Is an order de-promoting a Government servant without affording an opportunity of hearing bad for violation of principles of natural justice?

Service law — De-promotion — Principles of natural justice — Non-speaking order — Revision of seniority — Merit — Roaster principle — Tamil Nadu Civil Services (Discipline and Appeal) Rules — s.17(b) —

De-promotion — Opportunity of hearing — Non-speaking order —

Held: An order de-promoting a Government servant without affording an opportunity of hearing, stating no ground and passed without application of mind is bad for violation of principles of natural justice and cannot stand. (¶9, 10)

Seniority — Revision solely on merit — Roaster principle —

Held further: Seniority for selections after the Bimlesh Tanwar cut-off date had to be revised solely on merit, excluding the roaster principle, as the Supreme Court directed; the revision itself cannot be faulted. (¶6)

Tamil Nadu Civil Services (Discipline and Appeal) Rules — s.17(b) — Withholding promotion —

Held further: Promotion can be withheld only where the charge is under Section 17(b), and whether a charge arising while holding the promotional post can do so must be answered by a reasoned order after hearing. Writ appeal allowed. (¶7, 8, 10, 11)

Is an order de-promoting a Government servant without affording an opportunity of hearing bad for violation of principles of natural justice?

Yes. An order de-promoting a Government servant without affording an opportunity of hearing is bad for violation of principles of natural justice. The impugned order reverted an officer who had served about eight years in the higher post, stated no ground, did not mention the pending charges said to justify it, and cited only an internal reference that was not annexed. The Court found it non-speaking and passed without application of mind, and set it aside. [¶9, ¶10]

Must existing seniority be revised solely based on merits, excluding the roaster principle, for appointments made after the Bimlesh Tanwar cut-off date?

Yes. Existing seniority must be revised solely based on merits, excluding the roaster principle, for appointments made after the Bimlesh Tanwar cut-off date. Following V.Senthur and the Supreme Court's orders in P.Madhu, which fixed 10 March 2003 as the cut-off and directed re-fixing on merit as determined by the Public Service Commission, the Court held the revision of the officer's seniority could not be faulted. [¶6]

Can promotion be withheld only when the charge framed against a Government servant is under Section 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules?

Yes. Promotion can be withheld only when the charge framed against the Government servant is under Section 17(b) of the Discipline and Appeal Rules. As the record did not show under which clause the charges were framed, the Court could draw no inference, and it left the authority to decide, by a reasoned order after hearing, whether promotion on revised seniority can be withheld for a charge that arose while the officer held the promotional post. [¶7, ¶8, ¶10]

What did the High Court finally decide on the de-promotion of the Assistant Executive Engineer?

The writ appeal was allowed and the Single Judge's order set aside. The de-promotion order was quashed and the respondents were directed to post the officer in a suitable post in the cadre of Assistant Executive Engineer, with liberty to consider afresh, after full opportunity and by a reasoned order, whether she can remain in that cadre or must be de-promoted. No costs. [¶10, ¶11]

“6. There is no doubt that existing seniority had to be revised solely based on merits without involving roaster principle as per the Judgment of Hon'ble Supreme Court in V.Senthur -vs- Vijaykumar, bearing neutral citation 2021 INSC 591 and the Order of Hon'ble Supreme Court dated July 18, 2023 made in P.Madhu -vs- K.Nandhakumar in Contempt Petition Civil Diary No.6415 of 2021 in S.L.P. (C) No.2886 of 2016 and various other Judgments and Orders of Hon'ble Supreme Court. In all those Judgments and Orders of Hon'ble Supreme Court, the date of Judgment in Bimlesh Tanwar's Case [cited supra] viz., March 10, 2003 was fixed as the cut-off date and directions were issued to the Government of Tamil Nadu to refix seniority solely based on merits as determined by Tamil Nadu State Public Service Commission for the appointments made after the cut-off date. Accordingly, the writ petitioner's seniority was revised; while her seniority as per roaster principle was 23, her revised seniority solely based on merits is 173. The revision of seniority is as per Hon'ble Supreme Court's direction and no fault can be found with the same.”

“7. The core issue here revolves around de-promotion of the writ petitioner from the post of Assistant Executive Engineer to the post of Assistant Engineer on the ground that charges were pending against her. There is no clarity as to whether the charges were framed under Section 17 (a) or Section 17 (b) of the Tamil Nadu Civil Services (Discipline And Appeal) Rules. As rightly pointed out by the learned Counsel for the appellant / writ petitioner, as per the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, promotion can be withheld only when the charge(s) framed is under Section 17 (b). However, the third respondent in their counter filed in this Writ Appeal have stated that there are two charges pending against the writ petitioner among which one charge is based on a reference from Vigilance and Anti-Corruption Department. The factum of pendency of such a charge was not disclosed by any of the respondents in the Writ Petition. Further, it appears that the writ petitioner was not suspended pursuant to the charge based on vigilance reference. In these circumstances, it is not possible for this Court to draw any inference on whether the charges framed against the writ petitioner are under Section 17 (a) or Section 17 (b) of the Tamil Nadu Civil Services (Discipline And Appeal) Rules.”

“9. Further, from the perusal of the Impugned Order, nothing could be seen to show that the respondents followed the principles of natural justice and afforded an opportunity to the writ petitioner and heard her version before de-promoting her. Moreover, the Impugned Order prima facie is a non-speaking Order rendered without application of mind. There is no mention of any ground for de-promotion whatsoever. There is no mention of the pendency of any charges against the writ petitioner. There is only one reference cited in the Impugned Order, which appears to be internal communication, however, there is no copy of it annexed along with the Impugned Order. For ease of reference, a scanned copy of the Impugned Order is reproduced hereunder:”

“10. For the aforesaid reason, the Impugned Order is bad for violation of principles of natural justice. Hence, this Court is inclined to set aside the Impugned Order and direct the respondents to post the writ petitioner in any suitable post in the cadre of Assistant Executive Engineer, while liberty is granted to the respondents to consider afresh whether the writ petitioner can be accommodated in the cadre of Assistant Executive Engineer in consonance with the Judgments and Orders of Hon'ble Supreme Court referred to supra or needs to be de-promoted given the pendency of the charges against her, but this time by affording sufficient opportunities to the writ petitioner to put forth her case and thereafter passing a reasoned Order which shall also answer the aforesaid crucial question thereby following the principles of natural justice fully. The learned Single Judge failed to consider the above aspects and erred in dismissing the Writ Petition, and consequently, it is liable to be set aside.”