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2014 DIGILAW 742 (MAD)

V. Prakash v. Secretary to Govt. of Tamilnadu

2014-03-24

T.S.SIVAGNANAM

body2014
JUDGMENT 1. In this writ petition, the petitioner seeks for issuance of a Writ of Certiorarified Mandamus, to quash the order passed by the first respondent in G.O.Ms.No.87, dated 04.06.2010 and to direct the respondents to promote the petitioner as District Registrar. 2. The impugned order is a panel of Sub-Registrars Grade-I fit for appointment to the post of District Registrars for 2009-10. The Government while approving the said panel by the impugned order, deferred the name of the petitioner on the ground that the charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, (Rules), is pending against the petitioner. The petitioner who is working as a Sub-Registrar Grade-I was an aspirant for promotion to the post of District Registrar for the year 2009-10, which post is filled up by recruitment by transfer. 3. In terms of Rule 4 of the Special Rules of the Tamil Nadu Registration Services, appointment to the post of District Registrar shall be by recruitment by transfer from among Sub-Registrars Grade-I, who have not completed 57 years of age on the crucial date and passed account test for Executive Officers. In terms of Rule 4A of the Special Rules, the crucial date for preparation of panel for appointment to the post of District Registrar by recruitment by transfer is first of April of every year and for the panel of District Registrars by recruitment by transfer for 2009-10, the crucial date was reckoned as 01.04.2009, the estimation period for the panel is from 11.07.2009 to 10.07.2010 and the check period from 01.04.2004 to 31.03.2009. Though the petitioner would state that he is fully eligible to be included in the panel for the year 2009-10, his name was placed in serial No.27 in the list of candidates, whose case has been deferred on account of pendency of the charges under Rule 17(b) of the Rules. 4. Mr.V.Vijayshankar, learned counsel appearing for the petitioner contended that there was no disciplinary proceedings pending against the petitioner on the crucial date namely, 01.04.2009 or during the five year check period from 01.04.2004 to 31.03.2009, and the charge memo which was issued to the petitioner on 06.04.2010, cannot operate as a bar for considering him for promotion to the post of District Registrar. Further, the learned counsel submitted that the allegations in the charge memo are flimsy and it pertains to the period during which he had worked as Sub-Registrar in Palladam, Tiruppur District and the charge itself was motivated at the instance of Vigilance officials, who wanted to tarnish the image of Sub-Registrars working in different Districts. Therefore, it is submitted that the said charge memo, dated 06.04.2010, cannot be a bar for the petitioner's promotion. In support of his contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of Union of India & Ors., vs. Sangram Keshari Nayak reported in (2007) 6 SCC 704 . The learned counsel further submitted that in the light of the decision of the Hon'ble Full Bench of this Court in the case of Dy. Inspector General of Police, Thanjore Range & Anr., vs. V.Rani, reported in 2011 (3) CTC 129 , executive instructions issued by the Government cannot be equated to the statutory Rules and the same cannot be a basis to deny promotion. 5. Mr.R.Ravichandran, learned Additional Government Pleader appearing for the respondents by relying upon the counter affidavit filed by the second respondent submitted that the petitioner had reached the seniority for consideration in the panel of District Registrar for the year 2009-10 and while the petitioner was working as Sub-Registrar at Palladam, Tiruppur District, a joint surprise check was conducted on 18.02.2010, by the officers of the Directorate of Vigilance and Anti-Corruption, Tiruppur Detachment along with the officials of the District Inspection Cell, Tiruppur District, during which it was found that the petitioner was in possession of unaccounted cash of Rs.1500/-. Further, a sum of Rs.24,000/- was found in the table of the petitioner. It is further submitted that one Mr.V.Rajendran and Mr.Mayilsami had come to the Sub-Registrar's office for registering documents stated that they have paid bribe of Rs.13,000/- and Rs.10,000/-respectively to the petitioner, which were also seized. Further, the petitioner unauthorisedly appointed six persons on daily wages and based on the report submitted by the Vigilance and Anti-Corruption, disciplinary proceedings was initiated against the petitioner under Rule 17(b) of the Rules and a charge memo was issued on 06.04.2010. Further, it is submitted that the charges are very serious in nature. Further, the petitioner unauthorisedly appointed six persons on daily wages and based on the report submitted by the Vigilance and Anti-Corruption, disciplinary proceedings was initiated against the petitioner under Rule 17(b) of the Rules and a charge memo was issued on 06.04.2010. Further, it is submitted that the charges are very serious in nature. It is further submitted that the surprise check was conducted on 18.02.2010, which was well within the estimation period for the panel and therefore, the decision of the first respondent to defer the name of the petitioner is just and proper. 