P.JYOTHIMANI,J.
The respondents in the writ petition, viz., Tamil Nadu Water Supply and Drainage Board, have filed the present appeal against the order of the learned Single Judge dated 28.6.2007 made in W.P.No.884 of 2002, by which the learned Single Judge, by arriving at a conclusion that there was extraordinary unexplained delay in issuing charges and taking note of the fact that all charges are not proved, has set aside the impugned order of punishment imposed on the respondent, who was the original writ petitioner, and allowed the writ petition as prayed for.
2. It is vehemently contended by Mr.Patty B.Jeganathan, learned counsel appearing for the appellants/Board that by setting aside the order of punishment, which was impugned in the writ petition, the learned Single Judge ought not to have allowed the writ petition in toto, since the prayer in the writ petition, apart from challenging the order of punishment imposed against the respondent also relates to providing him with promotion as Executive Engineer, as per the seniority, with attendant benefits, without reference to the punishment imposed under the impugned order. His main contention is that the post of Executive Engineer is not by automatic promotion, based on seniority, but the same is a selection post by promotion from the post of Assistant Executive Engineer, on merit and ability basis and therefore, allowing the writ petition in toto will amount to opening of floodgate and creating an impediment on the authority from promoting Assistant Executive Engineer's as that of Executive Engineer, based on merit and ability.
3.1. The short facts, which led to the filing of the writ petition, are that the respondent/writ petitioner was appointed as Junior Engineer in the appellant/Board on 3.4.1975 and subsequently, he was promoted as an Assistant Executive Engineer. A charge memo came to be issued against the respondent by the second appellant dated 12.02.1998, by framing three charges, viz., "Charge No.1: that he has failed to follow the rules and procedure in carrying out the repair works for the electrical motor and thereby caused a loss of Rs.1,02,820/- to the Sulthanpet Panchayat Union.
Charge No.2: that in carrying out the repair works, he has colluded with the Contractor, check measures the entries made by the Assistant Engineer in M Book and prepared the bill for the works not actually carried out.
Charge No.3: that he has acted against the instructions issued in the Regulation 3 of the TWAD Board Officers' and Servants' Conduct Regulations, 1972 and thus become unfit for government service."
3.2. The respondent has submitted his explanation and the Enquiry Officer, who was appointed, found that charge No.(1) alone stood proved and other two charges have not been proved. However, the Disciplinary Authority, having differed from the view taken by the Enquiry Officer, issued a second show cause notice so far as Charge No.(3) is concerned, on the basis that Charge No.(3) is consequential to charge No.(1) and as charge No.(1) was held proved, charge No.(3) ought to have been held proved. It is seen that to the second show cause notice the respondent has submitted his explanation. Thereafter, the Disciplinary Authority, by order dated 16.12.2001, having concluded that both the charges, viz., Charge Nos.(1) and (3), have been proved, has imposed a punishment of stoppage of increment for three years with cumulative effect.
3.3. Against the said order, the respondent has preferred an appeal before the Board, which was also dismissed by the Board by proceedings in B.P.Ms.No.209, (TWAD Estt. DP Wing) dated 13.11.2001, and it is against the said order, the respondent has filed the writ petition.
3.4. The learned Single Judge, taking note of the following facts:
(i) that the charges framed against the respondent on 12.2.1998 relate to an occurrence stated to have taken place in the year 1991 and therefore, there is an unexplained delay of seven years;
(ii) that the respondent was not responsible for effecting repair works at all and even as per the proceedings of the second appellant dated 22.4.1989, the responsibility of the respondent is restricted to technical functioning, and it was only the Panchayat President, who is responsible for assessment of repair, passing of bills, effecting of the payment, maintenance of records, etc.; and
(iii) that the appellants have not let in any valid evidence or documents to controvert the said concrete stand taken by the respondent, held that charge No.(1) cannot be stated to have been proved.
3.5. In respect of Charge No.(3), the learned Single Judge, taking note of the fact that even though the respondent had specifically denied the said charge stating that he had followed Regulation (3) scrupulously, the second appellant had failed to discuss the implications of Regulation (3) and the corresponding lapses committed by the respondent, held that charge No.(3) cannot be stated to have been proved against the respondent.
