IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 06/02/2006
Coram
The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR
Writ Petition No.26075 of 2005
K. Duraikkannu ... Petitioner
-Vs-
State of Tamil Nadu,
rep.by its Secretary to Government,
Public Works Department,
Fort St.George,
Chennai - 9. ... Respondent
This writ petition came to be numbered by way of transfer of
O.A.No.4972 of 1999 from the file of the Tamil Nadu Administrative Tribunal
with a prayer to call for the records pertaining to the order passed by the
respondent in G.O.Ms.No.286, Public Works Dept, dated 21.5.19 99 and set aside
the same in so far as the petitioner is concerned and direct the respondent to
promote the petitioner as Assistant Executive Engineer by including his name
in the panel of 1998-1999 and confer all consequential benefits from the date
on which his junior was promoted.
!For Petitioner : Mr.C.Selvaraj, Senior Counsel
for Mr.S.Mani
^For Respondent : Mr.Sanjay Ramaswamy
Government Advocate
:O R D E R
In this writ petition, petitioner seeks to quash the G.O.Ms.No.286
Public Works Department dated 21.5.1999 and to direct the respondent to
promote him as Assistant Executive Engineer by including his name in the Panel
of 1998-1999 and for consequential benefits.
2. The facts of the case as set out in the affidavit are as
follows.
(i) Petitioner joined the Public Works Department as Assistant
Engineer on 19.12.1977. The next avenue of promotion to him is to the post of
Assistant Executive Engineer. According to the petitioner, the turn for
inclusion of his name in the panel for promotion came in the years 1995-1996,
1996-1997 and 1997-1998. But however, his name was not included in the panel
on the ground that a charge under Rule 1 7(b) of the Tamil Nadu Civil Services
(Discipline & Appeal) Rules was pending against him.
(ii) It is stated in the affidavit that the charge was framed on
17.10.1988 for certain irregularities alleged to have been committed by the
petitioner in the year 1982 and after conducting enquiry, final order of
punishment was passed by the respondent in G.O.(3D)No.39, Public Works (E2)
Department, dated 24.5.1997. The punishment imposed on the petitioner for the
proven charges are, (i) stoppage of increment for one year without cumulative
effect, and (ii) recovery of a sum of Rs.21,505.10 from his salary in 22
monthly installments, the first installment being Rs.505.10 and the balance 21
installments at the rate of Rs.1,000/- per month. According to the
petitioner, the recovery started from the month of May, 1997.
(iii) The grievance of the petitioner in this writ petition is that
in spite of final orders having been passed by the respondent as early as on
24.5.1997 and the period of punishment of withholding increment for one year
also having come to an end as early as on 30.6.1998 and further when the
crucial date for preparation of panel for the year 1998-1999 fell only on
1.7.1998, petitioner’s name was not included in the panel. Hence the
petitioner challenges the impugned G.O.Ms. No.286 Public Works Department,
dated 21.5.1999 with the above mentioned prayer.
3. No counter affidavit was filed by the respondent in this case.
4. The learned Senior Counsel appearing for the petitioner
submitted that the reason for non-inclusion of petitioner’s name in the panel
for the year 1998-99 appears to be the pendency of O.A.No.6194 of 1998 before
the Tribunal. Learned Senior Counsel contended that after expiry of the
period of punishment as early as on 30.6.1998, petitioner’s name ought to have
been included in the panel. The learned senior counsel attacked para 4 of the
impugned Government Order, which reads as under,
“4. The Government also accept the recommendations of the
Departmental Promotion Committee and direct that the following Assistant
Engineers are found ‘NOT FIT’ for appointment by recruitment by transfer to
the post of Assistant Executive Engineer (Civil) for the year 1998-1 999.
S.No. Name of the Officer
Assistant Engineer
Thiruvalargal
1. K.Duraikannu
2. N.S.Padmanabhan
3. M.Ramasamy
4. P.Balasubramanian
5. A.Selvaraju
6. B.Venkatachalam
7. S.Meenakshisundaram
8. G.Gopal
9. G.Selvakumar"
Learned counsel submitted that the reason stated by the Departmental Promotion
Committee for not recommending the name of the petitioner for inclusion in the
panel is that the petitioner was not fit for recruitment by transfer to the
post of Assistant Executive Engineer ( Civil) and that the currency of
punishment was not cited as a reason. The learned Senior Counsel also placed
reliance on the judgment of a Division Bench of this Court in W.P.No.11511 of
2002 dated 1.10.2004 ( K.Selvarajan v. The Secretary to Government,
Department of Health & Family Welfare, Government of Tamil Nadu) and prayed
for issuing a direction similar to the one issued in the said writ petition.
