G.O.Ms.No.837, Education Department dated 4.5.1976 applicability

The Secretary To The Government vs P.Velusamy on 18 November, 2008

Dated: 18.11.2008
Coram:
The Honourable Mr.Justice S.J.Mukhopadhaya
and
The Honourable Mr.Justice V.Dhanapalan
Writ Appeal No.1172 of 2008
& M.P.No.1 of 2008
1. The Secretary to the Government,
School Education Department,
Fort St.George,
Chennai-600 006.
2. The Director of School Education,
College Road, Chennai-600 006.
3. The District Educational Officer,
Cheranmahadevi Educational (District),
Tirunelveli District, Tirunelveli. .. Appellants
vs.
1. P.Velusamy
Holy Redeemers Higher Secondary School,
Tisaiyanvilai, Tirunelveli District.
2. The Correspondent,
Holy Redeemers Higher Secondary School,
Tisaiyanvilai, Tirunelveli District.
3. The Manager of R.C. Schools,
Tuticorin Diocese Bishop House,
Tuticorin-2. .. Respondents
Writ Appeal against the order dated 14.7.2008 passed by the single Judge in Writ Petition No.13683 of 2008, on the file of this Court. For appellants : Mr.G.Sankaran, Spl.G.P.
For respondents: Mr.R.Thiagarajan,
Senior Counsel for
Mr.R.Saseetharan for R-1
(caveator)
Judgment
S.J.Mukhopadhaya,J
The Writ Appeal has been preferred by the appellants-State (respondents 1 to 3 in W.P.No.13683 of 2008) against the order dated 14.7.2008 passed by the learned single Judge in Writ Petition No.13683 of 2008, whereby the learned single Judge, while setting aside the order of rejection, dated 30.5.2008, whereby the request of the first respondent-writ petitioner seeking extension of service on the ground of Best Teacher Awardee, was rejected by the second appellant-Director of School Education, Chennai, directed the second appellant-Director of School Education to pass fresh orders in the light of G.O.Ms.No.837, dated 4.5.1976, issued from the Education Department of the State.
2. The first respondent-writ petitioner was a Teacher in the second respondent-Holy Redeemers Higher Secondary School, Tisaiyanvilai, Tirunelveli District, a Government aided, private School. For the academic year 2004-2005, the first respondent-writ petitioner was awarded "Best Teacher Award", which Award was named after the then President of India Hon'ble Dr.Radhakrishnan. He earlier moved before this Court in Writ Petition (MD).No.4048 of 2008, praying for issuance of a Writ of Mandamus, to direct the first and second appellants herein to extend the service of the first respondent-writ petitioner beyond the period of superannuation, pursuant to the State Government's order contained in G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department and as per the Memorandum issued by the Union of India, in No.F.1-9/80-Sch.5, dated 30.6.1981. The said case having been remitted to the appellants-State for considering the representation of the first respondent-writ petitioner, dated 5.11.2007, in the light of G.O.Ms.No.837, dated 4.5.1976, the same was considered and rejected by the second appellant-Director of School Education in the proceedings in Rc.No.41188/W5/S3/2008, dated 30.5.2008.
3. The main plea taken by the appellants-State was that G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department, was never given effect to.
4. The learned single Judge, by the impugned order dated 14.7.2008 in Writ Petition No.13683 of 2008, rejected such submission of the appellants-State and held that G.O.Ms.No.837, dated 4.5.1976 issued from the Education Department, is still in force and thereby, the appellants-State are bound to consider the request of the first respondent-writ petitioner after satisfying that he is a National Awardee and is mentally and physically fit.
5. Before this Court, one of the grounds taken by the learned Special Government Pleader appearing for the appellants-State is that the decision contained in G.O.Ms.No.837, dated 4.5.1976, is not applicable to the Teachers of Government aided private Schools. In this connection, reply of the learned counsel appearing for the first respondent-writ petitioner is that G.O.Ms.No.837, dated 4.5.1976 would not make any distinction between the Government School and the Government aided private School and it takes in its fold all National Award Teachers of the State of Tamil Nadu.
6. The other stand taken on behalf of the appellants-State is that G.O.Ms.No.837, dated 4.5.1976 cannot be given effect to, for which, reply of the learned counsel appearing for the first respondent-writ petitioner is that the said decision as contained in G.O.Ms.No.837, dated 4.5.1976 is still in force.
7. The only question that arises for determination in the present Writ Appeal is whether the first respondent-writ petitioner is entitled for the advantage arising out of G.O.Ms.No.837, dated 4.5.1976, issued from the Education Department of the State.
8. We have heard the learned counsel appearing for the parties and noticed the rival contentions and also perused the relevant records.
9. It appears that the Government of India, Ministry of Education, New Delhi, by their letter dated 26.3.1968, suggested that the age of retirement of National Awardee Teachers may be extended by five years. The State of Tamil Nadu, after careful consideration, accepted the suggestion and took the following decision as contained in G.O.Ms.No.837, dated 4.5.1976: "The Government of India in their letter read above, suggested that the age of retirement of National Awardee teachers may be extended by 5 years.
2. The Government after careful consideration accept their suggestion and accordingly direct that the date of retirement of National Awardee teachers of this State be extended by five years, subject to the condition that they are physically and mentally fit."
10. Subsequently, on deliberation, the Government of India was of the opinion that the Award winners and other Teachers could not be treated differently in the matter of extension of service and that the special treatment in favour of the former, would be violative of Article 14 of the Constitution of India. This was communicated to the State Government, vide Government of India's proceedings issued from the Ministry of Education and Culture, Department of Education, in No.F-1-9/80-Sch.5, dated 30.6.1981, as quoted hereunder: "I am directed to refer to this Ministry's letter No.F.1-51/77-Sch.5 dated 14.11.1977. This letter was issued on the basis of the legal opinion tendered to this Ministry that award winners and other teachers could not be treated differently in the matter of extension of service and that special treatment in favour of the former would be violative of Article 14 of the Constitution.
2. Ever since this concession was withdrawn, there have been numerous representations requesting that the National Awardee teachers should continue to get the benefit of extension of service. The matter was examined again in consultation with the Ministry of Law, Justice and Company Affairs whose views are given in the Annexure. These views may be kept in mind while considering the cases of National Awardee teachers for granting extension in service beyond the age of superannuation."
Annexure:
"Views of the Ministry of Law, Justice and Company Affairs on the question of granting Extension of service to National Awardee Teachers: While dealing with the question of giving extension in the age of retirement to National Awardee teachers, it was suggested to the State Governments and Union Territory Administrations that the age of retirement of National Awardee teachers may be extended for five years subject to their being round physically and mentally fit. The question is whether this is legally feasible.
2. It is presumed that the age of retirement of teachers is extendable by two years if the teacher is meritorious and is mentally and physically fit for the same. This is equally applicable to both the national awardee and non-awardees. At the time the question of extension of service is considered, a teacher may have become mentally and physically inappropriate or may have lost interest in teaching for various reasons, even though he may have been a teacher of exceptional merit with or without a national award. In this case he should not get an extension.
3. The extension in the age of superannuation to a National awardee could also be granted in the interest of procuring his services in the public interest in the field of education and for no extraneous reasons. Therefore, it will be but necessary to see that even a teacher with a National Award is mentally and physically fit and qualified to be of exceptional merit at the time of grant of extension of service.
4. There may be cases in which a teacher who has not been awarded National Award may acquire exceptional merit and all the qualities of an outstanding teacher by the time he is to be considered for extension even though they have no National Award to their credit.
5. There can be no legal objection to the extension of the age of superannuation beyond 60 years to a teacher of outstanding merit who is mentally and physically fit. National Awardee will of course deserve consideration in that category. It is purely an administrative decision if the State Education Department wants to make provisions for extensions beyond 60 years.
6. The above observations may kindly be kept in view while dealing with requests for extension of service of teachers irrespective of whether they are national Awardee or not."
11. It is not in dispute that the Teachers of Government aided private Schools, like the first respondent-writ petitioner, are guided by the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (for short, 'the Private Schools Act') and the Rules framed thereunder, namely the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (for short, 'the Private Schools Rules').
12. Section 19 of the Private Schools Act relates to "Qualifications, conditions of service, etc., of teachers and other persons employed in private schools", which reads as follows: "Section 19: Qualifications, conditions of service, etc., of teachers and other persons employed in private schools:
The Government may make rules regulating the number, qualifications and conditions of service (including promotion, pay, allowances, leave, pension, provident fund, insurance and age of retirement and rights as respect disciplinary matters) of the teachers and other persons employed in any private school."
13. With regard to such conditions of service, like pay and allowances of teachers and other persons employed in private schools, the relevant Rule is Rule 19 of the Private Schools Rules, which was relied upon by the learned counsel appearing for the first respondent-writ petitioner to suggest that all Government instructions are also applicable for Teachers of Government aided Private Schools. In fact, learned counsel appearing for the first respondent-writ petitioner placed reliance on the so-called amended Rule 19 of the Private Schools Rules, which reads as follows:
"19. Pay and allowances of teachers and other persons employed in private schools to be paid in the prescribed manner. The procedure for payment of pay and allowances to teachers and other persons employed in private schools shall be as in annexure III. The Fundamental Rules, the Tamil Nadu Leave Rules, and the Tamil Nadu Pension Code, and the Govt. orders issued from time to time regulating various allowances, concessions etc., unless otherwise specifically ordered, shall apply mutatis-mutandis to the teachers and other persons employed in posts approved by the Department and admitted to aid."
14. Learned counsel appearing on behalf of the appellants-State, on instructions, opposed such submission of the learned counsel appearing on behalf of the first respondent-writ petitioner and submitted that the above said Draft Rules of the Private Schools Rules cannot be relied upon, as no amendment having been made in the existing Rule 19 of the Private Schools Rules, which reads as follows: "19. Pay and allowances of teachers and other persons employed in private schools to be paid in the prescribed manner:
The procedure for payment of pay and allowances to teachers and other persons employed in private schools shall be as in Annexure III."
15. Learned counsel appearing on behalf of the first respondent-writ petitioner could not lay hand on any Gazette Notification or the amended Rule to show that the existing Rule 19 of the Private Schools Rules, was amended, as highlighted by the learned counsel for the first respondent-writ petitioner. In the absence of such authenticity, we are not inclined to accept the Draft Rules of Rule 19 of the Private Schools Rules (quoted above) relied on by the learned counsel appearing for the first respondent-writ petitioner.
16. So far as existing Rule 19 of the Private Schools Rules, is concerned, it does not stipulate that all Government Orders would also be made applicable to the Teachers of the Government aided Private Schools. Annexure-III of the Private Schools Rules, is also silent on the same.
17. Under Section 19 of the Private Schools Act, the Government may make "Rules" regulating the number, qualifications and conditions of service, including the age of retirement. Such "Rules" can be framed only under Section 56 of the Private Schools Act.
18. It will be evident from G.O.Ms.No.837, dated 4.5.1976 that it is not a "Rule" framed under Section 56 of the Private Schools Act, and therefore, it cannot be presumed that the said G.O.Ms.No.837, dated 4.5.1976 amounts to amendment of the Private Schools Rules.
19. A Government Order made for its employees is not automatically applicable to the employees of all Government aided Private Schools, till the instructions so suggest. It cannot be presumed that G.O.Ms.No.837, dated 4.5.1976 is applicable to the Teachers of the Government aided Private Schools.
20. Learned counsel appearing for the appellants-State also brought to our notice G.O.Ms.No.100, dated 27.6.2003, issued from School Education (Budget) Department, wherein certain decision has been taken in regard to Schools, particularly, Secondary Grade Teachers of the State. In the said G.O.Ms.No.100, dated 27.6.2003, the following stipulation has been made in regard to the applicability of the same to the Government Aided Schools: "5. Teachers posts in Government Aided Schools shall be filled up with reference to instructions issued in para 1 & 2 after the issue of necessary amendments to Tamil Nadu, Recognised Private School (Regulation) Act, 1974 for which, instructions will be issued separately."
21. Similarly, vide G.O.Ms.No.125, dated 12.11.2003, issued from School Education (X2) Department, while certain decisions were taken with regard to the Junior Grade Teacher Posts, who were allowed only consolidated pay, Notification was issued by the State under Section 56 of the Private Schools Act, making amendment to Rule 15 of the Private Schools Rules.
22. In view of the aforesaid facts, we hold that G.O.Ms.No.837, dated 4.5.1976 issued from Education Department of the State, is not applicable to the Teachers of the Government Aided Private Schools and thereby, the first respondent-writ petitioner was not entitled to get the benefit out of the said G.O.Ms.No.837, dated 4.5.1976.
23. So far as the aforesaid G.O.Ms.No.837, dated 4.5.1976 is concerned, as it was pointed out by the Government of India in the letter dated 30.6.1981 that the same is violative of Article 14 of the Constitution of India, the State Government has recently issued G.O.Ms.No.199, dated 17.9.2008 from School Education (Q.2) Department, whereby the benefit granted by G.O.Ms.No.837, dated 4.5.1976, was withdrawn and the said G.O.Ms.No.837 was cancelled.
24. In view of the fact that G.O.Ms.No.837, dated 4.5.1976 was declared to be violative of Article 14 of the Constitution of India by the Government of India, it was not open for the learned single Judge to direct the appellants-State to give effect to such illegal G.O. in favour of one or other person.
25. We accordingly set aside the impugned order dated 14.7.2008 passed by the learned single Judge in Writ Petition No.13683 of 2008, and allow the Writ Appeal, but in the facts and circumstances of the case, there shall be no order as to costs. The Miscellaneous Petition is closed.

