IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.09.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.1277 OF 2009 .. P.Chinnadurai .. Petitioner vs. 1.The Secretary to Government Commercial Taxes & Registration Department, Fort St.George Chennai 600 009. 2.The Inspector General of Registration Chennai 600 028. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus as stated therein. For petitioner : Mr.K.Venkatramani,Sr.Counsel for Mr.M.Muthappan For respondents : Mr.V.Arun,AGP .. ORDER
This writ petition is filed for direction against the respondents to consider the claim of the petitioner for promotion as District Registrar for the year 1999-2000 by including his name in the appropriate place in the panel published by the first respondent dated 3.4.2003 and promote him as District Registrar with all consequential monetary benefits.
2. The writ petitioner was appointed based on selection conducted by the Tamil Nadu Public Service Commission (in short “TNPSC”) as Sub-Registrar Grade II on 22.8.1986. He was promoted as Sub-Registrar Grade I by including his name in the panel for the year 1996-97 as per the directions of this Court in W.P.No.15723 of 2008 dated 3.7.2008 and as per the order of the first respondent dated 14.10.2008, he has been serving as Sub-Registrar Grade I. As per the merit list of TNPSC, while appointing him as Sub-Registrar Grade II, his seniority was fixed at No.241. As per tentative seniority list which was published on 1.1.1995, his name was fixed at serial No.148 and serial Nos.149 and 150 related to one Abdul Samad and Rajasekar, who were his juniors as per the seniority list. Even though the petitioner was entitled for promotion as Sub-Registrar Grade I in the panel of the year 1996-97, it was overlooked on the ground that punishment of stoppage of increment for a period of one year without cumulative effect was imposed by the orders of the second respondent dated 21.6.1995 and his junior who was in serial No.150, by name, Rajasekar was included in the panel and he was promoted. His claim for 1997-98 was also not considered on the ground that by order of punishment dated 30.8.1998, the original punishment dated 21.6.1995 was modified into one of stoppage of increment for a period of 3 months without cumulative effect.
3. The petitioner challenged the said punishment in the Tamil Nadu Administrative Tribunal in O.A.No.6448 of 2000 and by order dated 10.7.2002, while confirming the punishment, the Tribunal gave direction to promote the petitioner as Sub-Registrar Grade I on par with his juniors without reference to the punishment dated 21.6.1995. The writ petition filed by the respondents against the said order was also dismissed by the High Court in W.P.No.11135 of 2007 on 26.3.2007. The petitioner also filed W.P.No.15723 of 2008 for direction to revise the seniority list in respect of the petitioner in the cadre of Sub-Registrar Grade I by including his name in the panel for the year 1996-97. In the said Writ Petition, by order dated 3.7.2008, this Court directed the respondents to consider the representation of the petitioner in the light of the order of the Tribunal dated 10.7.2002.
4. It was, on 14.10.2008 the first respondent implemented the order of the Tribunal and included the name of petitioner in the panel of Sub-Registrar Grade I for the year 1996-97 and placed him below the name of one U.S.Arumugam in Serial No.34A and above the name of A.Abdul Samad fixing his seniority as 34B. The petitioner got his seniority revised retrospectively and his pay was fixed notionally and monetary benefits were directed to be paid from the date of actual promotion. The petitioner was due for promotion as District Registrar in the panel of the year 1999-2000. Since his juniors were already included as serial Nos.6 to 11 and promoted as District Registrars on 3.4.2003 and working in the promoted posts from 30.4.2003, the petitioner who got promotion as per the order of the first respondent dated 14.10.2008 as Sub-Registrar Grade I on the basis of the directions of the Tribunal, is entitled to be included in the promotion panel for District Registrar for the year 1999-2000 and for the actual promotion from 30.4.2003.
