ORDER
A.K. Rajan, J.
1. The petitioner filed the above writ petition prayig to issue a writ of Certiorarified Mandamus to call for the records relating to the second respondent issued in Memo No. ACE/TNI/ADM.II/A2/F.Panel C1/D. No. 110/200 dated 10.2.2000 and quash the same in so far as para (6) of the impugned order alone and further direct the respondents to promote the petitioner as Commercial Inspector with retrospective effect from the date on which the petitioner’s immediate junior N.Ashok was promoted and to give all service and other monetary benefits.
2. In the affidavit filed in support of the writ petition, the petitioner has submitted that he is working as Commercial Assistant and is entitled to be promoted as Commercial Inspector. While so, on 23.05.1999 some charges were framed against him and enquiry was conducted and by an order dated 21.10.1999, the charges framed against him were dropped. A panel for promotion to the post of Commercial Inspector was prepared by the second respondent and on the same day that is, on 09.11.1999, his immediate juniors were promoted; that thereafter on 12.11.1999, the petitioner gave a representation to the respondents that he was wrongly denied the promotion and since no reply was received from the respondents, he filed writ petition in W.P.18627 of 1999 for issuance of a writ of Mandamus for a direction to the respondent to place the petitioner in the panel dated 09.11.1999 of the second respondent, in the appropriate place over and above his immediate juniors and to give all service and other monetary benefits; that this Court passed an order on 29.11.1999 directing the second respondent to consider the petitioner’s representation dated 12.11.199 and pass orders accordingly. Thereafter on 10.02.2000, the second respondent informed the petitioner that the promotion order will be issued to him immediately as and when vacancy arises since at present there is no vacancy in this circle; and hence, the present writ petition.
3. The respondents filed counter affidavit stating that the writ petition itself is not maintainable since alternative remedy of preferring an appeal available has not been availed of by the petitioner; that at the time of preparing panel for promotion, the department found the petitioner not fit for promotion to the post of Commercial Inspector since disciplinary proceedings have been initiated against him and in the mean time, the said disciplinary proceedings was dropped by the Executive Engineer, Chinnamanur on 20.10.1999 and the said fact was not brought to the notice of the second respondent. Further, the petitioner has not preferred any appeal before the next appellate authority and hence, the writ petition is liable to be dismissed.
4. Heard learned counsel for the parties.
5. Learned counsel for the petitioner has submitted that when the charges framed against the petitioner has been dropped on 21.10.1999 and the panel was prepared only on 09.11.1999, the petitioner should have been considered and promoted on the same day. Instead, the petitioner’s immediate juniors were promoted on the same day which is arbitrary and illegal. Further, the petitioner’s counsel contended that the original seniority of the petitioner has to be restored. Learned counsel has cited the decision of this Court in K.S. Venkataraman v. The State of Tamilnadu (1977 MLJR, 317) wherein this Court has held as follows:–
When once the police officer was absolved of all charges, the reason which prompted the Government not to consider him for promotion was obliterated, so that the right to have his case reopened and his name considered for promotion with effect from the date when a person junior to him was promoted would revive. Further, he was entitled to such consideration with the application of the same criteria which were brought to bear on the promotion of his juniors. If there was more than one such occasion this case has to be considered in relation to them all and on the same basis. Refusal of these rights to him is a denial of equality of opportunity in the matter of employment and is hit by Article 16 of the Constitution. This right could not be denied to him even though he might since have retired, having attained the age of superannuation”.
The learned counsel for the petitioner has submitted that the petitioner is entitled to restore his original seniority.
6. On the contra, learned counsel for the respondent has submitted that when a person has been not considered for promotion due to pendency of serious charges and during the pendency of charges, his immediate juniors were promoted and even this person was promoted after all charges have been exonerated, still he is not entitled for promotion as per Memo of the Board which reads as follows:
” If an employee overlooked for promotion to a higher post on the ground that serious charges were pending against, is subsequently promoted after he is fully exonerated of the charges the original seniority in the higher post is not restored. Tamil Nadu Electricity Board Engineers’ Association and the Tamil Nadu Electricity Board Workers’ Federation have requested that in such cases the original seniority should be restored. This request has been examined in consultation with the Government of Tamil Nadu. The Government has stated that there are no orders for giving the original seniority in the cases of the kind referred to above. Thus, there is no question of giving automatically original seniority in such cases. Hence, it is not feasible to accept the suggestion of the Tamil Nadu Electricity Board Engineers’ Association and Tamil Nadu Electricity Board Workers’ Federation”.
