IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 20.10.2010 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.49779 of 2006 P. Jayaraman .. Petitioner -Vs- 1. The Government of Tamilnadu, represented by its Secretary to the Government, Public Health and Family Welfare Department, Fort St.George, Chennai-600 009. 2. The Director of Public Health and Preventive Medicine,DMS Campus, 259, Anna Salai, Chennai - 600 006. 3. The Deputy Director of Health Services, Kallakurichi, Villupuram District. .. Respondents Writ petition under Article 226 of the Constitution of India praying this Honourable Court to issue a writ of certiorarified mandamus calling for the records relating to the entry made in page 26 in Volume II of the Service Register of the petitioner and the orders of the 3rd respondent dated 30.11.2005 and 22.11.2006 issued in Na.Ka.No.3385/A8/1998 and quash the same and to direct the respondents to promote the petitioner as Superintendent on the date on which his junior N.Balasubramanian was promoted with all attendant benefits. For petitioner : Mr. A.R.Nixon For respondents : Mr. N. Senthil Kumar Addl. Government Pleader for R1 to R3. ORDER The petitioner has prayed for issuance of a writ of certiorarified mandamus calling for the records relating to the entry made in page No.26 in Volume II of his Service Register and the orders of the 3rd respondent dated 30.11.2005 and 22.11.2006 https://hcservices.ecourts.gov.in/hcservices/ issued in Na.Ka.No.3385/A8/1998, quash the same and to direct the respondents to promote him as Superintendent on the date on which his junior N.Balasubramanian was promoted with all attendant benefits. 2. The Writ Petitioner was appointed under Rule 10(a)(i) of General Rules for Madras State and Services as Typist on 21.4.1969 and it is stated that his services were regularised on 16.1.1978 with effect from 21.4.1971. He was granted selection grade on 22.4.1979 and subsequently he has been granted promotion as Assistant on 5.10.1989 and was regularised in the said post on 16.3.1998. Regularisation of services of the petitioner was revised from 21.4.1969 to 13.10.1978 and by virtue of the revision made, it appears that the respondents have passed orders of recovery of excess amount paid to the petitioner, against which the petitioner has approached the Tamil Nadu Administrative Tribunal by filing O.A.Nos.7159 and 7160 of 1993 and the Tribunal has granted an interim stay of the recovery order made pursuant to the revision as stated above. 3. In the meantime, it appears that a criminal case has been filed against the petitioner in C.C.No.139 of 1998, based on which, he was kept under suspension on 11.4.1998. The suspension order came to be revoked and the petitioner was allowed to be reinstated into service and thereafter he was allowed to retire on reaching the age of superannuation on 30.6.2001. It appears that on 12.11.2001, the criminal case filed against him ended in acquittal and thereafter he made representation to the respondents for regularisation of his services between the period from 11.4.1998 to 9.3.1999. 4. On the basis that, his junior viz. one Balasubramaniam was promoted as Superintendent, viz. the next post, in the year 1998, the petitioner approached the Tamil Nadu Administrative Tribunal by filing O.A.No.3560 of 2003 for his promotion. The Tribunal, while disposing of the said Original Application in the order dated 31.10.2003, has held that the petitioner is entitled for the notional promotion to the post of Superintendent on par with his immediate junior Balasubramanian and directed that the petitioner should be paid all arrears of salary due to the post of Superintendent and also to revise the pension accordingly. However, while dealing with the claim made by the petitioner for grant of selection grade, the Tribunal has held that his promotion as Assistant on regular basis was made only in the year 1998 and therefore the claim of selection grade came to be rejected by the Tribunal. After the Tribunal's order, the petitioner has again made a representation dated 14.8.2004 requesting the second respondent to grant notional promotion as Superintendent and to pay the arrears as per the Tribunal's direction and the said representation has been https://hcservices.ecourts.gov.in/hcservices/ reiterated by a subsequent reminder on 14.11.2005. Based on the said reminder of the petitioner dated 14.11.2005, the third respondent sent letter dated 22.11.2005 to the Medical Officer concerned, by which, the third respondent has directed the Medical Officer to inform the steps taken in that regard. Based on the said communication, the third respondent passed the impugned order dated 30.11.2005, addressed to the Joint Director of Rural and Family Welfare Department, stating that it has been entered in the service register of the petitioner that he has been wrongly conferred with the selection grade during