5. A criminal case was filed against the petitioner by the Vigilance and Anti-Corruption Department, Erode District before the Chief Judicial Magistrate, Erode in Special CC No.16 of 2003 and the trial Court acquitted the petitioner on merits on 26.12.2007. According to the petitioner, by acquittal, there is no impediment for him to get promotion as District Registrar with effect from 30.4.2003, the date on which there was no charge memo pending. Pending the above said criminal case, a charge memo was issued to the petitioner on 28.4.2004 in respect of the same issue involved in the criminal case in respect of which the petitioner had been charge sheeted and later acquitted by the criminal Court and therefore, there is no impediment in considering the claim of the petitioner for promotion as District Registrar for the year 1999-2000 and to promote him as District Registrar with effect from 30.4.2003 on par with his juniors. Hence, the present writ petition has been filed for direction as stated above.
6. In the counter affidavit filed by the second respondent, while it is admitted that as per the direction of this Court in W.P.No.15723 of 2008 dated 3.7.2008, the petitioner was promoted as Sub-Registrar Grade I by placing him in the panel for the year 1996-97, it is stated that the petitioner made a representation on 8.1.2009 to include his name in the panel for District Registrars for the year 1999-2000 and without waiting for some time, he moved this Court by filing the present writ petition. It is stated that since a criminal case was filed on the basis of trap and arrest by the Vigilance and Anti-Corruption Department on 19.10.2001, his name was not included in the panel for District Registrars for the year 1999-2000 issued in G.O.Ms.No.35, Commercial Taxes (H1) Department dated 3.4.2003. The charges under Rule 17(b) of the Tamil Nadu Civil Service (D&A) Rules were framed against him on 28.4.2004 and the criminal case ended in acquittal on 26.12.2007 and a revised charge memo was issued to the petitioner on 17.11.2008 after his acquittal in the criminal case and the petitioner filed W.P.No.30503 of 2008 and obtained an order of stay. As per G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993 and subsequent clarifications, the petitioner’s name could not be included in the panel for District Registrars for the year 1999-2000. It is the case of the second respondent that as per the consolidated instructions issued by the Government on 7.10.2005, if a specific charge is framed or charge sheet filed in a criminal case before actual promotion, the person shall not be promoted, even if his name was included in the panel.
7. Mr.K.Venkatramani, learned senior counsel appearing for the petitioner would submit that the crucial date for promotion for the post of District Registrar for the year 1999-2000 was 1.4.1999 and on the crucial date there was no formulated charge framed against the petitioner, nor any criminal case was pending and there was no suspension and the charge memo itself was issued to him on 28.4.2004, on the same issue involved in the criminal case.
7(a). According to him, the mere registration of criminal case is not a bar for promotion and in the present case, the criminal case which was registered against the petitioner on 19.10.2001 ended in acquittal on 26.12.2007. He would submit that in respect of Sub-Registrar Grade I, even though the petitioner was entitled to be included in the panel for the year 1996-97, he was given promotion only on 14.10.2008 as Sub-Registrar Grade I by way of implementing the order of Court and that promotion was made by including the petitioner in the panel for promotion as Sub-Registrar Grade I for the year 1996-97.
7(b). According to him, the crucial date for promotion to the post of District Registrar was 1.4.1999 and the petitioner is entitled to be included in the panel for promotion to the post of District Registrar. It is his contention that only to avoid inclusion of petitioner’s name in the panel, a charge memo was issued to the petitioner on 28.4.2004 based on the same set of allegations made in the criminal case and after acquittal in the criminal case, the charge memo was canceled and a revised charge memo was issued on 17.11.2008 and the said revised charge memo was challenged by the petitioner and this Court has granted stay on 23.12.2008. His contention is that on the three relevant dates, viz., (a) crucial date, (b) date of consideration, and (c) date of actual promotion, there was no impediment for the petitioner to be promoted to the post of District Registrar.
7(c). He would rely upon various judgments in C.O.Arumugam v. State of T.N. [1991 Supp (2) SCC 199], Delhi Jal Board v. Mahinder Singh [(2000) 7 SCC 210], unreported judgment of a Division Bench of this Court in the State of Tamil Nadu rep. By its Secretary to Government and another v. C.Nagappan and another (W.P.No.21007 of 2001) dated 28.2.2002, Coal India Ltd. v. Saroj Kumar Mishra (AIR 2007 SC 1706) and unreported judgment of another Division Bench of this Curt in E.Pitchaimari v. The Special Commissioner and Transport Commissioner, Chennai (W.A.No.115 of 2008) dated 10.4.2008.
