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Judgment
Honourable Mr. Justice K. Chandru
The petitioner, who was working as a Superintendent in the respondent University, has filed the present writ petition challenging an order dated
25.10.2010 wherein and by which certain employees were transferred and posted. By the impugned order, the petitioner who was holding the
post of Section Officer, was posted to Stores I section in the place of one V.Uma, who was transferred from the said section. In fact, in the said
order, item Nos.3 to 9 related to posting of Assistant Registrars to various sections. It also dealt with the transfer and posting of Deputy Registrars
and Sections Officers including the petitioner.
The grievance of the petitioner was that the impugned communication granting posting orders to various promoted Assistant Registrars, who are
arraigned as respondents 3 to 8 in the writ petition, notwithstanding the fact that her name was included in Serial No. 1 in the panel fit for
promotion to the post of Assistant Registrar prepared by the Vice Chancellor vide order dated 20.09.2010. It was indicated that the life of the
panel was for one year. But when she was not promoted, whereas respondents 3 to 8 were promoted, she has filed the writ petition.
In the writ petition, initially notice of motion was ordered on 08.11.2010. Subsequently, the writ petition was admitted on 17.02.2012. On
notice from this court, the first and second respondents have filed a counter affidavit, dated 6.4.2011. Even before filing the present writ petition,
the petitioner earlier moved this court with a writ petition being W.P.No. 16262 of 2010, seeking for a direction to include her name in the panel of
persons fit for promotion to the post of Assistant Registrar. Initially notice was ordered. But, however by an order dated 17.2.2012, that writ
petition was dismissed as subsequent to the filing of the writ petition, the petitioner''s name was included in the panel.
The grievance of the petitioner was that respondents 3 to 8 were not qualified to have their names included in the panel as the post of the
Assistant Registrar requires a minimum period of five years working in the post of Superintendent and none of these respondents are having such
qualification. At the time of filing of the writ petition, she claimed that there are two posts of Assistant Registrars were vacant. Because of the Vice
Chancellor having personal grudge over her and during the pendency, he hurriedly imposed the penalty of censure with a view to bypass her from
being promoted, this writ petition came to be filed.
In the counter affidavit filed by the respondents 1 and 2, it was contended that the petitioner was faced with penalty of censure after enquiry was
held against her. Therefore, she cannot be given the posting order. The reason for not granting her promotion is set out in paragraphs 6 and 11,
which reads as follows:
6....At the time of issuing the promotion order to the other Superintendents (Section Officer), the charges framed against the petitioner was proved
and that she was excluded for the promotion and the other Section Officers namely the respondents 3 to 8 herein were promoted to the post of
Assistant Registrar. The provisions contained in the Government letter No. 248 dated 20.10.97 of Personnel and Administrative Reforms (S)
Department, in para No. II(2) is given below:-
Any punishment, other than ''Censure'', imposed on an officer within a period of five years prior to the crucial date and a punishment of ''Censure''
within a period of one year prior to the crucial date should be held against the officer. In such a case, the Officer''s name should be passed over.
As per the above provision, she was not considered for promotion.
11....Though charges were pending, the petitioner''s name was included in the panel. Since she was awarded with punishment of ''Censure'' the
name of the petitioner was not included in the promotion order and the orders were issued to the respondents 3 to 8 duly relaxing the experience
as per Statute No. 28 of Service Statutes of the Establishment of the Tamil Nadu Dr. M.G.R. Medical University....
(Emphasis added)
With reference to relaxation of the rules in favour of respondents 3 to 8, in paragraph 10 of the counter, it was stated as follows:
10....The petitioner is the first person in the panel dated 20.09.2010. The various promotions from the post of Section Officers to the post of
Assistant Section Officers were stagnated. Further this University is in need of officers in the place of officers who have promoted / retired and this
University is in dearth of second level officers for doing the work related to the University activities. Hence an agenda was placed before the 198th
Meeting of the Governing Council held on 14.7.2010 regarding relaxation of years of experience for the posts of Deputy Registrar, Assistant
Registrar and Superintendent by invoking the provision in the Statute 28 of the Service Statutes of this University. In the said meeting, the
Governing Council had resolved that the Vice Chancellor be authorised to take necessary decisions in this matter and subsequently implement them
after duly considering procedures and the service situation of the University. As per the above resolution, it has been decided to relax the service
conditions in respect of Assistant Registrars and Deputy Registrars as per the provisions contained in Statute 28 of the Service Statutes of the
Establishment of the Tamil Nadu Dr.M.G.R. Medical University....
With reference to the other persons in the panel not having minimum qualification of five years experience in the post of Superintendent, it was
claimed necessary relaxation was given in their favour. Reliance was placed upon the power of the Governing Council to relax the provisions of the
statute as contained in Statute No. 28 of the Service Statutes of the Establishment of the Tamil Nadu Dr.M.G.R. Medical University. Statute No.