6. Heard the learned counsels appearing on either side and perused the materials placed on record. 7. It is a settled legal position that promotion is not a fundamental right, but the right to be considered for promotion, however is a fundamental right. The Hon'ble Supreme Court in the case of Sangram Keshari Nayak (supra), held that the right to be considered brings within its purview an effective, purposeful and meaningful consideration. It is pointed out that suitability or otherwise of a candidate must be left at the hands of the DPC and the same has to be determined in terms of the Rules applicable therefor. 8. The contention of the learned counsel for the petitioner is that as on the crucial date, namely, 01.04.2009, there was no charge memo pending and therefore, the petitioner was entitled to be considered for promotion. The panel was for the year 2009-10 and the crucial date is 01.04.2009. The presumptive panel was drawn on 12.03.2010. This is with a view to afford an opportunity to such of those officers, who have any grievance about the panel to put forth their objections before the final panel is drawn by the Government. Much prior to the presumptive panel on 18.02.2010, a surprise check was conducted in the office of the Sub-Registrar, Palladam, where the petitioner was working, by the officials of the Directorate of Vigilance and Anti-Corruption as well as the officials of the District Inspection Cell, Tirupur. During the surprise check, Rs.1500/-was recovered from the petitioner and he could not account for the same. That apart, it is alleged that Rs.24,000/-was recovered from the petitioner's table and the said amount was unaccounted and the petitioner was unable to explain as to the source of the said funds. During the surprise check, Rs.1500/-was recovered from the petitioner and he could not account for the same. That apart, it is alleged that Rs.24,000/-was recovered from the petitioner's table and the said amount was unaccounted and the petitioner was unable to explain as to the source of the said funds. Further, it is alleged that the petitioner had unauthorisedly employed six persons, who are all working on daily wages of Rs.100/-. That apart, two persons by name Mr.V.Rajendran and Mr.Mayilsami are said to have made an allegation that they have paid bribe of Rs.13,000/- and Rs.10,000/- respectively to the petitioner. Based on these allegations, the charge memo was issued on 06.04.2010, it is undoubtedly beyond the crucial date. The only consideration, which is required in the present case, is whether the petitioner's name should be included in the promotion panel solely on the ground that there was no charge memo pending on the crucial date. 9. As noticed above, for the panel of District Registrar by recruitment by transfer for 2009-10, the crucial date was reckoned as 01.04.2009, the estimation period for the panel was fixed from 11.07.2009 to 10.07.2010 and the check period from 01.04.2004 to 31.03.2009, we need not go into the aspect regarding the check period in the light of the decision of the Hon'ble Full Bench of this Court in the case of V.Rani (supra). Nevertheless, the estimation period as mentioned namely from 11.07.2009 to 10.07.2010, cannot be ignored and the petitioner has not questioned the same independently. 10. As stated above, the surprise check was conducted on 18.02.2010, in which certain allegations surfaced against the petitioner, which ultimately, culminated in issuance of a charge memo by the second respondent on 06.04.2010. Thus, the allegations mentioned in the charge memo was as a result of a surprise check conducted on 18.02.2010. The said date falls within the estimation period, which is between July 2001 and July 2010. Therefore, if during the said period, there was any delinquency or any other allegation, the appointing authority is entitled to examine as to whether such allegation or delinquency could operate as a bar for considering a candidate for promotion. If the allegation ripens into a charge, though after the cut off date, it cannot be said that the appointing authority should ignore the same and solely proceed on the static date, which is the crucial date. If the allegation ripens into a charge, though after the cut off date, it cannot be said that the appointing authority should ignore the same and solely proceed on the static date, which is the crucial date. If such interpretation is given, then the concept and right of promotion as interpreted by the Hon'ble Supreme Court may require to be re-written. At best, the petitioner has a right which is in the nature of fundamental right to be considered for promotion and not a fundamental right to be promoted. 