← Library
Madras High CourtWP/28243/2011allowed

P.Gunasekaran, v. The Secretary To Government,

2018-02-06Honourable Mr Justice V. Parthiban6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.02.2018

CORAM

THE HONOURABLE Mr.JUSTICE V.PARTHIBAN W.P.No.28243 of 2011 P.Gunasekaran ... Petitioner Vs 1.The Secretary to Government, Secretariat, Fort St.George, Chennai 600 009.

2.The Chief Engineer (General), Chepauk, Chennai 600 005.

... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records in G.O.(D).No.113, PW (A1) D dated 09.04.2009, on the file of the 1st respondent deleting the name of the petitioner from the approved panel for promotion and actual promotion given to the petitioner as Assistant Executive Engineer for the year 2004-2005 by relying the provisions contained in Rule 36(c) of the Tamil Nadu State Subordinate Service Rules and quash the same in so far as it operates against the petitioner and consequentially issue directions to the respondents to issue reposting orders to the petitioner in the category of Assistant Executive Engineer from approved regular panel in G.O.(3D).No.28, Public Works (A1) Department, dated 22.06.2006 for the year 2004-2005.

For Petitioner : Mr.N.S.Nandakumar For Respondents : Mr.D.Venkatachalam, Additional Government Pleader

O R D E R

Heard Mr.N.S.Nandakumar, learned counsel for the petitioner and Mr.D.Venkatachalam, learned Additional Government Pleader appearing for the respondents.

2. The petitioner has approached this Court, seeking the following relief, "To issue a Writ of Certiorarified Mandamus, to call for the records in G.O.(D).No.113, PW (A1) D dated 09.04.2009, on the file of the 1st respondent deleting the name of the petitioner from the approved panel for promotion and actual promotion given to the petitioner as Assistant Executive Engineer for the year 2004-2005 by relying the provisions contained in Rule 36(c) of the Tamil Nadu State Subordinate Service Rules and quash the same in so far as it operates against the petitioner and consequentially issue directions to the respondents to issue reporting orders to the petitioner in the category of Assistant Executive Engineer from approved regular panel in G.O.(3D).No.28, Public Works (A1) Department, dated 22.06.2006 for the year 20042005."

3. The case of the petitioner is as follows:- The petitioner was directly recruited as Assistant Engineer by the Tamil Nadu Public Service Commission in the year 1986 and after being selected as such, he joined duty on 22.07.1987. While working as Assistant Engineer, he sought permission to work abroad for a period of two years. Due permission was also granted to the petitioner to take employment abroad and he was relieved from service on 26.04.2005. The two years period came to end on 25.04.2007.

4. According to the petitioner, his overseas employment was extended and he could not come back to India after two years and ultimately, he returned to India only on 01.09.2009. According to the petitioner, he had to be employed abroad for completion of the project. In the meanwhile, it appears that the petitioner came within the zone of consideration for promotion to the post of Assistant Executive Engineer. He was included in the panel for the year 2004-05, for promotion as Assistant Executive Engineer and was also subsequently granted paper promotion vide G.O.(3D) No.253, Public Works (A1) Department, dated 22.06.2006.

5. However, subsequently, it appears that the second respondent had sent a proposal to the first respondent vide proceedings dated 10.11.2008, to delete the name of the petitioner from the approved panel for promotion to the post of Assistant Executive Engineer for the year 2004-05 and in pursuance of the proposal, the first respondent issued G.O. (D) No.113, Public Works (A1) Department, dated 09.04.2009, deleting the name of the petitioner from the approved panel for promotion as Assistant Executive Engineer. This action was taken by the first respondent, in view of the fact that the petitioner had overstayed in foreign country without proper intimation to

the Government or getting permission from the authority concerned. The Government Order, deleting the name of the petitioner for promotion as Assistant Executive Engineer dated 09.04.2009, is put to challenge in the present writ petition.

6. The petitioner in the meanwhile, was issued with the charge memo dated 12.12.2008, under Rule 17(b) of the Tamil Nadu Civil Service (Discipline and Appeal) Rules for not reporting for duty after two year period. According to the charge memo, the petitioner had overstayed for more than three years and his total period of absence was 5 years 6 months and 13 days. An enquiry was conducted into the charges and a report was submitted by holding the charges proved. Thereafter, a punishment of stoppage of increment for a period of one year without cumulative effect, was imposed on the petitioner vide proceedings dated 12.02.2011. Subsequently, his period of absence was also been regularized vide G.O.(D) No.134, Public Works (F1) Department, dated 15.04.2013. Eventually, the petitioner's promotion as Assistant Executive Engineer for the panel year 2013-14 was approved, vide G.O (2D) No.06, Public Works (A1) Department, dated 05.02.2014 and was promoted as such, vide G.O (2D) No.08, Public Works (A1) Department, 07.02.2014 and he joined in the promoted post on 07.02.2014.