28 reads as follows: ""28.Relaxation : The Governing Council may relax any of the provisions of these Statutes in exceptional cases in favour of an
individual or a group of individuals as the Governing Council may deem fit.
Though contesting respondents were served by this court and they were in receipt of notices, they have not appeared either in person or through
counsel. Therefore, the court has to proceed only on the basis of the defence taken by the respondent University.
It is seen from the Vice Chancellor''s order approving the panel dated 20.9.2010 that it was based upon the report of the selection committee
held on 11.8.2010. The Vice Chancellor''s had approved the panel which was for regular panel for promotion and priority was also indicated. The
name of the petitioner stood first in the list. Therefore, it must be presumed that at the time when the panel was prepared, the petitioner does not
suffer from any disqualification. Her name was recommended by the selection committee and it was for regular panel. It was at the time of issuance
of promotion order, as charges were levelled against the petitioner were found proved, she was excluded from being promoted. Her other juniors,
i.e., respondents 3 to 8 were promoted as Assistant Registrars.
As to whether after inclusion a name in the panel, only because one had suffered a minor penalty of censure, can be excluded from being given
the promotion order and that such name can be passed over, reliance was only placed upon the State Government''s letter No. 248, dated
20.10.1997 (which was a circular issued by the P&AR Department of the Government of Tamil Nadu). The said question regarding the binding
nature of the said communication came to be considered by a Full Bench of this court in The The Deputy Inspector General of Police and The
Director General of Police Vs. V. Rani, The Full Bench in paragraph 28 had summarized the legal position which included the validity of the very
same circular. In paragraphs 24, 28.4 and 28.5, the Full Bench had observed as follows:
24.While it is true that the pendency of punishment can be certainly a ground for the Government to deny the promotion till the completion of the
period of punishment, it can never be said that even after the period of punishment is over, in between the date of crucial date and the date of
punishment there must be one year in case of censure and five years in other cases as disqualification period. The above said impediment in the
name of ''check period'' can never be imposed on a Government servant. Even though it has not been issued as statutory rules under the proviso to
Article 309 of the Constitution of India, the said letter stating the currency of punishment as an embargo for considering for further promotion
during the period of punishment cannot be said to be antithesis to the principles of law. The embargo imposed in respect of further period as stated
above can never be said to be authorized under the statutory rules. The said Government letter can be treated as a circular issued by the Secretary
to Government to all departments. This letter, as correctly submitted by the learned senior counsel Mr.G.Rajagopal, cannot supersede the statutory
rules.
Therefore, after analysis of the entire law on the subject, we answer the reference as follows:
The Government letter No. 18824/S/2005-2, Personnel and Administrative Reforms (S) Department dated 7.10.2005 with annexures 1 to 7
and the letter No. 248 (P&AR) Department dated 20.10.1997 are not statutory rules framed under proviso Article 309 of the Constitution of
India and cannot be read either with the Tamil Nadu Government Servants Conduct Rules, 1973 or under the Tamil Nadu Civil Service
(Disciplinary and Appeal) Rules.
5.Consequently, the embargo put on the right of Government servant for being considered for promotion for a further period, after the period of
minor punishment is over, in the name of ''check period'' viz., one year in the case of censure and five years in the case other minor punishments is
illegal and impermissible under the statutory rules.
(Emphasis added)
Even before the Full Bench answered the issues in relation to the very same circulars referred to in the counter affidavit, the Supreme Court
had considered the effect of a pending disciplinary action in relation to promotion.
In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India Vs. K.V. Jankiraman, etc. etc., . The following
passages found in paragraphs 16 and 17 may be usefully extracted:
On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have
commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a
criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the
employee. 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 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. 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.
There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench
has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot
be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the
relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency
in the two conclusions.
(Emphasis added)
13.Though subsequent to K.V. Jankiraman''s case (cited supra), the Central Government amended the Office Memorandum by an order dated
14.09.1992, even that amended Memorandum came to be considered by the subsequent judgment in Delhi Development Authority Vs. H.C.
Khurana, . The following passages found in paragraphs 4,5,8,9,11 reads as follows:-
Para 2 is the relevant portion in these memoranda. In O.M. dated January 12, 1988, para 2 is as under:
Cases of government servants to whom Sealed Cover Procedure will be applicable
At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for
promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee:
(i) Government servants under suspension;
(ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings;
(iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a decision
has been taken to accord sanction for prosecution;
(iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress
either by the CBI or any other agency, departmental or otherwise.