3.6. In such view of the matter, especially taking note of the fact that there is an extraordinary unexplained delay on the part of the appellants in framing charges against the respondent; that the charges are not proved; and that various factors have not been considered by the Disciplinary Authority as well as the Appellate Authority, the learned Single Judge quashed the charges and consequently, allowed the writ petition, which includes granting of the prayer to promote the respondent as Executive Engineer, as per his seniority with attendant benefits, without reference to the punishment imposed upon him.
4.1. Mr.Patty B.Jeganathan, learned counsel appearing for the appellants/Board has contended that the finding of the learned Single Judge that there has been an unexplained delay is not correct in the sense that the delay was also on the part of the respondent. His further contention is that the learned Single Judge has applied the principles of evidence, which are not applicable to a case of domestic enquiry, wherein it has to satisfy only with regard to the following of principles of natural justice.
4.2. His contention is that when it is not even the complaint of the respondent that he was not given proper opportunity to defend his case, it is not open to the Court to go beyond that, in appreciation of the evidence, since it is only the decision making process that can be the reason for the Court to interfere under
Article 226 of the Constitution of India and not the decision by itself. His contention is that the process of judicial review is restricted up to verification whether Wednesbury's principles have been followed or not and not as to the validity of the order of the authority.
4.3. He would also submit that the consequential order of the learned single Judge in allowing the writ petition in toto, by directing the appellants to promote the respondent as Executive Engineer can never be accepted and such direction cannot be given, even if the punishment granted to the respondent stands set aside.
5.1. On the other hand, Mr.K.Doraisamy, learned senior counsel appearing for the respondent would submit that, pending the writ petition, there was an interim order passed by this Court on 8.3.2002 in WPMP.No.10724 of 2002 in W.P.No.7819 of 2002, by which there was a direction to consider the claim of the respondent to promote him, subject to any other disqualification. It was thereafter, by order dated 8.8.2002, the respondent was temporarily promoted as per the TWAD Board Officers' and Servants' Conduct Regulations, 1972 as Executive Engineer, based on the above said direction, to which post the respondent has, in fact, joined. However, the respondent has not been paid the salary of Executive Engineer and he was only drawing the salary of Assistant Executive Engineer, while he was allowed to work as an Executive Engineer.
5.2. The learned senior counsel also brought to the notice of this Court that a further order was passed on 22.8.2003 in WPMP.No.10724 of 2002 in W.P.No.7819 of 2002, closing the said miscellaneous petition, observing that as the respondent's right to promotion has been safeguarded and he was directed to be considered for promotion, subject to qualification, no further orders are required in the said petition.
5.3. According to the learned senior counsel, when the first charge has nothing to do with the function of the respondent, the first charge should go and consequently, there is no question of implicating the respondent under charge No.(3). It is also his submission that charge No.(2), relating to which the respondent has been exonerated fully, which is not in dispute, alone relates to the wilful character of the delinquent officer, since it says that the respondent had in collusion with the contractor prepared bill for work, not actually done by the contractor and when that charge stands exonerated, the only charge which remains is that the respondent has failed to follow the Rules to carry out repair work for electrical motor and in the absence of specific rules, which are enumerated, his submission is that the respondent is not guilty and therefore, the charges have to go, as correctly held by the learned Single Judge.
5.4. The learned senior counsel would submit that when once the veracity of the charges go, even if the post of Executive Engineer is a selection post, the respondent is entitled to be considered for the said promotion, as if there was no charge pending against him at the relevant point of time and therefore, according to him the consequential order of the learned Single Judge need not be interfered with.
6. The learned counsel for the appellant/Board, Mr.Patty B.Jeganathan as well as Mr.K.Doraisamy, learned senior counsel appearing for the respondent have produced original files relating to the enquiry.
7. As far as the charges, which were framed against the respondent, which are enumerated above, it is not in dispute that the second charge, which relates to the allegation of collusion of the respondent with the contractor in checking measures, the entries made by the Assistant Engineer in M Book and preparation of bills for the works not actually carried out by the contractor, it was the specific case of the respondent that the respondent, being an Assistant Executive Engineer of the Board, is not entrusted with the appointment of contractors. It was his specific case that calling for tender, maintaining records in that regard, making payment to the contractors are all the functions of the Panchayat Commissioner and the Assistant Executive Engineer has no role to play at all and his function is only during the performance of the contract to check up the technical function, if the work involved is more than Rs.1000/-, and he has to make an endorsement and according to him, he has done the said work. In fact, the respondent has specifically raised the issue that after seven years charges have been levelled against him and he has also stated that the said contractor, who was blacklisted by the Collector was directed to be given work by the same Collector, which itself shows that the Collector has approved the payments. It was also the respondent's reply that the Collector, in his proceedings dated 4.7.1989, has constituted a Committee to supervise the functioning of the electrical motors and the said Committee has never found fault with the respondent.
