?IN THE HIGH COURT OF JUDICATURE AT MADRAS %DATED: 16/11/2010 *CORAM THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH +WP.22990 of 2001 #N.Thirunavukkarasu $Chennai Port Trust !FOR PETITIONER : Mr.M.S.Velusamy ^FOR RESPONDENT : R.S.Jeevarathinam :ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2010
CORAM
THE HONOURABLE Mr. JUSTICE M.M.SUNDRESH
W.P.No.22990 of 2001
N.Thirunavukkarasu … Petitioner Vs.
The Chairman, Chennai Port Trust, Chennai. ... Respondent
PRAYER: Writ Petition filed under Article 226 of Constitution of India praying to issue Writ of Certiorarified Mandamus or any other appropriate writ or order of direction in the nature of the Writ calling for the records relating to the impugned order of the Respondent passed in his Proceedings No.Estt/2/25302/2001/A dated 23.7.2001 and to quash the same and to direct the Respondent to give regular promotion to the Petitioner in the post of Assistant Director (P&R) either from the date of 1.11.1993 or from the date of November 1995 and to pay to the Petitioner all consequential attended benefits.
For Petitioner : Mr.M.S.Velusamy
For Respondent : Mr. R.S.Jeevarathinam
Senior Counsel for
Mr.T.D.K.Govindarajan
O R D E R
This Writ Petition has been filed by the Petitioner seeking Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the Respondent in Proceedings No.Estt/2/25302/2001/A dated 23.7.2001 and to quash the same and to direct the Respondent to give regular promotion to the Petitioner in the post of Assistant Director (P&R) either from the date of 1.11.1993 or from the date of November 1995 and to pay to the Petitioner all consequential attended benefits.
2. The Writ Petitioner herein joined in the Respondent-Madras Port Trust on 27.04.1967 as Statistical Assistant, Grade-II. Thereafter, he was promoted as Statistical Assistant, Grade-I. The Petitioner was further promoted as Research Officer (P&R) Cell in the Accounts Department.
3. A vacancy arose in a solitary post of Assistant Director (P&R) Cell on 01.11.1993. At that point of time, the Petitioner was the only employee who is eligible for the said post. However, the said post was kept vacant. Thereafter, a resolution was passed in the month of November 1995 by the Respondent resolving to fill up the said post by promotion of one Mr.Pugalenthi by following the communal roster. The said Pugalenthi was not otherwise to qualify to hold the post and therefore, the post was not filled up enabling him to qualify for the said post.
4. Challenging the said resolution of the Respondent, the Petitioner has filed a Writ Petition which was dismissed by the learned single Judge of this Hon’ble Court in and by an order dated 09.01.1998. The Petitioner has filed an Appeal before this Hon’ble Court in W.A.No.917/1998. The Division Bench of this Hon’ble Court in and by an order dated 26.04.2000 has held as follows:-
“3. We have directed the appellant to file an affidavit before us stating the current statement of affairs with regard to this post. The Financial Adviser and Chief Accounts Officer of the first respondent-Port Trust has filed the affidavit stating that during the pendency of the writ petition, a post had been kept vacant in view of the order of injunction that had been secured by the petitioner and that after the disposal of the writ petition, a vacancy arose in the higher post of Deputy Director consequent to the retirement of the incumbent of that post, on 1.2.1998. It is stated in the affidavit that the post of Deputy Director was ‘Under operated’ as that of Assistant Director second respondent has been appointed to the post of Assistant Director which had fallen vacant on 1.11.1993 which is only post in that cadre. The appellant before us was appointed on ad-hoc basis of the under operated post of Deputy Director. The promotion so given to the second respondent Pugazhendi was according to the affidavit given
“… under Regulation 10 of Madras Port Trust’s Employees (appointment, Promotion etc) against a regular vacancy by applying Roster point and the appellant was promoted as Asst. Director (P&R) under Regulation 25(1) of the said Regulation against the under operated vacancy of Deputy Director (P&R)”.
Such appointments are said to have been made on 2.4.1998.