11. In such circumstances, it is for the competent authority to examine the issue as to whether a particular candidate is suitable and could be considered for promotion, notwithstanding the fact that certain allegations surfaced against the candidate. The allegations which emanated out of the surprise check on 18.02.2010, cannot be ignored by the appointing authority, as it ultimately culminated into a charge memo, dated 06.04.2010. The said charge memo is still pending and has not attained a finality. 12. One more factor to be taken note of is that the charge memo was issued nearly two months prior to the impugned order of promotion, dated 04.06.2010. Therefore, till the said date, it was well open to the authority to examine as to whether a charge memo though not pending on the crucial date, but subsequently, on account of certain turn of events, allegations have come up, which would definitely be a factor of relevance to consider whether such candidate is entitled to be promoted. 13. The learned counsel by placing reliance on the decision in the case of Sangram Keshari Nayak (supra) submitted that the charge memo having been issued subsequent of the crucial date, the petitioner ought to have been promoted. The decision of the Hon'ble Supreme Court was rendered interpreting the relevant rules/circulars issued for the Indian Railway Traffic Services. The circular stated that at the time of consideration of the cases of Government servants for empanelment, details of Government servants in the consideration zone for promotion falling under the categories of Government servants under suspension; Government servants in respect of whom a charge memo was issued and the disciplinary proceedings were pending; and Government servant in respect of whom prosecution of criminal charges pending, should be specifically brought to the notice of the Department Promotion Committee (DPC). By applying the said circular, the Hon'ble Supreme court observed that the circular provides for a sealed cover procedure to be adopted by the DPC and the same has to be taken recourse to only in the event circumstances mentioned in para 2 of the circular and the recommendations of DPC could be refused to be given effect to when any one of the conditions mentioned in para 2 of the circular stands satisfied and in the said case, the charge sheet was issued only on 24.09.1999 and there was no bar in promoting the respondent therein during the period from 14.01.1999 to 27.08.1999. Further, the Hon'ble Supreme Court pointed out that no material was placed before the DPC to take recourse to the sealed cover procedure, as there was no material at the relevant time. 14. In my view the decision of the Hon'ble Supreme Court was rendered taking into consideration the circular letter referred to in this said decision, which appears to be not in pari materia with the stipulation under the Special Rules for the Tamil Nadu Registration Service, wherein the crucial date was reckoned as 01.04.2009 and the estimation period from 11.07.2009 to 10.07.2010. Thus, the case of the petitioner would fall within the estimation period and the appointing authority cannot ignore the fact that certain allegations surfaced during the estimation period and the Vigilance and Anti-Corruption Department, submitted a report to the second respondent which was accepted and ultimately a charge memo was issued on 06.04.2010, prior to the issuance of the impugned promotion order. 15. The Hon'ble Full Bench of this Court while considering the validity of executive instructions more particularly in G.O.Ms.No.368, held that it cannot be equated to a statutory Rule. 15. The Hon'ble Full Bench of this Court while considering the validity of executive instructions more particularly in G.O.Ms.No.368, held that it cannot be equated to a statutory Rule. The question, which came up for consideration before the Hon'ble Division Bench was whether the currency of punishment has to be treated as a bar for promotion during the period and in paragraph 17 of the judgment, the Hon'ble Full Bench observed that insofar as the legal effect of G.O.Ms.No.368, is concerned, there is no provision in respect of promotion in cases, where there is currency of punishment and the question as to whether in the absence of a statutory rule framed under proviso to Article 309 of the Constitution, the gap can be filled up by way of Government Order in the form of instructions need not be gone into on the facts of the said case and in any event, the Government order itself shows that while dealing about the effect of punishment, individual cases are to be looked into and there cannot be a general yardstick. Dehorse the executive instruction, the competent authority or the appointing authority is entitled to assess the fitness of a candidate before granting promotion. 16. In such circumstances, when the surprise check was conducted during the estimation period and charge memo was issued prior to the issuance of the order of promotion, this Court is not inclined to interfere with the impugned order. Accordingly, the writ petition fails and it is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.