The ChairmanChennai Port TrustRajaji SalaiChennai – 600 001 v. R.Manimuthu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 20.01.2011CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANANDTHE HONOURABLE MR. JUSTICE M.M.SUNDRESHW.A. NO.799 OF 2002The ChairmanChennai Port TrustRajaji SalaiChennai – 600 001... Appellant/1st Respondent versus1.R.Manimuthu2.The Madras Port United Labour Union Rep.by the General Secretary J.H.Fredrick Ajoo No.7, Philips Street Chennai – 600 001.3.S.Suresh4.J.Velayudham5.G.Ravi6.P.Rajendran7.S.Kannailyan8.O.Baby Dinesh9.E.Kuppusamy10.S.Ganesamurthy11.T.Shanmugasundaram12.R.Selvadurai13.M.Loganathan14.M.Ravichandran15.N.Yesupadham16.P.Ravichandran17.M.E.Roberts18.K.A.Thooyamani ..Respondents (R-3 to 18 impleaded as party respondents vide Order dated 31.03.2005 made in W.A.M.P.No.657 of 2005 in W.A.No.799 of 2002)Writ Appeal filed under Clause 15 of the Letters Patent againstthe order dated 05.02.2002 in W.P.No.1031 of 1999 this petitionfiled U/a 226 of the constitution of India to issue a writ ofcertiorarified calling for the records relating to the proceedings of https://hcservices.ecourts.gov.in/hcservices/ the respondent in No.IR7/43227/89 5 dated 10.12.98 and quash thesecond para of the same relating to the promotion of the petitioneras illegal and direct the respondent to implement the grouped schemesas per the settlements and award and promote the petitioner asassistant superintendent with effect from 18.11.1997 with all theattendant benefits.For Appellant : Mr.R.S.Jeevarathanam Senior Counsel for Mr.Madhuri Donti ReddyFor Respondent-1 : Mr.L.Chandrakumar for Mr.A.M.Packianatha EasterFor Respondent-2 : Mr.L.Chandrakumar for Mr.M.KamalanathanFor Respondents-3 to 18: Mr.L.ChandrakumarJ U D G M E N T(JUDGMENT OF THE COURT WAS DELIVERED BY M.M.SUNDRESH, J)The Writ Appeal has been preferred by the appellant,challenging the order of the learned single Judge by which the orderimpugned passed by the appellant dated 10.12.1998 was set aside and aconsequential direction was issued to the appellant to implement thegrouped schemes as per the award and to promote the respondent No.1as Assistant Superintendent with effect from 18.11.1997 with allconsequential benefits.2.The respondent No.1 joined the duty as Lower DivisionClerk with the appellant on 22.05.1979. Thereafter, he was posted inthe Electrical and Mechanical Department on 25.02.1980. He wasfurther promoted as Junior Assistant with effect from 20.12.1987 inthe year 1989. Thereafter, by the order dated 01.02.1997, he wasfurther promoted as a Senior Assistant. Thereafter, by a subsequentorder dated 09.04.1997, the appellant regularised the services of therespondent No.1 as Senior Assistant retrospectively with effect from18.11.1992.3.Earlier, in view of the lack of promotionalopportunities, the appellant made a request to the Government seekingfor the creation of the adequate posts. The said request of theappellant was rejected by the Government. Thereafter, the matter wasreferred to an Arbitrator. The Arbitrator, in and by the arbitrationaward dated 03.02.1996, was pleased to hold that by adopting the cut-off date of 31.03.1990, the appellant - Madras Port Trust has tocomply with the proposal to the Government on 15.10.1986. The saidarbitration award has become final between the appellant and theWorker's Union. https://hcservices.ecourts.gov.in/hcservices/

4.Thereafter, the said award of the Arbitrator wasimplemented by the appellant by promoting the respondent No.1 alongwith other employees in the category of Senior Assistant in and bythe proceedings dated 09.04.1997. The respondent No.1 was promotedwith retrospective effect by the said proceedings dated 09.04.1997 inaccordance with the award of the Arbitrator with effect from18.11.1992. However, a letter was sent by the appellant to therespondent No.2, Madras Port United Labour Union stating that thefurther promotion to the employees, who are covered by the award,cannot be agreed inasmuch as others have not been put in activeservice, in pursuant to the order of promotion granted withretrospective effect. 