8. On an analysis of the entire issue, the Enquiry Officer, in his report, has clearly stated that it was the Panchayat President, who has called for the tender and it was only after verifying the work of the contractor with technical report, the Panchayat itself has released the amount of contract to the contractor and therefore, the Enquiry Officer has categorically found that the respondent has absolutely no role to play in respect of the second charge.
9. As far as the remaining two charges are concerned, charge No.(1) relates to the non following of Rules in respect of the repair of the electrical motors, which has resulted in loss to the extent of Rs.1,02,820/- to the Panchayat. The respondent has clearly stated in his explanation that he has been following the rules and was not responsible for any loss caused to the Panchayat and in respect of Charge No.(3), he has stated that he has not acted against Regulation 3.
10. The enquiry report makes it clear that in respect of the repair to the electrical motors and making payment of Rs.1,02,820/-, the same was done by the then Panchayat Commissioner and the employees of the Panchayat, apart from the Assistant Engineer and the respondent, being the Assistant Executive Engineer, has only made an endorsement of verification and in handling the said amount and the respondent had no other role.
11. The Enquiry Officer, who has dealt with alleged eighteen irregularities, while dealing with each and everyone of the irregularities, found that except in respect of the following irregularities:
(i)irregularity No.(4), which relates to the falling of hand pipes in the well, which are to be rectified;
(ii)irregularity No.(5), which relates to non functioning of motor due to certain fault in the panel board;
(iii)irregularity No.(6), which relates to the particulars given by the fitter in respect of fixing of the hand pipe;
(iv)irregularity No.(8), which relates to the payment of amount for certain work done;
(v)irregularity No.(10), which relates to carrying out of repairs in the motor pumps;
(vi)irregularity No.(11) relating to the fact of repair of 3 HP submersible motor at Vellappanayakampalayam, in respect of which the respondent, being Assistant Executive Engineer, is stated to have made an endorsement that the work was done;
(vii)irregularity No.(12), which also relates to an endorsement stated to have been made by the respondent in respect of certain payment;
(viii)irregularity No.(14), which relates to the repair in the panel board;
(ix)irregularity No.(15), which relates to the alleged purchase of PVC Coupling, which need not have been purchased;
(x)irregularity No.(17), which relates to the effecting of repair of motors relating to the well;
(xi)irregularity No.(18), relating to the fixing of additional pipe in the Odakkalpalayam Tank at Vadapancherry Panchayat, in all other irregularities the respondent is not involved. The Enquiry Officer has, in fact, found that in respect of the above said irregularities there was a loss to the panchayat to an extent of Rs.51,282/-.
12. A perusal of the file produced by the learned counsel for the appellant/Board and also the original enquiry report placed by both the counsel makes it clear that with regard to the first charge, the respondent being an Assistant Executive Engineer has given his explanation in respect of the various irregularities alleged, especially eighteen irregularities and in his explanation, he has made it clear that it was only after the Assistant Engineer, who is the authority, apart from the Panchayat Commissioner and other Officers of the Panchayat, who have, in fact, effected the various works, he, having supervisory control, had endorsed the various orders of the Assistant Engineer.