5. Per contra, Mr.Sanjay Ramaswamy, learned Government Advocate
argued that when the panel was prepared, the punishment imposed on the
petitioner as per G.O.(3D)No.39, dated 24.5.1999 was in operation, in which
not only stoppage of increment without cumulative effect for a period of one
year was imposed, but an order to recover a sum of Rs.2 1,505.10 in 22 monthly
installments from the salary of the petitioner was also passed and hence the
Departmental Promotion Committee was perfectly justified in not including the
petitioner’s name in the panel for 1998-98.
6. I have considered the submissions made by the learned Senior
Counsel appearing for the petitioner as well as the learned Government
Advocate. As contended by the learned Senior Counsel, the stoppage of
increment for one year without cumulative effect was over as early as on
30.6.1998, that is, before the crucial date for preparation of panel for
promotion. However, as rightly contended by the learned Government Advocate,
the punishment of recovery of a sum of Rs.21,505.10 in 22 monthly installments
was in operation on the date when the panal was prepared. Now the point for
consideration is whether the order of recovery made against the petitioner is
to be treated as a punishment.
7. Rule 8(v) of the Tamil Nadu Civil Services (Discipline &
Appeal) Rules reads as under,
“Rule 8 – PENALTIES: The following penalties may, for good and
sufficient reason and as hereinafter provided, be imposed upon every person
who is a member of the civil service of the State and every person holding a
civil post under the State specified in Rule 2, namely:-
(i) .....
(ii) .....
(iii) .....
(iv) .....
(v) Recovery from pay of the whole or part of any pecuniary loss
caused to the State Government or the Central Government or to any Government
Company or Organisation or Local Authority or to a Local Body, while on
deputation, by negligence or breach of orders.”
A perusal of the order of punishment passed against the petitioner discloses
that the recovery of Rs.21,505.10 was ordered to make good the loss caused by
the petitioner to the Government by his action of unauthorised removal of
materials from the stores at Tiruvannamalai on 30.8.1982, without knowledge of
his superiors, for his personal benefits. The learned senior Counsel
appearing for the petitioner argued that as per the amendment issued by the
Government in its letter No.5 2511/S/99-1 Secetariat, Chennai, dated
1.10.1999, if an officer was imposed with any of the punishments within the
check period for irregularities/delinquencies which occurred five years prior
to the crucial date, such punishment need not be held against him. But, the
said amendment was clarified subsequently by the Government in its letter
No.52716/S/99-1 Secretariat, Chennai, dated 1.10.1999, which reads as under,
“The existing Para 4 II(3) shall be substituted as follows:
“Whenever an officer is undergoing any punishment, other than Censure,
on the crucial date or on the date of consideration, then irrespective of the
time of occurrence of the irregularity, his name should be passed over for the
panel. If the currency of punishment continues at the time of subsequent
consideration for the next panel(s), he should still be passed over on the
grounds that an officer should not be considered for promotion or promoted
during the currency of any punishment. After the completion of its currency,
no punishment should be held, once again, against an official even it falls
within the check period of any panel, if it has already been held against the
official on any earlier occasion.
In respect of ‘Censure’ the guidelines issued in paragraph 4 II(2) of
the letter second cited shall be followed.”
Yours faithfully
Sd/-
for Chief Secretary to Government”
From the above amendment it is clear that whenever an officer is undergoing
any punishment other than ‘Censure’ on the crucial date or on the date of
consideration, irrespective of the time of occurrence of the irregularity, his
name shall be passed over and if the currency of the punishment continues at
the time of subsequent consideration for next panels, his name should still be
passed over. Only after completion of the currency of punishment the name of
such officer shall be considered for inclusion in the panel. In short, the
name of an officer can be included in the panel for promotion only when an
order of Censure is passed against him, irrespective of the time of occurrence
of the irregularity, and in all other cases of punishment, his name shall be
passed over till the expiry of punishment period.
8. The Judgment of the Division Bench of this Court in
W.P.No.11511 of 2002 dated 1.10.2004 (K.Selvarajan v. The Secretary to
Government, Department of Health & Family Welfare, Government of Tamil Nadu),
cited by the learned Senior Counsel, has no application to the facts of this
case. In the present case, the punishment awarded against the petitioner is
not only withholding of increment without cumulative effect for one year, but
also recovery of a sum of Rs.21,505.10 in 22 monthly installments from the
salary of the petitioner towards the pecuniary loss caused to the State
Government and the said recovery was in operation during the time when the
Departmental Promotion Committee considered the names of candidates for
preparation of panel for promotion for the year 1998-99. Therefore, there is
no error or illegality in not including the petitioner’s name in the panel for
the year 1998-99.
9. In view of the reasons stated above, I hold that no
interference is called for in the impugned G.O.Ms.No.286, Public Works (A1)
Department, dated 21.5.1999 and consequently the writ petition is dismissed.
No costs.
vr
To
The Secretary to Government, Public Works Department,
Fort St.George, Chennai 9.