(Prayer: Petition filed under Article 226 of the Constitution of India, to issue a writ of certiorari calling for the records relating to the impugned order passed by the 1st respondent vide his proceedings in KaPaNi2/35121/2022-1 dated 17.08.2024 and the consequential impugned order passed by the 1st respondent vide his proceedings in Se.Mu.Aa.No.KaPaNi.1/132338/2024-1 dated 19.11.2024 quash the same.)

1. This Writ Petition had been filed to call for records relating to the the impugned order passed by the 1st respondent, dated 17.08.2024 and the consequential impugned order passed by the 1st respondent, dated 19.11.2024 and quash the same.

2. Heard Mr.C.Padma Raj, learned counsel appearing for the petitioner and Mrs.P.B.Ahamed Yashmin Parvin, learned Government Advocate appearing for the respondents.

3. The learned counsel for the petitioner would submit that the petitioner was initially appointed as Assistant Agricultural Officer on 06.03.2009 and was promoted as Assistant Seed Officer by proceedings dated 25.09.2018. While that being so, the petitioner was issued with a show cause notice on 17.08.2024 alleging that a charge sheet had been filed against the petitioner as early as in the year 2016-17 by the Vigilance and Anti Corruption Department and a Report had been received only on 06.05.2019 holding allegations against the petitioner and therefore, had sought for an explanation as to why the petitioner should not be reverted back to the post of Assistant Agricultural Officer, as on the date of the promotion there was a criminal case pending against the petitioner. A detailed explanation has also been submitted and on the date of promotion there has been no charge sheet laid in the criminal case and that there was no disciplinary proceedings also pending against him. But, however, under the impugned order, the reversion order has been made alleging that the charge sheet had been filed on 23.07.2018 and a charge memo under Rule 17(b) was issued on 05.08.2024.

4. He would submit that a charge memo issued after the promotion which was not available on the crucial date or even on the date of the promotion could not be put against the petitioner to revert back the petitioner to the feeder category. Further relying upon Sub-Section 1 of Section 7 read with Schedule 11 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016 (hereinafter referred to as ‘the Act’). He would submit that mere filing of case by the appropriate investigating agency against the member of service shall not be a bar for inclusion of his name in the approved list. Only if a charge sheet has been filed in the said criminal case on the crucial date his name should not be considered for inclusion in the approved list. Therefore, on the said crucial date, as against the petitioner no charge sheet had been filed. The petitioner was promoted on 25.09.2018 and he had received summons in the said case only in the year 2019. Hence, he seeks indulgence of this Court in setting aside the order impugned in this Writ Petition.

5. Countering his arguments, learned Government Advocate would submit that while the petitioner was working as Assistant Agricultural Officer under the third respondent in collusion with the other officers had swindled the subsidy amount for a tune of Rs.62,158.40/-. A preliminary investigation was conducted by the Director of Vigilance and Anti Corruption and an FIR came to be registered in the year 2016. Pursuant to the said investigation, a charge sheet had been filed on 11.03.2019 in a Spl.Case No.7 of 2019. In the interregnum, a junior who had promoted to the post of Assistant Seed Officer for the year 2016 as on 01.04.2016 was withdrawn and the petitioner’s name was recommended along with others based on the merits and ability.

6. Scrutinizing the panel received from the Subordinate Officers vide Proceedings dated 14.09.2018, the name of the petitioner was placed under Serial No.249 and consequent to the approval of the panel, the petitioner was promoted and posted as Seed Officer vide the above said proceedings and the petitioner had joined in the promoted post on 25.09.2018. On 30.04.2019, a Report had been received from the Director of Vigilance and Anti Corruption intimating about the filing of charge sheet on 11.03.2018.

7. A Agricultural Officer and the third respondent who was the first accused in the said criminal case was not promoted and she had made a representation to promote her and also had approached this Court in W.P.No.23396 of 2021 wherein by order dated 29.10.2021, this Court had directed the first respondent to consider the representation dated 13.08.2021 of the petitioner herein.

8. At this juncture, it had come to the knowledge of the respondents that the petitioner had been wrongly promoted and hence a show cause notice was issued to him as to why he should not be reverted, since as on the crucial date there was an FIR pending against him. She would submit that the petitioner had been involved in a heinous offence of corruption and had swindled monies that had to be disbursed to the agriculturists. When a criminal case has been filed and a charge sheet is laid then the petitioner is not entitled for being promoted. She would further refer to a Government order in G.O.(Ms).No.1435, Public Service A Department, dated 19.08.1964 to contend that if it is found that a Government servant in officiating capacity in a higher post either by promotion or appointment, the same should be canceled when it is brought to the notice of the Appointing Authority that such promotion or appointment had resulted in a erroneous decision in respect of the said Government servant.

9. As the petitioner is a tainted officer, he should not be allowed to continue in the promoted post and therefore, there is no infirmity in the order passed by this Court. Hence, she seeks this Court to dismiss the Writ Petition.

10. I have considered the submissions made by the learned counsels appearing on either side and perused the materials available on record.

11. The petitioner who had been working as Assistant Agricultural Officer had been promoted to the post of Assistant Seed Officer by proceedings dated 14.09.2018. It is the claim of the respondents that the petitioner had involved himself in a criminal case in which FIR had been registered in the year 2016 and admittedly a charge sheet was filed in the year 2019. Section 7 of the Act envisages that first of all for appointment to any class or category or grade in any State service or subordinate service whether by direct recruitment or by transfer or by recruitment by transfer or by promotion should be made by the Appointing Authority from the list of approved candidates. Schedule 11 which have been issued with reference to Section 7 (1) postulates the procedure for preparation of the approved list including consideration of members for inclusion in the approved list.

12. Part-A II Clause 5 would envisage that mere filing of cases in Courts by an Investigating Agency against the member of service shall not be a bar for inclusion of his name in the approved list. Only if the specific charges are framed or charge sheet had been filed in the criminal case on the crucial date, his name need not be considered for inclusion in the approved list. Admittedly, on the crucial date no charge sheet had been filed or charges had been framed against the petitioner.

13. Further Clause 6 would indicate that a member of the service need not be considered for inclusion in the approved list if he had been arrested for an offence under the Prevention of Corruption Act. In the present case, the petitioner has neither been arrested under the Prevention of Corruption case registered against him. Even till the date of his promotion no charge sheet had been laid against the petitioner. Therefore, the petitioner who had been promoted on the said date cannot be reverted just because a charge sheet had been filed subsequent to the date of his promotion.

14. The reliance upon a Government order which had been invoked before the Act had come into force cannot be held to be good. As the Act now governs the service of the petitioner and only if any such provision is available under the Act, such reversions could take place. Further, it is to be noted that the promotion had not been granted erroneously and it has also been admitted in counter that only based on the merit and ability, the petitioner had been promoted to the said post.

15. For the aforesaid reasons, the Writ Petition stands allowed and the impugned order is set aside. There shall be a direction to the respondents to reinstate the petitioner in the promoted post forthwith. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.