(Emphasis supplied)
The substituted clause (ii) in para 2, in O.M. dated September 14, 1992, is as under:
(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and
(Emphasis supplied)
These words clearly indicate that the sealed cover procedure was applicable, in cases where the ''disciplinary proceedings are pending'' in
respect of the government servant; or ''a decision has been taken to initiate disciplinary proceedings''. Thus, on a decision being taken to initiate
disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the
disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a
government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made
according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary
proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it
would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government
servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for
promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings; and in case he is
exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand,
giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongruous and against public policy and principles of
good administration. This is the rationale behind the guideline to follow the sealed cover procedure in such cases, to prevent the possibility of any
injustice or arbitrariness.
The question now, is : What is the stage, when it can be said, that ''a decision has been taken to initiate disciplinary proceedings''? We have no
doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet
is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the
allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the
government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings
are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant
exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision
to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the
government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings,
inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-
making process of the authorities for initiating the disciplinary proceedings.
The decision in Jankiraman1 is based, inter alia, on O.M. dated January 12, 1988. The facts of the cases dealt with in the decision in
Jankiraman1 do not indicate that the Court took the view, that even though the charge-sheet against the government servant was framed and
direction given to despatch the same to the government servant as a result of the decision to initiate disciplinary proceedings taken prior to the
meeting of the DPC, that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected
subsequent to the meeting of the DPC. Moreover, in Jankiraman1 itself, it was stated thus: (SCC pp. 117-18)
To bring the record up to date, it may be pointed out that in view of the decision of this Court in Union of India v. Tejinder Singh decided on
September 26, 1986, the Government of India in the Department of Personnel and Training issued another office memorandum No. 22011/2/86.
Estt. (A), dated January 12, 1988 in supersession of all the earlier instructions on the subject including the office memorandum dated January 30,
1982.... A further guideline contained in this memorandum is that the same sealed cover procedure is to be applied where a government servant is
recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are
taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has
been issued or decision to accord such sanction is taken.
These differences in the two memoranda have no bearing on the questions to be answered.
(Emphasis supplied)
It is also not the stand of the respondent university that they are having a sealed cover procedure as adopted by the Central Government in
relation to their service.
In respect of interpreting the Regulations framed by a bank came to be considered by the Supreme Court in the context of continuation of
disciplinary proceedings after an employee reached the age of superannuation. In that context, the Supreme Court has held as to when a
disciplinary action can be said to be pending against an employee. The said judgment in UCO Bank and Another Vs. Rajinder Lal Capoor, . In
Paragraph 21, it was observed as follows:-
The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the
respondent''s ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been
initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the
legal fiction created thereunder i.e. continue ''as if he was in service''. Thus, only when a valid departmental proceeding is initiated by reason of the
legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of
superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a
charge-sheet is issued (see Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal
India Ltd. v. Saroj Kumar Mishra12 wherein it was held that date of application of mind on the allegations levelled against an officer by the
competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been
initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations.
Albeit in a different fact situation but involving a similar question of law in Coal India Ltd.12 this Court held: (SCC p. 631, paras 12-13)
12[13]. 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[14]. 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.
It was furthermore observed that: (SCC p. 632, para 18)
18[20]. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
(See also Union of India v. Sangram Keshari Nayak13.)
Aggrieved by the said judgment, the UCO Bank filed a review petition before the Supreme Court, which was also rejected by the Supreme
Court in UCO Bank and Another Vs. Rajinder Lal Capoor, In paragraph 20, it was observed as follows:-
The 1976 Regulations provide for the mode and manner in which a disciplinary proceeding is initiated. It expressly provides for service of
charge-sheet. Service of charge-sheet is a necessary ingredient for initiation of disciplinary proceedings. A preliminary enquiry is not contemplated
under the 1976 Regulations. If such an enquiry is held, the same is only for the purpose of arriving at a satisfaction on the part of the disciplinary
authority to initiate a proceeding and not for any other purpose.
Promotion to the post of Assistant Registrar from the post of Superintendent is based upon the rule found in Appendix I of the Statute No. 6.
Statute No. 6(4) gives criteria for promotion, which reads as follows:
(4)Criteria of promotion;- All promotions, except in respect of Group ''D'' posts, shall be by selection based on merit and ability, seniority being
considered only when merit and ability are approximately equal.
Statute No. 6(5) deals with the appointment to various non teaching and administrative post which reads as follows:
(5)....all appointments of administrative and other non-teaching staff shall be made by the Governing Council or by the Vice-Chancellor (as the
case may be), if the Governing Council has delegated its powers, from the panel recommended by the Selection Committees constituted. Such
Selection Committee''s constituted shall consist of the members as shown below :
GROUP ''A'' AND ''B''
Vice Chancellor - Chairman
Two Governing Council Members '' Members
One expert in the area concerned '' Member
The Registrar - Member
Based on the above rules, Ms.Narmadha Sampath, learned counsel for the University strenuously contended that merit and ability of a person
will be considered and seniority will have relevance only when merit and ability are approximately equal.
