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V. SHANMUGHASUNDARAM versus THE DEPUTY DIRECTOR SECURITY

High Court of Madras

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V. Shanmughasundaram v. The Deputy Director Security - Writ Petition No.16927 of 1997 [2002] RD-TN 838 (25 October 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 25/10/2002

CORAM

THE HONOURABLE MR.JUSTICE P.K.MISRA

Writ Petition No.16927 of 1997

V. Shanmughasundaram ..... Petitioner -Vs-

1. The Deputy Director Security

Railway Board, New Delhi-1

2. Chief Security Commissioner

Southern Railway Protection Force

Moor Market Complex, Chennai

3. The General Manager

Southern Railway, Chennai ..... Respondents Prayer: Petition filed under Article 226 of the Constitution of India, praying to issue a writ of mandamus, as stated therein. For Petitioner : Mr. N.Rajavadivelu

For Respondents : Mr. R.Thyagarajan Senior Counsel for Mr. V.G.Sureshkumar

:ORDER



Heard the learned counsel appearing for the parties. In this writ petition, the petitioner has prayed for issuing a writ of mandamus directing the respondents to relieve the petitioner and to allow him to join in the promotional cadre of Assistant Security Commissioner as per the proceedings of the t respondent in No.97/Bcc/(E) PM 2/5 New Delhi dated 03.10.1997.

2. The petitioner was serving as Inspector of Railway Protection Force. It has been asserted that he was promoted from the post of Inspector of Railway protection Force to the next higher cadre i.e., Assistant Security Commissioner as per the proceedings dated 03.10.1997. Even though the promotion was on adhoc basis, the petitioner was not relieved from his previous duty and was not allowed to join duty. Therefore the present writ petition has been filed in the month of November, 1997 seeking for a direction to the respondents to relieve the petitioner and to allow him to join in the promotional post.

3. A counter affidavit has been filed on behalf of the respondents. In the counter affidavit it has been indicated that the order of promotion itself was subject to clearance by Vigilance/DAR and subject to departmental proceedings. It has been stated that in fact, by the time when the order of promotion was passed, the departmental proceedings had already been initiated and subsequently in the said departmental proceedings, the petitioner was reverted from the post of Inspector to Sub-Inspector by order dated 29.04.1998. It has been asserted further that during the pendency of the writ petition, the petitioner has been promoted to the post of Assistant Security Commissioner on adhoc basis with effect from 09.02.2000 and thereafter the petitioner has retired from service with effect from 31.05.2000.

4. The promotional order dated 03.10.1997 itself indicated that " appointments of the above Officers are subject to Vigilance / DAR clearance by the Railway/RPSF." The clarification letter dated 24.10.1997 indicates that the promotion should not be given effect to, if the railway servant in respect of whom the charge sheet for major penalty has been issued and the disciplinary proceedings are pending.

5. From the counter affidavit as well as documents filed on behalf of the respondent, it is apparent that a departmental proceeding was pending and charge sheet had been issued. As a matter of fact, subsequently the petitioner was reverted from the post of Inspector to Sub-Inspector. Subsequent order of reversion which came to be passed during the pendency of the writ petition has not been challenged by the petitioner and it has become final. It is apparent that at the time when the promotional order was given on 03.10.1997 and the subsequent order was issued on 16.10.1997, a charge sheet for major penalty had been issued and the disciplinary proceeding was pending which subsequently culminated in an order of reversion. In such view of the matter, it cannot be said that the respondents have committed any illegality in not giving effect to the promotion order dated 03.07.1997 and the subsequent posting order dated 16.07.1997.

6. The learned counsel appearing for the petitioner has placed reliance on the decisions reported in New Bank of India Vs. N.P.Sehgal and Another (1991 (2) SCC 220) and in Union of India and Others Vs. K.V.Janikiraman and others ((1991)4 SCC 109).

7. In the first cited case, it was held that the grant of promotion cannot be regarded as condonation of earlier misconduct. The counsel however has placed reliance upon the observation in Paragraph 9 and 10 which are quoted here under.

9."It was next contended by Mr Rao that even if the disciplinary proceedings against respondent 1 were liable to be continued that constitutes no ground for holding up the promotion of respondent 1 from Scale III to Scale IV if he was otherwise found fit for promotion, as, on the date even the selections for that promotion were made, no charge sheet had been served on respondent 1 and it is the accepted position here that till the charge sheet was submitted it could not be said that disciplinary proceedings were in process or had been initiated. It was submitted by Mr. Rao that this contention was fortified by the provisions of clause (9) of the Promotional Policy of the appellant, which we have discussed earlier. It was urged by him that it was on this ground that the appellant had based its case regarding the validity of the disciplinary proceedings against respondent 1 and on the same basis respondent 1 was entitled to be promoted from Scale III to Scale IV as from March 1988 if he was found fit. It was submitted by him that since the charge sheet was served on respondent 1 over a month after he was considered for promotion from Scale III to Scale IV, it was not open to the appellant to hold back the consideration of the case of respondent 1 for promotion from Scale III to Scale IV or to deny him the promotion if he was found fit. 10. It appears to us prima facie that the submissions of Mr. Rao in connection with promotion of respondent 1 from Scale III to Scale IV are not without substance. However, it is necessary for us to decide this question because Mr Pai, learned counsel for the appellant has agreed that without creating a precedent, the appellant will grant promotion to respondent 1 from Scale III to Scale IV if it is found that the Departmental Promotion Committee found him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmental enquiry being contemplated against him."

7a. On a perusal of the aforesaid observation, I do not find anything to support the case of the petitioner. The subsequent decision also is not applicable to the present case. As a matter fact the subsequent decision clarifies about the sealed cover procedure and it contemplates that when at the time of promotion any departmental proceeding is pending, the promotional order should be kept in a sealed cover and if ultimately in the disciplinary proceedings the person is exonerated, such promotion should be effected with retrospective effect. Even applying this principle, the petitioner cannot derive any benefit. In the present case, the respondent has produced documents to indicate that departmental proceedings had been initiated was pending by the time it was decided to promote the petitioner.

8. In such view of the matter, I do not find any merit in the writ petition which is accordingly dismissed without any order as to costs. 25.10.2002

Index: Yes

Internet: Yes

ksr

To

1. The Deputy Director Security

Railway Board, New Delhi-1

2. Chief Security Commissioner

Southern Railway Protection Force

Moore Market Complex, Chennai

3. The General Manager

Southern Railway, Chennai




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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