N.Kumar Vs. Government of Tamil Nadu - Court Judgment

SooperKanoon Citationsooperkanoon.com/1169902
CourtChennai High Court
Decided OnJan-10-2014
JudgeTHE HONOURABLE Mr. JUSTICE M. VENUGOPAL
AppellantN.Kumar
RespondentGovernment of Tamil Nadu
Excerpt:
in the high court of judicature at madras dated :10. 01.2014 coram the honourable mr. justice m. venugopal w.p.no.25341 of 2012 & m.p.no.3 of 2013 n.kumar ... petitioner vs 1. the secretary to government of tamil nadu, co-operative food and c.p.department, secretariat, chennai-600 009.2. the special secretary & commissioner of revenue disaster management, chepauk, chennai-600 005.3. the district collector, salem.4. the district revenue officer, salem.5. the deputy secretary to government, m.a. & w.s. department, chennai-600 009 6. p.balasundaram 7. m.krishnan 8. s.nithyanantham ... respondents (r6 to r8 impleaded as per order dated 30.04.2013 by vrsj in m.p.no.2 of 2013 in w.p.no.25341 of 2012.) prayer: writ petition filed under article 226 of the constitution of india for a writ of certiorarified mandamus, calling for the letter of the first respondent in no.6670/ce2/2009-15, dated 31.01.2012, quash the same and directing the 2nd respondent to consider the petitioner's appeal dated 17.08.2012 by directing them to include the petitioner's name in serial no.6 in the list of tahsildars of salem for the year 2012. for petitioner : m/s.v.raghupathi for respondents : mr.v.subbiah, special government pleader for r1 to r5 order the petitioner has preferred the instant writ of certiorarified mandamus calling for the letter of the first respondent bearing no.no.6670/ce2/2009-15, dated 31.01.2012 and to quash the same. further, he has sought for passing an order by this court and directing the 2nd respondent to consider the petitioner's appeal dated 17.08.2012 by directing them to include the petitioner's name in serial no.6 in the list of tahsildars of salem for the year 2012. the writ petition facts:2. according to the petitioner, he joined the service in the year 1990 as junior assistant in the revenue department. he worked as town revenue inspector, athur, from 12.06.1998 to 13.02.2000. he worked as deputy tahsildar [seniority list serial.no.23]. in salem district (revenue unit) from 05.12.2007 to 17.12.2007. due to non-availability of vacancy for some time, he worked as assistant and then, again from 29.09.2008 onwards, he worked as deputy tahsildar, athur taluk. when he worked as town revenue inspector from 12.06.1998 to 13.02.2000, the then village administrative officer t.thangavel gave a statement to him determining market and guideline value of the land at rs.251 per sq.ft. for land in survey no.463/4a and 463/5a in ward no.8, arthur town. as a forwarding staff, he sent the same as ".valuation report". to the then tahsildar of athur, viz., s.paulpandian, who certified the same price as rs.251 per sq.ft. for the said land instead of sending the same to the district collector. 3.the then district revenue officer, salem, issued a charge memo in his proceedings na.ka.no.53496/2007/a3, dated 09.05.2008 under rule 17(b) of the tamil nadu civil services (discipline and appeal) rules against the petitioner and also the village administrative officer t.thangavel alleging that they have caused a loss to the government by determining the value of the land at higher rate of land at rs.251/- instead of rs.127/- being the market value for the said land. he submitted his explanation and the enquiry officer was appointed by the district revenue officer, salem, through proceedings in na.ka.no.53496/2007/a3, dated 27.06.2008. a letter was sent by the deputy secretary to government co-operative and food department in no.27110/ce2/2007-5, dated 22.10.2008, to the district collector of salem, wherein, it has stated that when the delinquent officers belonging to various departments facing disciplinary proceedings only the government will be competent to take disciplinary proceedings and not the one appointing authority of one department. therefore, the papers relating to the charges were sent to the government relating to r.nallathambi, district registrar of co-operative societies [under suspension]. and those original papers relating to him and the village administrative officer t.thangavel were sent to secretary to government, co-operative department proceedings under rule 9a of tamil nadu civil services {disciplinary and appeal} rules, against the said staff by the district collector of salem through his letter no.na.ka.53496/2007/a3 dated 01.12.2008. 4.the case of the petitioner is that till date, the government has not yet issued any charge memo under rule 9a against him. unfortunately, the additional commissioner of revenue administration issued a letter in na.ka.no.8632/2008/ service 4-1, dated 03.02.2009 to the principal secretary, revenue department, which runs as under: ".i invite kind attention of the government in the references cited and wish to state that in the g.o. 1st cited, the government have directed to initiate departmental disciplinary action against tvl.d.thangavel, formerly village administrative officer and n.kumar, formerly revenue inspector for certain allegations against them substantiated by the appropriate investigating authority. the collector has framed charges under rule 17(b) of tamilnadu civil service (discipline and appeal) rules, against the said two accused officers and appointed district inspection cell officer as enquiry officer. in the meanwhile, the collector, salem in his letter 2nd cited has stated that the government, co-operative, food and consumer protection department in their letter 27100/ce2/2007 dated 22.10.2008 have requested the collector, salem that since one of the accused officers thiru r.nallathambi, formerly registrar of co-operative societies is getting highest salaries, the government have to initiate disciplinary action against all the accused officers as per rule 9a of tncs (discipline and appeal) rules and sent all the connected records to the government. as requested by the above department, the collector salem has sent all the connected records to the above said department. i send herewith a copy of letter received from the collector, salem. 