A. Kalaiselvan v. The Union of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:- 04.01.2010CORAMTHE HONOURABLE MR. JUSTICE M. CHOCKALINGAM ANDTHE HONOURABLE MR. JUSTICE T. RAJAW.P. NO.23609 OF 2009A. Kalaiselvan ... Petitioner..Vs..1. The Union of India, rep. by the Director of Healthand Family Welfare Services, Government of Puducherry, Puducherry.2. The Director, Directorate of Indian Systems ofMedicine and Homeopathy, Government of Puducherry, Puducherry.3. The Registrar, Central Administrative Tribunal, (Madras Bench), Chennai – 104. ... RespondentsWrit Petition filed under Article 226 of the Constitutionof India, seeking to issue a writ of certiorarified mandamus, tocall for the records of the 3rd respondent, the Central AdministrativeTribunal (Madras Bench) made in O.A. No.351/2007 dated 6.4.2009 andquash the same as illegal and direct the respondents to grant allconsequential and attendant benefits in the post of Pharmacist witheffect from 30.10.1999.For Petitioner : Ms. A. ArulmozhiFor Respondent : Mr. Syed Mustafa, Addl. Govt. Pleader (Puducherry) https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by M. CHOCKALINGAM, J.)This writ petition has been filed seeks to quash an orderdated 6.4.2009 passed by the Central Administrative Tribunal (MadrasBench) in O.A. No.351/2007 as illegal and consequently to grant thepetitioner all consequential and attendant benefits in the post ofPharmacist with effect from 30.10.1999.2. The Court heard the learned counsel appearing for thepetitioner and also for the respondents.3. Admittedly, the petitioner applied for the post ofPharmacist. A written test was conducted. Following the writtentest conducted by respondents 1 and 2, one Smt. Rajalakshmi wasappointed. The said appointment was challenged by the petitioner inO.A. No.627 of 2003 and the same was set aside by the Tribunal by anorder dated 23.4.2004 and respondents 1 and 2 were directed toconsider the case of the petitioner for the said post. The saidorder passed by the Tribunal was challenged by respondents 1 and 2 inW.P. No.33775 of 2004 before this Court. An order came to be passedon 9.4.2005, dismissing the said writ petition, whereby the order ofthe Tribunal has been upheld. 4. The petitioner was offered an order of appointment on24.2.2006. Having accepted the appointment, the petitioner made arepresentation on 27th February, 2006 stating that respondents 1 and 2should give him appointment from 30.10.1999, but the same wasrejected by the respondents by a letter dated 29.3.2006. The samewas challenged by the petitioner before the Tribunal by filing O.A.No.351 of 2007. The Tribunal, after giving opportunity to both sidesand looking into the materials, rejected the said O.A. Hence thiswrit petition has arisen before this Court.5. The only contention put forth by the learned counsel forthe petitioner is that there was an inordinate, undue and deliberatedelay in the matter of appointment of the petitioner by respondents 1and 2. The respondents, by filing writ petition before this Court,consumed sufficient time. 6. Learned counsel added further that when the test wasconducted for the post of Pharmacist, the appointment should not begiven to Rajalakshmi, who was not qualified for the same, but thesame was offered to her, which necessitated the petitioner tochallenge the same by way of filing O.A. No.627 of 2003 before theTribunal. Even after the Tribunal has set aside the saidappointment, respondents 1 and 2 challenged the same by way of filingwrit petition and thus the undue delay has been caused. When reallythe petitioner should have been appointed in the year 1999, the https://hcservices.ecourts.gov.in/hcservices/ appointment order was given only on 24.2.2006 and thus, thepetitioner was entitled for the appointment with all remuneration,emoluments etc. from 30.10.1999 onwards. In the instant case, thedoctrine of "No work no pay" would not be applicable., when there arevalid reasons to make an exception to the said Rule. Under suchcircumstances, the contention put forth by the petitioner should havebeen accepted.7. Learned counsel added further that even if thepetitioner is not entitled for salary emoluments from the year 1999,there should not be any impediment for respondents 1 and 2 toconsider the promotion of the petitioner from that point of time.8. The Court heard the learned counsel appearing for therespondents on the above contentions and paid anxious considerationon the submissions made by either side.9. After doing so, this Court is afraid whether the Courtcan accept the contention put forth by the learned counsel for thepetitioner. In the instant case. There was a written test for thepost of Pharmacist, in which process, one Rajalakshmi was selected.Aggrieved over the selection, the petitioner has challenged the samebefore the Tribunal by filing O.A. No.627 of 2003 and thus, when theorder came to be passed by the Tribunal, setting aside theappointment of Rajalakshmi, respondents 1 and 2 have challenged thesame by way of writ petition and the same was also disposed of on9.4.2005 and thus, from all the above, it could be quite clear thatfrom the time of conducting written test in the year 1999, the matteris pending either before the Tribunal or before this Court by way offiling O.A. or writ petition. It actually covered pending litigationbefore the Court. Now it cannot be said that delay has been causeddeliberately nor it can be termed as an act by respondents 1 and 2.10. It is pertinent to point out that immediately after thewrit petition was over and an order was pronounced by this Court,appointment order was given on 24.2.2006 and the same was accepted bythe petitioner. Now the only reason put forth by the petitioner isthat it is a case where there was a delay that was caused byrespondents 1 and 2, which would suffice to make an exception to therule of "No work no pay" and it has got to be ordered. This Court isunable to agree with the contention of the learned counsel for thepetitioner. Whenever there is a valid reason contrary to the rule,it can be applied.11. In the instant case, in the year 1999, Rajalakshmi wasappointed and the same was challenged by the petitioner before theTribunal. The Tribunal set aside the said appointment and gavedirection to respondents 1 and 2 to consider the case of thepetitioner. Aggrieved over the same, respondents 1 and 2 have filedwrit petition. After writ petition was over, appointment order was https://hcservices.ecourts.gov.in/hcservices/ given to the petitioner following the order passed by this Court. Insuch circumstances, this Court is unable to see any reason, whichindicate that it is contrary to the regular rule of "No work No pay".12. Insofar as the second contention is concerned, eventhough the petitioner is not given salary and emoluments from theyear 1999 onwards, the petitioner's case could be considered forpromotion. In answer, learned counsel appearing for respondents 1and 2 stated that it was only one post of Pharmacist and it has beenfilled up and in that course, there is no promotion post. Hence, thecontention of the learned counsel for the petitioner cannot beaccepted. Under such circumstances, the writ petition standsdismissed. Consequently, the connected M.Ps. are also dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Director of Healthand Family Welfare Services, The Union of India, Government of Puducherry, Puducherry.2. The Director, Directorate of Indian Systems of Medicine and Homeopathy, Government of Puducherry, Puducherry.3. The Registrar, Central Administrative Tribunal, (Madras Bench), Chennai – 104.+ 1 cc to AGP (P) (SR 128)W.P. No.23609 of 2009and connected M.P.RV (CO)RH (12.1.10)