IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   26.07.2023

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

WP.No.10484 of 2023

K.Anadhajothi                                         … Petitioner

Vs

1. The District of Medical Education [FAC], Kilpauk, Chennai – 600 010.
2. S.Ramesh Kumar … Respondents

Prayer:- Writ Petition filed, under the Article 226 of Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the first respondent herein in his proceedings Na.Ka.No.111974/CMaP2/2/2022-1, dated 18.02.2023 and quash the same and consequently promote the petitioner as Deputy Director [Administration] for the year 2022-23 on par with his juniors.

For Petitioner          : Mr.G.Bala

For Respondents       :  Mr.J.Ravindran, AAG

Asst. by Mr.K.Tippu Sulthan

Government Advocate  – R1

Mr.V.Baskaran – R2

 

ORDER

This Writ Petition has been filed to quash the impugned order passed by the first respondent herein in his proceedings Na.Ka.No.111974/CMaP2/2/2022-1, dated 18.02.2023 and consequently promote the petitioner as Deputy Director [Administration] for the year 2022-23 on par with his juniors.

2. The case of the writ petitioner is that he has put in more than 29 years of service and the petitioner was due for promotion to the post of Deputy Director [Administration] for the year 2022-23. On 16.11.2022, the Director of Medical and Rural Services had sent a proposal of eligible candidates fit for promotion to the post of Deputy Director [Administration], wherein the petitioner is shown as senior most to other persons in the panel.  He was placed in Serial No.1.  Whereas, the second respondent is placed at serial No.3.  It is the specific allegation of the Writ Petitioner that the second respondent has worked on deputation as

Senior Personal Assistant to the Minister of Health and Family Welfare Department.  Only in order to accommodate the second respondent, an anonymous complaint has been projected as if the petitioner has appointed two cooks contrary to the Rules.  It is also averred in the Writ Petition that in respect of the allegation found in the anonymous petition, previously an enquiry has been conducted and it is found that the allegations have not been substantiated.  However, another enquiry has been conducted and charge memo has been issued on 18.02.2023 to the petitioner.  It is his further contention that the promotion panel was prepared on 13.03.2023 wherein, it is directed to place a copy of that Order in the notice board and to communicate the same to all seniors, with specific instructions to make any objection, if any, within a period of two months.  However, on the same day, when the panel was prepared and published, the second respondent was promoted in G.O.[3D]. No.3 Health and Family Welfare dated 13.03.2023.  Hence, it is his contention that the entire charge memo is stage managed only in order to satisfy some person to promote the person, who is originally placed in serial No.3.  Hence, the very charge memo has been challenged.

3. The Counter has been filed by the respondent stating that on the basis of the complaint of one Sumathi, an enquiry has been conducted wherein it is found that the petitioner has appointed two cooks contrary to the Rules. Accordingly, a disciplinary proceedings has been initiated on the basis of the enquiry report and charge memo has been issued on

18.02.2023 and the same has been served on the petitioner on

28.02.2023.  Admitting that the crucial date for preparing panel is 01.09.2022 and the panel has been prepared for the year 2022-2023, it is their contention that in view of the disciplinary proceedings initiated against the petitioner, promotion of the petitioner has not been granted and charge memo has been issued.  Since the petitioner is involved  in serious illegalities, charge memo has been issued.

4. The learned counsel appearing for the petitioner mainly contended that on the date of crucial date 01.09.2022, no proceedings, whatsoever, is pending against the petitioner. In fact, the petitioner is placed at Serial No.1 in the panel prepared by  the respondent and the second respondent is placed at Serial No.3.  The second respondent was working on deputation as Senior Personal Assistant to the Minster of Health and Family Welfare Department.  Only in order to deny the promotion to the petitioner, the entire proceedings has been stage managed later.  At any event, the charge memo is bereft of any details and no allegation is set out in the charge memo except a general allegation, the charge memo has not been issued as required under Rule 17B of Tamil Nadu Civil Services [Discipline and Appeal] Rules. Therefore, the same has to be set aside.  It is the further contention of the learned counsel appearing for the petitioner that the very charge that the petitioner has appointed two persons itself is found to be false, the appointment Order has been passed by the Dean of the Medical College.

A Copy of the appointment Order is also placed in the typed set.