8. On the other hand, it is the contention of the learned Additional Government Pleader that it was, by virtue of G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated 18.10.1993 which was subsequently clarified by the Government Letter dated 7.10.2005, by which consolidated guidelines have been issued, since there was a criminal case was pending against the petitioner during the crucial period, viz., 1999-2000, the name of the petitioner could not be included in the panel for the year 1999-2000. It is his submission that the charge memo was also pending against the petitioner and hence, his name was not included in the panel for District Registrars for the year 1999-2000, in view of the above guidelines.
9. The facts which are not in dispute are that the petitioner, who was eligible to be included in the panel for Sub-Registrar Grade I for the year 1996-97, for which the crucial date was 1.4.1996, was passed over due to the punishment dated 21.6.1995 of stoppage of increment for one year without cumulative effect which was subsequently modified into one of stoppage of increment for three months by the Government in its order dated 30.3.1998. Thereafter, the Tamil Nadu Administrative Tribunal in the order dated 10.7.2002 held that the petitioner was entitled to be included in the panel for Sub Registrar Grade I for the year 1996-97, even though the punishment was upheld. It was ultimately on 14.10.2008, after the petitioner approached this Court by filing writ petition for the purpose of revision of his seniority as per the orders of the Tribunal, orders were passed revising the seniority of the petitioner in the cadre of Sub-Registrar Grade I by including him in the panel for the year 1996-97, in G.O.2(D) No.142, Commercial Taxes and Registration (H2) Department dated 14.10.2008. The relevant portion of the said G.O. is as follows:
” 7. The Government have examined the proposal of the Inspector General of Registration, in detail with the connected records. After examination, based on the recommendation of the Inspector General of Registration, the Government have decided to include the name of Thiru P.Chinnadurai, Sub-Registrar, Grade-II in the panel of Sub-Registrar, Grade-I for the year 1996-97 below the name of Thiru U.S.Arumugam at Sl.No.34(a) and above the name of Thiru A.Abdul Samad and to fix his seniority as 34(b) and consequently to revise the seniority of Thiru A.Abdul Samad as 34(c) and they order accordingly.”
Therefore, by virtue of order dated 14.10.2008 passed by the Government, the petitioner’s name was included in the panel for Sub-Registrar Grade I for the year 1996-97 and his seniority was refixed by placing him above his juniors and direction was also given for the purpose of payment as per Fundamental Rules and as per the said refixation.
10. It is also not in dispute that the crucial date for preparation of panel for District Registrars was 1.4.1999 for the year 1999-2000 and the actual date of consideration of the panel by publication was 3.4.2003 and the petitioner’s junior was promoted as District Registrar on 30.4.2003. By virtue of the order of the Government dated 14.10.2008, as stated above, the petitioner was entitled to be included in the panel for District Registrar for the year 1999-2000 and to be considered and actually promoted above his juniors, of course, subject to the condition that on the crucial date, date of consideration and actual date of promotion, there was no charge pending and no criminal case was pending against him.
11. It is also not in dispute that the punishment of stoppage of increment for one year without cumulative effect when the petitioner was working as Sub-Registrar Grade II was passed on 21.6.1995 which was of course, subsequently modified by the Government into one of stoppage of increment for three months without cumulative effect by order dated 30.3.1998 and therefore, the punishment of stoppage of increment for three months without cumulative effect should have come to an end by October, 1995. That apart, the criminal case which was registered against the petitioner on 19.10.2001 was actually pending at the time of date of consideration for the post of District Registrar which was on 3.4.2003 and also on the date of actual promotion of the petitioner’s junior on 30.4.2003. The said criminal case ended in acquittal on 26.12.2007 and therefore, it is the case of the respondents that even though the criminal case ended in acquittal in 2007, on the crucial date and on the date of consideration as well as on the date of actual promotion, charge sheet was filed in the criminal case and the same was pending and therefore, as per the clarifications issued by the Government under the consolidated instructions dated 7.10.2005, the petitioner was not considered for inclusion in the panel for District Registrar for the year 1999-2000. It is the submission of the learned counsel for the respondents that the acquittal in criminal case itself is not a ground for the petitioner to claim as a matter of right that his name should be included in the panel for District Registrar for the year 1999-2000, and according to him, there is no bar for initiating departmental proceedings, simply because a Government servant has been acquitted in a criminal case.