2) one thiru s.thangavel, formerly village administrative officer, has filed a w.p.no.18284/08, against the charges framed against him in the above case and also against the order not permitting him to retire from service. while admitting the above w.p., the high court has granted interim stay to the existing stay has been filed before the court. 3)i request that the result of the disciplinary action initiated against the two revenue officers may kindly be ascertained from the government. co-operative food and consumer protection department.". 5.this court in w.p.no.18284 of 2008 [filed by village administrative officer t.thangavel]. on 28.07.2009 has passed the following order: ".8.on a perusal of the materials placed on record, it is seen that the petitioner joined in service as village administrative officer on 01.09.1982 and he had been placed under suspension by the revenue department on 31.10.2007 and also a charge memo was issued against him and one n.kumar, formerly revenue inspector, attur, on 09.05.2008. it is also seen that a detailed enquiry dated 01.02.2008 was registered against one r.nallathambi, formerly registrar of co-operative societies (housing) chennai and others. the matter has requested to fix the land value for the above land to the collector, salem. therefore, since the officials involved in the commission of the offence are more than from one department, viz., the petitioner/village administrative officer, firka revenue inspector as well as tahsildar concerned of the revenue department, as per the government orders and as per rule 9a of tamil nadu civil services (discipline and appeal) rules, the competent authority to frame the charges and initiate action is only the appropriate government and not the concerned officer of that department alone. now, the department of co-operation, food and consumer protection department has come out with a specific plea that if the officials involved in an allegation are more than from one department, then the competent authority to frame the charges and initiate action is only the appropriate government and not the concerned officer of that department alone. 9.in this case, admittedly, since the officials involved in the commission of the offence are more than from one department viz., petitioner/village administrative officer, firka revenue inspector as well as tahsildar concerned of the revenue department and sub-registrar of co-operative societies under co-operative department, the charges framed by the authority concerned cannot be sustained as the same could be framed only by the appropriate government. in that view of the matter, the charge memo dated 09.05.2008 cannot be sustained and the same is quashed.". 6.since the said t.thangavel was not paid with retirement benefits, he was constrained to file the writ petition in w.p.no.24087 of 2009 before this court and on 27.08.2010, this court passed the following order in the said writ petition, which runs as under: ".8.the suspension order dated 31.10.2007 was issued on the ground that disciplinary proceedings was contemplated against the petitioner and the other order dated 31.10.2007 not permitting him to retire was issued on the ground that disciplinary proceedings was pending. since the charge memo dated 09.05.2008 has been quashed by this court on 28.07.2009, there is no disciplinary proceedings pending against the petitioner as on today. it is also stated that the disciplinary proceedings are pending against the petitioner.9. considering the facts and circumstances of the case, the two impugned orders dated 31.10.2007 of the second respondent are quashed and the writ petition is allowed to the extent indicated above. no costs. consequently, connected miscellaneous petition is closed.". 7.it comes to be known that pursuant to the order of this court, dated 27.08.2010 in w.p.no.24087 of 2009, government issued a letter bearing no.6670/ce2/09/2011, food and corporative department dated 22.08.2011 stating that order shall be passed on the charges framed in regard to t.thangavel, the then village administrative officer and only the government has the power for passing final orders in the disciplinary proceedings initiated against the petitioner. but till date, no charge was issued against the petitioner under rule 9a of the tamil nadu civil services (discipline and appeal) rules. 8.on 17.05.2011, the third respondent/district collector, salem, informed the petitioner that his probation was declared in deputy tahsildar cadre, since there was no charge framed against him. he sent his representation dated 02.08.2012 to the third respondent requesting to include his name in the list of tahsildar of salem district for the year 2012. however, the third respondent without considering his representation, has released the list of tahsildar of salem district in the year 2012 by the proceedings bearing no.pdl.37/2012/a2 dated 07.08.2012. in the said list, his name has to be included above s.govindarajan, serial no.6., but his name was not included. 