the time when he was placed under suspension and therefore the Department should take steps to recover the excess amount of salary paid to him. In the meantime, since the respondents have not implemented the order of the Tamil Nadu Administrative Tribunal dated 31.10.2003 directing to confer notional promotion to the petitioner on par with his junior Balasubramanian and pay arrears, as stated above, the petitioner approached this Court by filing W.P.No.11776 of 2006 for direction to the respondents to implement the order of the Tribunal as stated above. However, this Court, by Order, dated 26.4.2006, has dismissed the writ petition on the basis that the writ petition cannot be sustained unless the impugned orders of the third respondent dated 30.11.2005 and 22.11.2006, as stated supra, are challenged. Accordingly liberty was given to the petitioner to challenge the same by dismissing the said writ petition. Subsequent to the said order, the present writ petition has been filed challenging the said impugned orders. 5. On the basis of the above facts, there is no difficulty to conclude that the impugned orders of the third respondent are not only passed on extraneous grounds, but also opposed to final order dated 31.10.2003 passed by the Tribunal in O.A.No.3560 of 2003. As stated above, the Tribunal, while considering the claim of the petitioner as to whether he is eligible for the post of Superintendent on par with his junior Balasubramanian, in categoric and in no uncertain terms, held that the petitioner is entitled for notional promotion for the post of Superintendent with effect from the date on which his junior Balasubramanian was promoted and he is entitled to the arrears of pay and also directed the respondents to revise the pension. The relevant portion of the order of the Tribunal is extracted below:- "....The Department has to verify whether Balasubramanian is immediate junior of the applicant and if it is so, the applicant is to be promoted notionally with effect from the date on which he was promoted. The applicant is entitled for arrears of pay due to the Superintendent and also revise the pension to which he is entitled to." https://hcservices.ecourts.gov.in/hcservices/ 6. However, it is true that the Tribunal has rejected the claim of the petitioner that he is eligible for selection grade. But, it is seen from the impugned orders of the third respondent that the third respondent has stated that earlier by mistake certain excess amount of salary was paid to the petitioner and on that basis, order is passed on the representation of the petitioner that unless the excess amount is recovered from the petitioner, his claim for promotion to the post of Superintendent cannot be considered. As stated above, the impugned orders dated 30.11.2005 and 22.11.2006 passed by the third respondent are not based on the order passed by the Tribunal. The interpretation of the order of the Tribunal by the third respondent to the effect that unless excess amount paid to the petitioner is recovered, he cannot be given notional promotion for the post of Superintendent, will amount to disobedience of the order of the Tribunal, which cannot be permitted. Moreover, the said stand of the third respondent has been rejected by the Tribunal. In the impugned orders of the third respondent 30.11.2005 and 22.11.2006, the third respondent has again stated that unless the amount due to the Department is recovered from the petitioner, his claim for notional promotion cannot be considered. As stated above, the impugned orders, on the face of the same, are liable to be set aside on the ground of disobedience of the order of the Tribunal, which has become final. As far as the recovery of excess amount is concerned, it is not the issue in the writ petition or under the impugned orders. 7. In such a view of the matter, the Writ Petition is allowed and the impugned orders dated 30.11.2005 and 22.11.2006, passed by the third respondent, are set aside, with direction to the respondents to confer notional promotion to the petitioner as Superintendent, on par with his junior N.Balasubramanian, as per the orders of the Tamil Nadu Administrative Tribunal dated 31.10.2003 as stated above and such order has to be passed by the respondents, within a period of eight weeks from the date of receipt of copy of this Order. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar vks https://hcservices.ecourts.gov.in/hcservices/ Copy to:- 1.The Secretary to the Government of Tamil Nadu, Public Health and Family Welfare Department, Fort St.George, Chennai-600 009. 2. The Director of Public Health and Preventive Medicine, DMS Campus, 259, Anna Salai, Chennai - 600 006. 3. The Deputy Director of Health Services, Kallakurichi, Villupuram District. +1cc to Mr. A.R.NIXON, Advocate, Sr.75715 +1cc to The Government Pleader Sr.76120 W.P.No.49779 of 2006 TS(CO) https://hcservices.ecourts.gov.in/hcservices/