13. A reference to the entire file makes it very clear that the appellants have not shown any Rules or procedure in carrying out the repair work and the question of not following the Rules and procedure would come only when such rules are produced before the delinquent officer. This is relevant because it has been the reply of the delinquent officer that he has followed the rules as per the convention and being an Assistant Executive Engineer, having supervisory control, the act of the Panchayat Commissioner as well as the Assistant Engineer, who are actually involved in carrying out of the contract work by the Contractors, was only counter signed by him. This is relevant because in respect of the the second charge, which imputes the motive on the respondent, as if he has colluded with the contractor and the Assistant Engineer in making entries in M Book and preparing the bill for the works not actually stated to have been carried out by the contractor, which is serious in nature, the respondent has been totally exonerated as per the Enquiry Officer's report and the same was also accepted by the Disciplinary Authority and the Appellate Authority. In such circumstances, it was certainly incumbent on the part of the appellant/Board to explicitly explain the rules and procedure, which contemplate the duty on the part of the Assistant Executive Engineer to satisfy himself as to the actual execution of the work before making endorsement. In the absence of such Rules, which ought to have been placed by the Appellant/Board, it is not possible to accept the finding of the Disciplinary Authority as well as the Appellate Authority in respect of Charge No.(1). That was squarely the reason given by the learned Single Judge, apart from holding that valid evidence has not been produced to show that the respondent was involved in any one of the irregularities in Charge No.(1).
14. That apart, admittedly, in respect of the work, which was carried out in the year 1991, the charges came to be framed against the respondent in the year 1998, after the lapse of seven years and the Disciplinary Authority has taken another four years for the purpose of deciding, which was on 16.2.2001. Certainly, the delay and the protracted proceedings by the appellants have caused great prejudice to the delinquent Officer.
15. In departmental proceedings, the delay in initiating the same has a tendency of not only causing mental agony to the delinquent, but also it would put the delinquent in a delicate position, since after passage of many years it would not be possible for him to give proper explanation to the various charges. Merely giving an opportunity in those cases to give explanation is not sufficient, because the principles of natural justice are certainly not to be taken as empty formality.
16. The concept of audi alteram partem, which is a celebrated concept of natural justice, by which nobody can be imposed with a punishment without being given sufficient opportunity, has a meaning that the sufficient opportunity must be considered in its proper perspective and not by mechanically giving time to submit explanation. By passage of time, the delinquent is in a disadvantageous position of not giving proper explanation, since it requires minute details and certainly, mere giving of time is not going to render proper justice in giving him an opportunity.
17. The respondent herein, in the writ petition, has clearly taken a ground that by long delay in framing charges and conducting enquiry it has resulted in miscarriage of justice. In the counter affidavit filed by the appellants in the writ petition, the only ground raised is that the matter was pending before the Government, which has remitted the case to the Board only on 23.12.1997, after detailed enquiry from Director of Vigilance and Anti Corruption and it was only thereafter, action was taken. The relevant portion reads as follows:
"Even though, the irregularity occurred during 1990-91, the Government remitted the case to Board only on 23.12.1997 after the detailed enquiry conducted by Director of Vigilance and Anti Corruption. Action was initiated after the receipt of the Government Order and hence, there was no delay in the initiation of the departmental action against the petitioner."
18. Therefore, the appellants being a Governmental authority is only finding fault with the Government for the pendency. It is not the case of the appellants that the respondent was prosecuted for the alleged charges. In such view of the matter, the question to be decided is as to whether such a delay of nearly seven years in framing charges against the respondent would be prejudicial or detrimental to the interest of the delinquent officer.
19. In State of Madhya Pradesh v. Bani Singh, AIR 1990 SC 1308, while considering the delay of twelve years in initiating disciplinary proceedings against the delinquent officer without offering any proper explanation, taking note of a similar defence by the Government that the investigation was going on, the Supreme Court has held that permitting such delay will be unfair, in the following terms:
"4. The appeal against the order dated 16.12.1987 has been filed on the ground that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. We are unable to agree with tis contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the year 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only on 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal."