4. The Constitution Bench of the Supreme Court in the case of Post Graduate Institute of Medical Education & Research Chandigardh Vs. Facultry Association & others [1998(4) SCC 110] the decision having been rendered on 17.4.1998 has held that reservation is impermissible in case of solitary post. In view of the declaration of law by the Highest court in the land, the promotion to the 2nd Respondent over the appellant in the matter of appointment of solitary post of Asst. Director in the regular vacancy, despite the fact that the appellant is senior to Pugazhenthi and had requisite qualifying years of service as on date that post was first filled namely in 1995 is clearly unconstitutional and required to be and is set aside.
Learned counsel for the Port Trust submitted that the appointment was made few days before the decision of the Supreme Court came to be rendered, that does not have the effect of validating the action which was illegal having regard to the law declared by the apex court.
5. Learned counsel for the Port Trust also submitted that the learned single Judge had found that the writ petition was premature. We must take note of subsequent events. We have already referred to the action taken by the Port Trust after disposal of the writ petition, we have found that such action is illegal. The writ petition cannot be dismissed on the ground of it being in any way premature. “The appellant is entitled to be appointed to the regular vacancy in the post of Asst. Director which is the only post in that cadre”. Under operated post of Deputy Director which is being presently treated as temporary as that of Asst. Director, may be filled up on ad-hoc basis by appointing the respondent Pugazhenthi. The appeal is therefore allowed. Parties to bear their respective costs.”
5. Accordingly, the Hon’ble Division Bench of this Court has held that the dismissal of the Writ Petition as premature and cannot be sustained and that the Petitioner is entitled to be appointed to the regular vacancy for the post of Assistant Director (P&R) which is the only post in that cadre. Hence the appeal filed by the Petitioner was allowed and has become final between the Petitioner and the Respondent.
6. Thereafter, the Petitioner has made a representation to the Respondent on 27.11.2000 stating that due to the wrong decision of the Respondent, the Petitioner was affected and he should have been promoted in the vacancy that has arisen in the sole post of Assistant Director. Hence the Petitioner has made a request to consider the notional promotion, promoting him as Deputy Director from 1998 onwards with all monetary benefits.
7. Since the said representation of the Petitioner has not been disposed of, the Petitioner has constrained to file another Writ Petition in W.P.No.1339/2001. This Hon’ble Court in an order dated 24.01.2001 has directed the Respondent to dispose of the same. Thereafter, the Respondent has rejected the Petitioner’s request by the letter dated 23.7.2001 stating that the promotion could be given only from the actual date of taking charge of the promoted post and the Petitioner’s request for further promotion to the post of Assistant Director w.e.f. 2.11.1993 cannot be considered. Challenging the said letter dated 23.7.2001, the Petitioner has filed the present Writ Petition.
8. As contended by the learned counsel for the Petitioner, the promotional post at the time of filing of the Writ Petition and the Writ Appeal was kept vacant from 1993 onwards even though the vacancy has arisen. Thereafter, a resolution was passed in the month of November 1995 resolving to keep the said post for the purpose of appointing one Mr.Pugalenthi based upon the communal reservation. The said decision was found to be not proper by the Judgment of the Hon’ble Division Bench of this Court. Thereafter, in accordance with the said Judgment of the Hon’ble Division Bench, the Petitioner was appointed in the post of Assistant Director w.e.f. 02.4.1998.
9. The above said facts would indicate that the decision to fill up the post which was kept vacant from 1993 was actually made in the month of November 1995. However, admittedly, the Petitioner was not considered in view of the said decision to reserve the single post infavour of Pugalenthi. The said decision was found to be not correct by the Judgment of the Hon’ble Division Bench of this Court which has become final between the parties. Hence, this Court finds considerable force in the submissions of the learned counsel for Petitioner that atleast from the month of November 1995, the Petitioner is entitled to be appointed with all benefits of further promotion. It is also to be seen that in pursuant to the said Judgment of the Hon’ble Division Bench, the Petitioner was actually appointed as Assistant Director w.e.f. 02.4.1998. The said fact would establish that there is no difficulty about the eligibility and qualification of the Petitioner, but for the decision made in the month of November 1995 the Petitioner would have been appointed to the post of Assistant Director. Therefore, for the mistake committed by the Respondent which was found to be wrong by the Judgment of the Hon’ble Division Bench, the Petitioner cannot made to suffer.