7. The learned counsel for the petitioner would at the outset submit that the deletion of the petitioner's name from the approved panel for the year 2004-05, for promotion to the post of Assistant Executive Engineer and cancellation of his promotion by the first respondent, cannot be countenanced in law and on facts, for the reason that the petitioner's name was included in the panel for the year 2004-05. In 2006, when the promotion was granted vide proceedings dated 22.06.2006, the petitioner was working abroad with due permission from the respondents and therefore, the paper promotion was rightly granted to him and subsequent overstay of the petitioner after 26.04.2007, cannot be held against his promotion which was granted prior to the said date.

8. Upon notice, learned Additional Government Pleader appearing for the respondents, entered appearance and filed a detailed counter affidavit. In the counter affidavit, it is stated that the conditions laid down in G.O (D) No.185, Public Works (F1) Department, dated 20.04.2005, had been violated by the petitioner as he failed to rejoin the duty after expiry of two year period and therefore, the Department had rightly deleted the name of the petitioner from the approved panel for promotion to the post of Assistant Executive Engineer and cancelled his promotion.

9. According to the learned counsel appearing for the respondents, the petitioner was not entitled to promotion as per Rule 36(c) of the general rules for the Tamil Nadu State and Subordinate Services Rules, which reads as follows:- "A member of service who had been on leave for a period of three years continuously for any reason except higher studies or for a period of four years continuously for higher studies, shall not be considered for appointment to a higher category either by promotion or by recruitment by transfer unless he has completed service for a period of one year from the date on which he joins duty on return from leave." In the light of the above provision, the petitioner cannot stake a claim for promotion as he remained continuously absent for more than three years without due permission from the Government.

10. At this, learned counsel for the petitioner would contend that the said rule can have effect only when the stay of the petitioner abroad was unauthorized. As far as the facts of the present case is concerned, the petitioner's name was included for promotion for the panel year 2004-05, and the petitioner was in fact granted promotion vide orders dated 22.06.2006, during that period, the petitioners overseas stay was authorized, as due permission was granted by the Government. Therefore, such promotion granted during that period when the petitioner was abroad authorizedly, cannot subsequently be taken away citing the reason that the petitioner had overstayed for more than three years, by invoking Rule 36(c) of the general rules as extracted supra.

11. This Court finds that there is sufficient and considerable force in the contention put forth by the learned counsel for the petitioner that the petitioner who had come within the zone of consideration for the panel year 2004-05 and was promoted as Assistant Executive Engineer vide proceedings dated 22.06.2006 and such period was covered by authorized absence of the petitioner. In the said circumstances, the subsequent conduct by the petitioner cannot be cited as valid and legal reason for taking away the promotion which was granted to him earlier. Although Rule 36(c) is very clear that no employee is entitled to promotion unless he has completed service for the period of one year from the date of which he joined duty and return from leave, in this case, the said section cannot be pressed into service, in view of the aforesaid facts. In any event, the petitioner was proceeded with the departmental action and was ultimately imposed with the penalty of stoppage of increment for his overstay abroad. As rightly contended by the learned counsel for the petitioner that the

punishment which was imposed on the petitioner i.e., stoppage of increment ought to have been imposed in the higher post i.e., Assistant Executive Engineer post and not in the lower post of Assistant Engineer, since the petitioner was already granted paper promotion during his stay abroad in 2006 itself.

12. This Court is in agreement with the submission made by the learned counsel for the petitioner that the action of the first respondent in deleting the name of the petitioner from the approved panel for promotion to the post of Assistant Executive Engineer for the panel year 2004-05 and subsequent cancellation of the promotion cannot stand the test of judicial scrutiny.

13. In the light of the above discussion, this Court is of the considered view that the petitioner despite the fact that he overstayed abroad unauthorizedly for more than three years has made out a case in law for grant of relief. Therefore, the writ petition is allowed and the impugned proceedings in G.O.(D). No.113, PW (A1) D dated 09.04.2009, is set aside. Consequently, the respondents are directed to issue posting order to the petitioner in the category of Assistant Executive Engineer from approved regular panel in G.O.(3D).No.28, Public Works (A1) Department, dated 22.06.2006 for the year 2004-2005, with all attendant benefits. The direction shall be complied with by the respondents within a period of eight weeks from the date of receipt of a copy of this order.

14. With the above direction, the writ petition stands allowed. No costs.

Sd/- Assistant Registrar(CS II) //True Copy// Sub Assistant Registrar gsk To 1.The Secretary to Government, Secretariat, Fort St.George, Chennai 600 009.

2.The Chief Engineer (General), Chepauk, Chennai 600 005.

+1cc to Mr.N.S.Nandakumar, Advocate, S.R.No.8660 +1cc to the Government Pleader, S.R.No.9402 W.P.No.28243 of 2011 NRI(CO) RRK(20/02/2018)