Rule 9(2)(a) of the Tamil Nadu Pension Rules, 1978

Y.Raja vs The Joint Registrar Of ... on 2 December, 2010

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/12/2010
CORAM
THE HONOURABLE MRS.JUSTICE R.BANUMATHI
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.A.(MD).No.698 of 2010
and
W.A.(MD).No.721 of 2010
and
M.P.No.2 of 2010
W.A.(MD).No.698 of 2010
Y.Raja ... Appellant
Vs.
The Joint Registrar of Co-operative Societies,
Madurai Region, Madurai. ... Respondent
PRAYER
Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 13.09.2010 made in W.P.(MD).No.9580 of 2010 on the file of this Court.
!For Appellant ... Mr.S.Visvalingam
^For Respondent ... Mr.K.Balasubramanian
Additional Government Pleader
W.A.(MD).No.721 of 2010
1.The District Collector,
Madurai.
2.The Revenue Divisional Officer,
Madurai. ... Appellants
Vs.
V.P.Sankaran ... Respondent
PRAYER
Writ Appeal is filed under Clause 15 of the Letters Patent against the Order dated 21.12.2009 made in W.P.(MD).No.6402 of 2009 on the file of this Court.
!For Appellants ... Mr.K.Balasubramanian
Additional Government Pleader
^For Respondent ... S.Visvalingam
:COMMON JUDGMENT
***********************
S.NAGAMUTHU J.
Challenge in Writ Appeal (MD).No.698 of 2010 is to the order dated 13.09.2010 made in W.P.(MD).No.9580 of 2010 and challenge in Writ Appeal (MD).No.721 of 2010 is to the order dated 21.12.2009 made in W.P.(MD).No.6402 of 2009. Since common issues are involved, both the Writ Appeals were heard together and they are disposed of by means of this Common Judgment.
2. The appellant herein was working as a Sub-Registrar in the Co-operative Department of the Government. The respondent herein, by his proceedings in Na.Ka.No.3508/2010/gbjh, dated 31.05.2010, permitted the appellant to retire from service on attaining the age of superannuation without prejudice to the pending disciplinary action and other statutory actions. In pursuance of the said order, the appellant has retired from service, but he has not been paid the monetary benefits arising out of such retirement. The appellant was informed that because of the pendency of the disciplinary proceedings and since his retirement was subject to the pendency of the said disciplinary action, he is not entitled for the payment of the monetary benefits. In those circumstances, he filed W.P.(MD).No.9580 of 2010 seeking to quash the said order of the respondent dated 31.05.2010, insofar as it relates to the continuance of the disciplinary action even after the retirement of the appellant. In other words, according to the appellant, the clause "without prejudice to the pending disciplinary action and other statutory actions" is without jurisdiction and the same is liable to be quashed. The Writ Court, by order dated 13.09.2010, dismissed the Writ Petition. Challenging the same, the appellant has come up before this Court with the present Writ Appeal.
3. In this Writ Appeal, it is contended by the appellant that there is no statutory service rule, regulation, etc., which empowers the respondent to preserve the disciplinary proceedings and to continue the same even after the retirement of the appellant. For this proposition, the learned counsel for the appellant has relied on few Judgments of this Court as well as the Hon'ble Supreme Court, about which, we would make reference at the appropriate stages of this Judgment.
4. The learned Additional Government Pleader appearing for the respondent would submit that such power flows from Rule 9(2)(a) of the Tamil Nadu Pension Rules, 1978, [hereinafter referred to as "the Pension Rules"], which empowers the respondent to continue the disciplinary proceedings even after the retirement of the Government Servant. The learned Additional Government Pleader would, therefore, submit that the order of the Writ Court does not require any interference at the hands of this Court.
5. We have considered the above submissions. Admittedly, charges have been framed against the appellant under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, [hereinafter referred to as "the Rules"]. While he was in service, he was not placed under suspension and there was also no order made under Rule 56(1)(c) of the Fundamental Rules extending the service in the interest of the public and to continue the suspension. The learned Additional Government Pleader is not in a position to point out any statutory Service Rule, Regulation, etc., which would empower the respondent to continue the disciplinary proceedings even after the retirement of the appellant, except citing Rule 9(2)(a) of the Pension Rules. Therefore, we have to now analyze as to whether under Rule 9(2)(a) of the Pension Rules, the disciplinary proceedings initiated when the appellant was in service, could be continued. For this purpose, it would be appropriate to extract Rules 9(2)(a) and 9(2)(b) of the Pension Rules, which read as follows;-
"9(2)(a) The departmental proceeding referred to in sub-rule (1), if instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service; provided that where the departmental proceedings are instituted by an authority subordinate to the Government, that authority shall submit a report recording its findings to the Government.
9(2)(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment;-
(i).shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and
(iii).shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service."
6. Insofar as Rule 9(2)(b) is concerned, it empowers the department to institute a disciplinary proceeding after the retirement of a Government Servant. However, it goes with two pre-conditions, such as, the departmental proceedings shall not be instituted except with the sanction of the Government and shall not be in respect of any event which took place more than four years before such institution.
7. Insofar as the case on hand is concerned, Rule 9(2)(b) has got no role to play. A close reading of Rule 9(2)(a) would go to show that the departmental proceeding, which was initiated while the Government Servant was in service, shall, after the final retirement of the Government Servant, be deemed to be a proceeding under this Rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.