5. The learned Additional Advocate General appearing for the firstrespondent submitted that the charge memo has been issued based on the enquiry report submitted to the Government. There was a complaint of illegal appointment in Government Medical College Hospital, Villupuram.  Though the preliminary enquiry did not find anything against the petitioner, subsequent enquiry report proves illegalities committed by the petitioner.  Based on the said report, the Government decided to initiate disciplinary proceedings and accordingly, charge memo has been issued.  Hence, no motive, whatsoever, could be attributed and the charge memo cannot be questioned.
6. The learned counsel appearing for the second respondent submitted that the allegations made against him is denied and he has nothing to do with the petitioner.

I have perused entire materials available on record. Normally Court will be slow in interfering with the charge memo.  But at the same time, when it appears or brought to the notice of this Court that the entire charge memo is a result of some other reason, the Court can very well interfere by exercising power under Article 226 of Indian Constitution. It is not disputed that the panel for promotion has been prepared on 13.03.2023 and the crucial date for promotion is 01.09.2022.  In the panel prepared, the petitioner is placed in Serial No.1 and the second respondent is placed in Serial No.3 and one Praburam is placed in Serial No.2. The above panel has been approved by the Government in G.O.3D dated 13.03.2023. It is relevant to note that on the date of passing of such Government Order, there is a direction that the above Order to be placed in the notice Board to communicate to all the  individuals by registered post with specific direction that objection if any regarding approval of the panel should be preferred through proper  channel within two months from the date of issuance of the Order. Having published the above Government Order and the Seniority List, and giving time to raise objection within two months, on the same day, the third respondent has been promoted. In the meanwhile, the charge memo has been issued to the petitioner on 18.02.2023. The manner in which the promotion has been issued on the same day, when the approved panel list was published indicate that there is some urgency by some one to promote the third respondent, who is admittedly working as Senior Personal Assistant to Minister for Health and Family Welfare Department. Be that as it may.

7. Though it is not germane for consideration to the validity of the charge memo, but the fact remains that relevant happenings after the charge memo cannot be ignored altogether. The charge memo issued to the petitioner indicates that it has been issued on 18.03.2023. On a perusal of the same reveals that it is only general in nature. The allegation is that two cooks were appointed by the writ petitioner. The, charge memo reads as follows :

“jpU.Mde;jn$hjp. Mfpa jh’;fs; muR tpGg;g[uk; kUj;Jtf; fyY;}hp kUj;Jtkid. tpG;gg[uj;jpy; eph;thf mYtyuhf gzpg[hpe;j nghJ rikayh; gzpaplk.; ryitahsh; gzpaplk;. ghh;gh; gzpaplk; Mfpatww;pw;F gzpepakd eltoi; f nkw;bfhs;Sk; nghJ muR tpjpfspd; go nfhg;gpid ifahshky; nkwg;o gjptfSfF; gzpepakd Miz tH’;fpas[;sPh;fs/;”

The specific allegation against the petitioner is that the writ petitioner has appointed two cooks in the Government College Hospital, Villupuram, which is contrary to the records.  Infact, the appointment Orders were issued by the Dean of Medical College and not the petitioner.   The appointment order infact has been issued only in order to defer his promotion some how or other.  It is to be noted that what is relevant to be taken note is the crucial date for consideration of his promotion. On the crucial date, there was no allegation, whatsoever, pending against the petitioner and no charge memo whatsoever issued against the petitioner and the panel has also been prepared. The charge memo has been issued only on 18.03.2023. The second charge memo has been issued later. Therefore, this Court is of the view that promotion right accrued to the petitioner on the date of crucial date and the same cannot be taken away by indirect method. Further as per Rule 17 B Tamil Nadu Civil Services [Discipline and Appeal] Rules charge shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.  Except vague allegations, there is no definite charges found in the charge memo.

8. Further, the allegation that the petitioner has appointed two cooks is also contrary to the records. It is also relevant to note that initially an enquiry was ordered on the basis of the anonymous complaint and enquiry report was in favour of the petitioner. Unsatisfied with that, another enquiry has been ordered later and on the basis of the report as per the direction of the Government by way of a clarificatory Order, charge memo has been issued later and the same is admitted in the counter.

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:   26.07.2023

CORAM:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

WP.No.10484 of 2023

K.Anadhajothi                                         … Petitioner

Vs

1. The District of Medical Education [FAC], Kilpauk, Chennai – 600 010.
2. S.Ramesh Kumar … Respondents

Prayer:- Writ Petition filed, under the Article 226 of Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order passed by the first respondent herein in his proceedings Na.Ka.No.111974/CMaP2/2/2022-1, dated 18.02.2023 and quash the same and consequently promote the petitioner as Deputy Director [Administration] for the year 2022-23 on par with his juniors.