5.Challenging the said order, the petitioner has filed theWrit Petition in W.P.No.1031 of 1999. The learned single Judge hasallowed the Writ Petition on the ground that after giving effect tothe award and after giving the benefits including the monetarybenefits in passing an order of promotion with retrospective effect,the appellant cannot act contrary to the said award by denyingfurther promotion on the sole ground that inasmuch as the respondentNo.1 having not put up adequate service in the promoted post, hecannot be considered for promotional post. It is seen from theproceedings dated 22.11.2002 that the respondent No.1 was furtherpromoted as Assistant Superintendent by implementing the order of thelearned single Judge. It is submitted by the learned senior counselappearing for the appellant and the learned counsel appearing for therespondent No.1 that the respondent No.1 has retired from serviceafter working in the post of Assistant Superintendent.6.Mr.R.S.Jeevarathanam, learned senior counsel appearingfor the appellant contended that the respondent No.1, having notworked for a period of five years, is not entitled to be promoted tothe post of Assistant Superintendent from the post of SeniorAssistant. The learned senior counsel further submitted that eventhough the retrospective promotion has been given in the absence ofadequate service in the promoted post, further promotion cannot begiven. Reliance has been made upon the proceedings of the appellantdated 09.04.1997, wherein it has been stated that the promotions aresubject to the provisions of the Madras Port Trust Employees'(Appointment, Promotion, etc.) Regulations and also the directionsand circulars of the Central Government and therefore, the respondentNo.1 cannot be promoted to the next promotional post of AssistantSuperintendent. In support of his contention, the learned seniorcounsel has made reliance upon the judgment of the Honourable ApexCourt in A.G.SAINATH REDDY v. GOVERNMENT OF ANDHRA PRADESH AND OTHERS[(2003) 4 SCC 65] and submitted that the seniority has to be reckonedfrom the date of regular appointment, in accordance with the rulesand therefore, the Writ Appeal will have to be allowed. https://hcservices.ecourts.gov.in/hcservices/

7.Per contra, Mr.L.Chandrakumar, learned counsel appearingfor the respondent No.1 submitted that the award passed by theArbitrator is very specific. The said award has not been challengedby the appellant. The appellant has implemented the award by passingthe proceedings dated 09.04.1997. It is not in dispute that therespondent No.1 was promoted with retrospective effect from18.11.1992. All the benefits including the monetary benefits, havebeen given to the respondent No.1, treating the promotion date as18.11.1992. Therefore, the appellant cannot go back from the awardand interpret in the manner known to him. 8.The learned counsel for the respondent No.1 submittedthat the clause contained in the proceedings dated 09.04.1997 wouldbe applicable to the next cadre and not to the present post. In otherwords, the learned counsel submitted that it would not be applicablefor considering to the next promotional post. Therefore, the learnedcounsel submitted that once promotion has been given retrospectiveeffect, it will relate back to the date in which it has beenimplemented and the respondent No.1 is deemed to have worked in thesaid promotional post with effect from 18.11.1992. Hence the learnedcounsel submitted that the Writ Appeal will have to be dismissed.9.It is not in dispute that the award passed by theArbitrator has been given effect to vide the proceedings dated09.04.1997. The date of promotion to the respondent No.1 has beenfixed as 18.11.1992. There is nothing in the award passed by theArbitrator to indicate that the services shall not be counted in thepromotional post with effect from 18.11.1992. The very fact that therespondent No.1 was paid all other benefits including the monetarybenefits, as if he worked with effect from 18.11.1992, wouldexemplify the fact that for all purposes the services will have toreckoned from 18.11.1992. The statement made in the order dated09.04.1997 to the effect that promotion are subject to thearbitration of the Madras Port Trust Employees' (Appointment,Promotion, etc.) Regulations and also the Directions and Circulars ofthe Central Government, would be pertaining to the promotion madealready. The said provisions have been taken into consideration andaccordingly, the respondent No.1 has been promoted in the post ofSenior Assistant. Therefore, after passing the said order, it is notopen to the appellant to turn around and contend that for the nextpromotional post, the respondent No.1 services cannot be counted witheffect from 18.11.1992. 