9.he sent an application under right to information act, 2005 to the public information officer of the office of the third respondent/district collector, salem, asking for copies of earlier proceedings and other details. he received the information with copies dated 14.08.2012. it transpires that the third respondent/district collector, salem, through his proceedings in dd.no.9753/2011 has noted that since the charges against him and the village administrative officer, t.thangavel were quashed in w.p.no.18284 of 2008 on 28.07.2009 there is no pendency of any charge memo and disciplinary proceedings against him. however, the third respondent has also ordered that he is eligible for further promotion. 10.the petitioner has sent an appeal to the second respondent/special secretary and commissioner of revenue administrator, madras-5 on 17.08.2012 explaining about non-consideration of his name despite the fact that there are no pending charges against him. further, he has requested him to pass orders including his name as stated supra. however, till date, there is no progression in the matter in issue. also that, he has come to know that g.o.(rt) no.475, co-operation, food and consumer production (ce2) department, dated 16.12.2010 was issued wherein an enquiry was ordered against one c.mahalingam, co-operative sub-registrar, s.lakshmi mohan, co-operative sub- registrat (under suspension), r.nallathambi, additional registrar of co-operative societies [under suspension]., a.p.murugesan, co-operative sub-registrar, m.antony xavier, deputy registrar of societies and m.adeikkam, senior inspector of co-operative societies, with regard to charges framed against them. by the tenor of the said government order, a common inquiry was ordered and a common enquiry officer was appointed. but his name was not included in the said government order, since there is no charge memo pending against him and also that he is fully eligible to be included in the list of tahsildar of salem district for the year 2012. although, the second respondent/special secretary and commissioner of revenue disaster management, chepauk, chennai-5 has received his appeal dated 17.08.2012, there is no communication so far and there is chance of finalising the list permanently. the petitioner's contentions:11. the learned counsel for the petitioner urges before this court that the non-inclusion of the petitioner's name in the list of 'tahsildars of salem' for the year 2012 is an illegal and improper and also negation of promotion policy.12. by advancing his arguments, the learned counsel for the petitioner makes a forceful submission that the same charge memo dated 09.05.2008 in proceedings na.ka.no.53496/2007/a3 , issued to the petitioner and to one t.thangavel, village administrative officer was quashed by this court on 28.07.2009 in w.p.no.18284 of 2009 filed by the said thangavel, village administrative officer and in w.p.no.24087 of 2009 filed by the very same thangavel, this court, on 27.08.2010 permitted him to retire besides issuing necessary directions for payment of monetary and pensionary benefits. 13.the primordial contentions advanced on behalf of the petitioner is that till date, no charge memo was against him and also no disciplinary proceedings are initiated against him as per rule 9a of tamil nadu civil services (discipline and appeal) rules. lastly, it is the plea projected on behalf of the petitioner that the first respondent/secretary to government of tamil nadu, co-operative food and consumers department, chennai, issued a letter no.6670/ce2/2009-15 dated 31.01.2012 by making a request to the fifth respondent to enquire the charges initiated against the petitioner which admittedly has been quashed earlier by this court. as such, the said government letter is an illegal and improper one. discussions:14. no counter is filed on behalf of the respondents 1 to 5. a cursory perusal of the impugned order letter dated 6670/ce2/2009-15, dated 31.01.2012 issued by the first respondent and addressed to the deputy secretary to government, municipal administration and water supply department, chennai-9 [and another]. shows that a request has been made to the said deputy secretary to government, municipal administration and water supply department, chennai-9, to inquire the other co-delinquent n.kumar, assistant/formerly revenue inspector, attur, along with r.nallathambi, additional registrar and co-operative societies [under suspension]. and five others, on the charges framed by the district revenue officer, salem, etc., as per first reference, viz., charge memo no.rc.53496/2007/m3 dated 09.05.2008 issued by the district revenue officer, salem, in regard to the irregularities committed by him in the purchase of land and construction of residential flats by the arignar anna co-operative societies, attur. 15.there is no two opinion of the fact that t.thangavel [village administrative officer]. filed the earlier in w.p.no.18284 of 2008 and this court, on 28.07.2009 has passed a final order by quashing the charge memo, dated 09.05.2008, issued to him for the reasons mentioned therein. that apart, the said thangavel, also filed the writ petition no.24089 of 2009 seeking monetary and pensionary benefits and this court on 27.08.2010 has quashed the two impugned orders dated 31.10.2007 of the second respondent therein and allowed the writ petition. further, it also observed that the charge memo dated 09.05.2008 was quashed by this court on 28.07.2009 and there was no disciplinary proceedings pending against the said thangavel as on date of passing of the order. 