8. From the above, it could be understood that for the purpose of continuing such proceedings, it shall be treated as if the Government Servant has been continuing in service. It also states that the departmental proceedings instituted under the relevant Rule applicable to the Government Servant shall be deemed to be a proceeding issued under Rule 9 of the Pension Rules. In the case on hand, the departmental proceedings against the appellant was instituted under Section 17(b) of the Rules, which provides for various punishments, such as dismissal, removal from service etc., Now on account of his retirement, as per the impugned order, there can be no impediment to continue the proceedings, but it shall be deemed that it is a proceeding initiated under Rule 9 of the Pension Rules. In effect, on completion of such enquiry, the respondent cannot impose any punishment upon the appellant, as provided in Rule 17(b) of the Rules. Instead, the Government can withhold or withdraw the pension as provided in Rule 9(1)(a) of the Rules, which reads as follows;-
9(1)(a);- the Government reserve to themselves the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period if, in any departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement, and such withholding or withdrawing the pension may be effected irrespective of the fact whether or not any pecuniary loss on account of such grave misconduct or negligence was caused to the Government, to any local body or to any co- operative society comprising of government servants and registered under the Tamil Nadu co-operative Societies Act, 1961;
[provided that before passing an order under this sub-rule withholding or withdrawing the pension of a pensioner, the Tamil Nadu Public Service Commission shall be consulted if the pensioner does not agree to such withholding or withdrawal of the pension. The Tamil Nadu Public Service Commission need not be consulted in cases where the pensioner agrees to withholding or withdrawal of the pension but a copy of the order passed by the Government in such cases shall be sent to the commission.
9. In view of the above provision of the Pension Rules, the impugned clause in the order of the respondent viz., "without prejudice to the pending disciplinary action and other statutory actions", shall only mean that the pending disciplinary proceedings against the appellant shall be continued as though it is a proceeding instituted under Rule 9 of the Pension Rules. But, the learned counsel appearing for the appellant would rely on a Judgment of a Division Bench of this Court in N.M.Somasundaram v. The Director General of Police etc., reported in 1997 WRL 120, wherein, after having reference to Rule 56(a) and (c) of the Tamil Nadu Government Fundamental Rules, this Court has held as follows;-
"Therefore, it is clear that in the absence of any order being passed before 31.10.1984, the competent authority loses the jurisdiction to continue the disciplinary proceedings."
10. Relying on the above Judgment, the learned counsel for the appellant would submit that in the case on hand, since there was no order passed under Rule 56 of the Fundamental Rules extending the period of service beyond the age of 58 years, the respondent has lost his jurisdiction to continue the disciplinary proceedings. Though the said argument of the learned counsel for the appellant appears to be attractive, it cannot be accepted, for the simple reason that in the said case, the Division Bench had an occasion to consider the case of the Government Servant therein, who was under suspension on the date of his attaining the age of superannuation. In this regard, the Division Bench has referred to Rule 56(a)&(c) of the Tamil Nadu Government Fundamental Rules, which reads as follows;-
"56(a) The date of compulsory retirement of Government servant, whether he holds a substantive or officiating post, is the date on which he attains the age of Fifty-eight years. He shall not be retained in service after that age except with the sanction of the government on public grounds, which must be recorded in writing, but he shall not be retained after the age of sixty years except in very special circumstances;-
Provided that this clause shall not apply to Government Servants, who are treated as in superior service for the purpose of these rules but as in Basic Service for the purpose of pension such Government Servants as well as Basic Government Servants shall retire on attaining the age of sixty years. (c).A Government Servant under suspension on a charge of misconduct should not be required or permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge is conducted and a final order passed thereon by the competent authority."
11. In the said case, referring to Rule 56(c) of the Tamil Nadu Government Fundamental Rules, since the Government Servant was on suspension on the date of his attaining the age of superannuation, the Division Bench held that such proceedings cannot be continued after his retirement, because there was no order passed retaining him in service. But, in the case on hand, the appellant was not under suspension, and therefore, question of retaining him in service and continuing his suspension does not arise. If only the appointing authority decides to continue to deal with the charges under Rule 17(b) of the Rules, it is necessary to retain the Government Servant in service by passing an order required under Rule 56(c) of the Fundamental Rules and to keep him under suspension. When it is otherwise proposed to continue the proceedings under Rule 9(2)(a) of the Pension Rules, there is no need to pass any order retaining the Government Servant in service and to continue to place him under suspension.
12. The learned counsel appearing for the appellant would place reliance on a Judgment of a Division Bench of this Court in N.K.Gowder v. C.D.Co-op Milk Producers Ltd., reported in 2008 (1) MLJ 119, wherein in paragraph No.6, it has been held as follows;-
"A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceedings is kept pending by the employer, the employee cannot be made to retire. In the instant case, no rule has been brought to our notice providing for continuation of such proceeding despite permitting the employee concerned to retire. There has to be a specific provision of law or regulation or a bye-law governing the service conditions of the person in question for continuing a departmental enquiry, initiated before the date of superannuation, even after the employee had retired from service. Without such a provision being available, there cannot be an employer-employee relationship surviving after the employee retires from service. Therefore, continuing the enquiry proceedings or conducting an action against the person after his retirement from service cannot be sustained in the eye of law.
13. A perusal of the above Judgment would go to indicate that in a case where there has been a Rule providing for continuation of such proceeding despite permitting the employee concerned to retire from service, the proceedings can go on. This is what we have already concluded in the earlier paragraphs of this Judgment, as, such rule providing for continuation of the proceeding is found in Rule 9(2)(a) of the Pension Rules.
14. The learned counsel for the appellant, nextly relied on a Judgment of the Hon'ble Supreme Court in UCO Bank v. Rajinder Lalcapoor reported in 2008 (5) SCC 257, wherein in paragraph No.29, the Hon'ble Supreme Court, after analyzing various Judgments has ultimately held as follows;-
"We have noticed in para 15 of our Judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceeding despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings."
15. The above Judgment of the Hon'ble Supreme Court also sets at rest doubt, if any, on this aspect. As we have already concluded, in the case on hand, as per the Pension Rules, which enables the respondent to continue the proceedings, there is no bar for the respondent to do so. The learned counsel for the appellant has cited many more Judgments on this aspect, which we do not propose to reproduce, as the same would only add to the length of this Judgment.
16. In view of all the above, in our considered opinion, the expression "without prejudice to the pending disciplinary action and other statutory actions" found in the impugned order should be construed to mean that the disciplinary proceeding initiated under Section 17(b) of the Rules shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued, which may result in any order under Rule 9(1) of the Pension Rules.
17. In view of the above legal position, we have to state that the appellant shall be entitled for provisional pension as provided in the Pension Rules and the monetary benefits arising out of his retirement subject to the continuance of the departmental proceedings. Therefore, the respondent shall settle all his monetary benefits arising out of his retirement including the provisional pension as provided in the Pension Rules. Except the above clarification and direction, the appellant is not entitled for any other relief in this Writ Appeal.
18. W.A.(MD).No.721 of 2010:-
The respondent in W.A.(MD).No.721 of 2010 was a Deputy Tahsildar, attached to Taluk Office, Vadipatti. He retired from service on 30.04.2009. While he was in service, a charge memorandum was issued on 03.04.2009. While allowing him to retire from service, in the order, it is stated that his retirement is without prejudice to the disciplinary proceeding pending against him. Based on the said order, the respondent was not paid the terminal benefits on account of his retirement. Therefore, the respondent filed a Writ Petition (MD).No.6402 of 2009, challenging the said clause in the order, which states that the retirement is subject to the pendency of the disciplinary proceedings. A learned Single Judge of this Court, by order dated 21.12.2009, allowed the Writ Petition and quashed that part of the order and consequently directed the District Collector, Madurai, to disburse the retirement benefits to the respondent within a period of twelve months from the date of receipt of a copy of the Order. Against the said order, the District Collector and the Revenue Divisional Officer, Madurai, have come up with this Writ Appeal.
19. As we have already held in W.A.(MD).No.698 of 2010, the clause in the retirement order, which states that the retirement shall be subject to the pendency of the disciplinary proceeding should be construed to mean that such proceeding shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued. However, the respondent shall be entitled for all the terminal benefits including the provisional pension as provided in the Pension Rules. But, the learned Single Judge has quashed the entire order, and therefore, as of now, it will not be possible for the appellants to proceed with the disciplinary proceedings even under Rule 9(2)(a) of the Pension Rules. Therefore, the order of the learned Single Judge needs to be interfered with to the limited extent, as indicated above.
20. In view of the above, this Writ Appeal must succeed and the order of the learned Single Judge should be set aside to the limited extent. However, with clarification that the pending disciplinary proceedings against the respondent shall be deemed to be a proceeding initiated under Rule 9(2)(a) of the Pension Rules and the same may be continued, which may result in any order under Rule 9(1) of the Pension Rules. However, pending the said disciplinary proceedings, the appellants shall disburse all the retirement benefits to the respondent including the provisional pension as provided in the Pension Rules.
21. In the result, W.A.(MD).No.698 of 2010 is dismissed with the clarification and direction as mentioned in Paragraph No.17 of this Judgment. W.A.(MD).No.721 of 2010 is allowed in part with the clarification and direction as mentioned in Paragraph No.20 of this Judgment. No costs. Consequently, connected Miscellaneous Petition is closed.

