The withdrawal of a charge memo does not necessarily nullify the proceedings, and pendency of disciplinary proceedings can be a valid reason for denying promotion.

JUDGMENT

(Prayer: The writ petition is filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus calling for the records of the 1st respondent relating to the order in Pro.Ref.No.p2/13192/2011, dated 05.05.2011, to quash the same and to issue consequential directions to the 1st respondent to include the name of the petitioner in the panel for the year 2009 for promotion as Assistant Commercial Tax Officer, between S.No.93 and 94 of the panel approved by the 1st respondent in Pro.No.P2/28377/2009-1, dated 18.12.2009 and to promote him with retrospective effect from the date of promotion of his immediate junior with consequential benefits.)

1. The writ petition is filed praying for a writ of Certiorarified Mandamus challenging the order of the 1st Respondent dated 05.05.2011 in Pro.Ref.No. P2/13192/2011 and to issue consequential directions to the 1st Respondent to include the name of the petitioner in the panel for the year 2009 for promotion as Assistant Commercial Tax Officer, at S.No.93 or 94 of the panel approved by the 1st Respondent in Pro.No.P2/28377/2009-1 dated 18.12.2009 and to promote him with retrospective effect from the date of promotion of his immediate junior with consequential benefits.

2. Facts of the case:

2.1. The petitioner had joined the service as Typist on 15.02.1993 and was promoted as Assistant on 23.05.2000 and on the date of filing of the writ petition, the petitioner was serving as Assistant in the Office of the Assistant Commissioner (Commercial Taxes), R.S.Puram West Circle, Coimbatore. Whileso, the 2nd Respondent issued a charge memo dated 19.01.2009 vide proceedings No.A1/5812/2008, initiating disciplinary proceedings against the petitioner under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as the "Rules"), wherein the following charges were framed:

Charge 1:

"During the duty hours on KG Chavad (Incoming Check post the officers of DVAC had conducted a surprise check and found an excess amount of Rs.300/- on 20 12 2008 at the (Rupees Three Hundred Only) with the possession of TmiRadhamani, UDI apart from the one disclosed by her in the "cash in hand registrar maintained at the check post. She was not able to explain convincingly the difference of amount in her possession and hence it was seized by the DVAC of officials

Charge 2:

Tmt.C.Radhamani, UDI/Assistant, while performing her duty in the Commercial Taxes Checkpost, KG Chavady (Incoming) had failed to discharge her duties with expected care, sincerity and devotion and thereby failed to maintain absolute integrity in violation of Rule 20(1) of Tamil Nadu Government Servant Conduct Rules, 1973"

2.2. The petitioner submitted its explanation vide letters dated 27.07.2009 and 10.09.2009 and requested to drop the proposal. In the meanwhile, a panel for promotion to the post of Assistant Commercial Tax Officer for the year 2009 vide proceedings dated 01.03.2010 was drawn, in which the petitioner''s name was not included. The non-inclusion of the petitioner''s name in the panel was admittedly in view of the pendency of charge memo dated 19.01.2009 under Rule 17(b) of the Rules.

2.3. In the meanwhile another charge memo dated 18.03.2010 came to be issued on the basis of the very same checks/inspection by DVAC at the check post on 20.12.2008. The charges are extracted hereunder:

Charge No. 1:

"That the said Tmt. G.R.Radhamani Assistant Upper Division Inspector(A2), Thiru A.Subramanakalanidhi, Assistant Commercial Tax Officer (A1).

Thiru N.Dhandapani, Assistant / Upper Division Inspector (A3), Thiru M. Michaelrai Record clerk (A4), and Thiru P. Kuppuraj Office Assistant (A5) being a public Servants while on duty at the CT Check post (Incoming) K.G.Chavady, Coimbatore on 20.12