16.at this stage, this court aptly points out that in the decision of the hon'ble supreme court in indian airlines corporation v. capt. k.c.shukla and others, (1993) 1 surepeme court cases17 at special page19 it is held as follows: ".adjusting equities in exercise of extraordinary jurisdiction is one thing but assuming the role of selection committee is another. the court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not promoted or selected contrary to law it can issue necessary direction. but it would be going too far if the court itself evaluates fitness or otherwise of a candidate, as in this case. in the present case the selection for promotion was based on interview and annual confidential reports. the high court erred in granting alternative relief by reducing the interview percentage and then working out proportionally the marks obtained by respondent on acr evaluation and interview and directing to promote him as by this method he would secure the minimum required. this cannot be accepted as proper exercise of jurisdiction under art.226.".17. it is true that a person has a right to be considered for promotion, which is a condition of service and is one, coming within the meaning of matters relating to employment or appointment under article 16 of the constitution of india, as opined by this court. indeed, a court of law has limited jurisdiction to review the promotional process as per the decision of the hon'ble supreme court in state of mysore v. c.r.seshadri, air1974supreme court at page460 18.be that as it may, it is submitted on behalf of the respondents 1 to 5 before this court that no charge memo has been issued to the petitioner till date. therefore, there is no pending disciplinary proceedings against him, in the considered opinion of this court. at this stage, it cannot be gainsaid that the petitioner's probation was declared by the third respondent/district collector, salem on 17.05.2011 and obviously, because of the fact that no charge memo was pending against him. when that be the fact situation, it is not proper and illegal for the first respondent to sent a letter, dated 31.10.2007 to the fifth respondent/the deputy secretary to government, municipal administration and water supply department, chennai-9 chennai, to make a enquiry against the petitioner for the same charge. in spite of the petitioner making a representation dated 02.08.2012 to the third respondent to include his name in the list of 'tahsildar of salem district for the year 2012', till date the same has not made with any response much less a positive response. 19.indeed, the petitioner's name was not included above s.govindarajan, sl.no.6, when the third respondent/district collector, salem, released the 'list of tahsildar of salem district for the year 2012' as per proceedings bearing no.37/2012/a2, dated 07.08.2012. also that, he made an appeal on 17.08.2012 to the second respondent/the special secretary & commissioner of revenue disaster management, chepauk, chennai-600 005, to include his name in the list of tahsildar of salem in the year 2012. for that also, the petitioner has not received any reply from the concerned authorities. 20.when no charge memo as on date was issued to the petitioner in regard to his alleged acts of commissions and omissions on earlier occasions, the charge memo in respect of one t.thangavel, village administration officer, dated 09.05.2008 was quashed by this court on 28.07.2009 in w.p.no.18284 of 2008 and also in the subsequent w.p.no.24087 of 2009, this court on 27.08.2010 permitted t.thangavel to retire and also directed for payment of monetary and pensionary benefits due to him, which is under law. 21.it is to be presumed that there is no disciplinary proceedings pending as on date against the petitioner. when there is no charge memo or any disciplinary proceedings initiated against the petitioner, then his name is legitimately and reasonably to be considered for inclusion at the appropriate place in the 'list of tahsildars of salem for the year 2012'. unfortunately, the petitioner's name was not included in the 'list of tahsildar of salem district for the year 2012' issued by the third respondent/district collector, salem, through his proceedings in pdl.37/2012/a2, dated 07.08.2012. therefore, this court is left with no option to interfere with the impugned order no.6670/ce2/2009-15 dated 31.01.2012 issued by the first respondent and sets aside the same to prevent an aberration and to promote substantial cause of justice. further, this court directs the second respondent to consider for inclusion of petitioner's name in the list of tahsildars of salem for the year 2012 at the appropriate place and to pass reasoned and speaking order in a fair, just and dispassionate manner within a period of six weeks from the date of receipt of a copy of this order. [of course uninfluenced / untrammelled by any of the observations made by this court in this writ petition].. 22.with the aforesaid directions, the writ petition stands disposed of. consequently, connected miscellaneous petition is closed. no costs. 10.01.2014 index : yes/no internet : yes/no kal note: issue order copy on 24.01.2014 to 1. the secretary to government of tamil nadu, co-operative food and c.p. department, secretariat, chennai-600 009.2. the special secretary & commissioner of revenue disaster management, chepauk, chennai-600 005.3. the district collector,salem.4. the district revenue officer, salem.5. the deputy secretary to government, m.a. & w.s. department, chennai-600 009 m.venugopal, j kal w.p.no.25341 of 2012 & m.p.no.3 of 2013 10.01.2014
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