Medically Disabled_compulsory retirement_Case citation

M. Sakthiveeramani vs The Deputy Director General Of ... on 7 November, 2006

Author: V Ramasubramanian

Bench: V Ramasubramanian

ORDER
V. Ramasubramanian, J.
Page 3038
1. At a time when the very adjective "Disabled" has taken a different connotation as "Differently Abled", the respondents have sent the petitioner out of service on the ground that he is medically unfit to continue in service, forcing him to file the above writ petition.
2. The petitioner was originally selected and appointed as a Second Grade Warder in the Tamil Nadu Prison Subordinate Service. He was promoted as Grade-I Warder with effect from 1984 and was promoted as Chief Head Warder with effect from 14.10.1998.
3. On 31.8.1999, the petitioner suffered an injury and entered on medical life. When he was on medically leave, he was promoted as Assistant Page 3039 Jailor on temporary basis by the proceedings of the Superintendent of Prisons, Pudukottai dated 9.12.1999 and posted to the Sub Jail, Nannilam. In pursuance of the said order, he reported before the Superintendent of Prisons, Borstal School, Pudukottai, on 1.3.2000 for the purpose of taking charge at the Sub Jail, Nannilam. He was permitted to take charge as Assistant Jailor on 1.3.2000 and he started working in the promoted post from 1.3.2000.
4. After more than three years of the temporary promotion of the petitioner as Assistant Jailor, the promotion Board was constituted for the purpose of selecting candidates for promotion on regular basis, with reference to the vacancies for the year 2003-2004. The Promotion Board met on 17.11.2003 and 18.11.2003 and based upon its recommendations, a list of approved candidates selected for promotion as Assistant Jailors on regular basis, was communicated by the Additional Director of Prison, in his communication dated 16.12.2003. In the annexure to the said proceeding, it was indicated that the petitioner was over looked for promotion on account of being physically unfit.
5. In pursuance of the said proceedings, the Superintendent of Borstal School, addressed a letter dated 8.3.2004 to the Joint Director of Health Services, Tiruvarur, requesting him to examine the petitioner and ascertain if he was medically fit to hold a post as a Field Officer in terms of Rule 47 (A to K) of the Tamil Nadu Prison Manual Part-II.JJ
6. The Medical Board at Tiruvarur, comprising of the Joint Director of Health Services as its Chairman and three Medical Officers as Members, examined the petitioner in the Government District Headquarters Hospital, Tiruvarur on 24.3.2004 and issued a Certificate that he was fit to be employed as a Field Officer in terms of the aforesaid Rules.
7. Despite the said Certificate issued by the Medical Board, to whom he was referred by the Department itself, the petitioner was reverted by the proceedings of the Superintendent of Borstal School, Pudukottai dated 10.4.2004 and posted as Chief Head Warder in the same school on 12.4.2004.
8. The petitioner gave a representation dated 14.4.2004 to the second respondent, pointing out the Fitness Certificate issued by the appropriate Medical Board and requesting him to permit his continuance as Assistant Jailor. However, the second respondent appears to have sent a letter dated 6.5.2004 to the Superintendent of Borstal School, directing him to refer the petitioner once again to the Medical Board for examining whether he is medically fit in terms of Rule 385 of the Tamil Nadu Prison Manual Part-II, for the purpose of undergoing Drill and Parade. Therefore, the Superintendent of Borstal School, by his proceedings dated 19.5.2004, sent the petitioner once again for medical examination.
9. In pursuance of the above, the petitioner was sent for medical examination before the Regional Medical Board at Thanjavur. The said Medical Board examined the petitioner in July, 2004 and gave an opinion that the petitioner will not be able to perform Drill/Parade or the work specified under Rule 385 of the Tamil Nadu Prison Manual. In pursuance of the said second opinion, the petitioner gave a representation dated 19.7.2004 to the second Page 3040 respondent, requesting him to permit his continuance as Assistant Jailor by granting exemption from participating in Drill/Parade.
10. The said representation perhaps infuriated the second respondent, as a result of which the second respondent directed the Superintendent of Borstal School to refer the petitioner to the Medical Board once again for finding out if he could be retired on medical invalidation. Consequently, the Superintendent of Borstal School referred the petitioner once again to the Medical Board and the Medical Board gave an opinion on 30.10.2004 that the petitioner was unfit to perform the duties of a Field Officer. Based upon the said report, the first respondent passed an order dated 14.3.2005 retiring the petitioner with effect from 14.3.2005 on medical invalidation under Rule 36 of Tamil Nadu Pension Rules. Challenging the said proceedings, the petitioner has filed the above writ petition, for the various grounds stated in the affidavit filed in support of the writ petition as well as the additional grounds raised by him subsequently.
11. I have heard Mr. B. Kumar, learned Senior Counsel appearing for the petitioner and Mr. V. Arun, learned Government Advocate appearing for the respondents.
12. In view of the fact that the matter relates to the retirement of the petitioner on medical invalidation, at the age of 52 years, after he had completed about 30 years of service and also in view of the fact that the issue is squarely covered by the Statutory Provisions and various judgments of the Apex Court and this Court, I have taken up the main writ petition itself for final disposal, with the consent of both the parties.
13. On facts as they emerge from the various orders passed by the respondents, two indisputable facts surface and stare at one's face. They are as follows:
a) The petitioner was temporarily promoted as Assistant Jailor and he joined duty at the Sub Jail, Nannilam as Assistant Jailor on 1.3.2000 and discharged the duties of the post till his reversion on 12.4.2004. His service in the promoted post of Assistant Jailor during this period of four years, did not come to any adverse notice. It is relevant to see that the petitioner suffered an injury on 31.8.1999 leading to a physical disability and his service in the promoted post was actually subsequent to the sufferance of the disability.
b) One Medical Board at Tiruvarur comprising of the Joint Director of Health Services as its Chairman and three Medical Officers as its Members, found the petitioner fit for continuing as Assistant Jailor, on 24.3.2004. But another Medical Board comprising of a Chairman and two Members at Thanjavur found him unfit for performing Drill/Parade or any of the works specified under Rule 385 of the Tamil Nadu Prison Manual in July, 2004. Thus, there had been a conflict of opinion between two Medical Boards.
14. Keeping the above two crucial aspects in mind, if we examine the grounds on which the petitioner challenges the impugned order of compulsory retirement, it is clear that the impugned order cannot be sustained on any factual or legal basis.
Page 3041
15. In order to give effect to the Constitutional Mandate contained in Article 21 of the Constitution, which has been interpreted to include the right to livelihood and a right to live with human dignity and also with a view to give effect to the "Proclamation on the Full Participation and Equality of the People with Disabilities in the Asian and Pacific Region". The Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act No. 1 of 1996). The statement of objects and reasons of the said Act reads as follows:
The meeting to launch the Asian and Pacific Decade of the Disabled Persons 1993-2002 convened by the Economic and Social Commission for Asian and Pacific Region, held at Beijing on 1st to 5th December, 1992 adopted the proclamation on the Full Participation and Equality of People with Disabilities in the Asia and the Pacific region. India is a signatory to the said proclamation and it is necessary to enact a suitable legislation to provide for the following:
(i) to spell out the responsibility of the State towards the prevention of disabilities, protection of rights, provision of medical care, education, training employment and rehabilitation of persons with disabilities;
(ii) to create barrier free environment for persons with disabilities;
(iii) to remove any discrimination against persons with disabilities in the sharing of development benefits, vis-a-vis, non-disabled persons;
(iv) to counteract any situation of the abuse and the exploitation of persons with disabilities;
(v) to lay down a strategies for comprehensive development of programmes and services and equalisation of opportunities for persons with disabilities; and
(vi) to lay down a strategies for comprehensive development programmes and services and equalisation of opportunities for persons with disabilities; and
2. Accordingly, it is proposed to provide inter alia for the constitution of Co-ordination Committees and Executive Committees at the Central and State levels to carry out the various functions assigned to them. Within the limits of their economic capacity and development the appropriate Governments and the local authorities will have to undertake various measures for the prevention and early detection of disabilities, creation of barrier free environment, provision for rehabilitation services etc. The Bill also provides for education, employment and vocational training, reservation in identified posts, research and manpower development, establishment of homes for persons with severe disabilities, etc. For effective implementation of the provisions of the Bill, appointment of the Chief Commissioner for persons with disabilities at the Central level and Commissioners for persons with disabilities at the State level clothed with powers to monitor the funds disbursed by the Central and State Governments and also to take steps to safeguard the rights of the persons with disabilities is also envisaged.
Page 3042
16. Section 47 of the said Act, which applies in all force to the case on hand reads as follows:
47. Non-discrimination in Government employment.---(1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding could be shifted to some other post with the same pay scale and service benefits.
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this Section.
17. Even before the said Enactment, the Supreme Court had an occasion to consider the right of an employee who becomes incapacitated to perform the duties of the post held by him, in Narendra Kumar Chandla v. State of Haryana and Ors. . In paragraph-7 of the said judgment, the Supreme Court held as follows:
Article 21 protects the right to livelihood as an integral facet of right to life. When an employee is afflicted with unfortunate disease, due to which he is unable to perform the duties of the post he was holding, the employer must make every endeavour to adjust him in a post in which the employee would be suitable to discharge the duties.
18. After the aforesaid Enactment, the very scope of Section 47 of the said Act, came up for consideration before the Supreme Court in Kunal Singh v. Union of India . In paragraphs 8 and 9 of the said judgment, the Supreme Court held as follows:
8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in nature life was felt for a long time. To realize objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons' was held in Beijing in the first week of December, 1992 by the Asican and Pacific countries to ensure 'full participation and equality of people with disabilities in the Asian and Pacific Regions' This Meeting was held by the Economic and Social Commission for Asia and Pacific. A Proclamation was adopted in the said meeting. India was a signatory to the said Proclamation and they agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1st January, 1996. The Act provides some sort of succor to the disabled persons.
Page 3043
9. Chapter VI of the Act deals with employment relating to persons with disabilities, who are yet to secure employment. Section 47, which falls in Chapter VIII, deals with an employee, who is already in service and acquires a disability during his service. It must be borne in mind that Section 2 of the Act has given distinct and different definitions of "disability" and "person with disability". It is well settled that in the same enactment if two distinct definitions are given defining a word/expression, they must given defining a word/expression, they must be understood accordingly in terms of the definition. It must be remembered that person does not acquire or suffer disability by choice. An employee, who acquires disability during his service, is sought to be protected under Section 47 of the Act specifically. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer. The very frame and contents of Section 47 clearly indicate its mandatory nature. The very opening part of Section reads "no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service". The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post he will be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. Added to this no promotion shall be denied to a person merely on the ground of disability as is evident from Sub-section (2) of Section 47. Section 47 contains a clear directive that the employer shall not dispense with or reduce in rank an employee who acquires a disability during the service. In construing a provision of social beneficial enactment that too dealing with disabled persons intended to give them equal opportunities, protection of rights and full participation, the view that advances the object of the Act and serves its purpose must be preferred to the one which obstructs the object and paralyses the purpose of the Act. Language of Section 47 is plain and certain casting statutory obligation on the employer to protect an employee acquiring disability during service.
19. The aforesaid decision of the Supreme Court has been followed in two Division Bench judgments of this Court in Metropolitan Transport Corporation v. The Presiding Officer 2004 Writ L.R. 398 and Metropolitan Transport Corporation Ltd., Chennai-2 v. K. Ravichandran 2005-2-L.W. 565.
