IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 25.02.2008
Coram
The Honourable Mr. Justice P.K. MISRA
and
The Honourable Mr. Justice K. CHANDRU
W.P. No.10324 of 2003
and W.P.M.P. No.1292 of 2003
The Government of Tamil Nadu
rep.by the Secretary to Government
Home (Transport-II) Department
Fort St.George, Chennai-9. ... Petitioner
..vs..
1. K. Mani
2. The Registrar
Tamil Nadu Administrative Tribunal
Chennai-104. ... Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a writ of Certiorari calling for the records of the Hon'ble Tamil Nadu Administrative Tribunal/the second respondent herein pertaining to the orders made in O.A.No.4324 of 1999 dated 30.4.2001 and quash the same.
For Petitioner : Mr.M.Dhandapani, Spl.G.P.
For Respondent
No.1 : M/s.Sudha Ravi Associates.
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O R D E R
(Order of the Court was made by P.K. MISRA, J.)
Heard the learned counsels appearing for the parties.
2. The State Government has filed this writ petition against the order passed by the Tribunal in O.A.No.4324 of 1999, whereunder the Tribunal had given a positive direction to the following effect :-
“… The petitioner shall be given notional promotion with effect from 23.6.1999 by placing above Thiru G.James. It is stated that the petitioner is to retire on 315.2001. Hence, the promotion directed to be given to him is only a notional promotion. However, he will not be entitled for any monetary benefit, but for the purpose of calculation of the pension and other benefits, he should be deemed to have been given promotion on 23.6.1999 and the scale of pay should be fixed in the cadre of Deputy Transport Commissioner from that date. If any increment is due, it should also be added to the notional scale to be fixed. The promotion and the notional scale to be fixed, as already stated only for the purpose of fixing the pension of the petitioner on the date of his retirement.”
3. Respondent No.1 was initially appointed as Assistant Motor Vehicles Inspector – II and in course of time he was promoted as Regional Transport Officer. The next promotional post is the Deputy Transport Commissioner. The grievance of the present Respondent No.1 before the Tribunal was to the effect that in the panel prepared during June, 1999, the name of the petitioner was not included as fit for promotion, whereas promotion was given to one Sri.G. James, who was junior to such applicant. In the Original Application, it was asserted that the case of the applicant had been ignored for promotion on the basis that a criminal case was pending against him and, therefore, his name has been passed over as per the guidelines passed in G.O.Ms.No.368 dated 18.10.1993. The applicant contended that in fact no criminal case was pending against him to defer his promotion. This assertion has been made apparently on the basis that chargesheet had not been filed in the criminal case. It was, therefore, contended by him that as per G.O.Ms.No.368 dated 18.10.1993, the case of the employee for promotion could be ignored only if charges had been framed or chargesheet had been filed and not otherwise.
4. A reply was filed on behalf of the Government in such Original Application, wherein it was indicated that the name of the applicant for promotion was considered during 1997-1998, but it was passed over. Similarly, for the subsequent year also, his name was passed over keeping in view the guidelines issued in G.O.Ms.No.368 and the subsequent guidelines. The representation dated 12.2.1999 for inclusion of the name of the applicant in the panel of the year 1998-1999 was considered and his name was not included as a criminal case was pending against him. It was further indicated that since he was involved in a serious case relating to allegation of demand of bribery and Cr.No.3 of 1995 /AC/CB under Section 7 of the Prevention of Corruption Act had been registered relating to demand and acceptance of bribery and in the trap case the applicant was caught red handed, the applicant’s name had not been included in the ad hoc list approved by the Government. Regarding his non-inclusion in the earlier year, it was stated that the applicant was not fully qualified for the earlier year.
5. While considering the question of promotion the Tribunal observed that since no charge sheet had been issued in the departmental proceedings nor in the criminal case, there was no embargo for including the name of the present respondent No.1 in the panel for promotion. The fact that the trap case was lodged and was pending investigation was apparently given a short shrift by the Tribunal. The said order of the Tribunal has been challenged by the Government by filing the present writ petition.
6. Learned counsel appearing for the petitioner submitted that in view of the alleged involvement of respondent No.1 in a serious case relating to demand and acceptance of bribery, obviously the name of respondent No.1 could not be directed to be included in the panel. Learned counsel for respondent No.1 on the other hand submitted that as per G.O.Ms.No.368 P & A.R. Department dated 18.10.1993, unless the charge memo is actually issued, it cannot be said that there was any embargo for considering the case of respondent No.1 for promotion.
7. Having heard the learned counsels for both parties at length and having bestowed our serious consideration to the matters on record we are unable to sustain the order passed by the Tribunal. It is no doubt true that in the Government Order issued nothing is specifically indicated about the pendency of the criminal case containing serious allegations involving the integrity of a person. Even assuming there may not be any embargo for considering the name of such persons, the question is whether the such person should be promoted, even before the finalization of the criminal case in one way or the other. As a matter of fact, if such persons are to be included in the panel, it would be giving a wrong signal and indirectly encouraging corruption in service.
The law is well settled that no person has got a right to be promoted, though he has got a right of being considered for promotion. It is apparent that the case of the applicant had been considered, but it was passed over apparently on account of the alleged involvement in the criminal case relating to bribery. In the peculiar facts and circumstances of the case, it cannot be therefore said that the case of the applicant before the Tribunal had been illegally overlooked.
8. Having regard to all these aspects, we are unable to sustain the order passed by the Tribunal. Accordingly, the impugned order is set aside and the writ petition is allowed. Consequently, the connected W.P.M.P. is closed. No costs.
Tr/dpk
To
1. The Secretary to Government
The Government of Tamil Nadu
Home (Transport-II) Department
Fort St.George, Chennai-9.
2. The Registrar
Tamil Nadu Administrative Tribunal
Chennai 104.