IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.09.2009 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.9294 of 2007 R.T.Murugesan ... Petitioner Vs. 1.The Secretary to Government Agriculture Department Chennai 9. 2.The Director of Agriculture Chepauk, Chennai 5. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.939 of 2002 from the file of Tamil Nadu Administrative Tribunal with a prayer to direct the first respondent to include the name of the applicant in the panel for promotion as Deputy Director of Agriculture for the year 1998-1999 in G.O.Ms.No.284 dated 12.07.1999 and promote him as Deputy Director of Agriculture without reference to the punishment of stoppage of increment for 3 months issued by the first respondent G.O.D.No.55 Agriculture Department dated 19.05.1999 and grant consequential benefits. For Petitioner : Mr.G.Elanchezian For Respondents : Mrs.C.K.Vishnupriya Additional Government Pleader O R D E R
The Original Application in O.A.No.939 of 2002 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner was a Assistant Director of Agriculture, Udumalaipettai, Coimbatore District. He was issued a charge memo dated 04.08.1995 by the second respondent under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as the “Rules”) alleging that he made excess subsidy amount of Rs.3,104/- to the agriculturists, while he was working as Agriculture Development Officer at Sathiyamangalam, Erode District. In the enquiry, it was found that he paid an excess subsidy amount of Rs.686/- to one agriculturist. Based on such a finding, he was imposed with a punishment of stoppage of increment for three months without cumulative effect, by the first respondent, by an order dated 19.05.1999.
3.The grievance of the petitioner is that in view of the pendency of the aforesaid disciplinary proceedings under Rule 17(b) of the Rules, his name was not included in the panel of Assistant Directors of Agriculture fit for promotion to the post of Deputy Directors of Agriculture for the year 1998-1999 issued by the first respondent in G.O.Ms.No.284, Agriculture (AA1) Department, dated 12.07.1999, while his juniors were included in the panel.
4.Aggrieved by the same, the petitioner filed Original Application in O.A.No.939 of 002 (W.P.No.9294 of 2007) praying for a direction to the first respondent to include his name in the aforesaid panel of Assistant Directors of Agriculture fit for promotion to the post of Deputy Directors of Agriculture for the year 1998-1999 and to promote him as Deputy Director of Agriculture, without reference to the punishment of stoppage of increment for three months without cumulative effect, issued by the first respondent in G.O.(3D).No.55, Agriculture (AA II) Department, dated 19.05.1999 and with all consequential benefits.
5.Heard Mr.G.Elanchezian, learned counsel for the petitioner and Mrs.C.K.Vishnupriya, learned Additional Government Pleader for the respondents.
6.The learned counsel for the petitioner states that the crucial date for inclusion of the name of the petitioner in the panel of Assistant Directors of Agriculture fit for promotion to the post of Deputy Directors of Agriculture for the year 1998-1999 was 01.04.1998. Admittedly, the disciplinary proceedings under Rule 17(b) of the Rules was pending as on 01.04.1998. Hence, as on 01.04.1998, the first respondent was justified in not including the name of the petitioner in the panel. However, when ultimately the minor punishment of stoppage of increment of three months without cumulative effect was imposed by an order dated 19.05.1999, the name of the petitioner should have been included in the panel, when the first respondent approved the same on 12.07.1999. It is submitted that the pendency of disciplinary proceedings under Rule 17(a) of the Rules is not a bar for inclusion in the panel for promotion.
7.The learned Additional Government Pleader for the respondents resists the claim of the petitioner relying on the reply affidavit filed by the respondents. The learned Additional Government Pleader submits that since the disciplinary proceeding was pending under Rule 17(b) as on 01.04.1998, the petitioner is not entitled to be included in the panel for promotion to the post of Deputy Directors of Agriculture.
8.The learned counsel for the petitioner has relied on the judgments made in W.P.No.19144 of 2004 dated 07.12.2004, W.P.No.3558 of 2004 dated 05.09.2006 and W.A.No.339 of 2008 dated 01.04.2008, by three Division Benches of this Court in support of his submission that ultimately, when the punishment turned out to be a minor punishment under Rule 17(a), though the initiation was under Rule 17(b), the petitioner should be included in the panel for promotion.