20. Thus it is clear that the reversion of the petitioner from the post of Assistant Jailor on medical invalidation as well as his retirement are violative of the aforesaid provisions of the Statute inasmuch as the respondents did not even apply their mind and examine if the petitioner could be shifted to some other post carrying the same scale of pay, in terms of the Proviso under Section 47(1) of the said Act.
21. There is yet another aspect which makes the impugned order illegal. The impugned order is purportedly passed in exercise of the power conferred under Rule 36 of the Tamilnadu Pension Rules. Interestingly, the said rule deals only with the grant of pension for a person who is declared to be medically Page 3044 invalid. There is no provision either in the General Rules for Tamilnadu State and Subordinate Services or in the Fundamental Rules of the Government of Tamilnadu, for retiring a person on medical invalidation.
22. The relationship of master and servant between the Government and its employees is terminated only by any of the following methods namely, (1) death, (2) resignation, (3) discharge/ removal/ dismissal from service, (4) Retirement on Superannuation (5) Compulsory Retirement or (6) Voluntary Retirement. Each of the above methods of termination of the jural relationship, is governed by specific provisions contained in the rules, issued by the Government in exercise of the power conferred under the Proviso to Article 309 of the Constitution. For easy appreciation, they are presented in the following tabular form:
a. Resignation --- Rule 41-A of the General Rules for Tamilnadu State and subordinate Services
b. Discharge --- Rule 8 and 26 of the General Rules for Tamilnadu State and subordinate Services
c. Dismissal/Removal - Rule 8 and 17(b) of the Tamilnadu Civil Services (Discipline and Appeal) Rules and
d. Retirement (superannuation, compulsory and voluntary)-Rule 56 of the Fundamental Rules
23. After the termination of such relationship, the eligibility of a person for pension, the various classes of pension and the conditions for their grant are dealt with under the Tamilnadu Pension Rules. Rules 32 to 41 of the Tamilnadu Pension Rules deal with the various classes of pension such as superannuation pension, retiring pension, pension on absorption to a company/ corporation/or body corporate, invalid pension, compensation pension and compulsory retirement pension and the conditions for their grant.
24. It is seen from a critical analysis of the aforesaid rules that while the substantive act of severance of the relationship of master and servant is governed by the provisions of other rules (namely General Rules, Fundamental Rules and Discipline Rules), the eligibility for pension, the classes of pension to which a person is eligible and the method of grant of pension alone are governed by the Tamilnadu Pension Rules.
25. In other words, the substantive act of severance of the relationship of master and servant, on medical invalidation, is not covered by any rule issued by the Government. Therefore the respondents have taken refuge under Rule 36 of the Tamilnadu Pension Rules itself, to terminate the services of the petitioner, as they could not resort to or invoke the provisions of any other rule. But the said Rule 36 of the Tamilnadu Pension Rules, deals only with the consequences of medical invalidation (namely the payment of invalid pension) and not with the substantive act of invalidating a person on medical grounds, as seen from a bare perusal of the rule, which reads as follows:
Rule 36. Invalid pension.---(1) A Government servant who is declared by the appropriate medical authority to be permanently incapacitated for further service in accordance with the instructions on the subject, may be granted invalid pension.
Page 3045
Explanation.--For the purpose of this rule---
(a) If the Officer submitting the application for invalidation is in India, then the examining medical authority shall be--
(1) A Medical Board in the case of all gazetted Government servants and those non-gazetted Government servants whose pay as defined in Rule 9(21) of the Fundamental Rules exceeds Rs. 750 and above.
(ii) (a) Civil Surgeon or a District Medical Officer or a Medical Officer of equivalent status in other cases.
(b) If the officer submitting the application is on leave elsewhere than in India, then the examination shall be arranged through the Indian Missions abroad by a Medical Board consisting of a Physician, a Surgeon and an Ophthalmologist, each of them having the status of a consultant. A lady doctor shall be included as a member of the Medical Board wherever a woman candidate is to be examined.
If any doubt arises regarding the validity of a certificate (as in Form 23) by the Medical Board arranged by the Indian Mission abroad, the Audit Officer must not of his own motion reject the certificate as invalid, but must submit the matter for the decision of Government.
NOTE.--Government may delegate its power under this rule to Heads of Departments.
(c) Except in the case of the officer on leave elsewhere than in India, no medical certificate of incapacity for service may be granted unless the applicant produced a letter to show that the head of his office or department, is aware of his intention to appear before the Medical Officer. The Medical Officer shall also be supplied by the head of the office or department in which the applicant is employed with a statement of what appears from official records to be applicant's age. Where the applicant has a service book, the age there recorded should be reported.
NOTE.--(1) Honorary Surgeons and Physicians may issue certificates (as in Form 24) invaliding for further service to Government servants who are patients in their wards on receipt of a requisition from the heads of offices or departments to which the Government servants belong. Such invaliding certificates issued in Madras City should be countersigned by the Director of Medical Education.
The countersignature of the Director of Medical Education in the invalid certificate of an officer serving in the mofussil is not necessary.
NOTE.--(2) In cases where the disease from which an applicant is suffering is curable by an operation, but this, he refused to undergo and is therefore invalided. In these cases, no pension or gratuity is admissible. Each case of invalidation on account of a curable disease should be decided on merits. The Accountant-General should forward such cases for the orders of Government.
NOTE.--(3) Government may dispense with a medical certificate of incapacity for further service in a case of gratuity and sanction the application.
Page 3046
NOTE.--(4) An officer discharged on other grounds has no claims under this Rule even though he can produce medical evidence of incapacity for service.
NOTE.--(5) The system of taking finger prints by Medical Officers on the medical certificates in the case of invalid pension and commutation of pension should remain in force.
NOTE.--(6) An Officer who has submitted a medical certificate of incapacity for further service shall, if he is on duty be invalided from service from the date of relief of his duties, which should be arranged without delay on receipt of the medical certificate or if he is on leave, on the expiry of such leave. If he is on leave at the time of submission of the medical certificate, he shall be invalided from service on the expiry of that leave or extension of leave, if any, granted to him under S.R.24 under Rule 74(a) contained in Annexure II, Part I of the Fundamental Rules.
NOTE.--(7) All non-gazetted Government servants as to whose fitness for further service there may be doubt, should unless they happen to be absent in other districts, on long leave, be sent for examination before the District Medical Officer of the district in which they are serving. Where a Government servant's jurisdiction falls within more than one Revenue district as may be departmentally convenient. If, in special cases, he may be required to appear before the District Medical Officer of such district as may be departmentally convenient. If, in special cases, this procedure has necessarily to be departed from, the reasons therefor should be recorded in writing and communicated to the commissioned Medical Officer, who is asked to examine the applicant.
NOTE.--(8) Invaliding medical certificates under this rule should be given by Medical Officers registered under Medical Registration Act 1914, and if any doubt arises in a particular case, it should be referred to the Director of Medical Education for decision or countersignature.
NOTE.--(9) The Director, Central Leprosy, Teaching and Research Institute, Tirumani is deemed to be a Civil Surgeon for the purpose of granting invaliding certificates to Government servants under his treatment for leprosy. The medical certificate in these cases should also be countersigned by the Director of Medical Education.
NOTE.--(10) All cases in which it is certified that the incapacity for service is due to irregular or intemperate habits, should be submitted to Government for orders through the proper channel, together with the opinion of the Director of Medical Education.
NOTE.--(11) (1) In the case of non-gazetted mofussil police officers residing in Madras during their period of leave, the certificate of unfitness for further service should be granted by the Police Surgeon.
(2) Where the medical authority referred to in Sub-rule (1) has declared a Government servant fit for further service of less laborious character than that which he has been doing, he may, if possible, be employed on lower pay and if there be no means of employing him even on a lower pay he may be admitted to pension.
(3) (a) If the incapacity is directly due to the irregular or intemperate habits of a Government servant, no pension may be granted.
Page 3047
(b) If the incapacity has not been accelerated or aggravated by them, it should be for the pension sanctioning authority to decide what reduction should be made on this account.
26. The invocation of the said rule for sending a person out of employment has the potential of being misused. There are no guidelines under the said Rule 36 regarding the authority who is empowered to pass an order of medical invalidation, the procedure to be adopted for medical invalidation and the remedies available to a person who is sought to be invalidated. Therefore the invocation of such a rule has the potential danger of being an uncontrolled exercise of power and hence it is essential for the Government to frame appropriate rules for medical invalidation.
27. In any event, in the present case, even the minimum requirements of Rule 36 are not satisfied. Even as per the impugned order, the Medical Board at Thanjavur merely opined that the petitioner is not fit to do the duties of a Field Officer with reference to the provisions contained in the Prison Manual. But the basic requirement under Rule 36 is that the officer should have been declared by the appropriate medical authority to be "permanently incapacitated for further service". No such finding is reflected in the impugned order this case. Therefore the impugned order does not even satisfy the requirement of Rule 36.
28. Note (7) under Rule 36 extracted above makes it clear that the jurisdiction to examine a person for determining his fitness to continue in service vests with the District Medical Officer of the district in which he is serving. In this case the petitioner was serving in Nannilam in Thiruvarur District and hence he was referred to the Board at Thiruvarur, where he was examined by the Board comprising of Joint Director of Health Services and 3 Medical Officers. This was the Board which had the jurisdiction to examine the petitioner under Note (7) of Rule 36. This Board declared the petitioner medically fit. But the respondents referred the petitioner to the Board for a second time for the purpose of finding out if he was fit for promotion and hence he was sent for examination to a Board at Thanjavur which declared him unfit for continuance as a Field Officer. Subsequently, the respondents referred the case to the Medical Board at Thanjavur for a third time to find out his fitness to continue in service and as seen from the impugned order the Medical Board opined that the petitioner could not carry on the duties of a Field Officer. Thus the procedure adopted by the respondents in sending the petitioner for a second time and that too, to a medical board outside the district in which he was working, is violative of Rule 36. Therefore the reversion of the petitioner after 4 years of his promotion (which promotion itself was ordered after the petitioner sustained an injury) and his subsequent retirement from service, are violative of the provisions of Rule 36 of the Tamilnadu Pension Rules also.
29. Under the above circumstances, the writ petition is allowed, the impugned order is set aside and the respondents are directed to reinstate the petitioner into service within 4 weeks from the date of receipt or production of a copy of this order, either in the post of Assistant Jailor or in an equivalent post carrying the same scale of pay as that of the post of Assistant Jailor with all consequential benefits. The amount of invalid pension or any other pension, Page 3048 if already paid to the petitioner during the period from 14-3-2005 till the date of reinstatement, shall be adjusted towards the full pay and allowances payable to the petitioner for the said period. If the petitioner had already received any other terminal benefits such as gratuity etc., he shall refund the same to the Government at or before joining duty on reinstatement. No costs.
30. Before parting, it is necessary to point out that those who suffer from physical disabilities need not necessarily be a dead weight in service. Mr. Stephen William Hawking now celebrated as one of the greatest Theoretical Physicist of the Century, after Albert Einstein, has performed marvelous scientific Fetes, despite suffering from an incurable disease of the nervous system making him unable to speak or move more than a few hand and face muscles. Therefore, the attitude on the part of the respondents towards the petitioner is highly deplorable.

