The prayer in the writ petition is for a certiorarified Mandamus calling for the records of the respondent passed in G.O.(2D) No.466 Revenue (Ser-1) Department dated 14.12.2011 and quash the same and consequently directing the respondent to include the name of the petitioner in the approved list of the Deputy Collector for the year 2008-2009 and promote him notionally as Deputy Collector on par with his juniors with all service benefits and send revised pension proposals within a time specified by this Court.
2. The short facts leading to the filing of this case is that the petitioner, while was working as Deputy Tahsildar, a disciplinary proceeding was initiated against him on 01.11.1995 by the District Collector, Ramanathapuram for the alleged violation of going to Foreign Country without getting no objection certificate from the Department/Government. Therefore, a punishment was imposed on the petitioner for stoppage of increment for a period of three years with cumulative effect and the said punishment was ordered on 31.03.1998.
3. Because of the pendency of the said disciplinary proceeding, the petitioner's name was not included in the list of promotion for Tahsildars of the years 1997, 1998, 1999 and 2000. Thereafter, due to non availability of the vacancies, his name was also not included in the panel for the year 2001, 2002 and 2003. Only for the year 2004, the petitioner's name was included in the approved list of Tahsildars and accordingly, he was given promotion on 08.01.2004 as Tahsildar. Challenging the said punishment awarded against the petitioner, the petitioner had approached this Court, by filing a writ petition in W.P.No.5442/2007, wherein, the said punishment was quashed by this Court by its order dated 27.11.2007 and liberty was given to the disciplinary authority ie., the District Collector, Ramanathapuram to proceed with the charges framed against the petitioner, after affording an opportunity to the petitioner. Pursuant to the said order, the proceeding, again, was conducted and concluded and this time, the punishment already given to the petitioner has been modified as a minor punishment of stoppage of increment for a period of three months without cumulative effect. The said punishment was awarded on 03.10.2008. At that time, the preparation of panel for inclusion of the name of the Tahsildars for the promotion to Deputy Collector for the year 2008-09 was over, as the crucial date was 31.12.2007. Thereafter, the petitioner attained superannuation and retired from service on 31.07.2009. Since the petitioner superannuated and retired from service on 31.07.2009 and the subsequent disciplinary proceedings conducted pursuant to the orders of this Court was pending and final order of imposing minor punishment was inflicted on the petitioner only on 03.10.2008, the petitioner's name was not included in the panel for the year 2008-2009, as the crucial date admittedly was 31.12.2007. Therefore, the petitioner challenging the impugned Government order, whereby rejecting the request of the petitioner to include his name in the list of Deputy Collector for the year 2008-09, has come out with this writ petition.
4. The learned counsel for the petitioner would submit that no doubt, originally, a punishment of stoppage of increment for three years with cumulative effect was inflicted on the petitioner by the order of the District Collector dated 31.03.1998. Because of that punishment, the petitioner's name was not included, even in the panel for promotion to the post of Tahsildar consecutively for several years from 1997 till 2000. Even after that, for want of vacancies, his name was not included for the years 2001, 2002 and 2003. Therefore, after seven years, he had been included in the panel for the promotion to the post of Tahsildar only in the year 2004 and accordingly, he was promoted as Tahsildar. Even thereafter, when his turn comes for inclusion of his name in the panel fit for promotion as Deputy Collector, atleast for the year 2008-09, the respondent has not included the name of the petitioner, by citing the reason that the subsequent conducting of disciplinary proceedings pursuant to the orders of this Court in the writ petition filed by the petitioner was pending on the said crucial date ie. on 31.12.2007 and because of that reason, even for the year 2008-2009, the petitioner's name was not included. Assuming that the proceedings were pending and the same had been ended only by way of minor punishment ie. stoppage of increment for three months without cumulative effect and even before modification of the said punishment, earlier punishment had been since set aside by the orders of this Court dated 27.11.2007, there can be no plausible reason on the part of the respondent to deny the opportunity to the petitioner to include his name in the panel fit for promotion for the post of Deputy Collector for the year 2008-2009. Therefore, the said benefit, though had been requested by the petitioner, since has been rejected by the impugned order, the same has to be interfered with by this Court.
