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2014 DIGILAW 2194 (MAD)

A. A. Muthu v. Secretary to Government

2014-07-18

S.VAIDYANATHAN

body2014
Judgment : 1. The petitioner seeks a Writ of Mandamus directing the respondents to promote him as Regional Transport Officer in pursuance of inclusion of his name in the panel of Regional Transport Officer for the year 2006-2007 approved in GO 2D No.197 Home (Transport) Dept dated 28.3.08 and grant him all consequential service and monetary benefits at part with his juniors. 2. The sum and substance of the case on hand is that the petitioner was appointed as Motor Vehicle Inspector, Grade II on compassionate grounds on 24.08.1987. He was promoted as Motor Vehicle Inspector, Grade I on 11.03.1998. He is eligible for promotion to the post of Regional Transport Officer. The crucial date for preparation of the panel is 1st July of every year. For the year 2006-2007, the panel ought to have been prepared on 01.07.2006, but the panel was prepared only on 28.03.2008. On the very same day, all other persons, who were eligible were promoted and the petitioner's name was withheld on the ground that charges were pending. The petitioner was served with a Charge Memo dated 27.03.2008 on 31.03.2008. 3. From the aforesaid events, it is very clear that on the date of consideration for the post of promotion and actual promotion granted to the other persons, who participated in the selection along with the petitioner have been promoted with effect from 28.03.2008. There was no charge pending against the petitioner on 28.03.2008 and the Charge Memo dated 27.03.2008 was served only on 31.03.2008. The petitioner further contended that on the crucial date, if there was any charge sheet or punishment against him or anyone, promotion can be withheld to that candidate. 4. In this case, on the crucial date or on the date of consideration of his name or on the actual date of promotion given to the petitioner's colleagues, there was no charge memo pending against the petitioner and hence the action of the respondents in denying promotion to the petitioner on the ground that the charge memo dated 27.03.2008 was pending, may not be correct, as the charge memo was served only on 31.03.2008. The learned counsel for the petitioner also relied upon a decision of a Division Bench of this court in W.A.No.115 of 2008 dated 10.04.2008 and the relevant paragraphs in the said judgment are extracted below: "3. The learned counsel for the petitioner also relied upon a decision of a Division Bench of this court in W.A.No.115 of 2008 dated 10.04.2008 and the relevant paragraphs in the said judgment are extracted below: "3. The stand of the Department in the writ petition was to the effect that on the crucial date for consideration i.e. on 15.3.2007, a charge memo under rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules was pending. So far as the above aspect is concerned, we have gone through the materials on record and also the file, which was produced by the Special Government Pleader. It appears that even though a signed document is available in the file, which was apparently signed on 07.09.2006 by the previous Transport Commissioner, the fact remains that the charge memo was issued under the signature of the subsequent Transport commissioner, with the date 10.7.2007 and it was actually served on 28.7.2007 on the petitioner. 4. In AIR 2007 SC Pg.1706 (Coal India Limited & Ors. V. Saroj Kumar Mishra), the Supreme Court, after referring to several decisions, has observed as hereunder: "A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued." 5. In the present case, the earlier charge memo, which had been signed had not been issued and similarly, the present charge memo, even though signed on 10.7.2007, was actually issued, so far as the appellant is concerned, only 28.7.2007. Therefore, it cannot be said that on the date when the panel was prepared i.e. on 15.3.2007, any charge memo was pending." 5. From the aforesaid narration of facts and relying upon the decision of this court, this court is of the view that the Writ Petition has got to succeed. The contention of the respondents are that there was charge-sheet against the petitioner on 27.03.2008 and there was a disciplinary proceedings against him cannot be accepted, as the Government admitted that the charge-sheet was served only on 31.03.2008. While rejecting the plea of the Government and accepting the case of the petitioner, this court while allowing the writ petition, directs the respondents to consider the case of the petitioner and promote him as Regional Transport Officer along with others and place him in the appropriate place when his colleagues/juniors have been promoted with effect from 28.03.2008, grant all other benefits. 6. 6. The fact that the petitioner faced punishment of stoppage of increment for a period of three months without cumulative effect subsequently cannot stand in the way of the petitioner in getting the promotion as on the date of crucial date. The date of consideration of his name for promotion to the higher post and the actual date of promotion granted to his juniors/colleagues are supporting the contention of the petitioner and hence, the relief sought for by the petitioner has got to be allowed and the writ petition is ordered accordingly. No costs. The time for granting the monetary benefits is three months from the date of receipt of the order. For issuing the order of promotion to the petitioner, five weeks time from the date of receipt of the order is granted.