(emphasis supplied)
20. Following the said judgment, in a later judgment rendered in P.V.Mahadevan v. The Managing Director, Tamil Nadu Housing Board, 2005 (4) CTC 403, wherein in respect of an act alleged to have been committed in 1990, charge memo was issued in 2000, for which the explanation given by the Housing Board was that lapses came to limelight in the audit report of 1994-1995, and taking note of the fact that the employee concerned reached superannuation, the Supreme Court has held that such a protracted disciplinary proceeding, which would cause more mental agony and suffering to an employee, was more than the punishment. In fact, the Supreme Court, in no uncertain terms, has held that such protracted disciplinary proceedings should be avoided not only in the interest of the Government employee, but also in the public interest, for inspiring confidence in the minds of the Government employees. The portion of the judgment is as follows:
"13. Section 118 specifically provides for submission of the abstracts of the accounts at the end of every year and Section 119 relates to annual audit of accounts. These two statutory provisions have not been complied with at all. In the instant case the transaction took place in the year 1990. The expenditure ought to have been considered in the accounts of the succeeding year. In the instant case the audit report was ultimately released in the 1994-1995. The explanation offered for the delay in finalising the audit report cannot stand scrutiny in view of the above two provisions of the Tamil Nadu Act 17. It is now stated that the appellant has retired from service. There is also no acceptable explanation on the side of the respondent explaining the inordinate delay in initiating departmental disciplinary proceedings. Mr.R.Venkataramani, learned Senior Counsel is appearing for the respondent. His submission that the period from the date of commission of the irregularities by the appellant to the date on which it came to the knowledge of the Housing Board cannot be reckoned for the purpose of ascertaining whether there was any delay on the part of the Board in initiating disciplinary proceedings against the appellant has no merits and force. The stand now taken by the respondent in this Court in the counter affidavit is not convincing and is only an afterthought to give some explanation for the delay.
14. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government official under charges of corruption and dispute integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
(emphasis supplied)
21. The above said issue was considered by one of us (P.Jyothimani,J.) in the judgment rendered in R.Tirupathy v. The District Collector, Madurai District, 2006 (2) CTC 574, wherein also in respect of the purchase of uniforms during the years 1994-95 and 1995-96, charge memo came to be framed in the year 2005 against the Panchayat Officials. The stand of the authority in that case was that the Vigilance and Anti-Corruption Department enquiry was pending and that was the reason for the delay. By relying upon the above said judgments of the Supreme Court, laying down the law on the subject relating to the laches in initiating disciplinary proceedings, this Court held that unexplained delay and the explanation adduced for such long delay cannot be a ground for the purpose of proceeding with disciplinary proceedings against a delinquent officer.
22. In such view of the matter and taking into consideration the consistent judicial precedents on this issue, we have no hesitation to conclude that the appellants have not given any proper reason for such a long delay, especially in the absence of production of the relevant Rules and procedure. Therefore, there is no reason to interfere with the order of the learned Single Judge in this regard.
23. As far as the consequential order of directing the appellants to promote the respondent as Executive Engineer as per the seniority, it is no doubt true that the post of Executive Engineer is a selection post and not merely based on seniority such post can be conferred, since the same requires the consideration of merit and ability by the appointing authority. It is also true that it was only by virtue of the interim order directing the appellants to consider the claim of the respondent for promotion, ultimately, the appellants promoted the respondent as Executive Engineer on a temporary basis and without prejudice to the claim of the person who will be regularly appointed after consideration of their merit and seniority and that the said temporary promotion will not confer any right for future promotion as Executive Engineer. But, it is not the case of the appellants that by such promotion given to the respondent as Executive Engineer any other third party's right has been affected.
24. It is unfortunate that the appellants, even though have promoted the respondent as Executive Engineer as per the order of this Court, have not fixed the salary of Executive Engineer. The learned senior counsel for the respondent submits that from the said date of promotion as Executive Engineer, viz., from 8.8.2002, the respondent has been paid the salary of the Assistant Executive Engineer, but made to work as Executive Engineer as per the promotion and this would only reflect the sorry state of affairs existing in the Board. It is not the case of the appellants that the respondent was not otherwise qualified for promotion to the post of Executive Engineer. The only reason, which has been adduced so far, for not considering the case of the respondent for promotion as Executive Engineer, is the pendency of the charges.
25. The Supreme Court has held that mere pendency of charge itself is not a ground for denying a person the promotion to the next post. While considering the above delay in disciplinary proceedings, it was held in State of Punjab v. Chaman Lal Goyal, [1995] 2 SCC 570 that the Court is entitled to pass appropriate orders, which are just and equitable, in the circumstances of the case, in the following terms:
"11. The principles to be borne in mind in this behalf have been set out by a Constitution Bench of this Court in A.R.Antulay v. R.S.Nayak, [1992] 1 SCC 225. Though the said case pertained to criminal prosecution, the principles enunciated therein are broadly applicable to a plea of delay in taking the disciplinary proceedings as well. In paragraph 86 of the judgment, this Court mentioned the propositions emerging from the several decisions considered therein and observed that "ultimately the court has to balance and weigh the several relevant factors balancing test or balancing process and determine in each case whether the right to speedy trial has been denied in a given case". It has also been held that, ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of the accused has been infringed, the charges, or the conviction, as the case may be, will be quashed. At the same time, it has been observed that that is not the only course open to the court and that in a given case, the nature of the offence and other circumstances may be such that quashing of the proceedings may not be in the interest of justice. In such a case, it has been observed, it is open to the Court to make such other appropriate order as it finds just and equitable in the circumstance of the case."
