CoramThe Honourable Mr v. The Senior Regional Manager

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 19-9-2007CoramThe Honourable Mr.Justice S.J.MUKHOPADHAYAandThe Honourable Mr.Justice N.PAUL VASANTHAKUMARW.A.No.2218 of 2003S. Kannan...AppellantVs.1.The Senior Regional Manager,Tamil Nadu Civil Supplies Corporation Ltd.,Nagercoil - 4.2.The Chairman-cum- Managing Director,Tamil Nadu Civil Supplies Corporation Ltd.,Chennai - 10....RespondentsThis Writ Appeal has been filed under Clause 15 of LettersPatent against the order of the learned single Judge inW.P.No.6855 of 2001 dated 26.3.2003.This writ petition filed under Article 226 of theConstitution of India praying for the issuance of a writ ofcertiorarified mandamus calling for the records onthe file of thesecond respondent in his proceedings No. E7/41584/2000 dated16.8.2000 and quash the same and direct the respondents to paythe monetary benefits to the petitioner with 18% interest andcosts.For Appellant:Mr.R.SingaravelanFor Respondents :Mr.G.Senthilkumar https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TN. PAUL VASANTHAKUMAR, J.This writ appeal is directed against the order passed by thelearned single Judge in W.P.No.6855 of 2001 dated 26.3.2003,dismissing the writ petition filed by the appellant seekingmonetary benefits from the date of retrospective promotion.2.The brief facts necessary for disposal of the writappeal are as follows:(a)The appellant/writ petitioner joined duty as JuniorAssistant as direct recruit in the respondents department on17.10.1974 originally as a Trainee and as regular JuniorAssistant from 22.10.1974. He was ousted from service for wantof vacancy on 30.11.1974 and thereafter from 19.12.1974 he wasre-appointed and posted as Bill Clerk in the vacancy caused dueto suspension of another Junior Assistant.(b)The Junior Assistant post is higher than that of theBill Clerk post. The educational qualification for both theposts were also different. For the post of Junior Assistant, thequalification required is a pass in PUC and for Bill Clerk, therequired qualification is SSLC. The appellant is a Commercegraduate and he was selected to the post of Junior Assistantbased on his qualification. However, he was posted only as BillClerk from 19.12.1974, even though the vacancy available wasJunior Assistant. The appellant made representation to thedepartment and therefore he was posted as Junior Assistant on17.2.1976. (c)According to the appellant, his service from 17.10.1974is to be treated as Junior Assistant for the purpose of seniorityas he was wrongly posted as Bill Clerk. Subsequently, thedepartment upgraded certain posts of Bill Clerks as JuniorAssistants and those who are working for two years were promotedas Junior Assistants and seniority list of Junior Assistants wasprepared combining the Junior Assistants like appellant, who wereBill Clerks and later on promoted as Junior Assistants and theappellant was given Sl.No.38 in the seniority list published inDecember, 1978 taking note of his date of joining as JuniorAssistant on 17.2.1976 instead from 17.10.1974.(d)The appellant submitted representation to theauthorities to re-fix the seniority considering his service from17.10.1974. When the said representation was pending, certainJunior Assistants were given promotion as Assistants duringOctober, 1979, and the appellant was not given the saidpromotion. The appellant was not promoted on the ground that his https://hcservices.ecourts.gov.in/hcservices/ appeal for revision of seniority was pending and his case couldbe considered for promotion only after disposal of the appeal. (e)It is the further case of the appellant that severalpersons, who were juniors to the appellant were further promotedto the next category of Superintendent during March andSeptember, 1985, and the appellant was not given such promotionon the ground that his representation/appeal was pending.(f)The appellant filed W.P.No.14090 of 1991 before thisCourt and prayed for a writ of mandamus directing the respondentsto reconsider his claim for promotion as Assistant withretrospective effect from the date of promotion of his juniorsin October, 1979, and also to promote him as Superintendent fromthe date of promotion of his juniors in March, 1985, withretrospective effect with consequential monetary benefits.