10. 01.2014 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL W.P.No.25341 of 2012 & M.P.No.3 of 2013 N.Kumar ... Petitioner Vs 1. The Secretary to Government of Tamil Nadu, Co-operative Food and C.P.Department, Secretariat, Chennai-600 009.

2. The Special Secretary & Commissioner of Revenue Disaster Management, Chepauk, Chennai-600 005.

3. The District Collector, Salem.

4. The District Revenue Officer, Salem.

5. The Deputy Secretary to Government, M.A. & W.S. Department, Chennai-600 009 6. P.Balasundaram 7. M.Krishnan 8. S.Nithyanantham ... Respondents (R6 to R8 impleaded as per order dated 30.04.2013 by VRSJ in M.P.No.2 of 2013 in W.P.No.25341 of 2012.) PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a writ of Certiorarified Mandamus, calling for the letter of the First Respondent in No.6670/CE2/2009-15, dated 31.01.2012, quash the same and directing the 2nd Respondent to consider the Petitioner's appeal dated 17.08.2012 by directing them to include the Petitioner's name in Serial No.6 in the list of Tahsildars of Salem for the year 2012. For Petitioner : M/s.V.Raghupathi For Respondents : Mr.V.Subbiah, Special Government Pleader for R1 to R5 ORDER

The Petitioner has preferred the instant Writ of Certiorarified Mandamus calling for the letter of the First Respondent bearing No.No.6670/CE2/2009-15, dated 31.01.2012 and to quash the same. Further, he has sought for passing an order by this Court and directing the 2nd Respondent to consider the Petitioner's Appeal dated 17.08.2012 by directing them to include the Petitioner's name in Serial No.6 in the list of Tahsildars of Salem for the year 2012. The Writ Petition facts:

2. According to the Petitioner, he joined the service in the year 1990 as Junior Assistant in the Revenue Department. He worked as Town Revenue Inspector, Athur, from 12.06.1998 to 13.02.2000. He worked as Deputy Tahsildar [Seniority List Serial.No.23]. in Salem District (Revenue Unit) from 05.12.2007 to 17.12.2007. Due to non-availability of vacancy for some time, he worked as Assistant and then, again from 29.09.2008 onwards, he worked as Deputy Tahsildar, Athur Taluk. When he worked as Town Revenue Inspector from 12.06.1998 to 13.02.2000, the then Village Administrative Officer T.Thangavel gave a statement to him determining market and guideline value of the land at Rs.251 per sq.ft. for land in Survey No.463/4A and 463/5A in Ward No.8, Arthur Town. As a forwarding staff, he sent the same as ".valuation report". to the then Tahsildar of Athur, viz., S.Paulpandian, who certified the same price as Rs.251 per sq.ft. for the said land instead of sending the same to the District Collector. 3.The then District Revenue Officer, Salem, issued a Charge Memo in his proceedings Na.Ka.No.53496/2007/A3, dated 09.05.2008 under Rule 17(B) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules against the Petitioner and also the Village Administrative Officer T.Thangavel alleging that they have caused a loss to the Government by determining the value of the land at higher rate of land at Rs.251/- instead of Rs.127/- being the market value for the said land. He submitted his explanation and the Enquiry Officer was appointed by the District Revenue Officer, Salem, through proceedings in Na.Ka.No.53496/2007/A3, dated 27.06.2008. A letter was sent by the Deputy Secretary to Government Co-operative and Food Department in No.27110/CE2/2007-5, dated 22.10.2008, to the District Collector of Salem, wherein, it has stated that when the delinquent officers belonging to various departments facing disciplinary proceedings only the Government will be competent to take disciplinary proceedings and not the one Appointing Authority of one department. Therefore, the papers relating to the charges were sent to the Government relating to R.Nallathambi, District Registrar of Co-operative Societies [Under Suspension]. and those original papers relating to him and the Village Administrative Officer T.Thangavel were sent to Secretary to Government, Co-operative Department Proceedings under Rule 9A of Tamil Nadu Civil Services {Disciplinary and Appeal} Rules, against the said staff by the District Collector of Salem through his letter No.Na.Ka.53496/2007/A3 dated 01.12.2008. 4.The case of the Petitioner is that till date, the Government has not yet issued any charge memo under Rule 9A against him. Unfortunately, the Additional Commissioner of Revenue Administration issued a letter in Na.Ka.No.8632/2008/ Service 4-1, dated 03.02.2009 to the Principal Secretary, Revenue Department, which runs as under: ".I invite kind attention of the Government in the references cited and wish to state that in the G.O. 1st cited, the Government have directed to initiate departmental disciplinary action against Tvl.D.Thangavel, formerly Village Administrative Officer and N.Kumar, formerly Revenue Inspector for certain allegations against them substantiated by the Appropriate Investigating Authority. The Collector has framed charges under rule 17(b) of Tamilnadu Civil Service (Discipline and Appeal) Rules, against the said two accused officers and appointed District Inspection Cell Officer as Enquiry Officer. In the meanwhile, the Collector, Salem in his letter 2nd cited has stated that the Government, Co-operative, Food and Consumer Protection Department in their letter 27100/CE2/2007 dated 22.10.2008 have requested the Collector, Salem that since one of the Accused Officers Thiru R.Nallathambi, formerly Registrar of Co-operative Societies is getting Highest Salaries, the Government have to initiate disciplinary action against all the Accused Officers as per rule 9A of TNCS (Discipline and Appeal) rules and sent all the connected records to the Government. As requested by the above Department, the Collector Salem has sent all the connected records to the above said Department. I send herewith a copy of letter received from the Collector, Salem. 2) One Thiru S.Thangavel, formerly Village Administrative Officer, has filed a W.P.No.18284/08, against the Charges framed against him in the above case and also against the order not permitting him to retire from service. While admitting the above W.P., the High Court has granted interim stay to the existing stay has been filed before the Court. 3)I request that the result of the disciplinary action initiated against the two Revenue Officers may kindly be ascertained from the Government. Co-operative Food and Consumer Protection Department.". 5.This Court in W.P.No.18284 of 2008 [filed by Village Administrative Officer T.Thangavel]. on 28.07.2009 has passed the following order: ".8.On a perusal of the materials placed on record, it is seen that the Petitioner joined in service as Village Administrative Officer on 01.09.1982 and he had been placed under suspension by the Revenue Department on 31.10.2007 and also a charge memo was issued against him and one N.Kumar, formerly Revenue Inspector, Attur, on 09.05.2008. It is also seen that a detailed enquiry dated 01.02.2008 was registered against one R.Nallathambi, formerly Registrar of Co-operative Societies (Housing) Chennai and others. The matter has requested to fix the land value for the above land to the Collector, Salem. Therefore, since the officials involved in the commission of the offence are more than from one department, viz., the Petitioner/Village Administrative Officer, Firka Revenue Inspector as well as Tahsildar concerned of the Revenue Department, as per the Government Orders and as per Rule 9A of Tamil Nadu Civil Services (Discipline and Appeal) Rules, the competent authority to frame the charges and initiate action is only the appropriate Government and not the concerned officer of that Department alone. Now, the Department of Co-operation, Food and Consumer Protection Department has come out with a specific plea that if the officials involved in an allegation are more than from one department, then the competent authority to frame the charges and initiate action is only the appropriate Government and not the concerned officer of that Department alone. 9.In this case, admittedly, since the officials involved in the commission of the offence are more than from one department viz., Petitioner/Village Administrative Officer, Firka Revenue Inspector as well as Tahsildar concerned of the Revenue Department and Sub-Registrar of Co-operative Societies under Co-operative Department, the charges framed by the Authority concerned cannot be sustained as the same could be framed only by the appropriate Government. In that view of the matter, the charge memo dated 09.05.2008 cannot be sustained and the same is quashed.". 6.Since the said T.Thangavel was not paid with retirement benefits, he was constrained to file the Writ Petition in W.P.No.24087 of 2009 before this Court and on 27.08.2010, this Court passed the following order in the said Writ Petition, which runs as under: ".8.The suspension order dated 31.10.2007 was issued on the ground that disciplinary proceedings was contemplated against the Petitioner and the other order dated 31.10.2007 not permitting him to retire was issued on the ground that disciplinary proceedings was pending. Since the charge memo dated 09.05.2008 has been quashed by this Court on 28.07.2009, there is no disciplinary proceedings pending against the Petitioner as on today. It is also stated that the disciplinary proceedings are pending against the Petitioner.