10.It is very clear that for no fault of the respondentNo.1, the promotion has been denied. That is the reason why theappellant itself has made a recommendation to the Government. Theappellant has accepted the award of the Arbitrator. The Arbitrator https://hcservices.ecourts.gov.in/hcservices/ has also taken into consideration of the fact that the issue has beenpending for number of years and therefore fixed a cut-off date witheffect from 31.03.1990. Accepting the award of the Arbitrator, theappellant has fixed the date of promotion of the respondent No.1 as18.11.1992. Therefore, we are of the view that the contention of thelearned senior counsel for the appellant has no legal basis. As heldby the learned single Judge, when promotion is made withretrospective effect, then the date of promotion will have to betraced back to the date on which, the retrospective promotion wasgiven.11.The Honourable Apex Court in STATE OF RAJASTHAN v. FATEHCHAND SONI [(1996) 1 SCC 562] has held that expression "promotion"has to be given a wider interpretation. It is further held by theHonourable Apex Court in O.S.SINGH AND ANOTHER v. UNION OF INDIA ANDANOTHER [(1996) 7 SCC 37] as follows:"Once the error in the matter of hispromotion is rectified and he has been givensubstantive appointment from an anterior date onwhich he should have been promoted the year ofallotment has to be assigned to him having regardto the date from which his substantiveappointment becomes operative even though he didnot officiate in a senior post prior to the saiddate of substantive appointment. His year ofallotment cannot be depressed on the basis thathe had started officiating on a senior post froma date later than the date with effect from whichhe has been substantively appointed to theservice."12.Therefore, we are of the view that once an employee isgiven retrospective promotion, he is not only entitled to the benefitof the scale of pay, but also entitled to every other benefitattached to the post to which he has been promoted. The judgmentsrelied upon by the learned senior counsel for the appellant have noapplication on facts. In the said judgments what was contended onbehalf of the employee is that the services rendered on an adhoc andtemporary basis will have to be reckoned and counted for the purposeof seniority. The Honourable Apex Court has rightly rejected the saidcontention and held that seniority has to be reckoned from theregular appointment made in accordance with rules. In fact, the saidjudgment would only help the case of the respondent No.1 inasmuch asthe retrospective promotion has been given by the appellant, inaccordance with rules, by accepting the award passed by theArbitrator. https://hcservices.ecourts.gov.in/hcservices/

13.It is further to be seen that the order of the learnedsingle Judge has been given effect to and the respondent No.1 hasbeen promoted as Assistant Superintendent, by considering his otherqualification and eligibility to be appointed in the said post and hehas since retired. Therefore, we do not find any reason to interferewith the order passed by the learned single Judge. Accordingly, theWrit Appeal is dismissed. No costs. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarsriToThe Chairman, Chennai Port Trust,Rajaji Salai, Chennai. 600 001.+ 2 ccs to Mr M. Kamalanathan, Advocate SR.4463+ 2 ccs to Mr.A.M Packianatha Easter, Advocate SR.4458+ 1 cc to Mr.L. Chandrakumar, Advocate Sr.4126+ 1 cc to R.S. Jeevarathanam, Advocate Sr.4297W.A. NO.799 OF 2002 PUR(CO)Eu 2.2.11