Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents.
2. This writ petition has been filed praying for a writ of mandamus to direct the second respondent to award selection grade and special grade for the 20 years of continuous service rendered by the petitioner and to promote him to the post of Assistant Divisional Engineer, on par with his immediate junior, G.Dhakshinamoorthy, who is at Sl.No.63 in the adhoc list of Assistant Engineers/Junior Engineers, communicated by the proceedings, dated 24.4.2003 and at Sl.No.47, in Annexure III of the G.O.Ms.No.76 (Highways) Department, dated 11.4.2003, with monetary and service benefits, without considering the charge memo, in Rc.B3/3620/91 (TDP.No.29/91).
3. The learned counsel appearing on behalf of the petitioner had stated that the petitioner had joined the service as a Junior Engineer in the Highways Department, through the Tamil Nadu Public Service Commission, on 27.1.1977. After obtaining a Diploma in Civil Engineering he had also acquired a B.E. Degree in Civil Engineering. In accordance with the rules in force, the petitioner and 17 others were re-designated as Assistant Engineers, with effect from 27.11.1983. The probation of the petitioner had been declared by the proceedings of the Superintending Engineer, Highways and Rural Works, Tirunelveli, dated 22.4.1994. The petitioner's service had been regularised, with effect from the date of his appointment. The petitioner had also passed the departmental accounts test for officers, on 11.5.1982.
4. It has also been stated that the petitioner had been posted in the various panchayat unions, as a Junior Engineer, from 4.6.1984 to 4.6.1987. Thereafter, he had been transferred as an Assistant Engineer of the Tamilnadu Bhoodhan movement, Madurai, at Trichy and to other unions. At the time of the filing of the writ petition the petitioner was working as an Assistant Engineer, National Rural Employment Programme, Sub-Division, Office of the Executive Engineer, District Rural Development Agency Campus, Tirunelveli. The petitioner is entitled to be awarded selection grade on completion of 10 years, with effect from 27.11.1993 and Special Grade, with effect from 27.11.2003, for promotion in terms of the policy decision of the Government issued with regard to the granting of such promotions, if the petitioner had not reached the zone of consideration.
5. It has also been stated that the petitioner had reached the zone of consideration for the promotional post of Assistant Divisional Engineer during the year 2002-2003. In the adhoc list of Assistant Engineers/Junior Engineers, communicated by the proceedings of the Chief Engineer, Highways, dated 24.4.2003, the petitioner was ranked at Serial No.62. The immediate junior at Sl.No.63 was G.Dhakshinamoorthy. From the said list 37 Assistant Engineers have been separated in the order of seniority and shown as persons fit for promotion as Assistant Divisional Engineer in the Annexure I of G.O.No.76 (Highways) Department, dated 11.4.2003. In the same combined list, 13 juniors have been shown as persons fit for appointment as Divisional Engineers. The placement of 13 persons in the roster of reservation has been shown in Annexure II of the said Government Order. By fixing the ratio at 3:1, a combined panel of Assistant Engineers and Junior Engineers for 50 persons have been shown in Annexure III of the Government Order. In the process of selection, G.Dhakshinamoorthy, who is the immediate junior of the petitioner, is ranked at No.47. Whereas, the petitioner has been left out.
6. It has been further stated that after effecting the promotion by way of the said Government Order the petitioner had been informed by the impugned letter, dated 7.5.2003, that his name had been considered for inclusion in the adhoc list of Assistant Engineers/Junior Engineers fit for promotion/appointment to the post of Assistant Divisional Engineer, for the year 2002. However, the inclusion of the petitioner's name in the said adhoc list had been deferred stating that the charges framed by the Tribunal for disciplinary proceedings in its Letter No.B3/3620/91, dated 9.8.91, were pending. The petitioner has stated that the said reason given for the non-inclusion of the petitioner is arbitrary and devoid of merits.