9. Considering the facts and circumstances of the case, the two impugned orders dated 31.10.2007 of the Second Respondent are quashed and the Writ Petition is allowed to the extent indicated above. No costs. Consequently, connected miscellaneous petition is closed.". 7.It comes to be known that pursuant to the order of this Court, dated 27.08.2010 in W.P.No.24087 of 2009, Government issued a letter bearing No.6670/CE2/09/2011, Food and Corporative Department dated 22.08.2011 stating that order shall be passed on the charges framed in regard to T.Thangavel, the then Village Administrative Officer and only the Government has the power for passing final orders in the disciplinary proceedings initiated against the Petitioner. But till date, no charge was issued against the Petitioner under Rule 9A of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 8.On 17.05.2011, the Third Respondent/District Collector, Salem, informed the Petitioner that his probation was declared in Deputy Tahsildar Cadre, since there was no charge framed against him. He sent his representation dated 02.08.2012 to the Third Respondent requesting to include his name in the list of Tahsildar of Salem District for the year 2012. However, the Third Respondent without considering his representation, has released the list of Tahsildar of Salem District in the year 2012 by the proceedings bearing No.Pdl.37/2012/A2 dated 07.08.2012. In the said list, his name has to be included above S.Govindarajan, Serial No.6., but his name was not included. 9.He sent an application under Right to Information Act, 2005 to the Public Information Officer of the Office of the Third Respondent/District Collector, Salem, asking for copies of earlier proceedings and other details. He received the information with copies dated 14.08.2012. It transpires that the Third Respondent/District Collector, Salem, through his proceedings in DD.No.9753/2011 has noted that since the charges against him and the Village Administrative Officer, T.Thangavel were quashed in W.P.No.18284 of 2008 on 28.07.2009 there is no pendency of any charge memo and disciplinary proceedings against him. However, the Third Respondent has also ordered that he is eligible for further promotion. 10.The Petitioner has sent an Appeal to the Second Respondent/Special Secretary and Commissioner of Revenue Administrator, Madras-5 on 17.08.2012 explaining about non-consideration of his name despite the fact that there are no pending charges against him. Further, he has requested him to pass orders including his name as stated supra. However, till date, there is no progression in the matter in issue. Also that, he has come to know that G.O.(Rt) No.475, Co-operation, Food and Consumer Production (CE2) Department, dated 16.12.2010 was issued wherein an enquiry was ordered against one C.Mahalingam, Co-operative Sub-Registrar, S.Lakshmi Mohan, Co-operative Sub- Registrat (Under Suspension), R.Nallathambi, Additional Registrar of Co-operative Societies [Under Suspension]., A.P.Murugesan, Co-operative Sub-Registrar, M.Antony Xavier, Deputy Registrar of Societies and M.Adeikkam, Senior Inspector of Co-operative Societies, with regard to charges framed against them. By the tenor of the said Government Order, a common inquiry was ordered and a Common Enquiry Officer was appointed. But his name was not included in the said Government Order, since there is no charge memo pending against him and also that he is fully eligible to be included in the list of Tahsildar of Salem District for the year 2012. Although, the Second Respondent/Special Secretary and Commissioner of Revenue Disaster Management, Chepauk, Chennai-5 has received his appeal dated 17.08.2012, there is no communication so far and there is chance of finalising the list permanently. The Petitioner's Contentions:

