LAWS(MAD)-2010-4-71

K PALANICHAMY Vs. STATE OF TAMIL NADU

Decided On April 15, 2010
K. PALANICHAMY Appellant
V/S
STATE OF TAMIL NADU REP BY ITS SECRETARY TO GOVERNMENT DEPARTMENT, CHENNAI Respondents

JUDGEMENT

(1.) THE petitioner was appointed as Junior Engineer on 21.05.1969 through the Tamil Nadu Public Service Commission. Subsequently, he was promoted as Assistant Divisional Engineer on 10.01.1973 and further promoted as Divisional Engineer during September 1992. According to the petitioner, he was due for promotion as Superintending Engineer even in the year 1997. THE respondent published panel in G.O. Ms. No.473, Highways Department dated 15.12.1997 excluding the name of the petitioner. According to the petitioner, he should have been included in between serial No.8, Shyamala Devi Thamburatti and Sl.No.9 J.Christopal in the said panel. THErefore, questioning the non-inclusion of his name, he submitted a representation on 10.09.1998 and 17.09.1998 seeking to include his name, but there was no response. In the meanwhile, the petitioner was included in the panel for promotion as Superintending Engineer vide G.O. Ms. No. 317, Highways Department dated 31.12.1998. Subsequently, the petitioner was also promoted as Superintending Engineer and joined duty on 20.01.1999. According to the petitioner, when his juniors have been promoted in the panel drawn in the year 1997, he is also eligible to be promoted in the year 1997 itself. THE petitioner has also filed O.A. No. 2606 of 1999 before the Tribunal seeking for a direction to the respondent to include his name in Serial No. 8A in between serial No. 8 and 9. THE Tribunal, by an order dated 23.04.1999 directed the respondent to consider the representation of the petitioner and pass orders. Pursuant to such direction, the respondent has passed the impugned order dated 12.05.1999 rejecting his claim. Aggrieved by the same, he has filed the present Original Application before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 42204 of 2006.

(2.) THE respondent has filed a reply affidavit in which it was categorically stated that though the petitioner has reached his turn for promotion as Superintending Engineer in the year 1997, while assessing his suitability for promotion, it was found that certain adverse remarks were found entered against the petitioner in the confidential reports for the period from 08.07.1994 to 31.03.1995 when he was holding the post of Divisional Engineer, Rural Works, Nagercoil. While offering remarks by the scrutinising officer, it was recorded in the confidential report that the applicant had not utilised the allotment of Rs.30 lakhs in full and that he had not cared to offer his explanation when called for from him. It was also further recorded that the petitioner disobeyed the orders of his superiors and evaded from the responsibilities assigned to him and he was also not trustworthy. In view of the above adverse remarks, the petitioner's name was not included in the panel for promotion to the post of Superintending Engineer in the year 1997 approved in G.O. Ms. No.473, Highways Department dated 15.12.1997. it was also stated that in the year 1998, the petitioner's name was included in the promotional panel and he was also promoted to the post of Superintending Engineer. In the impugned order, it was categorically mentioned that the adverse remarks recorded by the then Chief Engineer in the petitioner's confidential report was duly communicated to him on 28.05.1996 and after considering his explanation, the adverse remarks were ordered to be allowed to stand by the then Chief Engineer, Highways Department. It was further stated that before passing the impugned order, the reply of the petitioner as well as the relevant records were considered by the respondent and therefore the impugned order is legally sustainable. Moreover, the petitioner was subsequently promoted in the year 1998 and therefore the adverse remarks should stand and need not be expunged.

(3.) IN this context, the learned Government Advocate appearing for the respondent relied on the decision of the Honourable Supreme Court reported in (R. Veerabhadram vs. Government of Andhra Pradesh) 1999 (9) SCC 43 to say that non-consideration of promotion even due to pendency of criminal proceedings, which ended in acquittal subsequently, will disentitle the promotee to get promotion with retrospective effect. IN this case, admittedly, the adverse remarks were made and it was not expunged by the respondent. However, notwithstanding the adverse remarks, the petitioner was subsequently promoted in the year 1998 and therefore I do not find any reason to interfere with the impugned order. Moreover, the post is a selection post and the petitioner cannot claim promotion with retrospective effect inasmuch as the adverse remarks still stand against him.