9.The learned counsel for the petitioner further submits that the very nature of the charge made against the petitioner also does not attract Rule 17(b). It is submitted that there was no allegation that he got enriched by paying some excess subsidy amount to the agriculturists. It is further submitted that no allegation of corruption or misappropriation was made against the petitioner. The learned counsel for the petitioner further submits that guidelines were issued for deciding whether the charges could be framed under Rule 17(a) or 17(b) and the same was an issue in the decision of the Division Bench dated 07.12.2004 in W.P.No.19144 of 2004.
10.The learned counsel for the petitioner has brought to my notice paras 6 and 7 of the aforesaid judgment in W.P.No.19144 of 2004 and those paras are extracted here-under:
“6. A perusal of the order of the Tribunal shows that the Tribunal is of the considered opinion that the allegations do not warrant the initiation of the proceedings under Rule 17(b) of the Rules which contemplates imposition of major penalties. The Tribunal was fully convinced keeping in mind the nature of the allegations that the charge should have been framed under Rule 17(a) as the charges were not serious in nature. In this connection, it may be pointed out, that even though the Tribunal has not referred to the guidelines issued by the Government for deciding whether the charges could be framed under Rule 17(a) or under 17(b), it is quite obvious that the Tribunal had kept in mind those guidelines. The guidelines are to the following effect.
GUIDELINES FOR DECIDING WHETHER CHARGES MAY BE FRAMED UNDER RULE 17(b)
(1) Cases in which there is reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of law, e.g.,
(a) possession of assets disproportionate to the known sources of income;
(b) obtaining or attempting to obtain illegal gratification;
(c) misappropriation of Government property, money or shares;
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate etc.,
(2) Falsification of Government records.
(3) Irregularity or negligence in the discharge of official duties with a dishonest motive.
7.It is not disputed that the charges framed against the petitioner do not come under (1) and (2) of the aforesaid Guidelines. Learned counsel for the petitioner has submitted that the charges framed against the petitioner come under paragraph 3 of the guidelines. We are unable to accept this submission. Even if the action of the respondent No.1 may amount to irregularity or negligence in the discharge of his official duties, there is no whisper in the charge memo or to the effect that it was with any dishonest motive. Moreover, it is not the contention of the counsel for the petitioner that there was any dishonesty on the part of respondent No.1 in the discharge of his official duties”.
11.Applying the said principles, the learned counsel for the petitioner submits that the charge that was framed against him under Rule 17(b) should be treated as the charge under Rule 17(a).
12.I have considered the submissions made on either side. I am of the considered view that the submissions of the learned counsel for the petitioner are well founded. The charge against the petitioner was that he made excess subsidy amount of Rs.686/- to an agriculturist. No corrupt motive was alleged against him in making such a payment. It was not the allegation that the petitioner got enriched by making this excess payment to an agriculturist. It was not a case of misappropriation of Government property / money. It is also not a case of demanding and accepting illegal gratification.
13.Furthermore, the petitioner paid the excess amount paid to the agriculturist, to the State and the same was also not disputed by the respondents. In these circumstances, the learned counsel for the petitioner is perfectly correct that the charge should have been framed only under Rule 17(a) and not under Rule 17(b). In that event, there was no bar under the guidelines for including the persons in the panel for promotion.
14.In view of the aforesaid three judgments of the Division Bench of this Court, the petitioner is entitled to be included in the panel of Assistant Directors of Agriculture fit for promotion to the post of Deputy Directors of Agriculture for the year 1998-1999, issued by the first respondent in G.O.Ms.No.284, Agriculture (AA1) Department, dated 12.07.1999 and to be promoted as Deputy Director of Agriculture, on the date on which, his immediate junior was promoted, with all consequential benefits.
15.Accordingly, a direction is issued to the first respondent to include the name of the petitioner in the panel of Assistant Directors of Agriculture fit for promotion to the post of Deputy Directors of Agriculture for the year 1998-1999 in G.O.Ms.No.284, Agriculture (AA1) Department, dated 12.07.1999, at an appropriate place, and to issue an order promoting him as Deputy Director of Agriculture, on the date on which, his immediate junior was promoted, with all consequential benefits, within a period of eight weeks from the date of receipt of a copy of this order.
16.With the above direction, the writ petition is disposed of. No costs.
TK
To
1.The Secretary to Government
Agriculture Department
Chennai 9.
2.The Director of Agriculture
Chepauk,
Chennai 5