11. The Learned Counsel for the Petitioner urges before this Court that the non-inclusion of the Petitioner's name in the list of 'Tahsildars of Salem' for the year 2012 is an illegal and improper and also negation of promotion policy.

12. By advancing his arguments, the Learned Counsel for the Petitioner makes a forceful submission that the same charge memo dated 09.05.2008 in proceedings Na.Ka.No.53496/2007/A3 , issued to the Petitioner and to one T.Thangavel, Village Administrative Officer was quashed by this Court on 28.07.2009 in W.P.No.18284 of 2009 filed by the said Thangavel, Village Administrative Officer and in W.P.No.24087 of 2009 filed by the very same Thangavel, this Court, on 27.08.2010 permitted him to retire besides issuing necessary directions for payment of monetary and pensionary benefits. 13.The primordial contentions advanced on behalf of the Petitioner is that till date, no charge memo was against him and also no disciplinary proceedings are initiated against him as per Rule 9A of Tamil Nadu Civil Services (Discipline and Appeal) Rules. Lastly, it is the plea projected on behalf of the Petitioner that the First Respondent/Secretary to Government of Tamil Nadu, Co-operative Food and Consumers Department, Chennai, issued a letter No.6670/CE2/2009-15 dated 31.01.2012 by making a request to the Fifth Respondent to enquire the charges initiated against the Petitioner which admittedly has been quashed earlier by this Court. As such, the said Government Letter is an illegal and improper one. Discussions:

14. No counter is filed on behalf of the Respondents 1 to 5. A cursory perusal of the impugned order letter dated 6670/CE2/2009-15, dated 31.01.2012 issued by the First Respondent and addressed to the Deputy Secretary to Government, Municipal Administration and Water Supply Department, Chennai-9 [and another]. shows that a request has been made to the said Deputy Secretary to Government, Municipal Administration and Water Supply Department, Chennai-9, to inquire the other co-delinquent N.Kumar, Assistant/formerly Revenue Inspector, Attur, along with R.Nallathambi, Additional Registrar and Co-operative Societies [Under Suspension]. and Five others, on the charges framed by the District Revenue Officer, Salem, etc., as per first reference, viz., Charge Memo No.Rc.53496/2007/m3 dated 09.05.2008 issued by the District Revenue Officer, Salem, in regard to the irregularities committed by him in the purchase of land and construction of residential flats by the Arignar Anna Co-operative Societies, Attur. 15.There is no two opinion of the fact that T.Thangavel [Village Administrative Officer]. filed the earlier in W.P.No.18284 of 2008 and this Court, on 28.07.2009 has passed a final order by quashing the charge memo, dated 09.05.2008, issued to him for the reasons mentioned therein. That apart, the said Thangavel, also filed the Writ Petition No.24089 of 2009 seeking monetary and pensionary benefits and this court on 27.08.2010 has quashed the two impugned orders dated 31.10.2007 of the Second Respondent therein and allowed the Writ Petition. Further, it also observed that the charge memo dated 09.05.2008 was quashed by this Court on 28.07.2009 and there was no disciplinary proceedings pending against the said Thangavel as on date of passing of the order. 16.At this stage, this Court aptly points out that in the decision of the Hon'ble Supreme Court in INDIAN AIRLINES CORPORATION V. CAPT. K.C.SHUKLA AND OTHERS, (1993) 1 SUREPEME COURT CASES17 AT SPECIAL PAGE19 it is held as follows: ".Adjusting equities in exercise of extraordinary jurisdiction is one thing but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. Not that it is powerless to do so and in a case where after removing the illegal part it is found that the officer was not promoted or selected contrary to law it can issue necessary direction. But it would be going too far if the court itself evaluates fitness or otherwise of a candidate, as in this case. In the present case the selection for promotion was based on interview and Annual Confidential Reports. The High Court erred in granting alternative relief by reducing the interview percentage and then working out proportionally the marks obtained by respondent on ACR evaluation and interview and directing to promote him as by this method he would secure the minimum required. This cannot be accepted as proper exercise of jurisdiction under Art.226.".