For Petitioner          : Mr.G.Bala

For Respondents       :  Mr.J.Ravindran, AAG

Asst. by Mr.K.Tippu Sulthan

Government Advocate  – R1

Mr.V.Baskaran – R2

 

ORDER

This Writ Petition has been filed to quash the impugned order passed by the first respondent herein in his proceedings Na.Ka.No.111974/CMaP2/2/2022-1, dated 18.02.2023 and consequently promote the petitioner as Deputy Director [Administration] for the year 2022-23 on par with his juniors.

2. The case of the writ petitioner is that he has put in more than 29 years of service and the petitioner was due for promotion to the post of Deputy Director [Administration] for the year 2022-23. On 16.11.2022, the Director of Medical and Rural Services had sent a proposal of eligible candidates fit for promotion to the post of Deputy Director [Administration], wherein the petitioner is shown as senior most to other persons in the panel.  He was placed in Serial No.1.  Whereas, the second respondent is placed at serial No.3.  It is the specific allegation of the Writ Petitioner that the second respondent has worked on deputation as

Senior Personal Assistant to the Minister of Health and Family Welfare Department.  Only in order to accommodate the second respondent, an anonymous complaint has been projected as if the petitioner has appointed two cooks contrary to the Rules.  It is also averred in the Writ Petition that in respect of the allegation found in the anonymous petition, previously an enquiry has been conducted and it is found that the allegations have not been substantiated.  However, another enquiry has been conducted and charge memo has been issued on 18.02.2023 to the petitioner.  It is his further contention that the promotion panel was prepared on 13.03.2023 wherein, it is directed to place a copy of that Order in the notice board and to communicate the same to all seniors, with specific instructions to make any objection, if any, within a period of two months.  However, on the same day, when the panel was prepared and published, the second respondent was promoted in G.O.[3D]. No.3 Health and Family Welfare dated 13.03.2023.  Hence, it is his contention that the entire charge memo is stage managed only in order to satisfy some person to promote the person, who is originally placed in serial No.3.  Hence, the very charge memo has been challenged.

3. The Counter has been filed by the respondent stating that on the basis of the complaint of one Sumathi, an enquiry has been conducted wherein it is found that the petitioner has appointed two cooks contrary to the Rules. Accordingly, a disciplinary proceedings has been initiated on the basis of the enquiry report and charge memo has been issued on

18.02.2023 and the same has been served on the petitioner on

28.02.2023.  Admitting that the crucial date for preparing panel is 01.09.2022 and the panel has been prepared for the year 2022-2023, it is their contention that in view of the disciplinary proceedings initiated against the petitioner, promotion of the petitioner has not been granted and charge memo has been issued.  Since the petitioner is involved  in serious illegalities, charge memo has been issued.

4. The learned counsel appearing for the petitioner mainly contended that on the date of crucial date 01.09.2022, no proceedings, whatsoever, is pending against the petitioner. In fact, the petitioner is placed at Serial No.1 in the panel prepared by  the respondent and the second respondent is placed at Serial No.3.  The second respondent was working on deputation as Senior Personal Assistant to the Minster of Health and Family Welfare Department.  Only in order to deny the promotion to the petitioner, the entire proceedings has been stage managed later.  At any event, the charge memo is bereft of any details and no allegation is set out in the charge memo except a general allegation, the charge memo has not been issued as required under Rule 17B of Tamil Nadu Civil Services [Discipline and Appeal] Rules. Therefore, the same has to be set aside.  It is the further contention of the learned counsel appearing for the petitioner that the very charge that the petitioner has appointed two persons itself is found to be false, the appointment Order has been passed by the Dean of the Medical College.

A Copy of the appointment Order is also placed in the typed set.

5. The learned Additional Advocate General appearing for the firstrespondent submitted that the charge memo has been issued based on the enquiry report submitted to the Government. There was a complaint of illegal appointment in Government Medical College Hospital, Villupuram.  Though the preliminary enquiry did not find anything against the petitioner, subsequent enquiry report proves illegalities committed by the petitioner.  Based on the said report, the Government decided to initiate disciplinary proceedings and accordingly, charge memo has been issued.  Hence, no motive, whatsoever, could be attributed and the charge memo cannot be questioned.
6. The learned counsel appearing for the second respondent submitted that the allegations made against him is denied and he has nothing to do with the petitioner.