LIEN IN A POST

R. Shobana vs 5 B. Subramaniam on 15 October, 2009

Dated: 15.10.2009
Coram
The Honourable Mr.Justice S.NAGAMUTHU
W.P.No.12567 of 2009
& M.P.Nos.1 to 4 of 2009
R. SHOBANA [ PETITIONER ]
Vs
1 THE STATE OF TAMILNADU
REP. BY ITS SECRETARY
BACKWARD CLASSES, MOST BCKWAD CLASSES AND
MINORITIES WELFARE (OP) DEAPRTMENT
SECRETARIAT CHENNAI -09
2 THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
REP. BY ITS REGISTRAR
NO. 212 R.K.MUTT ROAD
2ND FLOOR
MYLAPORE CHENNAI 600004
3 THE BACKWARD CLASSES COMMISSION
REP. BY MEMBER -SECRETARY
NO. 212 R.K.MUTT ROAD
FIRST FLOOR MYLAPORE
CHENNAI 600004
4 GOVERNMENT OF TAMILNADU
REP. BY THE SECRETARY
PERSONNEL & ADMINISTRATIVE
REFORMS (H) DEPARMENT
SECRETARIAT CHENNAI 600009
5 B. SUBRAMANIAM
[ RESPONDENTS ]
Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari calling for the records relating to the office proceedings No. 150/2009 dated 14.5.2009 issued by the 1st respondent and quash the same as being illegal arbitrary and unconstitutional. For Petitioner : Mr.R.Muthukumarasamy, Sr.counsel for
Mr.M.Hidayathulla Khan
For Respondents : Mr.Kabilan, AAG for
Mr.S.Sivashanmugam, G.A.
For R1, 3 & 4.
Mr.K.Kumaran for R2
Mr.R.Suresh Kumar for R5
---
O R D E R
The petitioner was appointed as Steno-Typist Grade II through Tamil Nadu Public Service Commission and was allotted to the District Consumer Disputes Redressal Forum, Chengelpet as Grade III Stenographer. She joined service on 8.3.1995. Later on, she was promoted as Grade I Stenographer in the office of the 2nd respondent.
2. The 5th respondent was also selected through Tamil Nadu Public Service Commission as Typist in the year 1988 and was allotted to the Department of Exservicemen's Welfare and accordingly he joined the service. Thereafter, in the year 1989, he was promoted as Steno-Typist in the same Department. While he was working as Steno-Typist in the said Department, he was transferred on deputation to the Tamil Nadu Dr.M.G.R.Medical University in the year 1992 as Steno-Typist Grade III. Accordingly, he was working in Dr.M.G.R.Medical University till December 1994. By order dated 12.12.1994, the Department of Exservicemen's Welfare placed the petitioner at the disposal of the 2nd respondent, namely State Consumer Disputes Redressal Commission, as per the 2nd respondent's order dated 6.12.1994 for appointment as Steno-Typist Grade III. Accordingly, he was relieved from the Tamil Nadu Dr.M.G.R.Medical University and he joined the 2nd respondent as Steno-Typist Grade III on 16.12.1994. His service was also regularised as Steno-Typist Grade III. He was then promoted as Steno-Typist Grade I with effect from 23.3.2000.
3. Admittedly, at the office of the 2nd respondent in the post of Steno-Typist Grade I, the 5th respondent was senior to the petitioner. While so, a post of Personal Assistant (court work) was created in the office of the 2nd respondent as per G.O.Ms.No.245, CF & CP (H1) Department dated 25.10.2006. As against the said post, since the 5th respondent was senior most in the post of Steno-Typist Grade I, he was promoted as Personal Assistant (court work) as per the proceedings of the 2nd respondent dated 7.5.2007. The 5th respondent accordingly joined the post of Personal Assistant (court work) on 17.5.2007.
4. When the petitioner and the 5th respondent were so working in the office of 2nd respondent, the Department of Personnel & Administrative Reforms Department called for applications from eligible candidates, who are in various services in the State for recruitment on transfer as Personal Assistant in the Secretariat. The 5th respondent applied for the same and got selected. Therefore, as per the order issued by the Personnel & Administrative Reforms Department dated 30.6.2008, the 5th respondent was recruited on transfer with effect from 30.6.2008. He was placed at the disposal of the Backward Classes, Most Backward Classes and Minorities Welfare Department for being posted as Personal Assistant in the office of the Tamil Nadu Backward Classes Commission. Accordingly, the 5th respondent was working as Personal Assistant in the Tamil Nadu Backward Classes Commission.
5. Coming back to the case of the petitioner, after the 5th respondent was relieved from the post of Personal Assistant (court work) for being recruited on transfer in the Secretariat Service, as against the consequential vacancy caused in the post of Personal Assistant (court work) at the office of the 2nd respondent, since the petitioner was the senior most, she was promoted and duly appointed. As of now, the petitioner is working as Personal Assistant (court work) in the 2nd respondent office.
6. When things stood thus, the 5th respondent made a request to the 1st respondent on 18.3.2009 to revert him back to the 2nd respondent to the post of Personal Assistant (court work) because of his lien allegedly available for the said post. Considering the same, the Personnel & Administrative Reforms Department issued an order by office proceedings 150/2009, BC, MBD & MW (OP) Department dated 14.5.2009 by which Personnel & Administrative Reforms Department directed the 3rd respondent to revert the 5th respondent to the 2nd respondent office. Accordingly, the 3rd respondent by his proceedings in O.P.No.87/TNBCC/22009 dated 15.5.2009 relieved the 5th respondent on 15.5.2009 and directed him to report for duty at the office of the 2nd respondent. It is the contention of the 5th respondent that when he reported for joining duty at the office of the 2nd respondent, he was not permitted to join. He would further state that the 2nd respondent informed him that the petitioner had approached the court of law and therefore posting orders shall be given only later.
7. In those circumstances, the petitioner has come forward with the present Writ Petition seeking to quash the proceedings of the 1st respondent dated 14.5.2009 in his office proceedings 150/2009, BC, MBD & MW (OP) Department as illegal, arbitrary and unconstitutional.
8. It is the contention of the petitioner that all the posts at the office of the 2nd respondent are purely temporary posts and so, in the post of Personal Assistant (court work) at the office of the 2nd respondent, the 5th respondent cannot have any lien as per the Fundamental Rules and therefore his request for reverting him back to the 2nd respondent office as though there is lien available for him is not correct. Alternatively, it is also contended that even assuming that the petitioner has got lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, since he was recruited on transfer in the Secretariat Service in the Backward Classes Commission, the so called lien which the petitioner was enjoying got snapped. Therefore, there is no question of existence of any lien so as to get himself reverted back to the office of the 2nd respondent to the post of Personal Assistant (court work).
9. The learned counsel appearing for the 5th respondent would contend that though the post of Personal Assistant (court work) is technically temporary, nevertheless the same has been treated only as a permanent post. Therefore, the petitioner has got a lien in the said post. The learned counsel appearing for the 5th respondent further contended that even assuming that the post of Personal Assistant (court work) at the office of the 2nd respondent is temporary, as per G.O.Ms.No.176 P&AR Department dated 5.7.1994, the 5th respondent has got a lien. The learned counsel would further submit that since the 5th respondent's service was regularised at the office of the 2nd respondent and since he has been made permanent by such regularisation, though the post is temporary, the 5th respondent has lien in the post of Personal Assistant (court work) at the office of the 2nd respondent.
10. A detailed counter has been filed by the 5th respondent adopting the above stand.
11. The 2nd respondent has filed a detailed counter, wherein in paragraph 6, it is specifically stated that all the posts sanctioned to the State Commission including the post of Personal Assistant (court work) as well as the District Fora are temporary posts, which are renewed every year by further orders from the Government. The latest such order, sanctioning further continuance of the post was issued by the Government in G.O.Ms.No.84, Cooperation, Food and Consumer Protection (H1) Department dated 24.7.2009. It is further stated in the counter affidavit sworn by the Registrar of the State Consumer Disputes Redressal Commission that since the dispute involved is a complicated one and the post of the President was vacant then, the Registrar could not take any decision.
12. The respondents 1 and 4 have filed a counter, which has been adopted by the 3rd respondent. The crux of the counter filed by the respondents 1 and 4 is that on appointment of the 5th respondent in the 2nd respondent Commission as Grade III Stenographer, his lien in the earlier post he was holding in the Department of Exservicemen's Welfare was cut off. It is further stated that the petitioner enjoyed the lien in the post of Personal Assistant (court work) in the 2nd respondent office.
13. The contention of the petitioner that lien in the post of Personal Assistant (court work) at the office of the 2nd respondent would have got snapped at the moment when the 5th respondent was recruited again in the Department of Backward Classes Commission on transfer has not been answered. The learned Government Advocate appearing for the respondents 1, 3 and 4 is not in a position to explain the stand of the Government regarding the said contention of the petitioner.
14. I have heard Mr. Mr.R.Muthukumarasamy, learned Senior counsel appearing for the petitioner, Mr.S.Sivashanmugam, learned Government Advocate appearing for the respondents 1, 3 and 4 and Mr.K.Kumaran, learned counsel appearing for the 2nd respondent and Mr.R.Suresh Kumar, learned counsel appearing for the 5th respondent.
15. Before going into the facts of this case, it is relevant to refer to the provisions contained in the Tamil Nadu Fundamental Rules in respect of lien. Fundamental Rule 9(13) defines the term "lien" as follows:
"(13) Lien means the tltle of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively. (emphasis supplied)"
What is permanent post is defined in Fundamental Rule 9(22) as follows:
(22) Permanent post means a post carrying a definite rate of pay sanctioned without limit of time."
The term "tenure post" has been defined under Fundamental Rule 9(30-A) as follows:
"(30-A) Tenure post means a permanent post which an individual Government servant may not hold for more than a limited period."
Fundamental Rule 12-A reads as follows:
"12-A. Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post."
16. A conjoin reading of the above provisions would make it manifestly clear that a Government servant can acquire lien in a particular post, if only the said post is permanent or tenure. If it is a purely temporary post, the Government servant who is holding the said post, either on a temporary post or permanent post cannot acquire any lien in the said post.
17. The learned counsel for the 5th respondent would rely on G.O.Ms.No.176, Personnel & Administrative Reforms (Per.S) Department dated 5.7.1994, wherein the Government has directed as follows:
"The concept of lien that entitles a Government servant to hold substantively a permanent post, shall undergo a change. Lien shall now represent only the right or title of a Government servant to hold a regular post whether permanent or temporary, either immediately or on the termination of the period of absence. The benefits of having a lien in a grade shall thus be enjoyed by all officers who are confirmed in the grade of entry or who have been promoted to a higher post declared as having completed the probation where it is prescribed or those who have been promoted on regular basis to a higher post where no probation is prescribed under the Rules, as the case may be. The above right/title shall, however, be subject to the condition that the junior most person in the grade shall be liable to be reverted to the lower grade if at any time the number of persons so entitled is more than the posts available in that grade. (For example, if a person who is confirmed or whose probation in a higher post has been declared as having been completed or one who is holding a higher post for which there is no probation on a regular basis, reverts from deputation or foreign service and if there is no vacancy in that grade to accommodate him, the junior most person in the grade applicable to the post shall be reverted, if, however, this officer himself is the junior most, he shall be reverted to the next lower grade from which he was earlier promoted.).
