Fatheema Hassan Vs The Secretary to Government

Prayer: Writ Petition is filed under Section 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 1^st respondent in

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Letter No.3247789/Q2/2022-3, Human Resources Management (Q) Department dated 08.12.2022 and QUASH the same and consequently

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to direct the 1^st respondent to include the name of the petitioner in the panel prepared for the year 2021-22 as on the crucial date 01.09.2020 and to promote her as Under Secretary to Government on par with her Junior Thiru K.Premkumar Rao, since the immediate Junior Thiru T.Soundararajan was ‘on Other Duty’ as Municipal Commissioner, with all service benefits from the said date of 09.04.2021 and with back

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wages.

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: For petitioner Mr. T.Ranganathan For Respondents : Mrs. S.Anitha Special Government Pleader

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O R D E R

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This writ petition demonstrates the manner in which red tapism is put to use to ensure that a qualified person is kept away from attaining her next promotion. It also reflects the manner in which a woman officer who has put in decades of service and who has earned the post 2/15

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on her merit has been denied the same till she superannuated.

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The facts of the case are discussed herein below to amply

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demonstrate the above statement.

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This writ petition has been filed for the relief of issuance of

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certiorarified mandamus to quash the order passed by the 1^st respondent dated 08.12.2022 and consequently direct the 1^st respondent to include

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the name of the petitioner in the panel prepared for the year 2021-2022 as on the crucial date 01.09.2020 and to promote her as Under Secretary to Government on par with her Junior Thiru K.Premkumar Rao, since the immediate Junior Thiru T.Soundararajan was ‘on Other

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Duty’ as Municipal Commissioner, with all service benefits from the date of 09.04.2021 and with back wages.

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The petitioner originally joined the service of the Government as a Typist on 12.12.1983. After acquiring a degree qualification, she was converted as an Assistant in the year 1994 and promoted as an Assistant Section Officer in the year 1997 and a Section Officer in the 3/15

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year 2008. She was due for the next promotion to the post of Under Secretary to the Government in the panel prepared for the year 2016 – 2017.

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The petitioner would submit that she was originally in the zone

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of consideration in the panel prepared on 01.09.2015 for the year 2016 – 2017 to the post of Under Secretary to Government. However, at that point in time, there was a charge memo pending against her under Rule 17 (b) of the Tamil Nadu Civil Services (D&A) Rules. Therefore, she was not considered for promotion in the panel published in GO.D).No.8, P & AR Department, dated 25.04.2016. The noninclusion was also intimated to her by the Secretary to Government, P & AR Department, by order dated 25.04.2016.

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Thereafter, the disciplinary proceedings initiated against her was concluded by imposing punishment of penalty of stoppage of increment for a period of 18 months with cumulative effect affecting her pension in GO(2D).No.73, Agricultural Department dated 12.04.2018. This punishment ended on 10.10.2019 and therefore, the 4/15

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petitioner’s name should have been considered for the next panel, she being the first in the seniority list and also on account of the Judgement of this Court in WA(MD).No.315 of 2010 etc., batch, which had clearly laid down that once the order of punishment is over, the individual should not be penalised in the name of check period.

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On completion of her punishment, the Secretary to Government, Agricultural Department, had sanctioned the petitioner’s Selection Grade in the post of Section Officer and pay fixation in the post of Selection Grade was also done in OP.No.371 dated 17.08.2021.

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The petitioner would further submit that the 1^st respondent had called for the list of qualified Section Officers fit for promotion to the post of Under Secretary to Government vide letter dated 09.04.2021 and in the Annexure I attached to the said letter, the petitioner’s name featured at Sl.No.1. However, the 1^st respondent has deliberately not given temporary promotion to the petitioner. The 1^st respondent had issued a temporary promotion list under Section 47 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016. Once again 5/15

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the petitioner was not considered and persons from Sl.No.3 of the Annexure I was considered for temporary promotion and GO(D).No.77, P & AR Department dated 19.04.2021, has been issued without including the petitioner’s name. This is per se illegal and contrary to the rules.

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Once again the 1^st respondent had issued orders in GO(D).No.7, dated 07.01.2022, publishing the regular panel for the year 2020 – 2021, the crucial date being 01.09.2019. This panel ought

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to have been prepared on or before 01.09.2020 and crucial date for the panel of year 2021 – 2022 cannot be implemented as it has not been approved by the DPC till then. The affidavit would further narrate despite the petitioner’s name featuring in the original panel list for promotion, she was not given promotion to the post of Under Secretary. Aggrieved thus, the petitioner is before this Court.

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A counter affidavit has been filed by the respondents contending that the punishment would come to an end only on 31.12.2019. The respondents have gone on to state that the list of 6/15

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qualified Section Officers for promotion to the post of Under Secretary to Government, was called for by letter dated 09.04.2021, so as to enable eligible Section Officers to be promoted as Under Secretary to Government. The authority had decided that even during examination of eligible Section Officers for temporary promotion, the temporary promotion will be regulated against the vacancies for the regular panel for the year 2020 – 2021, with the crucial date falling on 01.09.2019. They would submit that the petitioner’s suitability was examined for temporary promotion for the period 2020 – 2021 on 19.04.2021 for the crucial date 01.09.2019. As on that date, the petitioner was suffering from currency of punishment imposed on her.