17. It is true that a person has a right to be considered for promotion, which is a condition of service and is one, coming within the meaning of matters relating to employment or appointment under Article 16 of the Constitution of India, as opined by this Court. Indeed, a Court of law has limited jurisdiction to review the promotional process as per the decision of the Hon'ble Supreme Court in STATE OF MYSORE V. C.R.SESHADRI, AIR1974SUPREME COURT AT PAGE460 18.Be that as it may, it is submitted on behalf of the Respondents 1 to 5 before this Court that no charge memo has been issued to the Petitioner till date. Therefore, there is no pending disciplinary proceedings against him, in the considered opinion of this Court. At this stage, it cannot be gainsaid that the Petitioner's probation was declared by the Third Respondent/District Collector, Salem on 17.05.2011 and obviously, because of the fact that no charge memo was pending against him. When that be the fact situation, it is not proper and illegal for the First Respondent to sent a letter, dated 31.10.2007 to the Fifth Respondent/the Deputy Secretary to Government, Municipal Administration and Water Supply Department, Chennai-9 Chennai, to make a enquiry against the Petitioner for the same charge. In spite of the Petitioner making a representation dated 02.08.2012 to the Third Respondent to include his name in the list of 'Tahsildar of Salem District for the year 2012', till date the same has not made with any response much less a positive response. 19.Indeed, the Petitioner's name was not included above S.Govindarajan, Sl.No.6, when the Third Respondent/District Collector, Salem, released the 'list of Tahsildar of Salem District for the year 2012' as per proceedings bearing No.37/2012/A2, dated 07.08.2012. Also that, he made an appeal on 17.08.2012 to the Second Respondent/the Special Secretary & Commissioner of Revenue Disaster Management, Chepauk, Chennai-600 005, to include his name in the list of Tahsildar of Salem in the year 2012. For that also, the Petitioner has not received any reply from the concerned Authorities. 20.When no charge memo as on date was issued to the Petitioner in regard to his alleged acts of commissions and omissions on earlier occasions, the charge memo in respect of one T.Thangavel, Village Administration Officer, dated 09.05.2008 was quashed by this Court on 28.07.2009 in W.P.No.18284 of 2008 and also in the subsequent W.P.No.24087 of 2009, this Court on 27.08.2010 permitted T.Thangavel to retire and also directed for payment of monetary and pensionary benefits due to him, which is under law. 21.It is to be presumed that there is no disciplinary proceedings pending as on date against the Petitioner. When there is no charge memo or any disciplinary proceedings initiated against the Petitioner, then his name is legitimately and reasonably to be considered for inclusion at the appropriate place in the 'list of Tahsildars of Salem for the year 2012'. Unfortunately, the Petitioner's name was not included in the 'list of Tahsildar of Salem District for the year 2012' issued by the Third Respondent/District Collector, Salem, through his proceedings in Pdl.37/2012/A2, dated 07.08.2012. Therefore, this Court is left with no option to interfere with the impugned order No.6670/CE2/2009-15 dated 31.01.2012 issued by the First Respondent and sets aside the same to prevent an aberration and to promote substantial cause of justice. Further, this Court directs the Second Respondent to consider for inclusion of Petitioner's name in the list of Tahsildars of Salem for the year 2012 at the appropriate place and to pass reasoned and speaking order in a Fair, Just and dispassionate manner within a period of six weeks from the date of receipt of a copy of this order. [Of course uninfluenced / untrammelled by any of the observations made by this Court in this Writ Petition].. 22.With the aforesaid directions, the Writ Petition stands disposed of. Consequently, connected miscellaneous petition is closed. No costs. 10.01.2014 Index : Yes/No Internet : Yes/No kal Note: Issue Order copy on 24.01.2014 To 1. The Secretary to Government of Tamil Nadu, Co-operative Food and C.P. Department, Secretariat, Chennai-600 009.

2. The Special Secretary & Commissioner of Revenue Disaster Management, Chepauk, Chennai-600 005.

3. The District Collector,Salem.

4. The District Revenue Officer, Salem.

5. The Deputy Secretary to Government, M.A. & W.S. Department, Chennai-600 009 M.VENUGOPAL, J kal W.P.No.25341 of 2012 & M.P.No.3 of 2013 10.01.2014