In the present case, as noted already, a panel was prepared based on the report of the selection committee. There was no disqualification at
the time when the petitioner''s name was included in the panel. Even subsequent to its publication on 20.9.2010, the petitioner suffered only a
penalty of censure on 01.10.2010. At the time when enquiry proceedings were pending, the University did not thought fit to disqualify her on the
basis of the pendency of the proceedings. On the other hand, knowing fully well that such proceedings are pending, her name was included thereby
indicating that she had not suffered any disqualification on the said date. The present stand was based upon the Government letter referred to
above and its impact had been explained by the Full Bench decision referred to above.
As to how far the penalty of censure can deny a person from being promoted to the post of the Assistant Registrar though she was first in the
panel has to be considered. The respondent university is unable to state any guidelines or rules framed by which a penalty imposed on an employee
can be taken note for a period of one year. Even such a decision based upon a government circular was frowned upon by the Full Bench. Hence it
will have to be presumed that no such disqualification exist in respect of a censure.
Having included her name as No. 1 in the list and claiming that there are dearth of candidates for promotion and granting relaxation to
respondents 3 to 8 clearly shows that the university wants to edge out the petitioner from being promoted to the post of the Assistant Registrar.
Though the counsel for the University stated that the petitioner had committed several irregularities and misconduct and the University will be at
liberty to take action against her, the promotion given to the petitioner based upon the panel (which is valid only for a period of one year) will not
disentitle the university from taking any action even after her promotion. It is made clear that any promotion made will not erase the complaints
pending against her and the University can always initiate appropriate action notwithstanding her promotion.
Even if the charges were pending, at the time of preparing the panel, her name was not excluded from the panel. It was after publication of the
panel, the punishment of censure came to be issued. Therefore, when the posting / promotion orders were given, the respondent university very
well could have considered and could have given an appropriate posting order. But subsequent to the panel preparation if any charges are to be
framed or it is contemplated, that cannot be a ground to deny promotion and such promotion will not take away the misconduct for which an
enquiry was contemplated as held by the Supreme Court in State of Madhya Pradesh and others Vs. R.N. Mishra and others, and in paragraph 7,
it was observed as follows:
7.....The State Government could not have excluded the respondent from the zone of consideration merely on the ground that a preliminary inquiry
to enquire into the allegations of misconduct attributed to him was pending. In such a situation, the doctrine of condonation of misconduct cannot
be applied as to wash off the acts of misconduct which was the subject-matter of preliminary enquiry. We are, therefore, of the opinion that the
promotion of the respondent to the post of Assistant Conservator of Forest would not amount to condonation of misconduct alleged against him
which was the subject-matter of preliminary inquiry. Consequently, the punishment imposed on the respondent by the State Government was valid
and legal.....
In the present case, though it was contended that the petitioner has not questioned the promotion, since after the panel, the University had
merely issued a transfer and posting order and promoted Assistant Registrars were posted to several sections. But the petitioner has been merely
transferred as a section officer, that itself is sufficient to challenge. Further this court can mould the relief and will not whittle down grant of relief. In
the present case, the contesting respondents were also made as parties.
In view of the above, this court is of the view that the stand taken by the university cannot be accepted. The petitioner will be promoted to the
post of the Assistant Registrar with effect from the date on which the impugned order came to be passed, i.e. on 25.10.2010. Because of her
promotion, if any other person has to be eliminated, who was promoted, nothing prevented the university from reverting him to the lower post due
to want of vacancy. But, however, since the petitioner never discharged the functions of the Assistant Registrar, her promotion will be only notional
from 25.10.2010 for the purpose of seniority and pay fixation in the higher post. But any monetary benefit will be given to her only from the date
on which she discharges the functions in the post of Assistant Registrar.
In this context, the Supreme Court has held that in such a case where retrospective promotion is ordered on direction by the court, an
employee cannot get pay for the period where she / he has not discharged duties. A reference may be made to the judgment of the Supreme Court
in Harigovind Yadav Vs. Rewa Sidhi Gramin Bank and Others, and in paragraph 27, it was observed as follows:
27....we hereby direct the first respondent Bank to promote the appellant as a Field Supervisor, from the date the third defendant was promoted
as Field Supervisor and place him above the third respondent. However, he will be entitled to monetary benefits flowing from such promotion only
prospectively, though the pay is to be refixed with reference to the retrospective date of promotion.
Accordingly, the writ petition will stand allowed to the extent indicated above. However, there will be no order as to costs.