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2010 DIGILAW 4634 (MAD)

G. Vimala v. The District Collector

2010-10-21

K.B.K.VASUKI

body2010
Judgment :- 1. The Writ Petition is filed against the order of the First Respondent made in his proceedings RC.18051/A.1/2009 dated 19.11.2009 and Na.Ka.18051/A.1/2009 dated 19.11.2009 and to quash the same. 2. The brief facts which are relevant for consideration are: The Petitioner was appointed as Junior Assistant on 05.12.1984, promoted as Assistant during 1992 then as Deputy Tahsildar during 1998 lastly as Tahsildar w.e.f. 10.11.2008. The Petitioner was during 2008 served with the Charge Memo for misconduct under Section 17-A and the same is followed by Disciplinary proceedings culminated in an award of censure by proceedings of the 1st Respondent/District Collector on 14.03.2009 against which Statutory Appeal is pending consideration before the statutory Appellate Authority. In the meantime panel of eligible persons as on crucial date 01.07.2008 for promotion to the post of Tahsildar was prepared and the Petitioner is one among the seven persons, all the seven persons were by extending the relaxation of Rule 7-B of the Special Rules (for not completing the training of Special Magistrate as on 01.07.2008) declared eligible for being continued or promoted as Tahsildar. In pursuance of the same, the Petitioner along with six others were promoted as temporary Tahsildar. However, the 1st Respondent/District Collector by the impugned order dated 19.11.2009 deferred the consideration of the Petitioners name for inclusion in the panel approved in the Notification dated 14.03.2009 and has also cancelled the Petitioners promotion as Tahsildar and reverted her as Deputy Tahsildar both on the ground that the Petitioner has suffered an award on censure. Aggrieved against the same, the Petitioner has come forward with this Writ Petition for the relief as mention above. 3. The learned Counsel for the Petitioner has seriously contended that the crucial date for considering the name of the Petitioner for inclusion in the promotional panel for the post of Tahsildar was on 1.7.2008 and the award of censure was on 14.03.2009 the Petitioner suffered no disqualification as on the cut-off date on 1.7.2008 and the award of censure being minor penalty imposed upon the Petitioner for the proven charges under Section 17-A. It is not at all not an impediment for considering the Petitioner for next promotion and the same dose not render the Petitioner in any manner ineligible to be considered for the higher promotional post. 4. 4. Per contra, the learned Additional Government Pleader appearing for the Respondents would try to justify the validity of the impugned order mainly on two grounds. Firstly, the appointment of the Petitioner is only temporary in nature in exercise of the power under general Rule 39-E of the Tamil Nadu State and Subordinate rules and the same shall be liable to be terminated without any notice being assigned and as the punishment of censure though not within a period of one year prior to the crucial date i.e. 01.07.2008 but before actual promotion 09.07.2009 the same was held against the officer. 5. I have heard and considered the rival submissions made on both sides and perused the records. 6. The Petitioner was promoted as Deputy Tahsildar on 09.05.2002 and has been temporarily promoted as Tahsildar on 10.11.2008. In the mean while, the Respondents have proposed to draw the promotion panel for Tahsildar as on 01.07.2008 and as the Petitioner and few others did not admittedly complete the Magisterial Training prescribed under general Rule 39-A(1), the 1st Respondent/District Collector has forwarded his recommendation to the Government for issuing the relaxation under Rule 7-B. the Government has after duly considering the same thought fit to grant the relaxation and has issued G.O. dated 08.05.2009 thereby exempting the Petitioner and 6 others from completing the Magisterial Training to enable their names to be included in the promotion panel for Tahsildar during 2008. 7. It is to be noted herein, that the promotion of Petitioner as Tahsildar on 10.11.2008 and the recommendation forwarded by the District Collector for Rule 7-B relaxation in his proceedings dated 24.02.2009 were during the pendency of the Disciplinary proceedings under Section 17-A against the Petitioner and the relaxation G.O. was passed much after the award of censure upon the Petitioner in the Departmental proceedings. 8. The Petitioner has filed Statutory Appeal against the award of censure and as per the particulars furnished in para 8 of the counter the same was dismissed by the Appellate Authority and the order of censure is also confirmed by the Appellate Authority. 