5. Per contra, the learned Additional Government Pleader would submit that initially a major punishment was awarded against the petitioner ie. stoppage of increment for three years with cumulative effect. Therefore, his name was not included in the panel for Tahsildar. Subsequently, at the instance of the petitioner in the writ petition filed by him, orders were passed by this Court on 27.11.2007, whereby the disciplinary authority was directed to proceed further, after affording an opportunity to the petitioner and accordingly, the District Collector concerned had initiated proceedings against the petitioner. While so, the panel for the year 2008-2009 for Deputy Collector were under preparation, taking into account 31.12.2007 as a crucial date. Admittedly, on the said crucial date, the proceedings initiated against the petitioner was pending and it was concluded only on 03.10.2008. Therefore, there had no occasion for the respondent to consider the name of the petitioner for the year 2008-2009, as admittedly the crucial date was 31.12.2007 and on the said date, proceedings against the petitioner was pending. Thereafter, the petitioner since retired on 31.07.2009 on attaining superannuation as Tahsildar, he had no occasion to be considered for the further promotion as Deputy Collector and therefore, the respondent stating the said reasons has rightly rejected the claim of the petitioner, through the impugned order, for including his name in the panel of Deputy Collector promotion for the year 2008 and 2009. Therefore, the impugned order is fully justifiable and it does not warrant any interference.
6. This Court has considered the rival submissions made by the learned respective counsel.
7. The aforesaid facts are not in controversy. Though the first punishment awarded against the petitioner has been set aside by this Court, further liberty was given to the disciplinary authority to proceed against the petitioner, of course, after giving proper opportunity of being heard to the petitioner. Therefore, it was necessitated for the disciplinary authority to conduct the disciplinary proceedings once again, such proceeding was admittedly pending on the crucial date ie., on 31.12.2007. By subsequent order dated 03.10.2008, only the modified minor punishment was awarded against the petitioner ie., stoppage of increment for three months without cumulative effect and the said punishment being the minor one would not stand in the way for considering the name of the petitioner for inclusion in the panel for the post of Deputy Collector for the year 2008-2009. Since the crucial date was already over and the panel was already prepared, there is every justification on the part of the respondent to deny the inclusion of the name of the petitioner for the year 2008-2009. However, after the said minor punishment dated 03.10.2008, the petitioner worked at the department as Tahsildar till 31.07.2009 as only on that date, he retired on superannuation. Therefore, certainly, there would have been a panel for the year 2009-2010 with the crucial date on 31.12.2008 and on that date, certainly the minor punishment dated 03.10.2008 was already inflicted on the petitioner and moreover the same would not stand in the way for further consideration of the petitioner for his promotion as Deputy Collector as the next panel for the next year 2009-2010 would have been drawn by taking into account the date as 31.12.2008, this Court feels that there can be a further direction for the respondent to consider the name of the petitioner for promotion as Deputy Collector for next year, taking into account the crucial date as 31.12.2008.
8. In that view of the matter, this Court is of the considered view that the petitioner shall be entitled to be considered for promotion as Deputy Collector taking into account the crucial date as 31.12.2008 as on that date, there was no proceeding pending against him and there was no currency of punishment undergoing by the petitioner and once the name of the petitioner is considered for inclusion of the panel for the promotion for the year 2009-2010 with the crucial date 31.12.2008, certainly he would have been promoted as Deputy Collector. Since the petitioner has already attained superannuation on 31.12.2008, he shall be entitled to be considered for such promotion notionally and all consequential service benefits.
9. Resultantly, the writ petition is allowed with the following direction:
(1) the impugned order is quashed.
(2) the petitioner shall be considered for promotion for the post of Deputy Collector, after the year 2008-2009 taking into account the crucial date as 31.12.2008 and accordingly, he shall be given promotion notionally along with his immediate juniors promoted from that year and once such exercise is completed, it is needless to mention that the petitioner shall be entitled to claim other service benefits including continuity of service, increment and notional benefits. However, the petitioner shall not be entitled to claim any salary by way of backwages for the said period. Since the petitioner by the time, ie., in the year 2008 -2009 reached the age of 57, upper age limit for consideration to the post of Deputy collector shall be relaxed by the Government, as a special case. The needful above directed shall be done by the respondent within a period of three months from the date of receipt of a copy of this order. No costs.
To The Principal Secretary to Government, Revenue Department, Chief Secretariat, Chennai ? 600 009 .