(emphasis supplied)
26. One another factor, which is relevant in the facts and circumstances of the present case is that the respondent, in the affidavit filed in support of the writ petition, has extracted the remarks of the higher officials, namely the Reporting Officers, about his performance. The relevant portion of the affidavit is as follows:
Period Reporting Officer Column Remarks 07.07.1995 to 30.5.1996 Collector of Salem Conduct and Character Very Good Fitness of promotion Fit General narrative with reference to the nature of work turned out special responsibilities This officer has done a commendable job in the drinking water supply management in Salem Dist which at 35 Blocks the largest in the State. He was an asset to the District Admn.
Overall rating Outstanding Specific recommendations of the Reporting Officer An outstanding officer and an asset. A fit and proper candidate for promotion to the next level.
31.5.1996 to 23.6.1997 Collector of Salem Conduct and Character Good Fitness of promotion Fit Overall rating Very Good Specific recommendations of the Reporting Officer A very sincere and hard working officer who deserves promotion to higher level in all respects.
01.04.2000 to 31.3.2001 Executive Engineer, Siruvani Maintenance Division Capacity to prepare plans and accurate estimates Excellent Attitude towards the public Very Good Conduct and Character Very Good Fitness of promotion Fit for promotion on his turn General narrative with reference to the nature of work turned out special responsibilities His performance in office works and as well as in field works is very very satisfactory Overall rating Very good Specific recommendations of the Reporting Officer This officer's name has to be considered for his promotion since he is fit
27. It is, therefore, clear that the performance of the respondent as an Engineer is not found fault with by anybody, including the District Collector, at any point of time. In fact, on many occasions, the District Collector has made remarks that the respondent's performance in office work as well as in field work are "very very satisfactory" and "outstanding".
28. In such view of the matter, the submission made by Mr.Patty B.Jeganathan, learned counsel appearing for the appellants that such opinion of the higher officials can be obtained at any point of time, has absolutely no meaning. If the opinion of the higher officials of the delinquent officer is not binding, it is not known as to what should be the criteria for deciding about the merit and ability of the Officer, for the purpose of conferring promotion on him. If the contention of the learned counsel for the appellants is accepted, it would only result in chaos in the service jurisprudence. There is absolutely no reason to disbelieve the said portion of the affidavit filed by the respondent in the writ petition, especially when it is not denied by the appellant/Board in the counter affidavit filed in the writ petition.
29. In such circumstances, there is no difficulty to conclude that the respondent is entitled to promotion as Executive Engineer, however such order can be passed promoting him as Executive Engineer only by the appellants, being the Appointing Authority and not by this Court. This Court, while leaving it to the wisdom of the appellants/ Appointing Authority, makes it clear that there is no acceptable reason adduced by the appellants so far for the purpose of denying such promotional benefit to the respondent. It is also expected that the respondent, who has already attained the age of super-annuation may not be entitled for a fresh promotion as Executive Engineer, but the order passed by the second appellant dated 8.8.2002 has to be necessarily continued till the date of retirement, except of course, if there are any other legal impediments like that of any subsequent developments, which are not brought to the notice of this Court by either sides. If, really, the respondent has not been paid the salary of Executive Engineer from 8.8.2002, it is made clear that the appellants shall confer such benefit to the respondent by passing appropriate orders, expeditiously, in any event within a period of eight weeks from the date of receipt of a copy of this order. Except clarifying the same, it is not possible to interfere with the order of the learned Single Judge. The writ appeal fails and the same is dismissed. No costs.
sasi To:
1. The Managing Director Tamilnadu Water Supply and Drainage Board, Chepauk, Chennai-600 005.
2. The Managing Director and Competent Authority Tamilnadu Water Supply and Drainage Board, Chepauk Chennai 600 005