The petitioner being aggrieved by the order passed by the respondent vide R.No.8141/R1/2011 (E.O.No.302/2011) dated 20.09.2011 denying the right of consideration to the petitioner for promotion to Motor Vehicle Inspector (NT), has approached this Court with the prayer for issuance of a writ in the nature of Certiorari, to quash the order being illegal, with consequential relief of issuance of a writ in the nature of mandamus, directing the respondent to consider the petitioner for promotion to Motor Vehicle Inspector (NT), for the panel year 2011-2012.
2 The petitioner joined the services as Junior Assistant on 20.11.1987 and was promoted as Assistant in the year 1998. The petitioner passed all departmental tests, thus was fully qualified to be promoted as Superintendent as on 15.03.2007.
3 The petitioner was imposed minor punishment of postponement of increment for a period of three months without cumulative effect on 29.07.2002.
4 It is submitted by the petitioner that on the date of consideration of his case for promotion as Superintendent, there was no currency of punishment and therefore, he was entitled for promotion in the year 2007-2008.
5 The submission of the petitioner is that on 18.6.2007, the Transport Commissioner, Chennai published a panel of Assistants fit for promotion as Superintendents for the year 2007-2008, wherein Tmt.S.Padma, the immediate junior to the petitioner was included at Sl.No.23, but the name of the petitioner was not included.
6 The name of the petitioner instead was included in the list of deferred promotions at Sl.No.24. The reason for deferring promotion as mentioned was that the petitioner is having a currency of punishment.
7 The petitioner filed an appeal against this decision to defer the promotion. As no action was taken on the appeal, the petitioner approached this Court by filing W.P.No.29722 of 2007. The writ was disposed of by this Court by directing the respondent to pass orders on the representation/appeal filed by the petitioner, within six weeks.
8 The submission of the petitioner is that in compliance with the order passed by this Court, the Government passed an order dated 11.12.2007 holding that the petitioner was eligible for inclusion in the panel for the year 2007-2008 if otherwise qualified.
9 The Transport Commissioner, Chennai also passed an order dated 20.12.2007 placing the petitioner in the panel for promotion at Sl.No.22(A) i.e. above his immediate junior Tmt. S.Padma.
10 The case of the petitioner is that on 03.01.2008, the respondent deleted the name of the petitioner from the panel for promotion for the year 2007-2008, in view of the fact that the Government has decided to hold common enquiry against certain employees including the petitioner.
11 The petitioner challenged the decision by filing W.P.No.2149 of 2008 with further plea to direct the respondent to promote the petitioner, as Superintendent with effect from 6.8.2007.
12 The writ petition was allowed by this Court by directing the respondent to restore the name of the petitioner in the panel for promotion of Superintendent for the year 2007-2008 within 8 weeks if otherwise qualified.
13 The petitioner thereafter stands promoted as Superintendent on 5.6.2008 vide R.No.22688/R1/2011 dated 28.4.2011 and his seniority was restored as Superintendent on par with Tmt.S.Padma with effect from 06.8.2007 at Sl.No.22A.
14 The submission of the petitioner is that on 20.09.2011 the respondent published a panel of Superintendents fit for promotion as Motor Vehicle Inspector (NT) for the year 2011-2012. In this panel, Tmt.S.Padma, who is immediate junior to the petitioner is shown at Sl.No.40, whereas name of the petitioner was not included in this panel again.
15 Vide impugned order dated 20.09.2011, communication was sent to the petitioner, stating that his name was not considered for promotion, as he has completed three years of service in the cadre of Superintendent.
16 It is also the stated in the counter that on 17.04.2008, a charge memo under Sec.17(b) was issued to the petitioner, and a common enquiry stands ordered against 14 officials including one Thiru Udayakumar, of the transport department.
17 The submission of the petitioner is that Thiru S.Udayakumar, filed W.P.No.5913 of 2009, and this Court on 04.03.2011 quashed the charge memo dated 17.04.2008 on the ground of inordinate delay in initiating departmental proceedings.
18 The case of the petitioner is that though the order passed by this Court in W.P.No.5913 of 2009, the charges against Thiru S.Udayakumar was dropped, but the charge memo issued against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was not dropped, though the petitioner is also similarly placed.
19 The petitioner has challenged the impugned order denying the right of consideration for promotion as Motor Vehicle Inspector (NT) for the year 2011-2012, on the ground that the impugned order on the face of it is arbitrary, as no notice is taken of the order giving promotion of the petitioner as Superintendent, with effect from 06.08.2007. It is submitted that in view of retrospective promotion, the petitioner is deserved to have been in cadre for more than three years.
20 The learned Additional Government Pleader, opposed the writ petition on the ground that according to service rules, a person eligible for promotion to the post of Motor Vehicle Inspector (NT) is required to have experience of 3 years in the cadre of Superintendent. On the crucial date of panel for promotion i.e. 15.03.2011, the petitioner did not have 3 years experience in the cadre of Superintendent, therefore being not eligible was rightly not included in the panel for promotion.
21 It is also the contention of the learned Additional Govt. Pleader that in absence of relaxation from the State Government, the case of the petitioner for promotion cannot be considered in view of the service rules prescribing 3 years experience.
22 On consideration, this Court finds, that the impugned order cannot be sustained in the eye of law. It is well settled law that nobody can take benefit of his/her own wrong. If the respondent wrongly did not promote the petitioner on the due date, the petitioner cannot be allowed to suffer. The department has already realised the mistake and promoted the petitioner with retrospectively and place him above his immediate junior i.e. Tmt.S.Padma.
23 Once Tmt.S.Padma stands promoted, it cannot be said that the petitioner does not have the requisite experience, as the petitioner would be deemed to have been promoted on the due date, as any other interpretation will defeat the object of retrospective promotion and will amount to denying the consequential benefits.
24 The impugned order therefore, on the face of it being arbitrary and outcome of non application of mind, having not taken note the promotion of the petitioner with retrospective effect i.e. from the date of his junior was promoted, is hit by
Article 14 of the Constitution.
25 The impugned order therefore is nothing but colorable exercise of power, thus hit by
Article 14 of the Constitution of India which cannot be sustained in law. The pendency of alleged charge memo also cannot come in way of the petitioner, as common enquiry was ordered, and on a writ filed by one of the employee, charge memo stands quashed.
26 Consequently, the writ petition is allowed. The impugned order is set aside. Writ in the nature of mandamus is issued directing the respondent to consider the case of the petitioner for promotion to the post of Motor Vehicle Inspector (NT) from the date his immediate junior was promoted, in accordance with law by treating the petitioner to be eligible for promotion. Needful be done within three months of receipt of certified copy of this order.
No cost.
vaan To The Transport Commissioner, Chepauk, Chennai 5