(g)The said writ petition was allowed by the learnedsingle Judge on the ground that the appellant was selected asJunior Assistant after his name was sponsored through theEmployment Exchange and he was ousted for want of vacancy and heought to have been re-appointed as Junior Assistant from17.10.1974 as per G.O.Ms.No.3834 Miscellaneous Public ServicesDepartment dated 20.12.1974, wherein the Government ordered thatthe temporary candidates when ousted from service for want ofvacancy should be re-appointed straight away in the next vacancyin the same category by the same appointing authority withoutreference to the Employment Exchange when the interval betweenthe date of discharge and re-appointment is not more than 90days. The learned single Judge also found that when theappellant was re-appointed, there was a vacancy in the post ofjunior assistant and therefore his appointment as Bill Clerk wasin violation to the said Government Order. The learned singleJudge also found that one P.Somasundaram, who was directlyappointed as Junior Assistant and joined duty on 30.12.1974 wasplaced above the appellant in the seniority list of juniorassistants. The said writ petition was ultimately allowed by thelearned single Judge as prayed for on 3.2.1999. (h)After the said order of the learned single Judge, thedepartment passed an order on 7.12.1999 and ordered that theappellant is deemed to have been promoted as Assistant withretrospective effect from 31.10.1979 afternoon and his name isordered to be placed in the seniority list of Assistants aboveP.Somasundaram, who has already been promoted as Assistant on31.10.1979. It is further stated that as regards monetarybenefits, orders will be issued separately.(i)By another order dated 14.8.2000, the appellant's namewas included in the panel for Superintendent for the year 1985and he was assigned Sl.No.317 and in view of the retrospectivepromotion given as Assistant with effect from 31.10.1979 F.N. inaccordance with the High Court directions the appellant's namewas included in Sl.No.316A and further ordered that the appellant https://hcservices.ecourts.gov.in/hcservices/ shall be deemed to have been promoted as Superintendent witheffect from 27.3.1985, the date on which his Junior joined asJunior Assistant. In the said order also it is stated that theorders with regard to monetary benefits will be issuedseparately.(j)The department thereafter passed an order on 16.8.2000by stating that the appellant is not entitled to monetarybenefits on the ground that he has not shouldered anyresponsibility in the promoted post and therefore his request forpayment of backwages was declined. The appeal filed by theappellant before the Chairman and Managing Director of the TamilNadu Civil Supplies Corporation Limited on 1.11.2000 having notbeen considered, the appellant challenged the order of rejectionof monetary benefits and prayed for a further direction to paythe same with 18% interest and costs in the writ petition.3.The respondents filed a counter affidavit admitting allthe above factual aspects and contended that the appellant havingnot worked in the promoted post for the above periods and thecontempt application filed by the petitioner in Cont.P.No.456 of2000 having been dismissed on 25.8.2000, the appellant is notentitled to get the monetary benefits.4.The learned single Judge dismissed the writ petition onthe ground that in the earlier order dated 3.2.1999 made inW.P.NO.14090 of 1991, no positive direction was given to considerthe monetary benefits. As against the dismissal of the writpetition, this writ appeal is preferred by the writ petitioner.5.The learned counsel appearing for the appellantsubmitted that the order of the learned single Judge passed inW.P.No.14090 of 1991 dated 3.2.1999 covered all the pointsincluding the payment of monetary benefits since the claim in thewrit petition was for promotion as Assistant and Superintendentfrom the date of promotion of his juniors with retrospectiveeffect with consequential monetary benefits and the writ petitionwas allowed as prayed for. The said order has become final andthe respondents have partly implemented the said order bygranting retrospective promotions in the cadre of Assistant andSuperintendent. The learned counsel therefore submitted that theappellant having been denied promotion unjustly solely due to thefault of the respondents, which was found in favour of theappellant in an earlier proceeding between the parties, therespondents are not justified in denying the monetary benefits.6.The learned counsel appearing for the respondents onthe other hand submitted that the appellant was givenretrospective promotion