M. Selvam vs Principal Secretary to Government, Finance (Co-operative Audit) Department and Others

R. Subbiah, J.�The petitioner has come up with the present writ petition, challenging the impugned GO. passed by the first respondent in G.O. Ms. No. 460, Finance (Co-operative Audit) Department dated 24.12.2013 and consequently, to direct the first respondent to promote him to the post of Assistant Director of Co-operative Audit in Sl. No. 8 in G.O. Ms. No. 460 Finance (Co-operative Audit) Department, dated 24.12.2013 by giving seniority with retrospective effect on the date of issuance of GO. The case of the petitioner as could be seen in the affidavit in support of the writ petition, in nutshell, is set out hereunder:--

"(a) The petitioner was appointed as Junior Inspector of Co-operative Society in the year 1982. Subsequently, he was promoted as Senior Co-operative Auditor and then, Co-operative Auditor. Now, he is working as Co-operative Audit Officer in Thindalmalai Primary Agricultural Co-operative Credit Society under the control of the third respondent.

(b) The second respondent sent a communication to the Regional Joint Director of Cooperative Audit to forward the list of eligible employees to promote them as Assistant Director of Co-operative Audit in his proceedings dated 17.1.2013. Pursuant to the said communication, the Coimbatore Regional Joint Director asked the third respondent to send proposal for the eligible employees to include in the panel of the year 2012 for promotion to the post of Assistant Director of Co-operative Audit and fixed the crucial date for preparing the panel as 1.10.2012. In turn, the third respondent recommended the petitioner''s name for inclusion in the panel vide proceedings dated 13.2.2013. After receipt of the said recommendation, the Regional Joint Director included the name of the petitioner in the panel and the same was forwarded to the second respondent in his proceedings dated 12.3.2013. In the said panel, the name of the petitioner has been found in Sl. No. 5. Thereafter, the second respondent sent the proposal to the first respondent for getting approval. The said proposal was recommended by the second respondent to the first respondent on 30.7.2013.

(c) At this juncture, the third respondent issued a charge memo to the petitioner stating that he had acted in negligent manner since he had failed to supervise his subordinate officials, who audited the co-operative society accounts in the year 2006-2007. But, there is no direct allegation made against the petitioner. In fact, for the very same charges, the Assistant Director of Handlooms ordered enquiry under Section 81 of the Tamil Nadu Co-operative Societies Act. In the said enquiry report also the name of the petitioner was not included. Further, in the said enquiry report, the Enquiry Officer pointed out the names of the officials, who committed such irregularities and absolutely there is no allegation as against the petitioner. The charge memo dated 17.10.2013 has been issued by the third respondent only in order to deny promotion to the petitioner.

(d) Hence, the petitioner approached this Court by filing a writ petition in W.P. No. 33124 of 2013 to quash the impugned order passed by the third respondent dated 17.10.2013. When the said writ petition came up before this Court on 10.12.2013, learned Additional Government Pleader submitted that as on date, the petitioner''s name has been included in the panel for promotion and the panel is pending before the first respondent. The said submission made, by the learned Additional Government Pleader was recorded by this Court on 10.12.2013. Thereafter, the petitioner approached respondents 1 to 3 requesting them to include his name in the panel. But, respondents 1 to 3 have not considered his request and deferred his name from the panel for promotion and the same was forwarded to the fourth respondent for getting approval. The first respondent sent the proposal for approval to respondents 3 and 4 suppressing the order of this Court.

(e) While so, the first respondent issued G.O. Ms. No. 460, Finance (Co-operative Audit) Department dated 24.12.2013, whereby the first respondent published the panel for promotion to the post of Assistant Director of Co-operative Audit. In that Government Order, the name of the petitioner has not been included and all his juniors including the fifth respondent, his immediate junior, were promoted to the post of Assistant Director of Co-operative Audit. Hence, the present writ petition."

Respondents 1 and 2 have filed a detailed counter-affidavit, wherein the following facts have been set out:--

"(a) While the petitioner was working under the control of the third respondent, the third respondent has recommended the petitioner''s name to the post of Assistant Director of Cooperative Audit through Joint Director of Cooperative Audit, Coimbatore Region. The Joint Director of Co-operative Audit, Coimbatore Region has forwarded the proposal for 22 Cooperative Audit Officers under his region by recommending the petitioner''s name to the said promotional post vide his letter dated 12.3.2013 to the Director of Co-operative Audit viz., the second respondent. In the said proposal, the petitioner''s name has been included in Sl. No. 5. After receipt of the said proposal from all the regional Joint Directors of Co-operative Audit, necessary proposal for promotion to the post of Assistant Director of Co-operative Audit as on 1.10.2012 has been sent to the Government i.e., the first respondent vide letter dated 30.7.2013 for approval. In the said proposal, the petitioner''s name was recommended for promotion to the post of Assistant Director of Co-operative Audit and his name was included in the proposal sent to the Government.