18. Relying on the above Government Order, the learned counsel for the 5th respondent would submit that the post of Personal Assistant (court work) at the office of the 2nd respondent may be a temporary post, still, the 5th respondent has acquired lien in the said post because his services have already been regularised in the said post. The learned counsel lays emphasize on the words used in the said Government Order, "whether permanent or temporary".
19. Though the argument of the learned counsel for the 5th respondent appears to be attractive, it cannot be accepted in view of the fact that it cannot override the statutory Rules, namely the Tamil Nadu Fundamental Rules. It is well settled that executive instruction issued by the Government cannot override the statutory rule. It could be noticed from the said Government Order in paragraph 4 that the Government have directed that the Departments of Secretariat may be requested to take necessary action to amend all the relevant rules separately. Though the Government took a policy decision to create a lien for a Government servant even as against the temporary post which he has been holding, the learned senior counsel for the petitioner contended that instead of making necessary amendment to the Tamil Nadu Fundamental Rules, the Government declared a policy by issuing a Government Order. In the light of the clear terms of the Fundamental Rules, the Government Order relied on by the learned counsel for the 5th respondent cannot be applied.
20. Now coming to the facts of the case, admittedly the post of Personal Assistant (court work) at the office of the 2nd respondent is a temporary post. To that extent, the 2nd respondent State Consumer Dispute Redressal Commission has filed a counter in paragraph 6. Apart from that, the petitioner has produced a Government Order issued by the Government in G.O.Ms.No.84, Cooperation, Food and Consumer Protection (H1) Department dated 24.7.2009, wherein the Government has directed to continue 156 temporary posts, which includes the Personal Assistant to the Registrar and Personal Assistant (court work) for a further period of one year. Therefore, there can be no dispute that the post of Personal Assistant (court work) at the office of the 2nd respondent is purely temporary.
21. The learned counsel for the 5th respondent would make an attempt to say that though the post may be technically temporary, in practice the same has been treated only as a permanent post and therefore the 5th respondent has got lien over the said post.
22. In my considered opinion, there is no substance in the said argument. When the facts are so indisputable that the post has been all along only a temporary post for a period of one year and the same has been extended by the Government by issuing necessary orders, it cannot be said that the said post is permanent post so that the 5th respondent can have a lien over the said post.
23. The learned counsel for the 5th respondent has produced a Statement of Posts and Scales of pay for the year 2004-2005. Taking a view of the said Table, he would submit that as against 10,67,975 posts in the Government Departments in the State of Tamil Nadu, 4,13,807 posts are kept temporary, which means 39% of the Government servants are only temporary employees. It is the specific contention of the 5th respondent that though those posts are technically temporary, in practice they are treated only as permanent posts. I have given anxious consideration to the said contention. Though it is true that 39% of the Government servants in the State of Tamil Nadu are made as temporary employees, since it is the policy decision of the Government, this Court cannot transgress into the powers regarding policy decision of the Government to make any tangible law. It is for the Government to take appropriate policy decision in respect of the above decision. Therefore, for the simple reason that 39% of posts in the Government Departments are kept temporary, the argument of the learned counsel for the 5th respondent that these temporary posts should be treated as permanent posts for the purpose of lien cannot be accepted. So long as the fact remains that the post of Personal Assistant (court work) remains to be a temporary post, the person who is holding the said post cannot have a lien in the said post.
24. The learned counsel for the 5th respondent would further submit that the post of Personal Assistant (court work) may be a temporary post, since the 5th respondent's service was regularised as against the said post, he has got a lien as per Rule 9 of the Tamil Nadu State and Subordinate Service. In my considered opinion the said Rule also does not come to the rescue of the 5th respondent.
25. The learned senior counsel appearing for the petitioner would rely on a judgment of the Hon'ble Supreme Court in S.Narayana vs. Md. Ahmedulla Khan reported in AIR 2006 SC 2224, wherein the Hon'ble Supreme Court while dealing with the concept of lien has held as follows:
"17. The learned counsel for the appellant also urged that the High Court had misunderstood the concept of a lien on a post. He contended, and rightly in our view, that there was nothing like lien on a post, unless a person was made permanent in a post. Strong reliance was placed on the observations of this Court in Triveni Shankar Saxena vs. State of U.P. Wherein after examining the concept of lien in Government service, it was observed: "... a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier, with which view, we are in agreement.
..
19. For the first respondent, however, it is contended that regularisation i the same as confirmation in service, and therefore, lien would operate from the said date. We are afraid that we cannot accept this contention in the face of clear authority to the contrary, to which we have already referred. Counsel for the first respondent also contended that any relief given to the appellant should not affect any benefit of service, emoluments, allowance and pension etc. available to the first respondent. We do not see how this apprehension can arise. The order of the Tribunal does not in any way show that the first respondent's service benefits are affected. All that it ensures is that justice is rendered to the appellant. The learned counsel for the State submitted that the State would submit to any orders passed by this Court. We also notice that the State Government has not filed any counter affidavit in position to the appeal."
26. The principle stated by the Hon'ble Supreme court in the aforesaid decision would clearly settle the issues involved in the case at rest and it would show that though the 5th respondent was regularised in the post of Personal Assistant (court work) at the office of the 2nd respondent, such regularisation would not give any lien for him in the said post because it is not either a permanent post or a tenure post.
27. The learned senior counsel relied on two other judgments of the Hon'ble Supreme Court inG.K.DUDANI AND OTHERS vs. S.D.SHARMA AND OTHERS reported in 1986 (Supp) SCC 239 and O.P.SINGLA AND ANOTHER VS. UNION OF INDIA AND OTHERS REPORTED IN (1984) 4 SCC 450 to substantiate his contention that there may be a permanent appointment as against a temporary post. Simply because the appointment is permanent, it does not mean that the post automatically became permanent so as to create a lien for the holder of the said post.
28. A perusal of these two judgments relied on by the learned senior counsel appearing for the petitioner would make it clear that it is not always necessary that as against a temporary post, only a temporary employee can be appointed. Even a permanent employee can be appointed as against a temporary post. The resultant position would be that in the event of temporary post getting abolished, the holder of the said post, since he is a permanent employee, shall be entitled for redeployment in some other Department. Instead of that, because a person, who is holding a temporary post is a permanent employee, the post will not become automatically permanent. In the case on hand, indisputably, the post of Personal Assistant (court work) at the office of the 2nd respondent is purely temporary and it was held by the 5th respondent for some time though he is a permanent employee. Similarly, the petitioner is holding the said post though she is also a permanent employee.
29. For all the above reasons, I have no hesitation to come to the conclusion that the 5th respondent, on appointment as Steno-Typist Grade II at the office of the 2nd respondent and on promotion to the post of Steno-Typist Grade I and then to the post of Personal Assistant (court work), has not acquired any lien in any of these posts at the office of the 2nd respondent.
30. Admittedly, as per Rule 12-A of the Fundamental Rules, since the 5th respondent was initially appointed in the Department of Exservicemen's Welfare as against a permanent vacancy, he acquired lien only as against the said post and on deputation to the office of the 2nd respondent as against a temporary post, the lien which he had at the Department of Exservicemen's Welfare would not get snapped because under Rule 12-A of the Fundamental Rules, if only a person is recruited as against a permanent vacancy, the lien which he acquired in the earlier post will get snapped. Therefore, the 5th respondent was originally having a lien in the post which he was holding in the post of Department of Exservicemen's Welfare. From the subsequent events, as I have already narrated, it could be seen that the 5th respondent was again recruited on transfer in the Backward Classes Commission. Since the post against which he was so recruited in the Secretariat in the Backward Classes Commission, is a permanent post and since the petitioner was also appointed permanently, the lien which he had in the post which he was holding in the Exserviemen Department get snapped. As I have already stated, since there was no lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, there is no question of claiming of lien by the 5th respondent as against the said post.
31. The present position is that the Bakcward Classes Commission has relieved him from the post with a direction to go and join the 2nd respondent. But the 5th respondent has not joined the post because the 2nd respondent has not allowed him to join. In my considered opinion, the 2nd respondent was right in declining to allow the 5th respondent to join duty. It is for the Backward Classes Department to take him forthwith and to allow him to join duty.
32. The learned counsel for the 5th respondent would finally submit that the petitioner has no locus standi to challenge because she herself does not have any lien over the post of Personal Assistant (court work) under the 2nd respondent. In my considered opinion, to acquire locus standi to question the issue involved in this Writ Petition, the petitioner need not have any lien over the post she is holding. The petitioner does not claim any lien over the post. Even according to her, she cannot acquire any lien as against the said post because the post of Personal Assistant (court work) is purely temporary. At the same time because the 5th respondent is trying to join duty as Personal Assistant (court work) at the office of the 2nd respondent, consequently the petitioner would be disturbed and she would be reverted back to the post of Steno-Typist Grade I. Because of the order passed by the Personnel & Administrative Reforms Department reverting the 5th respondent back to the 2nd respondent office, the petitioner's future is in peril. Thus, I am of the view that the petitioner has locus standi to maintain the present Writ Petition.
33. The learned senior counsel appearing for the petitioner would submit that even assuming without admitting that the 5th respondent had any lien in the post of Personal Assistant (court work) at the office of the 2nd respondent, since he was recruited on transfer in the Secretariat in the Department of Backward Classes, the so called lien also gets snapped. I am in full agreement with the said argument of the learned senior counsel. Thus, viewing from any angle, I find that the grievance of the petitioner is justifiable and so the petitioner must succeed in this Writ Petition.
34. In the result, the Writ Petition is allowed and the impugned order is set aside. The 5th respondent is at liberty to approach the Backward Classes Department and the Personnel & Administrative Reforms Department for restoring his service in the Backward Classes Department. If any such representation is given by the 5th respondent, the respondents 1, 3 and 4 are directed to consider the same without any further loss of time and to immediately issue him posting order. No costs. The connected Miscellaneous Petitions are closed.