7. It has been further stated that an enquiry had been ordered with regard to certain alleged malpractices and irregularities and the wrongful loss of Rs.73,327.70, said to have been caused in the purchase of mud pots, manure and in the transportation of seedlings and in its stock. The petitioner had no responsibility or connection in the said transactions. However, charges had been framed against some persons, including the petitioner and an enquiry had been conducted. The said enquiry had been pending from the year 1991 upto year 2000, due to unjustifiable and unexplained delay on the part of the disciplinary authority concerned. The petitioner had submitted his defence statement, dated 4.7.2000. The authority who had conducted the enquiry had submitted the enquiry report, dated 24.8.2000, to the first respondent. A copy of the enquiry report had been given to the petitioner, belatedly, by a communication, dated 7.2.2001, with a direction to the petitioner to submit his further representation. Based on the said direction, the petitioner had submitted his representation, dated 21.3.2001. In spite of his further representations, dated 29.10.2001 and 24.12.2001, no orders had been passed, till date.
8. It has been further stated that one of the charged officials, namely, M.Kanaka Nadar, Rural Welfare Officer, Grade-II, had filed O.A.No.3463 of 1991, challenging the disciplinary proceedings on the ground of delay. By an order, dated 27.11.1996, the Tamil Nadu Administrative Tribunal had directed the completion of the enquiry, within a period of four months from the receipt of the said order. However, the enquiry had not been completed within the specified time. The report of the enquiry had been submitted only on or after 24.8.2000. In the said circumstances, M.Kanaka Nadar, had filed O.A.No.2154 of 2002. By an order, dated 1.7.2002, the Tamil Nadu Administrative Tribunal had allowed the said application and annulled the disciplinary proceedings. A direction had also been given by the Tribunal to promote the applicant on par with his junior. The said direction had been implemented and the order of the Tribunal had become final. Since the case of the petitioner is similar in nature, the petitioner had filed O.A.No.2973 of 2003, seeking similar reliefs. During the pendency of the original application, the Tamilnadu Administrative Tribunal had become defunct and therefore, the petitioner had been constrained to file the present writ petition before this Court, under
Article 226 of the Constitution of India.
9. The main grounds raised by the petitioner in the present writ petition are that the disciplinary proceedings pending against the petitioner in TDP.No.29/1991, is liable to be annulled in the light of the reasoning contained in the order, dated 1.7.2002, made in O.A.No.2154 of 2002, due to the inordinate, unexplained delay in completion of the disciplinary proceedings initiated against the petitioner. The denial of promotions from the year 1986, due to the pendency of the disciplinary proceedings for the occurrence that is alleged to have been happened during the year 1984-1985, is mala fide, arbitrary and liable to be set aside. It is contrary to the decision of the Supreme Court holding that the pendency of the disciplinary proceedings cannot be a ground for not considering the incumbent, who is in the zone of consideration for promotion, especially, when he is otherwise considered fit for promotion.
10. At this stage of the hearing of the writ petition, it submitted by the learned counsel appearing for the petitioner that the petitioner had retired from service, on 31.12.2005, on his attaining the age of superannuation, on completion of 58 years of service. Based on the report of the enquiry proceedings the petitioner had been imposed with the minor punishment, of recovery of Rs.200/- from him. From the year 2003, when the petitioner had become eligible for promotion, there are no adverse remarks against him. Therefore, the respondents are bound to consider the request of the petitioner for notional promotion, in accordance with G.O.Ms.76 (Highways) Department, dated 11.4.2003, by including his name in the relevant panel containing the names of the eligible candidates.
11. The learned Additional Government Pleader appearing on behalf of the respondents has no objection for this Court passing an order directing the respondents to consider the request of the petitioner, on merits and in accordance with law.
12. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents, the first respondent is directed to consider the request of the petitioner for notional promotion, as prayed for by him, in accordance with G.O.Ms.No.76, (Highways) Department, dated 11.4.2003 and pass appropriate orders thereon for granting him the notional promotion and the monetary benefits that would have accrued to him, if he was found to be eligible for the same, within a period of twelve weeks from the date of receipt of a copy of this order.
The writ petition is disposed of with the above directions. No costs.
csh To
1.The Secretary to Government, Rural Development Department, Fort St. George, Chennai-600 009.
2.The Secretary to Government, Highways Department, Fort St. George, Chennai-600 009.
3.The Chief Engineer, Highways Department, Chepauk, Chennai 5