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2012 DIGILAW 1401 (MAD)

Rahima v. Director of Municipal Administration

2012-03-19

B.RAJENDRAN

body2012
Judgment 1. This petition has been filed seeking a Certiorarified Mandamus to call for the records on the file of the 1st respondent in connection with Proc.Na.Ka.No.45858/2010/K1 dated 29.10.2010 and quash the same and consequently direct the respondents to include the name of the petitioner in the panel of Class-IA Officers fit for promotion to the post of Class-I Officers in Tamil Nadu Municipal General Service for the year 209-2010 notionally in the appropriate place and pass such other orders promoting the Petitioner on the basis of the said inclusion with all monetary and service benefits. 2. The petitioner was last working as Manager, Class-IA in Udumalpet. The Director of Municipal Administration has issued a tentative seniority list of Class-IA officers as on the crucial date of 01.03.2009 which was published on 01.07.2009 and the petitioner name found place at serial no.11. But even though the final list was prepared for the year 2009-10, the petitioner's name was not included. Aggrieved against the same, the petitioner preferred a representation to the Director of Municipal Administration through proper channel for non-inclusion of her name. 3. According to the petitioner, there was no charges pending against her on the crucial date of the tentative seniority list and no reason was assigned to her for the non-inclusion of her name even though the final list was approved as early as on 09.09.2009. Subsequently, a charge memo was issued to her on 24.11.2009, for which she submitted her explanation and ultimately it ended in stoppage of increment for a period of three years. Therefore, if at all they could withhold her name, it will be for the year 2010-11, but for the year 2009-10 her name should have been considered. But in the rejection order, curiously, they have stated that her name was not considered to be included in the panel for the year 2009-10 only on the reason that there was a sanction to take disciplinary proceedings against her on 01.09.2009. This according to the petitioner is not correct as both on the crucial date as well as on the date of final selection, there was no charge sheet pending against her. 4. Learned counsel for the respondents would vehemently contend that not only on the crucial date of panel 01.03.2009, but also on the date of selection, there should not have been any proceedings against her. 4. Learned counsel for the respondents would vehemently contend that not only on the crucial date of panel 01.03.2009, but also on the date of selection, there should not have been any proceedings against her. No doubt the final order was passed on 09.09.2009, but the sanction to initiate disciplinary proceedings was passed on 01.09.2009. Therefore, her name was not considered for promotion in the final list passed on 09.09.2009. Further, he would also contend that for the year 2009-10, there was no sufficient vacancy for considering her name for promotion. Therefore, her name was not considered for the year 2009-10 since there was a currency of punishment. Hence, he justified the rejection order as valid one and prays for the dismissal of the case. 5. Heard both parties, By consent of both the parties, the main writ petition itself is taken up for final disposal. 6. The only question which was raised by the petitioner was that the petitioner was eligible for promotion for the year 2009-10 on the crucial date on 01.03.2009. There was no charge pending against her on that date when the promotional list was prepared on 01.07.2009 where her name found place at serial no.11 but thereafter, when the final list was prepared on 09.09.2009, the petitioners name was not found in the list. Therefore, the petitioner made a representation to include her name, for which, a reply was given on 29.10.2010, wherein, it was stated that there was an approval for departmental enquiry even on 01.09.2009 and therefore, her name was not included. 7. Learned counsel for the petitioner brought to the notice of this Court that the charge sheet in respect of the approval alleged to have been given on 01.09.2009 was issued to her only on 24.11.2009, whereas, the final approval list was prepared on 09.09.2009. Admittedly, there was no charge sheet pending against her on that date. In this connection, the learned counsel brought to the notice of this Court two decisions of the Hon'ble Supreme Court reported in (2007) 9 SCC 625 (Coal India Ltd. and others versus Saroj Kumar Mishra) and (2007) 6 SCC 704 (Union of India and others versus Sangram Keshari Nayak). 8. In (2007) 9 SCC 625 (Coal India Ltd. and others versus Saroj Kumar Mishra), the Hon'ble Supreme Court in the relevant paragraphs has categorically held as follows: "12. 8. In (2007) 9 SCC 625 (Coal India Ltd. and others versus Saroj Kumar Mishra), the Hon'ble Supreme Court in the relevant paragraphs has categorically held as follows: "12. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise. 13. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. 14. We may also notice that a revised guideline was also issued on or about 14-5-2002, wherein it was stated: "The vigilance clearance shall be withheld only on the ground (a) when officer is under suspension; (b) when the officer, in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending." The said circular although is not ipso facto applicable in this case, clearly lays down the law otherwise prevailing. 18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued. 20. Even in such a case, the employer is not in a helpless situation. Despite such promotion, if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof." 9. In (2007) 6 SCC 704 (Union of India and others versus Sangram Keshari Nayak), the Hon'ble Supreme Court in the relevant paragraphs has categorically held as follows: "11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefore. Indisputably, the DPC recommended the case of the respondent for promotion. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefore. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him. 12. The terms and conditions of an employee working under the Central Government are governed by the rules framed under the proviso appended to Article 309 of the Constitution of India or under a statute. The right to be promoted to a next higher post can, thus, be curtailed only by reason of valid rules. Such a rule again, however, cannot be construed in a manner so as to curtail the right of promotion more than what was contemplated by law. 14. Thus, there was no bar in promoting the respondent during the period 14-1-1999 to 27-8-1999. No material was placed before the DPC to take recourse to the sealed cover procedure. In fact, none existed at the material time. Para 2 of the said circular specifically refers to submission of charge-sheet as the cut-off date when a departmental proceeding can be said to have been initiated. Even otherwise such a meaning had been given thereto by this Court in K.V.Jankiraman holding: (SCCp.118, para 16) "16.... The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment, etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure." " 10. It is very clear from the above said rulings that the department cannot consider her name only if there is charge sheet pending or charge sheet initiated. In this case, admittedly, on the crucial date, there is nothing shown to prevent the department from considering her name. Therefore, the impugned order in which her name was rejected on the ground that there was a departmental proceedings initiated or considered cannot be taken into account. But at the same time, if there was no vacancy and her name was not considered, that was another aspect. 11. It is now represented that the petitioner had already retired on 30.06.2011. Therefore the petitioner is now only seeking a provisional promotion if she is eligible so that she could get some retirement benefits. Taking into consideration, the special aspect of the case and taking into consideration that there was no charge sheet pending on 09.09.2009, the impugned order dated 29.10.2010 is set aside only on the ground that in the impugned order, the rejection of her name was taken into consideration pending the sanction to initiate disciplinary proceedings passed on 01.09.2009. But there was no departmental enquiry on the crucial date i.e., on 01.03.2009. 12. Hence, the authorities are directed to re-consider the decision pursuant to the decision of the Hon'ble Supreme Court and pass orders in accordance with law within a period of four months from the date of receipt of a copy of this order as the petitioner has already retired from service as on 30.06.2011. At the same time, the authorities also will consider the availability of vacancy in that particular period. At the same time, the authorities also will consider the availability of vacancy in that particular period. 13. Accordingly, this writ petition is disposed of. No costs. Consequently, the connected miscellaneous petitions are also closed.