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Judgment
Vinod K. Sharma
The petitioner has approached this Court with a prayer for issuance of a Writ, in the nature of Certiorari, to quash the order dated 20.09.2011, vide which, the petitioner''s promotion to the post of Motor Vehicle Inspector (Non Technical ) has been placed in the deferred list. The facts which are not in dispute, reads as under:
i) The petitioner is working as Superintendent in the Regional Transport Office, Ooty, since 14.11.2007. The petitioner completed three years of service in the cadre of Superintendent and is fully eligible for promotion to the post of Motor Vehicle Inspector (Non Technical). At the time of consideration for promotion to the post of Motor Vehicle Inspector (Non Technical), the name of the petitioner was included in the panel, drawn on 15.03.2011. According to the petitioner, this was the crucial date for assessment of the eligibility of the candidates for promotion against the available vacancies. The case of the petitioner was considered along with other eligible candidates, but, while promoting 56 Superintendents to the post of Regional Transport Officer, the name of the petitioner was deleted from the select list and included in the deferred list, in view of the pendency of the departmental proceedings.
ii) The case of the petitioner is that, he was not served with any charge memo before 15th March, 2011 viz., the date fixed for consideration for the purpose of promotion or even till 20th September, 2011, the date on which, the persons, who were immediate junior to the petitioner, were promoted.
iii) As already observed above, the name of the petitioner was included in the deferred list for being considered for promotion, after the conclusion of departmental proceedings.
iv) The fact that no charge sheet was issued to the petitioner till 20th September, 2011, is not disputed. The defence is based on the ground that vide G.O.(2D) No.290 dated 09.08.2011, remittal orders were issued by the Government for directing the initiation of disciplinary proceedings against the petitioner for major misconduct u/s 17-A of the Tamil Nadu Civil Services ( Discipline and Appeal) Rules, (hereinafter referred to as '' the Rules''). It is also not disputed that till date, no charge memo, in pursuance to the remittal orders has been issued to the petitioner.
The learned Senior Counsel for the petitioner challenged the impugned order, in keeping the petitioner in deferred list and not promoting him on the ground that when the panel for promotion to the post of Motor Vehicle Inspector was drawn, as also on the date of actual promotion of the juniors to the petitioner, no charge sheet was pending against the petitioner. The action of the respondents therefore, in denying promotion is improper and discriminatory, which is hit by Articles 14 and 16 of the Constitution of India.
In support of the contention that the petitioner is entitled to be promoted to the post of Motor Vehicle Inspector ( Non Technical ) on 20th September, 2011, i.e., when the immediate juniors to the petitioner were promoted, the learned Senior Counsel for the petitioner has placed reliance on the judgment of the Hon''ble Supreme Court in the case of Coal India Ltd. and Others Vs. Saroj Kumar Mishra, , wherein, the Hon''ble Supreme Court, has laid down as hereunder:
...11. Both First Appellant as also Mahanadi Coalfields Ltd. are ''State'' within the meaning of Article 12 of the Constitution of India. Their action must, therefore, satisfy the test of reasonableness and fairness. Although an employee of a State is not entitled to promotion to a higher post as a matter of right, he is entitled to be considered therefor in terms of Article 16 of the Constitution of India. A right of promotion can be withheld or kept in abeyance only in terms of valid rules. Rules operating in the field do not provide that only because some allegations have been made as against an officer of the company, the same would itself justify keeping a valuable right to be considered for promotion of an employee in abeyance. When a question of that nature comes up for consideration before a superior court, the extant rules operating in the field must necessarily be construed in the light of the constitutional scheme of equality.,
...15. 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.
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....
A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued.
The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.
See Zee Telefilms Ltd. and Another Vs. Union of India (UOI) and Others, , Guruvayur Devaswom Managing Commit. and Another Vs. C.K. Rajan and Others, .
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...
Reliance is also placed on another judgment reported in the case of Union of India (UOI) and Others Vs. Sangram Keshari Nayak, wherein, the Hon''ble Supreme Court was pleased to lay down that "promotion of an employee can be deferred, if a charge sheet had been issued against him or disciplinary proceedings were pending against him, but not in the case, where the charge sheet is issued, subsequent to the date fixed for promotion."
The learned counsel for the respondent-State, per contra, vehemently contend that the judgments referred to supra, on which, reliance has been placed by the learned Senior Counsel for the petitioner, cannot be applied to this case, as in the present case, remittal order was passed on 09.03.2011, proposing to initiate disciplinary proceedings u/s 17b of the Rules, i.e., much prior to the date of actual promotion. The petitioner, therefore, cannot claim any right to promotion or challenge the decision of the State Government.
This contention of the learned counsel for the respondent-State thought looks attractive, has no legs to stand in view of the guidelines issued by the Government, under the consolidated instructions of the Personnel Administrative Department, regarding the remittal order, which reads as follows:-
Nature of Enquiry/Charge
Remittal orders issued by the Government, directing the appropriate authority to initiate disciplinary action on receipt of the report.
Effect :-
Unless specific charges have been framed under Rule17(b) of Tamil Nadu Civil Services ( D & A ) Rules, the remittal orders issued by the Government, need not be held against the Officer. If charges are framed under Rule 17 (b), as a result of remittal orders, the name need not be included in the panel. Even, if the name has been included in the panel, the name should be deleted from such a panel, if charges under Rule 17(b) are framed before the actual promotion.
In view of the consolidated instructions issued by the Personnel Administrative Department, the stand taken by the respondents only deserves to be noticed to be rejected. The case of the petitioner is squarely covered by the decision of the Hon''ble Supreme Court in the case of ( Coal India Ltd., Versus Saroj Kumar ) and (Union of India Vs. Sangram Keeshari Nayak) supra Therefore, this Writ Petition is allowed and the impugned part of the order, keeping the petitioner in the deferred list is ordered to be quashed with consequential relief of mandamus, directing the second respondent to promote the petitioner with effect from 20th September, 2011, i.e, the date on which, immediate juniors to the petitioner were promoted with all consequential benefits. Though, under normal circumstances, this Court only issues a direction for consideration of the case for promotion and not direct promotion, but in the case, the documents placed on record, shows that the petitioner was found eligible for being promoted, but his promotion was deferred only for the reasons of pendency of departmental proceedings, which was prima facie illegal and unsustainable in law.
Therefore, a specific direction is being issued to promote the petitioner w.e.f., 20th September, 2011, with all consequential benefits.
It is made clear that, the needful shall be done and appropriate orders be passed by the second respondent, within one months'' time of the receipt of the certified copy of this order.
It is further made clear that this decision, shall not affect the rights of the respondent, to hold disciplinary enquiry, against the petitioner for the misconduct, alleged against the petitioner, as held by the Hon''ble Supreme Court in [ Coal India Ltd., Vs. Saroj Kumar ] supra. No costs. Consequently, connected miscellaneous petitions are closed.