and is not entitled to get monetarybenefits as he has not served in the respective posts for https://hcservices.ecourts.gov.in/hcservices/ receiving salary. The learned counsel also cited the decision ofthe Supreme Court reported in AIR 1991 SC 958 (Virender Kumar,G.M., Northern Railways v. Avinash Chandra Chadha) and contendedthat the appellant having not worked in the promoted post, is notentitled to get salary for the promoted post.7.We have considered the rival submissions made by thelearned counsel appearing for the appellant as well asrespondents in the light of the earlier order of this Courtpassed in W.P.NO.14090 of 1991 dated 3.2.1999 between theparties.8.In W.P.No.14090 of 1991, order dated 3.2.1999, thisCourt considered the claim of the appellant's seniority in thecadre of Junior Assistant, entitlement of his promotion asAssistant and further promotion as Superintendent from the dateof promotion given to his juniors. The operative portion of thejudgment in the said order of this Court reads as follows:"9.In the light of what is statedabove, I am in agreement with the contentionsraised by the learned counsel for thepetitioner and even though the respondentshave rejected several representation in thelight of the remarks offered by the seniorRegional Manager on 22.05.1982, 15.04.1990,07.06.1988 and 18.08.1988 respondents have tore-consider the petition of the petitionerand pass appropriate orders as claimed byhim. Accordingly, there shall be a directionto the respondents to re-consider the claimof the petitioner for promoting him asAssistant with retrospective effect when hisjuniors were promoted during October, 1979,and also consider his claim as Superintendentwhen his junior was promoted during March,1985, with retrospective effect along withconsequential monetary benefits within aperiod of eight weeks from the date ofreceipt of copy of this order.10.Net result, the writ petition isallowed as prayed for. No costs.Consequently W.M.P.31152 of 1993 is closed asunnecessary." https://hcservices.ecourts.gov.in/hcservices/ From a perusal of the above order, we could see that a directionwas given to re-consider the request of the appellant forpromoting him as Assistant with retrospective effect from thedate of promotion given to his juniors in October, 1979, and alsoconsider his claim for promotion as Superintendent when hisjuniors were promoted in March, 1985, with consequentialmonetary benefits, within a period of eight weeks and the writpetition itself was allowed as prayed for.9.It is not the case of the respondents that theappellant was not eligible/entitled to be promoted as Assistantfrom 31.10.1979 and as Superintendent from 27.3.1985 andretrospective promotions were given by the respondents throughseparate orders dated 17.12.1999 and 14.8.2000. This Court inthe above referred writ petition, which is the basis for issuingretrospective promotion orders, specifically directed to paymonetary benefits if he was eligible to be promoted. In the lightof the above order passed by this Court and the said order havingbecome final, the respondents are not justified in giving adifferent interpretation and denying the monetary benefitspayable to the appellant due to his retrospective promotion.10.(a)In the decision reported in 1993-II LLJ 69 (VasantRao Roman v. Union of India) the Supreme Court held that if anemployee is not promoted due to the fault of the department andif he was given promotion with retrospective effect, he isentitled to get monetary benefits as he cannot be blamed for notworking in the promoted post.(b)In (2005) 8 SCC 314 (Srikantha S.M. v. Bharath EarthMovers Ltd.) the Supreme Court considered the unjust denial onthe part of the employer to assign work and held that theemployee is entitled to get salary and other benefits and theprinciple of 'No work, No pay' cannot be applied in such cases.In paragraphs 28 to 30, the Honourable Supreme Court held asfollows,"28. The next question is, as to whatbenefits the appellant is entitled to. As hewithdrew the resignation and yet he was notallowed to work, he is entitled to allconsequential benefits. The learned counselfor the respondent Company no doubt contendedthat after 15-1-1993, the appellant had notactually worked and therefore, even if this https://hcservices.ecourts.gov.in/hcservices/ Court holds that the action of the respondentCompany was not in consonance with law, atthe most, the appellant might be entitled toother benefits except the salary which