12. In C.O.Arumugam v. State of T.N. (1991 Supp (2) SCC 199), while holding that the right to promotion flows from the fundamental rights under Articles 14 and 16(1) of the Constitution of India, it was further held that pending criminal case promotion can be deferred and after acquittal, if found suitable, such Government servant should be given promotion with retrospective effect from the date on which his junior has been promoted. The relevant portion of the judgment is as follows:
” 5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted.”
13. In the present case, it is the further contention of the respondents that the original departmental proceedings which were initiated against the petitioner on 28.4.2004, which admittedly related to the charge covered in the criminal case was cancelled after the acquittal of petitioner in the criminal case and a revised charge memo was issued on 17.11.2008, which relates to the allegation of bribe in respect of which the petitioner moved this Court and this Court granted an order of interim stay. Therefore, the contention is that the second charge memo is pending as on November, 2008 and therefore, the petitioner cannot be considered for the panel for District Registrar for the year 1999-2000.
14. As correctly submitted by Mr.K.Venkatramani, learned senior counsel for the petitioner, a similar issue was considered by the Supreme Court in Delhi Jal Board v. Mahinder Singh [(2000)7 SCC 210], wherein the Supreme Court held that when the first enquiry of disciplinary proceedings ended in favour of the Government servant, and by the time when the sealed cover was opened to give effect to it, another departmental enquiry started by the department would not come in the way of giving benefit to the Government servant to consider for promotion in the anterior selection. The Supreme Court in that case has held as follows:
” 5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.”
15. In Coal India Ltd. v. Saroj Kumar Mishra (AIR 2007 SC 1706), while upholding that the right of promotion flows from Article 16 of the Constitution of India, the Supreme Court has held that withholding of such promotion shall be only on the basis of valid rules. The relevant portion of the judgment is as follows:
” 11. Both First Appellant as also Mahanadi Coal fields 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 filed must necessarily be construed in the light of the constitutional scheme of equality.”
16. While it is admitted in the present case that criminal case registered against the petitioner on 19.10.2001, resulted in acquittal on 26.12.2007, there was no bar for the petitioner being considered for inclusion in the panel for District Registrar for the year 1999-2000, for which the date of consideration was 3.4.2003, based on which the petitioner’s junior was promoted on 30.4.2003, and the pendency of second charge memo dated 17.11.2008 cancelling the first charge memo dated 28.4.2004 cannot be a bar for conferring the above said benefit to the petitioner. It is not the case of the respondents that even after acquittal in criminal case, the petitioner was not suitable for the post of District Registrar to be included in the panel for the year 1999-2000. It is also relevant to point out that on 14.10.2008, of course, based on the directions given by the Court, the second respondent promoted the petitioner as Sub-Registrar Grade I by including his name in the panel for the year 1996-97 and granted all benefits from the said date. Having done so, the second respondent cannot take a different stand in respect of inclusion of petitioner’s name in the panel for District Registrar for the year 1999-2000.