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The respondents would further submit that regular panel for the year 2021 – 2022, with crucial date 01.09.2020 could be issued only after regulating temporary promotion issued on 19.04.2021. They would also submit that the orders issued in GO.No.77, Personal and Administrative Reforms (Q) Department dated 19.04.2021, relates to temporary promotion under Section 47 (1) of the Act and it is not a temporary panel. 7/15

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Therefore, the respondents have clearly admitted the fact that

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the panel selected under GO.D.No.77, is not temporary panel but the final panel.

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The respondents would submit that as regards next panel i.e., for the year 2022 – 2023, since the petitioner had retired on 31.05.2022, she could not be considered for the said year. Though, even according to the respondents the petitioner was not eligible for promotion only as on 01.09.2019, on account of punishment imposed on her. Even thereafter, the respondents have not chosen to promote her. Ultimately, they sought for dismissal of the writ petition.

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Heard the learned counsels on either side and perused the records.

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From the records it is seen that the petitioner had joined the service of the Government in the year 1983 as a Typist and through promotion she was ultimately holding the post of a Section Officer 8/15

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from the year 2008. The next avenue of promotion was to the post of Under Secretary.

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The records would show that the petitioner was in the zone of consideration in the panel prepared for the year 2016 – 2017. However, the petitioner’s name was deferred from inclusion in the panel since there were disciplinary proceedings pending against her and the same has been communicated to her vide letter dated 25.04.2016. By proceeding dated 12.04.2018, the petitioner has been imposed the punishment of stoppage of increment for a period of 18 months with cumulative effect. The punishment even according to the respondents has come to an end on 31.12.2019. Thereafter, by office proceeding dated 17.08.2020, the 2^nd respondent had included the petitioner’s name in the panel of Section Officers fit for appointment as Selection Grade Officer.

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By proceeding dated 09.04.2021, the Principal Secretary to Government had addressed the Additional / Joint / Deputy Secretary to Government (OP), (Except Law, Finance and PD & SI Department), 9/15

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that it was proposed to promote eligible Section Officers as Under Secretary to Government and in the Annexure I enclosed to the said letter, the name of the petitioner was featured at S.No.1. The Department Heads were requested to furnish proforma particulars in respect of these Section Officers along with necessary recommendation.

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On that date, the petitioner was very much eligible for being considered to the post of Under Secretary to Government as her punishment had come to an end on 31.12.2019. However, for the reasons best known to the respondents barring the petitioner and the second person in the list, namely, T.Soundararajan, all the other candidates were given temporary promotion as Under Secretary vide proceedings dated 19.04.2021, which is 10 days after the letter of the Principal Secretary to Government.

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In the counter affidavit, there is absolutely no explanation as to the reasons why the Government had gone in for temporary promotion when list containing 150 names with the petitioner at S.No.1 10/15

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had been prepared. The respondents would submit that she was not considered on account of currency of punishment which itself is a totally incorrect statement.

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For the next panel, namely, for the year 2021 – 2022 with the crucial date on 01.09.2020, the respondent’s contention is that till temporary promotions issued vide order dated 19.04.2021 was regularised in the actual vacancy, the next list cannot be finalised. It is their contention that the estimation period in respect of the panel for the post of Under Secretary for the year 2021 – 2022 was from 11.02.2022 to 10.02.2023. However, the respondents would contend that there was 5 existing vacancies and the Government had carried forward the 5 existing vacancies to the panel year 2022 – 2023 and issued NIL panel for the year 2021 – 2022.

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All these clearly shows mala fides in the action of the respondents. It appears that the respondents had only a one point agenda i.e., to ensure that the petitioner was not promoted to the post of Under Secretary till the date of her superannuation. 11/15

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Admittedly, the petitioner had qualified for promotion even according to the proceedings of the respondents themselves on 17.08.2020 when the process for drawing up the panel for the year 2021 – 2022 was underway. The impugned order would read that the petitioner was not considered on account of currency of punishment on the crucial date i.e., 01.09.2019. However, there is no explanation as to why the petitioner had not been considered for the next panel.

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The currency of punishment even according to the

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respondents had come to an end on 31.12.2019 and on the date when the temporary promotion has been notified i.e., on 19.04.2021, the petitioner was fully qualified as there was no currency of punishment.

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Despite which, the petitioner has not been considered for promotion.

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The petitioner has also not been considered to be included in the panel for the year 2021 – 2022, where the crucial date was 01.09.2020, when there was no currency of punishment. For this year, in order to ensure that the petitioner was not promoted, the respondents 12/15

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have deliberately issued NIL panel and carry forwarded the 5 vacancies to the next panel year, namely, 2022 – 2023.

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In view of the above discussion, the impugned order cannot

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be sustained and the petitioner ought to be included in the panel notionally for the year 2021 – 2022, considering the fact that she was retired on 31.05.2022.

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In the result, this writ petition is allowed. The 1^st respondent is directed to include the name of the petitioner in the panel prepared for the year 2021-22, and to promote her as Under Secretary to Government on par with her Junior Thiru K.Premkumar Rao, with all service benefits with back wages. Consequently, the connected miscellaneous petitions are closed. No costs.

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08.12.2025

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Index : Yes/No Internet : Yes/No

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kan

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To

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1.The Secretary to Government, Personnel and Administrative Reforms Department, Now Human Resources Management Department, Secretariat, Chennai - 600 009.

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