shouldhave been paid to him. According to thecounsel, the principle of no work, no paywould apply and when the appellant hasadmittedly not worked, he cannot claim salaryfor the said period.29. We must frankly admit that we areunable to uphold the contention of therespondent Company. A similar situation hadarisen in J.N. Srivastava ((1998) 9 SCC 559)and a similar argument was advanced by theemployer. The Court, however, negatived theargument observing that when the workman waswilling to work but the employer did notallow him to work, it would not be open tothe employer to deny monetary benefits to theworkman who was not permitted to dischargehis duties. Accordingly, the benefits weregranted to him. In Shambhu Murari Sinha II((2002) 3 SCC 437) also, this Court held thatsince the relationship of employer andemployee continued till the employee attainedthe age of superannuation he would beentitled to full salary and allowances of theentire period he was kept out of service. InBalram Gupta (1987 Supp SCC 228) in spite ofspecific provision precluding the governmentservant from withdrawing notice ofretirement, this Court granted allconsequential benefits to him. The appellantis, therefore, entitled to salary and otherbenefits.30. For the foregoing reasons, in ouropinion, the appeal deserves to be allowedand is accordingly allowed. The action of therespondent Company in accepting theresignation of the appellant from 4-1-1993and not allowing him to work is declaredillegal and unlawful. It is, therefore,hereby set aside. The orders passed by thelearned Single Judge and the Division Bench https://hcservices.ecourts.gov.in/hcservices/ upholding the action of the Company are alsoset aside. The respondent Company is directedto treat the appellant in continuous serviceup to the age of superannuation i.e. 31-12-1994 and give him all benefits includingarrears of salary. The Company may adjust anyamount paid to the appellant on 15.1.1993 orthereafter. The appeal is accordingly allowedwith costs."The above principle was followed by a Division Bench of thisCourt in the decision reported in 2007 (2) CTC 135(M.S.Munivenkatappa v. State Bank of India), in which one of us(N.Paul Vasanthakumar, J.) was a party. In the said decision theDivision Bench held that treating the request for voluntaryretirement as resignation is illegal and a direction was given toreinstate the appellant therein with backwages and continuity ofservice and all other service benefits till the date ofretirement as the employee was prevented from discharging hisfunctions.11.In this case, as noticed by us, this Court not onlydirected to consider for retrospective promotion, but also togrant monetary benefits if eligible for promotions. Hence therespondents cannot escape from the liability of paying monetorybenefits for the promoted post of Assistant from 31.10.1979 andas Superintendent from 27.3.1985. The non-payment of the sameto the appellant is in violation of the earlier order of thisCourt and we feel it just and proper to award nominal interestfor the delay in payment of monetary benefit.12.In the result, we allow the writ appeal with adirection to the respondents to pay 6% interest per annum for themonetary benefits, payable to the appellant. The respondents aredirected to calculate the said amount and pay the same within aperiod of six weeks from the date of receipt of copy of thisorder. We also feel that the respondents have dragged on thematter from 1999 till date by giving erroneous interpretation tothe earlier order of this Court and unnecessarily invitedlitigation and thereby wasted the valuable time of this Court,for which the respondents are bound to pay cost. Hence we directthe second respondent viz., The Chairman-cum-Managing Director,Tamil Nadu Civil Supplies Corporation Limited, Chennai-10, to paya sum of Rs.20,000/- to the High Court Legal Services Committee,High Court, Madras, within a period of two weeks from the date ofreceipt of copy of this order. https://hcservices.ecourts.gov.in/hcservices/ The writ appeal is allowed with the above direction withcosts.vrSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Senior Regional Manager,Tamil Nadu Civil Supplies Corporation Ltd.,Nagercoil - 4.2.The Chairman-cum- Managing Director,Tamil Nadu Civil Supplies Corporation Ltd.,Chennai - 10.3.The Secretary, High Court Legal Service Committee, High Court, Madras.+ 1 cc to Mr. R. Singaravelan, Advocate SR No. 58495VRK(CO)SR/26.9.2007 Judgment in W.A.No.2218 of 2003