Rule 54-B(3) and (4) of Fundamental Rules of Tamil Nadu Government.

M.Balan vs Tamil Nadu Water Supply And ... on 7 August, 2007

DATED : 07.08.2007
CORAM :
THE HONOURABLE MR. JUSTICE A. KULASEKARAN
W.P. No.24224 of 2006
M.Balan ... Petitioner
Vs

1. Tamil Nadu Water Supply and Drainage Board
rep. By its Managing Director
Chepauk
Chennai.
2. Legal Cell
rep. By its Law Officer
Tamil Nadu Water Supply and Drainage Board
Chepauk
Chennai 5.
3. S.Anji
Junior Accounts Officer
Tamil Nadu Water Supply and Drainage Board
Internal Audit Wing
Madurai.
4. S.Jeyabalan
Junior Accounts Officer
Tamil Nadu Water Supply and Drainage Board
Head Office
Chepauk
Chennai.
5. S.Jeyachandran,
Junior Accounts Officer
Tamil Nadu Water Supply and Drainage Board
Internal Audit Wing
Coimbatore. ... Respondents
Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated below. For Petitioner : Mr.Kandavadivel Doraisami
For Respondents : Mrs.Sudarsana Sundar for RR1 and 2
O R D E R
This writ petition has been filed seeking issuance of Writ of Certiorarified Manadamus to call for the records of the first respondent Board relating to B.P.Ms.No.68 (ENT-I Wing), dated 18.7.2006 and quash the same in so far as Respondents 3 to 5 are concerned and to direct the 1st respondent Board to include the name of the petitioner in the panel of Junior Accounts Officers fit for promotion as Accounts Officers in TWAD Board for the year 2006 below Sl.No.2 G.Sivaganesan (Seniority No.56) and above Sl.No.3 Anji (Seniority No.67).
2. The petitioner joined in the Tamil Nadu Water Supply and Drainage Board in the year 1970 as Junior Assistant. He was promoted as Assistant in the year 1974 and further promoted as Divisional Accountant in 1980. The said post of Divisional Accountant is re-designated as Junior Accounts Officer. In the year 1985, the petitioner was posted as Divisional Accountant, R.W.S.Division, Uthagamandalam and he worked there till 3.5.1989. It is the case of the petitioner that he found certain irregularities in the procurement of materials in R.W.S. Division and he immediately brought to the attention of the higher officials, viz., the Executive Engineer. On 15.11.1989, the petitioner was shocked to receive the suspension order dated 11.11.1989. But, no charge memo was issued despite several representations made by him. Thereafter, he was reinstated in service on 5.9.1991. The petitioner is also stated to have sent several representations to the authorities requesting them to regularise the period of suspension between 15.11.1989 and 4.9.1991 as per Rule 54-B(3) and (4) of Fundamental Rules of Tamil Nadu Government. The petitioner also filed a writ petition in W.P.No.15962 of 1996 before this Court seeking regularisation of the period of suspension, which was allowed by this Court by order dated 24.10.1998.
3. While things are such, the respondents issued several charge memos against the petitioner, but, admittedly, they were all stated to have quashed. It is submitted by the learned counsel appearing for the respondents that though liberty is granted while quashing the said charge memos, they had not proceeded further. It is the case of the petitioner that only one charge memo dated 12.1.2002 was pending during the relevant period, which was challenged by him by filing a writ petition before this Court in W.P.No.3778 of 2002, which was disposed of by order dated 1.4.2002, whereunder, it is observed thus: "... In case, the respondent does not dispose of the Disciplinary enquiry within a period of 6 months, it is directed to consider the claim of the petitioners for further promotions as if there is no disciplinary enquiry is pending against them, if they are otherwise fit and eligible for promotion. It is further made clear that the petitioners should not unduly delay or drag on the Department proceedings and if the petitioners are the cause for the delay of proceedings, the period taken by the petitioners is to be excluded in computing the period of six months."
4. Pursuant to the above order, the respondent filed a petition seeking extension of time and this Court, by order dated 27.11.2002, allowed the petition extending the time for a further period of one year. It is the case of the petitioner that in spite of the above specific direction of this Court in the order dated 1.4.2002, the respondents while drawing the panel for promotion on 18.7.2006, did not include the name of the petitioner. Hence, the petitioner has filed the present writ petition seeking to quash the panel of promotion dated 18.7.2006.
5. Mr.Kandavadivel Doraisamy, learned counsel appearing for the petitioner, reiterated the contents of the affidavit filed in support of the petition and submitted that there was only one charge memo dated 12.1.2002 was pending against the petitioner, which was issued invoking Regulation 9(b) of the Tamil Nadu Water Supply and Drainage Board Employees' (Discipline and Appeal) Regulations, 1972. It is pointed out by the learned counsel for the petitioner that at the time of disposal of W.P.No.3778 of 2002, this Court has categorically observed that, in case, the disciplinary enquiry was not completed within the said time, the claim of the petitioner can be considered for further promotion, as if there is no disciplinary enquiry pending against the petitioner, if he is otherwise fit and eligible for promotion. It is further submitted by the learned counsel that the said enquiry proceedings were completed and punishment of stoppage of increment for a period of one year without cumulative effect was ordered on 12.3.2007, which is challenged by him in a separate writ petition in W.P.No.11176 of 2007 and the same is pending. Pointing out the said fact, the learned counsel submitted that on the date of drawing of panel on 18.7.2006, the petitioner was very much eligible, but the respondents with ulterior motive, failed to include his name in the said panel and hence, he prayed for quashing the said panel dated 18.7.2006.
6. On the other hand, Mrs.Sudarsana Sundar, learned standing counsel appearing on behalf of respondents 1 and 2, submitted that though the disciplinary proceedings pursuant to the charge memo dated 12.1.2002 was not completed as per the order dated 1.4.2002 passed in W.P.No.3778 of 2002, there was a criminal case pending against the petitioner and the respondents has also accorded sanction for prosecution and hence, his name was not considered.
7. Admittedly, there was only one charge memo dated 12.1.2002 that was pending against the petitioner during the relevant period and even in respect of the said charge memo, this Court, while disposing of W.P.No.3778 of 2002 by order dated 1.4.2002, directed the respondent to dispose of the disciplinary enquiry pending against the petitioner within a period of six months and if the enquiry was not completed within the said time, directed to consider the case of the petitioner for further promotion, as if no disciplinary enquiry is pending against them, if otherwise he is eligible. The said period of six months to complete the disciplinary enquiry was further extended by another one year at the instance of the respondents, however, the direction to consider his name for promotion was not altered. The learned standing counsel for the respondents/ Board submitted that there was a criminal case pending against the petitioner and others and the respondents also accorded sanction for prosecution and that was the reason for not including the petitioner's name in the panel drawn on 18.7.2006. But, no details were furnished before this Court by the respondent as to when the sanction for prosecution was accorded and as to whether any charge sheet has been filed or not. However, the learned counsel appearing for the petitioner submitted that no charge sheet has been filed against the petitioner till date. The learned counsel for the petitioner brought to the notice of this Court the Government Letter dated 20.10.1997 in Ms.No.248, P & AR Department, relating to inclusion in the panel for promotion during pendency of vigilance enquiry and submitted that mere registration of cases in Courts need not be held against the officers, but if charge sheet has been filed in the criminal case, it should be held against the officers. The said legal position is not disputed by the learned standing counsel appearing for respondents 1 and 2.
8. In view of the discussion made above, this Court is of the considered opinion that there is no valid reason for not including the name of the petitioner while drawing the panel for promotion on 18.7.2006 and hence, respondents 1 and 2 are directed to give promotion to the petitioner from the date in which his juniors were promoted and to extend all consequential benefits thereof. The said exercise shall be considered by respondents 1 and 2 within a period of eight weeks from the date of receipt of copy of this order. The writ petition is disposed of on the above terms. No costs.