7. Learned counsel for the respondent, referred to the judgment of this Court in W.P. No. 2510 of 1993 (C.N. Krishnamoorthy v. Tamil Nadu Electricity Board rep. by its Chairman and three others) order dated 14.12.2001. The Court held as follows:
“It is clear that as per the said instruction which was prevailed at that time, if an employee overlooked for promotion to the higher post on the ground that serious charges were pending against him and he is subsequently promoted after he is fully exonerated from the charges, the original seniority in the higher post cannot be restored. The particulars furnished in the counter affidavit show that the petitioner was promoted as Assistant Executive Engineer/ Mechanical in the next panel during the year 1986. On being promoted as Assistant Executive Engineer/Mechanical, the petitioner joined in the post on 03.09.1986.
Thus the Court rejected the prayer of the petitioner to restore the original seniority and no appeal has been filed at all. Therefore, learned counsel appearing for the respondents submitted that the petitioner is not entitled for the restoration of his original seniority.
8. Considering the arguments of the learned counsel for petitioner and the respondents, I am inclined to accept the arguments of the learned counsel for the petitioner that when charges originally framed were dropped on the date when the promotion panel was prepared, his name should have been included in the panel. The case relied upon by the learned counsel for the respondents is not a case where charges were dropped on the date of promotion and that case is not applicable to the facts of the present case inasmuch as on the date of preparation of panel for promotion namely on 09.11.1999, there was no charges pending against the petitioner. Therefore, he should have been promoted on the same day along with his immediate juniors on 09.11.1999 itself. But he was not promoted. Challenging the same he has approached this Court and after the order of this Court he was promoted. But at the same time his seniority had been denied. Further, the memo submitted herein has no statutory force. It is only when the rules are prescribed for alteration of seniority, suchalteration can be made. In the absence of any statutory Rule, the seniority cannot be altered. The said memo cannot override the Rules. Further, on the facts of the case, the petitioner was not promoted even though there is no charge pending against him on the date when his immediate juniors were promoted. The decision of this Corut in K.S. Venkataraman v. State of Tamil Nadu (1977 MLJ 317) squarely applies to the facts of the present case. Therefore, the petitioner is entitled to get his original seniority restored as on 09.11.1999.
9. It need not be emphasized that once the person joins Government Service, the only legitimate expectation of such Government Servant is to get promotion as and when chances arise. This legitimate expectation cannot be deprived of by any person. By following the rule, where promotions shall not be given when enquiry is pending against a person and even after the enquiry results in favour of the Government servant, if his original seniority is not restored, and the promotion that was denied for him because of the pendency of the disciplinary proceedings is not set right it will definitely work hardship and untold misery to the Government servants. It is not impossible or uncommon in the services to frame charges on the basis of some anonymus letters at the time of promotion. Therefore, many officers had to face depatmental enquiry in view of such proceedings. Before they are cleared off the charges, they are penalised from promoting to the higher post under circumstances when they are cleared of the charges and admit themselves if the seniority is not restored, such procedure is not followed. It is possible if the higher officers do not like some persons for some reasons, disciplinary enquiries may be initiated and chances of promotions may be curtailed and later on after acquittal of the charges, they will be placed juniors to number of persons juniors to them in services. That is not the healthy procedure and that such procedure is not legally sustainable. Therefore, the memo that is relied upon by the respondents issued by the authorities without any legal basis as it is not supported by rules hat memo cannot be relied upon and on that basis the seniority of the persons cannot be altered. The seniority of the Government servant can be altered only as a punishment after properly initiating the departmental enquiry and in accordance with the rules. But for this there is no other object the seniority of a person can be affected or altered. If such procedure is adopted it is but use of the mildest of the words possible is unreasonable and unfair to the Government servant.
In the result, the writ petition is allowed as prayed for. The impugned order is set aside and the seniority of the petitioner shall be restored to his original place.