17. It is relevant to point out that on the crucial date viz., 1.4.1999 for inclusion in the panel for District Registrar for the year 1999-2000 or on the date of consideration viz., 3.4.2003 or the date of actual promotion to the petitioner’s junior viz., 30.4.2003, there was no charge memo pending, except, of course, the criminal case which subsequently ended in acquittal on 26.12.2007. In such circumstances, merely because a second charge memo was issued on 17.11.2008 by cancelling the earlier charge memo dated 28.4.2004, it does not mean that the petitioner will be losing his right of being considered for inclusion in the panel for the year 1999-2000 for District Registrar, if he is otherwise suitable. That was also the view taken by the Division Bench of this Court consisting of R.Jayasimha Babu,J. and F.M.Ibrahim Kalifulla,J., in the unreported judgment in W.P.No.21007 of 2001 (The State of Tamil Nadu rep. By its Secretary to Government and another v. C.Nagappan and another) by judgment dated 28.2.2002 and the relevant portion of the judgment is as follows:
” The legal position remaining thus, the learned Government Pleader appearing for the writ petitioners would contend that though the panel related to the year 1995, the drawal of the same was made only on 31.12.1996, that on 2.12.1996 yet another charge sheet came to be issued to the first respondent herein and in the circumstances, since as on the actual date of drawal of the list, i.e., on 31.12.1996 there was a charge memo pending as against the first respondent, by virtue of the amended Rule to Rule 17(b), the name of the first respondent was not rightly included in the promotion panel for Forest Rangers. We are unable to accept the said contention raised on behalf of the petitioners. In fact though this contention was very much available with the petitioners, the same was not raised before the Tribunal. In any event, when admittedly, the panel related to the year 1995 and when even according to the petitioners themselves, the consideration of the various Foresters, who were appointed up to 31.12.1994 with reference to whom alone, service particulars were called for by the proceedings dated 3.8.1995 for the purpose of the drawal of panel for promotion during the year 1995, the present stand of the petitioners that irrespective of the said factual position, the subsequent charge memo issued on 2.12.1996 should also be taken into account, and thereby delete the name of the 1st respondent from the drawal of the panel of the year 1995 is not only not justified but cannot be said to be an action, which is in consonance with law. As held by the Honourable Supreme Court that when once the disciplinary proceedings in the earlier enquiry ended in favour of the delinquent, the said subsequent action cannot come in the way of giving him the benefit of the assessment by the earlier Departmental Promotion Committee in his favour in the anterior selection.”
18. Merely considering a person for promotion does not mean that the employer loses his right to continue with the disciplinary proceedings, as held by another Division Bench of this Court consisting of P.K.Misra,J (as he then was) and K.K.Sasidharan,J. in the unreported judgment in W.A.No.115 of 2008 (E.Pitchaimari v. The Special Commissioner and Transport Commissioner, Chennai) dated 10.4.2008 and the relevant paragraph is as follows:
” 8. The learned counsel for the appellant has rightly contended that even though mere inclusion of name in the panel for promotion would not confer any right to be promoted on a particular date, atleast, on the date on which the juniors were promoted, i.e., on 28.6.2007, a right accrued to the appellant to be promoted. On the said date, atleast, it cannot be said that any charge memo was pending. Therefore, the appellant should have been promoted with effect from that date. As observed by the Supreme Court in AIR 2007 SC 1706 (cited supra), merely because a person is promoted, the employer is not in a helpless situation. Therefore, it will be always open to the concerned employer to continue with the disciplinary proceedings and pass orders in accordance with law and obviously, the promotion by virtue of the order of the Court will not stand in the way.”
19. Therefore, in such circumstances, the mere pendency of second charge memo dated 17.11.2008 cannot be a bar for inclusion of the petitioner in the panel for District Registrar for the year 1999-2000 considering the fact that in respect of the panel for District Registrar for the year 1999-2000, either on the crucial date viz. 1.4.199 or on the date of consideration viz., 3.4.2003 or on the date of actual promotion viz., 30.4.2003 in which his junior was promoted as District Registrar, there was no formulated charge memo pending against the petitioner except the criminal case which ultimately ended in acquittal, and the petitioner was not kept under suspension. In such circumstances, the reliance placed by the respondents on the instructions of the Government letter dated 7.10.2005, to deny the promotion on the basis of pendency of criminal case which later ended in acquittal is not sustainable and therefore, the writ petitioner is entitled to the reliefs claimed in this writ petition.
20. The writ petition stands allowed with direction to the respondents to include the name of petitioner in the panel for District Registrar for the year 1999-2000 and confer the benefit of promotion as District Registrar to the petitioner on the date of promotion of his junior as per G.O.Ms.No.35, Commercial Taxes (H1) Department dated 3.4.2003, viz., 30.4.2003, if there are no other legal impediments and also grant all benefits thereon and such order shall be passed within a period of 16 weeks from the date of receipt of a copy of this order. No costs. Connected miscellaneous petition is closed.
kh
To
1.The Secretary to Government
Commercial Taxes & Registration
Department, Fort St.George
Chennai 600 009.
2.The Inspector General of Registration
Chennai 600 028