I have perused entire materials available on record. Normally Court will be slow in interfering with the charge memo.  But at the same time, when it appears or brought to the notice of this Court that the entire charge memo is a result of some other reason, the Court can very well interfere by exercising power under Article 226 of Indian Constitution. It is not disputed that the panel for promotion has been prepared on 13.03.2023 and the crucial date for promotion is 01.09.2022.  In the panel prepared, the petitioner is placed in Serial No.1 and the second respondent is placed in Serial No.3 and one Praburam is placed in Serial No.2. The above panel has been approved by the Government in G.O.3D dated 13.03.2023. It is relevant to note that on the date of passing of such Government Order, there is a direction that the above Order to be placed in the notice Board to communicate to all the  individuals by registered post with specific direction that objection if any regarding approval of the panel should be preferred through proper  channel within two months from the date of issuance of the Order. Having published the above Government Order and the Seniority List, and giving time to raise objection within two months, on the same day, the third respondent has been promoted. In the meanwhile, the charge memo has been issued to the petitioner on 18.02.2023. The manner in which the promotion has been issued on the same day, when the approved panel list was published indicate that there is some urgency by some one to promote the third respondent, who is admittedly working as Senior Personal Assistant to Minister for Health and Family Welfare Department. Be that as it may.

7. Though it is not germane for consideration to the validity of the charge memo, but the fact remains that relevant happenings after the charge memo cannot be ignored altogether. The charge memo issued to the petitioner indicates that it has been issued on 18.03.2023. On a perusal of the same reveals that it is only general in nature. The allegation is that two cooks were appointed by the writ petitioner. The, charge memo reads as follows :

“jpU.Mde;jn$hjp. Mfpa jh’;fs; muR tpGg;g[uk; kUj;Jtf; fyY;}hp kUj;Jtkid. tpG;gg[uj;jpy; eph;thf mYtyuhf gzpg[hpe;j nghJ rikayh; gzpaplk.; ryitahsh; gzpaplk;. ghh;gh; gzpaplk; Mfpatww;pw;F gzpepakd eltoi; f nkw;bfhs;Sk; nghJ muR tpjpfspd; go nfhg;gpid ifahshky; nkwg;o gjptfSfF; gzpepakd Miz tH’;fpas[;sPh;fs/;”

The specific allegation against the petitioner is that the writ petitioner has appointed two cooks in the Government College Hospital, Villupuram, which is contrary to the records.  Infact, the appointment Orders were issued by the Dean of Medical College and not the petitioner.   The appointment order infact has been issued only in order to defer his promotion some how or other.  It is to be noted that what is relevant to be taken note is the crucial date for consideration of his promotion. On the crucial date, there was no allegation, whatsoever, pending against the petitioner and no charge memo whatsoever issued against the petitioner and the panel has also been prepared. The charge memo has been issued only on 18.03.2023. The second charge memo has been issued later. Therefore, this Court is of the view that promotion right accrued to the petitioner on the date of crucial date and the same cannot be taken away by indirect method. Further as per Rule 17 B Tamil Nadu Civil Services [Discipline and Appeal] Rules charge shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegation, on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case.  Except vague allegations, there is no definite charges found in the charge memo.

8. Further, the allegation that the petitioner has appointed two cooks is also contrary to the records. It is also relevant to note that initially an enquiry was ordered on the basis of the anonymous complaint and enquiry report was in favour of the petitioner. Unsatisfied with that, another enquiry has been ordered later and on the basis of the report as per the direction of the Government by way of a clarificatory Order, charge memo has been issued later and the same is admitted in the counter.  Therefore, this Court is of the view that on the date of crucial date, no charges were pending against the petitioner.  Merely on the basis of the subsequent enquiry, when the first enquiry did not point out any allegations against the petitioner and the second enquiry has been Ordered later, the same will not be a bar to promotion, since crucial date is relevant for promotion.  All the circumstances available in this case makes it cleat that to satisfy somebody such a charge memo has been issued with bald allegations without applying the provisions of Rule 17B Tamil Nadu Civil Services [Discipline and Appeal] Rules that the charge should be reduced in the form of definite charges, which is lacking in this case. Hence, the charge is a result of some malafide action and it cannot be sustained in the eye of law and the same is liable to be set aside.
9. Accordingly, this Writ Petition is allowed and the impugned Order passed by the first respondent dated 18.02.2023 is set aside. The petitioner should be promoted as per the seniority and if there is any charge against the petitioner, the respondents can proceed against the petitioner as per law. Consequently, connected miscellaneous petition is closed.  No costs.

26.07.2023

Index:Yes/No

Neutral Citation : Yes/No vrc

To,

The District of Medical Education [FAC], Kilpauk, Chennai – 600 010.

N.SATHISH KUMAR, J.

vrc WP.No.10484 of 2023

26.07.2023