The Writ Petition has been filed seeking to quash the proceedings of the second respondent in Pa.Tho.Nu.1/29403/99-2 dated 31.05.2000 and to promote the petitioner as Chief Engineer (City Zone), Tamil Nadu Electricity Board with effect from the date on which one V.Shenbagarajan came to be promoted and for all consequential attendant service benefits.
2. In W.P.No.8853 of 2000, the petitioner challenged the very same proceedings No.1/29403/99-2 dated 31.05.2000 and sought for a direction to promote the petitioner in the post of Chief Engineer,(City Zone) in the Tamil Nadu Electricity Board with effect from the date on which one Shenbagarajan came to be promoted as Chief Engineer (City Zone), TamilNadu Electricity Board and prays for all consequential benefits. In the said writ petition, the Department's stand was that the charges under Section 37-b of the Tamil Nadu Housing Board Service Regulations was pending and therefore, the case of the petitioner was not considered. The said stand was rejected by the learned single Judge in the decision rendered on 09.01.2001 and has observed as follows:
" Following the position of law as laid down by the Supreme Court as well as this Court as stated above, without going into the merits of the case, the order impugned in this writ petition dated 31.05.2000 has to be quashed and the same is hereby quashed and respondents No.1 and 2 are hereby directed to consider the name of the petitioner herein for promotion to the post of Chief Engineer (City Zone), Tamil Nadu Housing Board and pass appropriate orders as per law."
3. The matter was taken up on appeal in W.A.No.297 of 2001 by the Tamil Nadu Housing Board and in W.A.No.331 of 2001 by the said Shenbagarajan. By way of an interim order dated 14.09.2001, the Bench passed the following directions:
" 2.The charges framed against the first respondent/delinquent have been pending for the last two decades. No satisfactory explanation is forthcoming as to why the enquiry has not been completed. We had occasion to pass an order on 05.09.2001 laying down the legal position and directing the appellant to consider his case for promotion favourably, in the light of the decision of the Supreme Court reported in State of Punjab VS Chaman Lal Goyal (1995(2) Supreme Court Cases 570). However, the appellant has now confronted this Court with an order dated 08.09.2001 without reference to the Division Bench Order dated 05.09.2001 and the decision of the Supreme Court referred to therein, that the charges framed are still pending (?) and the punishment is under currency and request for promotion cannot be accepted as per the guidelines referred in para 3 of the said order.
3. From the aforesaid narration, we find that the promotion has been denied to the first respondent only on the ground that the charges are still pending. We are not at all satisfied with the aforesaid state of affairs. We are of the opinion that the first respondent has been denied promotion which is otherwise legitimate due to him.
4. Accordingly, we issue a direction to the second respondent to promote the first respondent to the post of Chief Engineer, Tamil Nadu Electricity Board forthwith. However, we make it clear that the aforesaid promotion will abide by the result of this writ appeal."
4. Consequent to the said order of the Division Bench, the petitioner was promoted as Chief Engineer on 12.12.2001. The grievance of the petitioner is that he should have been given the benefit of promotion on and from the date on which the said Shenbagarajan was given promotion as Chief Engineer i.e. on or from 01.06.2000. When the petitioner has made such a claim through an advocate notice, the same has been rejected by the respondent-TamilNadu Housing Board by its reply dated 22.09.2006 in Letter No.Pt-1/10265/2001 and the same is under challenge in this writ petition. The reason given in the letter by the Housing Board is as under:
"As per Government rules in force which is followed by Tamil Nadu Housing Board, pendency of charges under 37(b) and punishment in currency is a bar for promotion, however, based on the direction of First Bench of the Hon'ble High Court the Government in G.O.Ms.No.491, dated 11.12.2001 have ordered that the promotion is subject to the final order on the W.A.297/2001. The W.A has been dismissed as infructuous stating that he has already been promoted as Chief Engineer with effect from 01.06.2000 needs no consideration. If he desires he can make an appeal to the Government."
The reason given in the reply letter by the Housing Board that the promotion to the post of Chief Engineer has been given as per the order in W.A and the promotion was not given during the relevant time in view of the charges under Section 37(b) is pending, cannot be sustained for the following reason.
The learned single judge while disposing of the Writ Petition on 09.01.2001, was of the clear view that the pendency of the charges under Section 37(b) cannot be a reason to deny the promotion and the Government was directed to grant the benefit to the petitioner.
5. The promotion was granted to the petitioner as per the direction of the First Bench and the petitioner is however, entitled to the relief as directed by the learned single Judge. The consequences of such direction is clarified by the judgment of the Apex Court in 602 SC 1334 (para 11 ad 23). In this case, in terms of the order of the learned single Judge, the petitioner is entitled to promotion and consequential benefits. The pendency of the charges under Section 37(b), at the relevant time cannot be a ground to deny the entitlement due to the petitioner as on the date of consideration. The petitioner will be entitled to promotion on par with his junior and the relevant date of promotion is the date on which his junior was promoted (i.e) on 01.06.2000. The petitioner, who is senior to the said Shenbagarajan will be entitled to the same benefit and there cannot be an artificial date, namely 12.12.2001. The interpretation given by the Housing Board in its letter dated 22.09.2006 is legally not sustainable and is contrary to the decision of the learned single Judge. The petitioner is entitled to promotion with effect from 01.06.2000 and to all consequential benefits thereto.
6. In the result, the Writ Petition is allowed and the impugned letter is quashed. The respondent is directed to give promotion to the petitioner with effect from 01.06.2000 and to give all consequential benefits thereto and the said exercise shall be completed within a period of 12 weeks from the date of receipt of a copy of this order. No order as to costs.