been transferred to the file of this Court and renumbered as W.P. No. 37909/2005. 2. According to the learned counsel for the petitioner, the petitioner was promoted as an Inspector of Police in the year 1988. As per his seniority in the cadre of Inspector, his name should have been included in the panel prepared for the year 2000-2001 for appointment by recruitment by transfer to the post of Deputy Superintendent of Police. According to the learned counsel for the petitioner, though the petitioner possessed all the qualifications, his name was overlooked and no reason has been assigned in the above said G.O. for non-inclusion of the petitioner's name in the said panel. Apart from this, according to the learned counsel, a charge memo was issued in P.R.No. 119/2000 under Rule 3(b) of the Tamil Nadu Police Subordinate Service (D &A) Rules, 1955 and for the said allegation, a criminal case was also registered as against the petitioner in Crime No. 9/2000, but in the said criminal case, by order dated 20.5.2005, the petitioner was acquitted and as far as the departmental proceedings are concerned, the Tribunal has quashed the allegations levelled against the petitioner on two counts out of four and in respect of the other two allegations, by order dated 21.2.2006, punishment of "reduction in time scale of pay by one stage for one year, which shall operate his future increment" was imposed. According to the learned counsel, since the petitioner was fully qualified, his name was also included in the panel prepared for promotion by recruitment by transfer by the Superintendent of Police in his proceedings dated 16.11.2001. Further, according to the learned counsel, though the petitioner was placed under suspension, on the basis of the above said criminal case, the said order of suspension was stayed by the Tribunal in O.A. No. 1082/2000. Besides, even the charge memo issued in P.R. No. 119/2000 dated 28.7.2000 was also stayed by the Tribunal in O.A. No. 7114/2000 by order dated 3.12.2001. As such, according to the learned counsel, in view of the interim orders granted by the Tribunal, no disciplinary proceedings were pending against the petitioner. Hence, the petitioner's name should have been included in the panel prepared for appointment as Deputy Superintendent of Police for the year 2000-2001. According to the learned counsel, though disciplinary proceedings were initiated as early as 2000, final orders were passed only in the year 2006, thereby depriving the petitioner the chances of promotion. The learned counsel further contended that since the petitioner was acquitted in the criminal case and even in the departmental proceedings, only reduction in time scale of pay by one stage for a period of one year with cumulative effect was imposed, the non-inclusion of the petitioner's name in the above said panel is prima facie illegal. 3. On the other hand, learned Additional Government Pleader appearing for the respondents contended that based on the recommendation rolls, the State Promotion Board considered the case of the petitioner but recommended to defer his name for inclusion in the panel for 2000-2001 in view of the pending P.R. In 119/2000 under Rule 3(b) of the said Rules. According to the learned counsel for the respondents, even in the criminal case also, the petitioner was not acquitted on merits, but only on the ground that the sanction obtained was not in proper form. Further, the learned counsel contended that in the departmental proceedings as well, the punishment imposed is "reduction in time scale of pay by one stage for a period of one year, which shall operate his future increment", which is a major punishment since the wording used is "which shall operate his future increment". Further, the learned counsel contended that in the departmental proceedings as well, the punishment imposed is "reduction in time scale of pay by one stage for a period of one year, which shall operate his future increment", which is a major punishment since the wording used is "which shall operate his future increment". According to the learned Additional Government Pleader, at the relevant point of time, charges framed under Rule 3(b) of the Rules were pending against the petitioner and as per the guidelines issued in G.O.Ms. No. 368 P & AR Department dated 18.10.1993, the petitioner's name cannot be considered. The learned Additional Government Pleader further submitted that when the petitioner has not been exonerated of the charges levelled against him, the relief sought for in the writ petition cannot be granted. 4. I have considered the above submissions of the learned counsel for the petitioner as well as the learned Additional Government Pleader for the respondents. 