9. 8. The Petitioner has filed Statutory Appeal against the award of censure and as per the particulars furnished in para 8 of the counter the same was dismissed by the Appellate Authority and the order of censure is also confirmed by the Appellate Authority. 9. The impugned orders thereby deferring to include the name of the Petitioner in the promotional panel for the post of Tahsildar 2008 and cancelling her temporary promotion and reverting her back to the post of Deputy Tahsildar are passed mainly on the ground of award of censure and the First Respondent has in his counter sought to support the impugned order on two grounds (1) temporary promotion is liable to be terminated without any reason and without any notice, and (2) the award of censure for period of one year was before actual promotion and held against the Petitioner. 10. The appreciation of relevant dates and events reveals that the Petitioner’s promotion is on 10.11.2008 and the crucial date for inclusion of the name in the panel is 01.07.2008 and the award of censure is on 14.03.2009 and the same is not within one year prior to the crucial date of promotion. As rightly pointer by the learned Counsel for the Petitioner as on the date of crucial date there was no charge-memo or no Departmental proceedings and no punishment and the question of deferring inclusion of the Petitioner’s name in the promotion panel mainly on the basis of the Disciplinary proceedings and the punishment imposed much after the crucial date does not at all arise herein. As such the proceedings of the 1st Respondent in his proceedings RC.18051/A.1/2009 dated 19.11.2009 in this regard is hence totally contrary to rule illegal and without jurisdiction. 11. As far as the order of cancellation of temporary promotion is concerned, the promotion is again made during enquiry into the allegations of misconduct and under Rule 39-D the Competent Authority shall have the discretion to make it regular in appropriate cases in suitable cases. Though, the temporary promotion of the Petitioner as per the appointment order does not confer her any preferential right the Petitioner’s claim for promotion, when she is otherwise qualified cannot be negatived mainly on the ground of award of censure which is as per well settled legal preposition of law not impediment for granting promotion. Though, the temporary promotion of the Petitioner as per the appointment order does not confer her any preferential right the Petitioner’s claim for promotion, when she is otherwise qualified cannot be negatived mainly on the ground of award of censure which is as per well settled legal preposition of law not impediment for granting promotion. As already referred to the Petitioner was after temporarily promoted given relaxation from completing Magisterial Training. Though the relaxation is subject to certain conditions one among which is that the Petitioner shall be otherwise eligible for promotion and the promotee shall complete the Magisterial Training. It is not disputed that the Petitioner is otherwise eligible for promotion but no time limit is prescribed in the relaxation G.O. for completing the Magisterial Training. The relaxation G.O. dated 08.05.2009 would further say that promotees are declared to be eligible for promotion subject to certain conditions and only in the event of their not complying with the same they shall be reverted back to the lower post. 12. As rightly argued by the learned Counsel for the Petitioner, the facts that temporary promotion and the relaxation of Rule 7-B were given to her only to enable her to be included in the promotion panel would show that the Petitioner is otherwise eligible for promotion and in such case the Competent Authority ought to have exercised discretionary power so as to make the temporary promotion as regular particularly when there is no other legal impediment to do so. Where as, the 1st Respondent has without even considering the aspects discussed above proceeded pass the impugned order and cancelled her temporary promotion and reverted her back to the lower post as such the Other order impugned herein is also as argued by the learned Counsel for the Petitioner arbitrary, unfair, unreasonable and invalid in law. Thus, for the discussion held above both the impugned orders are held to be factually and legally unsustainable and are hence set aside. In the result, the Writ Petition stands allowed by setting aside the impugned order No costs. Consequently, connected Miscellaneous Petitions are closed.