10. The Petitioner has retired in the year 2001. The Petitioner has asked for only a notional promotion. Therefore, in view of the facts narrated above which are not in dispute, the Petitioner is entitled to be given notional promotion, say notionally promoting him from the month of November 1995 during which time, the decision was taken to fill up the post of Assistant Director. As observed earlier, nobody else other than the Petitioner was qualified and the subsequent appointment made on 02.4.1998 would also show the fact that the Petitioner would have been appointed in the month of November 1995 but for the decision taken by the Respondent.
11. The only question to be decided is the benefits to be given to the Petitioner by fixing his seniority in the cadre of Assistant Director with effect from the month of November 1995. In Mohd. Ahmed v. Nizam Sugar Factory and others [(2004) 11 SCC 210], the Hon’ble Apex Court has observed as follows:-
“5. We thus find that while disposing of the appeal, nothing was said about the present appellant, though the same principle was equally rather more applicable to him as the appellant was even senior to Indumati Ganesh but she alone was given the benefit. He was very much in service when the promotion was given to Lakshmipathi Raju on 25.6.1992. He continued in service and retired only on 31.5.1995. The learned Single Judge had rendered the judgment on 27.10.1995 giving the benefit of the arrears of difference of pay to the appellant which, in our view, could not be faulted with. We feel that if the benefit allowed to the appellant by the learned Single Judge was meant to be disallowed by the Division Bench, it should have specifically dealt with that matter. It is true that he could not be given promotion on the date the judgment was rendered by the learned Single Judge or the Division Bench as then Smt. Indumati Ganesh was the senior most person available for promotion, by reason of the fact that the appellant had retired on 31.5.1995 but it would not mean that he could be deprived of the difference of salary during the period he was denied the benefit of promotion i.e. from 25.6.1992 till the date of retirement. That direction was issued by the learned Single Judge and on the reasoning adopted by the Division Bench for making the benefit available to Smt. Indumati Ganesh, there would be no reason to deny the said benefit to the appellant. At this stage, it would also be pertinent to mention that the respondent sugar factory had filed the SLP against the judgment of the Division Bench which has been dismissed.”
12. Applying the ratio laid down by the Hon’ble Apex Court when the Petitioner is ready and willing to work in the promoted post and he has been deprived of the promotion for no fault of his own, coupled with the fact that the decision made by the Respondent depriving the post was found to be erroneous by the Court of law, the wrong committed by the Respondent will have to be made good to the Petitioner who has since retired by giving notional promotion to him. It is no doubt true that the Petitioner cannot claim the pay the post in which he has not worked. However, the notional promotion and the benefits including retiral benefits and pensionary benefits cannot be denied to the Petitioner in as much as but for the decision of the Respondent, the Petitioner would have worked in the higher post and got all the benefits. The mere fact that the Petitioner has agitating his right would show that he was always ready and willing to work in the promoted post.
13. Therefore, the order impugned is hereby quashed and the Respondent is directed to give notional promotion to the Petitioner in the higher cadre by taking into consideration of the Petitioner’s appointment in the cadre of Assistant Director as on November 1995. The Petitioner is entitled to all the retiral benefits including pensionary benefits by taking into consideration of the pay fixed in the notionally promoted post even though, he is not entitled for the actual salary for the above said post in as much as he has not actually worked. The entire exercise will have to be done within a period of three months from the date of receipt of a copy of this order and the Writ Petition is ordered accordingly. No costs.
16.11.2010
Index: Yes/No
Internet: Yes/No
bbr
To
The Chairman,
Chennai Port Trust,
Chennai-1.
M.M.SUNDRESH,J
bbr
Order in
W.P.No.22990/2001
16.11.2010