5. Admittedly, as per seniority in the cadre of Inspector of Police, petitioner's name should have been considered for appointment as Deputy Superintendent of Police by way of recruitment by transfer for the year 2000-2001. But, when charges under Rule 3(b) of the relevant rules were pending, certainly, the petitioner's name cannot be included. As per the counter, in fact, the State Promotion Board had considered his case, but recommended to defer his name for inclusion in the panel for the year 2000-2001 in view of the pending P.R. in 119/2000. Hence, the contention of the learned counsel for the petitioner that since the charge memo issued in P.R.No. 119/2000 was stayed by the Tamil Nadu Administrative Tribunal, based on the pendency of the charge memo, the petitioner's name cannot be deferred will not hold good. Even the interim stay granted by the tribunal, in O.A. No. 7114/2000 by order dated 3.12.2001 was only in respect of count No.1. As such, the contention of the learned counsel for the petitioner that in view of the interim stay granted, the petitioner's name cannot be deferred on the ground of pendency of the above said charge memo will not hold good. As such, the contention of the learned counsel for the petitioner that in view of the interim stay granted, the petitioner's name cannot be deferred on the ground of pendency of the above said charge memo will not hold good. That apart, as rightly pointed out by the learned Additional Government Pleader appearing for the respondents, the petitioner was acquitted in the criminal case only on the ground that the sanction obtained by the prosecution was not in a proper form and in the disciplinary proceedings also, by order dated 21.2.2006, punishment of “reduction in time scale of pay by one stay for a period of one year, which shall operate his future increment", which is a major punishment since the wordings “which shall operate his future increment" implies that it will have a cumulative effect. That apart, as far as the petitioner is concerned, he was not exonerated of the charges levelled against him and since he had suffered punishment and the said punishment had also become final, his name cannot be included in the panel for appointment as Deputy Superintendent of Police by way of recruitment by transfer for the year 2000-2001. The judgment relied on by the learned counsel for the petitioner reported in AIR 1991 SC 2010 (Union of India V. K.V. Janakiraman) will not apply to the facts of the present case. In that case, the concerned employee was exonerated of the allegations levelled against him and not even the penalty of censure was imposed. As such, the Honourable Supreme Court had taken the view in those circumstances that the concerned individual cannot be deprived of any benefit including promotion. The learned counsel for the petitioner also relied on the judgment reported in 1991 Supreme Court Service Law Judgments 268 (New Bank of India V. N.P. Sehgal and another), wherein it has been held that if a disciplinary action is in process against an officer, basing on that, the concerned officer's name cannot be excluded from consideration for promotion. That apart, as per the above said judgment, promotion can be withheld until the concerned officer is exonerated of the charges and subsequent to the exoneration of the charges, promotion can be given to him from the date on which it would have been given to him otherwise. That apart, as per the above said judgment, promotion can be withheld until the concerned officer is exonerated of the charges and subsequent to the exoneration of the charges, promotion can be given to him from the date on which it would have been given to him otherwise. This judgment will also not apply to the case of the petitioner since a specific averment has been made in paragraph No.6, in the reply filed by the respondents that the State Promotion Board considered the case of the petitioner, but recommended to defer his name for inclusion in the panel for the year 2000-2001 in view of the pending P.R.in 119/2000. As such, the petitioner's name was considered, but based on the pendency of P.R. No. 119/2000, his name was deferred and since, he was not exonerated of the charges, he was not given the benefit of promotion subsequently. The principle laid down by the Apex Court in the cited judgment has been clearly followed in the case of the petitioner. As such, relying on the said judgment, the petitioner cannot seek any relief. Further, as per G.O.Ms.No.368 P & AR Department dated 18.10.1993 and the clarification issued there under, the State Government has given specific instructions that pendency of a charge under Rule 17(a), which is equivalent to Rule 3(a) of Tamil Nadu Police Subordinate Service (D & A) Rules, 1955 alone is not a bar for promotion. Here, the charges have been levelled under Rule 3(b) of the said Rules. As such, the contention of the learned counsel for the petitioner will not hold good in view of the above Government Orders. Further, the contention of the learned counsel for the petitioner that though disciplinary proceedings were initiated in the year 2000, final orders were passed only in 2006 and therefore, the petitioner has suffered loss of promotion will not stand since the issue in question in this writ petition is only relating to non-inclusion of the petitioner's name in the panel for 2000-2001 for appointment as Deputy Superintendent of Police and if the petitioner had been exonerated of the charges, certainly, after the completion of disciplinary proceedings, he would have been included in the said panel. That apart, the petitioner himself had challenged the charge memo and got an interim order. As such, based on the same, he cannot claim any relief. That apart, the petitioner himself had challenged the charge memo and got an interim order. As such, based on the same, he cannot claim any relief. Hence, I do not find any merit in the writ petition and the same is dismissed. No costs.