(b) While so, one K. Veeramalai, Selection Grade Co-operative Audit Officer (Retd.), who had audited and finalised the accounts of the society for the year 2008-2009, had submitted a petition dated 8.10.2013 to respondents 1 and 2 and the Chief Minister''s Special Cell to take necessary action against the petitioner, who audited the society. The third respondent while pursuing the petition received from K. Veeramalai, found out that the petitioner was authorised to audit the said society for the financial years from 2004-2005 to 2007-2008 and he finalised the accounts and recommended for issuance of audit certificate to the third respondent, who is the audit certifying authority. In addition, the petitioner also conducted concurrent audit of the said society for the half year ended by 30.9.2006 during 2006-2007. For the second half year from 1.10.2006 to 31.3.2007, another Senior Co-operative Auditor by name K. Natesan conducted concurrent audit. Even though the petitioner audited the said society for the first half year, he has suppressed the fact of auditing and by omitting his name, he has signed the audit report which recommended for the issue of audit certificates for the year 2006-2007 to the third respondent authority. The petitioner had deliberately and wilfully suppressed the huge misappropriation of funds of Rs. 12.95 crores in the society, besides allowed the society to get huge sum of Rs. 8.69 crores from the Government funds as rebate subsidy and thereby the petitioner being the auditor of the said society, had colluded with the management of the society and committed grave irregularities thereby being a statutory Government Auditor has caused a huge loss of nearly Rs. 8.69 crores to the Government exchequer.

(c) The irregularities committed by the petitioner came to the knowledge of the third respondent, who is the authority to initiate disciplinary action and after satisfying the prima facie evidence against the petitioner, the third respondent issued charge memo to the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, by his proceedings dated 17.10.2013 by framing grave charges against him, alleging that he has failed to bring to the notice of the higher authorities about the irregularities and loss caused to the Government funds. Therefore, it is incorrect to state that the third respondent prepared the charge memo by mala fide motive. After the disposal of the disciplinary action which is pending against the petitioner pursuant to the charge memo dated 17.10.2013, his name will be considered for inclusion in the said panel, or otherwise, depending on the result of the disciplinary proceedings and the merits of his claim as per the rules in force. Since the petitioner''s name has been deferred from the said panel, his name will be included in the same panel, if the charges pending against him are not proved. Moreover, the panel of Assistant Director of Co-operative Audit for the year 2013-2014 has already been implemented and the same cannot be quashed at this stage. Thus, they sought for dismissal of the writ petition."

I have heard the submissions made on either side and perused the materials available on record.

The name of the petitioner, who is working as Co-operative Audit Officer in Thindalmalai Primary Agricultural Co-operative Credit Society, was originally included in the panel for promotion to the post of Assistant Director of Co-operative Audit. The crucial date for preparing the panel was 1.10.2012. On the crucial date, no charge memo was pending as against the petitioner. Subsequent to the crucial date, the third respondent issued a charge memo dated 17.10.2013 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, based on the petition given by one K. Veeramalai, Selection Grade Co-operative Audit Officer (retired), who has audited and finalised the accounts of the society for the year 2008-2009. The allegation against the petitioner in the said charge memo is that the petitioner deliberately and wilfully suppressed the huge misappropriation of funds in the society, while he was doing audit for the financial years from 2004-2005 to 2007-2008. But, the said charge memo came to be issued only subsequent to the crucial date (1.10.2012) for preparation of the panel for promotion viz., 17.10.2013. In fact, his name has already been included in the said panel. In view of the subsequent charge memo, the petitioner''s name was not included in G.O. Ms. No. 460, Finance (Co-operative Audit) Department dated 24.12.2013 issued by the first respondent and all his juniors were promoted. Hence, the present writ petition.

But, it is the contention of the official respondents that disciplinary proceedings with regard to grave charges are pending as against the petitioner. Hence, the petitioner''s name has been deferred from the panel and after completion of the disciplinary proceedings, his name will be included, if the charges are not proved.

But, it is well settled legal principle that on the crucial date of preparation of panel, if no disciplinary proceeding is pending against the delinquent, promotion cannot be denied to him. Initiation of any disciplinary proceeding at a later point of time will not give any right to the official respondents to deny promotion. In the instant case, on the crucial date of preparation of panel for promotion to the post of Assistant Director of Co-operative Audit viz., 1.10.2012, absolutely, no charge memo is pending against the petitioner. The impugned charge memo was issued only on 17.10.2013, i.e., subsequent to the crucial date for preparation of panel to the said post. In fact, originally, the name of the petitioner was included in the panel, but, subsequently, after the issuance of charge memo, his name was removed from the panel. Therefore, I am of the opinion that the petitioner is entitled for the relief sought for by him in the writ petition. However, I find that G.O. Ms. No. 460, Finance (Co-operative Audit) Department dated 24.12.2013 has already been implemented. Hence, the question of quashing the said GO. does not arise. However, there shall be a direction to the first respondent to promote the petitioner to the post of Assistant Director of Co-operative Audit by placing him above his juniors by giving seniority with retrospective effect on the date of issuance of the said GO. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed.