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2018 Supreme(Mad) 4513
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
G. Jayachandran, J.
P.A. Jeevanathan – Appellant
Versus
District Collector, Kanyakumari and Others – Respondents
W.P. (MD) Nos. 14888 of 2017, 22618 of 2018, W.M.P. (MD) Nos. 11728, 12780 of 2017, 20502 of 2018
Decided On : 14-12-2018
Advocate Appeared:
For the Appellant : C. Ami Vadivel.
For the Respondent: Rajarajan.
Headnote:
Assistant Director Town Panchayat - intensive treatment for his ailment - quash the Charge Memorandum and the consequential Suspension Order - prevent him from joining duty - Meanwhile, the Director of Town Panchayat, Chennai, vide his Proceeding, dated 17.6.2017, promoted the Petitioner to the post of Executive Officer (Selection Grade) and posted him at Karungal Town Panchayat. The said order was served to the Petitioner, by post, only on 1.8.2017. While others were served with Promotion Order and they actually joined duty in the promoted post, with effect from 19.6.2017, for the Petitioner, the Promotion Order was communicated belatedly. Besides, the First Respondent on the advice of the Second Respondent, issued a Charge Memorandum under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, alleging unauthorised absence – Held, Therefore, when the promotion is an ad hoc Promotion, with the condition that if it is found that any Disciplinary proceedings or vigilance action pending against the person, he will be reverted back. The point canvassed by the Petitioner is that, on the crucial date, there was no charge pending against him. It cannot be taken advantage by him when the material facts placed by the State clearly indicates that the Petitioner had been unauthorisedly absent for long period from 21.11.2016 onwards and he has not reported to duty. Though initially he had furnished Medical Certificates but after 20.5.2017, when he was found to fit to join duty by the Medical Board, he has not reported duty. So, on the day, when the Temporary Promotion Order is issued to him, by First Respondent, he has to be construed as an unauthorised absentee. This Fact has been brought to the notice of the First Respondent later. Hence, the First Respondent has withdrawn the earlier Order, dated 17.6.2017 vide his Proceeding - contention of the learned Counsel for the Petitioner that having been enlisted in the Approved Lists from the year 2014 and promoted as Executive Officer (Selection Grade) vide Order, dated 17.6.2017, the same cannot be cancelled in view of pendency of Disciplinary proceedings since, on the crucial date, there was no charge or contemplation of charge. Further having given promotion, it cannot be cancelled that too without Notice - name of a member of service placed under Suspension on the crucial date or on the date of consideration for actual promotion shall not be considered for inclusion in the Approved List or for actual promotion, as the case may be and his name shall be deferred till finalisation of Disciplinary proceedings - contention of the learned Counsel for the Petitioner that having been enlisted in the Approved Lists from the year 2014 and promoted as Executive Officer (Selection Grade) vide Order, dated 17.6.2017, the same cannot be cancelled in view of pendency of Disciplinary proceedings since, on the crucial date, there was no charge or contemplation of charge. Further having given promotion, it cannot be cancelled that too without Notice - In response to this submission, it is relevant to point that the Promotion Order relied by the Petitioner which was issued on 17.6.2017 is a conditional Promotional Order. The Order, while promoting the Petitioner and few others, the following condition has been imposed - Petitions are dismissed
JUDGMENT :
G. Jayachandran, J.
1. In both the Writ Petitions, the Petitioner is common. Hence, by consent of both parties, the Writ Petitions were heard together and Common Order is passed.
2. The Petitioner was initially appointed as a Junior Assistant by the Director of Town Panchayat, in the year 1995, through the Tamil Nadu Public Service Commission. Later, he was promoted as Assistant and as. Executive Officer Grade-I. By proceeding in Na. Ka. No. 11597-27/2013/A7, dated 24.4.2015, the Director of Town Panchayat, posted the Petitioner as an Executive Officer (Administration) on ad hoc basis at the office of Assistant Director Town Panchayat (Nagercoil), Kanyakumari. While working in the office of the Assistant Director of Town Panchayat, Nagercoil, he was transferred and posted as Executive Officer (Selection Grade) in Karungal Town Panchayat.
3. After joining the said station, as per the Transfer Order, the Petitioner went on Medical leave since, he was affected by hiatus hernia with gastro esophageal reflux. To take intensive treatment for his ailment, he sought for Medical leave initially - for 25 days from 21.11.2016 and extended the Medical leave for a further period from 30.1.2017 to 15.2.2017; 16.2.2017 to 16.3.2017; 15.4.2017 to 20.4.2017.
4. The Second Respondent, issued a Show Cause Notice on 6.3.2017 alleging that the Petitioner has failed to attend the Medical Board on 1.2.2017, 8.2.2017 & 15.2.2017, as per the Report of the Dean, Government Medical College Hospital, Asaripallam, Nagercoil. To the Show Cause Notice of the Second Respondent, dated 6.3.2017, the Petitioner sent a reply to the Second Respondent denying the allegation and informed the Second Respondent that he did not receive any communication to appear before the Medical Board on the above mentioned dates.
5. Again, he was referred to Medical Board. On 19.4.2017, he appeared before the Board. The Board recommended the Petitioner to avail further Medical leave from 20.4.2017 to 19.5.2017. In spite of intensive treatment, he did not recover from the ailment totally, so, explaining the deterioration of his health, he sought for extension of Medical leave from the Second Respondent vide his Letter, dated 20.5.2017. However, the Second Respondent rejected the Leave Application and asked the Petitioner to join duty.
6. Meanwhile, the Director of Town Panchayat, Chennai, vide his Proceeding, dated 17.6.2017, promoted the Petitioner to the post of Executive Officer (Selection Grade) and posted him at Karungal Town Panchayat. The said order was served to the Petitioner, by post, only on 1.8.2017. While others were served with Promotion Order and they actually joined duty in the promoted post, with effect from 19.6.2017, for the Petitioner, the Promotion Order was communicated belatedly. Besides, the First Respondent on the advice of the Second Respondent, issued a Charge Memorandum under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, alleging unauthorised absence. The Charge Memorandum was served on the Petitioner on 5.7.2017.
7. According to the Petitioner, in order to prevent him from joining duty at the promoted post, he was placed under suspension vide Proceeding, dated 30.7.2017. Challenging the Charge Memorandum, dated 30.6.2017, and the consequential Suspension Order, dated 30.7.2017, the Petitioner has filed a Writ Petition in W.P. (MD) No. 14888 of 2017 seeking a Writ of Certiorari to call for the records and quash the Charge Memorandum and the consequential Suspension Order.
8. This Court, at the time of admission of W.P. (MD) No. 14888 of 2017 was, prima facie satisfied with the contention raised by the Petitioner that the Director of Town Panchayat is the Appointing Authority of the Executive Officer, whereas, the District Collector who is not the Appointing Authority, has placed the Petitioner under suspension. The District Collector not being the Appointing Authority and not been delegate, with the power of imposing min
