IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2011
CORAM:
THE HONBLE MR. JUSTICE K. CHANDRU
W.P.Nos.46137 and 46138 of 2006
K. MUTHUKUMARASWAMY ..PETITIONER in W.P.46137
T.R.MARGABANDHUSAMY ..PETITIONER in W.P.46138
Vs
1 THE STATE OF TAMIL NADU
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT
EDUCATION DEPARTMENT
GOVERNMENT OF TAMIL NADU
CHENNAI - 09.
2 THE DIRECTOR OF TECHNICAL EDUCATION
GUINDY, CHENNAI - 25.
3 THE ADDITIONAL DIRECTOR OF
TECHNICAL EDUCATION (POLYTECHNIC)
GUINDY, CHENNAI - 25.
4 THE PRINCIPAL
CENTRAL POLYTECHNIC
CHENNAI - 113. RESPONDENTS
Writ Petition in W.P.No.46137 of 2006 is filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus to direct the respondents to issue orders to pay 12% interest for the period from 02.03.1990 i.e. the date from which the petitioner was promoted to the post of Senior Lecturer, to 10.08.2000 i.e., the date on which the arrears were paid; for the delay in the payment of arrears that were due to the petitioner from 02.03.1990 to 23.10.1997.
Writ Petition in W.P.No.46138 of 2006 is filed under Article 226 of the Constitution of India for issuance of Writ of Mandamus to direct the respondents to issue orders to pay 12% interest for the period from 01.12.1987 i.e. the date from which the petitioner was promoted to the post of Senior Lecturer, to 10.08.2000 i.e., the date on which the arrears were paid; for the delay in the payment of arrears that were due to the petitioner from 01.12.1987 to 23.10.1997.
For Petitioners : Mr.M.Muthappan
For Respondents 1 to 3 : Mr.R.Murali
Government Advocate
For Respondent - 4 : Not Ready in notice
O R D E R
The two petitioners herein earlier filed O.A.No.5165 of 1992 along with one Thilagavathy seeking to set aside the earlier order of the Government, under which they were excluded as they were having only degrees in Chemistry and denied them the promotion/upgradation.
2. The Original Application came to be allowed by a final order dated 27.05.1997. The operative portion of the order of the Tribunal in para 25 reads as follows:-
“25. In view of the above, this application is ordered as follows:-
The proceedings of the 1st respondent in G.O.Ms.No.723, Education, dated 14.08.1992 and G.O.Ms.No.1081, Education, dated 19.08.89, insofar as they exclude persons like the applicants who are degree holders in chemistry for further promotion, by upgradation, to the post of Lecturer under the Flexible Complimentary Scheme are set aside and the respondents are directed to upgrade the applicants to the post of Lecturers, with effect from the date on which they have completed 10 years of service, respectively in the post of “Associate Lecturer” and give to them all service benefits. Time two months.”
3. Though the time limit was stipulated as two months, the State Government did not implement the order immediately. It has only by way of G.O.Ms.No.392, Higher Education Department dated 26.08.1999, the order came to be implemented. By the said order, the State Government granted upgradation to the post of Senior Lecturer on 02.03.1980 as desired by the first petitioner and also has granted monetary benefit from that date. Likewise in the case of the second petitioner the upgradation was made on 01.02.1987 and the monetary benefit was granted from the same date. It was also stated that they will eligible to get arrears from the date of upgradation till 23.10.1997.
4. The petitioners having obtained the arrears and the upgradation, again filed two Original Applications, viz., O.A.No.8731 and 8732 of 2000 seeking for payment of 12% interest on the alleged delayed payment. In the said Original Applications, the Tribunal admitted the Original Applications on 01.12.2000. In view of the abolition of the Tribunal, both the Original Applications stood transferred to this Court and were renumbered as W.P.Nos.46137 of 2006 and 46138 of 2006. On notices from the Tribunal, the respondents have filed a reply affidavits dated 01.03.2002 together with supporting documents.
5. The only question that arises for consideration is whether the petitioners on account of the delayed payment of arrears have entitled for interest in their second round of litigation.
6. The counsel for the petitioners is not able to trace any legal provision under which interest can be ordered as a matter of right. In the absence of any law on such subject, the only contention made by the petitioners was that the Tribunal had granted them time for two months to comply with the order. The interest claimed here is from the date of original upgradation and not from the date of the order of the Tribunal. If the Tribunal was of the opinion that the petitioners were eligible to get the amounts together with interest, the same should have been granted in the earlier order. It is not the case of the petitioners that in the first Original Applications that they claimed interest and the Tribunal ordered their favour. Therefore, a claim for interest cannot be raised in an independent Original Application and should have been pleaded as part of the original claim made in earlier litigation. It is needless to state that if a relief should be claimed in a particular case and the same has not been claimed or omitted to be claimed, the same cannot be a subject matter of the second round of litigation. The principle contained in Order 2 Rule 2 will also apply to the writ proceedings.
7. In paragraph 43 of the reply affidavit, the respondents have averred as follows:-
“43. From the foregoing paras, it could be seen that only reasonable and essential time required was taken to settle the arrears of the applicants. The applicants are particular only about their arrear claims. The applicants have failed to note the number of other staff working in the Institution and their various claims standing pending in array. The arrear claims can be settled only in the order of seniority of the receipt of sanction orders. The time taken to settle the arrear claims is purely administrative delay. For the administrative delay, no interest can be claimed or paid. Moreover, there is no rule or provision that exists to pay the interest. The claim of the applicants to pay the interest for the delay occurred is highly impracticable and unjustifiable.”
8. In this context, it is necessary to refer to the judgment of the Hon’ble Supreme Court in “Devilal Modi ..vs.. Sales Tax Officer Ratlam and others” reported in AIR 1965 SC 1150. In paragraph 12, the Hon’ble Supreme Court observed as follows:-
“12. The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case, the appellants sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ Petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court held decided against him on the merits of those points, he has come to this Court ; but that is not all. At the hearing of this appeal, he had filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many Writ Petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second Writ Petition filed by the appellant in the present case is barred by constructive res judicata.”
9. In the light of the petitioners not having claimed any such amount or interest in the previous round of litigation and not challenged the earlier order, a separate claim for interest in an independent proceedings is not maintainable. Further, there is no law providing for such direct payment. Hence, the Writ Petitions stand dismissed. No costs.
02.02.2011
Index : yes
Internet : yes
mra
To:
1 THE STATE OF TAMIL NADU
REPRESENTED BY ITS
SECRETARY TO GOVERNMENT
EDUCATION DEPARTMENT
GOVERNMENT OF TAMIL NADU
CHENNAI - 09.
2 THE DIRECTOR OF TECHNICAL EDUCATION
GUINDY, CHENNAI - 25.
3 THE ADDITIONAL DIRECTOR OF
TECHNICAL EDUCATION (POLYTECHNIC)
GUINDY, CHENNAI - 25.
4 THE PRINCIPAL
CENTRAL POLYTECHNIC
CHENNAI - 113.
K. CHANDRU, J
mra
W.P.Nos.46137 and 46138 of 2006
02.02.2011