IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :15-7-2009 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.3221 of 2001 & 24963 of 2002 S. Ramalingam ... Petitioner in both writ petitions Vs. 1.The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Madras - 10. 2. N. Rajendran ... Respondents in both writ petitions Prayer in W.P.No.3221 of 2001: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records in proceedings Rc.No.H3/31772/2000, dated 3.2.2001 on the file of the first respondent to maintain the seniority of the petitioner as shown in the revised final panel of Assistant Executive Engineer of the year 1994 dated 26.8.1999 issued in proceedings No.H3/123983/94-1 for the purpose of promotion to the post of Executive Engineer in the first respondent establishment. Prayer in W.P.No.24963 of 2002: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records in proceedings Rc.No.H3/67735/2001 dated 12.6.2002 on the file of the first respondent herein and quash the same and direct the first respondent to revise the panel of Executive Engineers including the name of the petitioner above the name of the second respondent restoring and maintaining the seniority of the petitioner as shown in the revised final panel of Assistant Executive Engineer of the year 1994 dated 26.8.1999 issued in proceedings No.H3/123983/94-1 and consider the petitioner for promotion to the post of Executive Engineer in preference to the second respondent with retrospective effect from 21.6.2002 the date on which the second respondent was promoted to the post of Executive Engineer with all consequential service benefits including seniority, pay, promotion and arrears of pay and allowances. For Petitioner : Mr.S.Sadasharam https://hcservices.ecourts.gov.in/hcservices/ For 1st Respondent : Mr.V.Selvanayagam in W.P.3221/2001 For 1st Respondent : Mr.M.Devadass in W.P.24963/2002 For 2nd Respondent : No appearance O R D E R The prayer in W.P.No.3221 of 2001 is to quash the order of the first respondent dated 3.2.2001 and for a direction to maintain the seniority of the petitioner as shown in the revised final panel of Assistant Executive Engineer of the year 1994, issued in his proceedings dated 26.8.1999 for the purpose of promotion to the post of Executive Engineer in the first respondent Tamil Nadu Civil Supplies Corporation Limited. 2. The prayer in W.P.No.24963 of 2002 is to quash the order dated 12.6.2002 of the first respondent and direct the first respondent to revise the panel of Executive Engineers, include the name of the petitioner above the name of the second respondent, restore and maintain the seniority of the petitioner as shown in the revised final panel of Assistant Executive Engineer of the year 1994 dated 26.8.1999 issued in proceedings No.H3/123983/94-1 and consider the petitioner for promotion to the post of Executive Engineer in preference to the second respondent with retrospective effect from 21.6.2002, the date on which the second respondent was promoted to the post of Executive Engineer with all consequential service benefits, including seniority, pay, promotion and arrears of pay and allowances. 3. The case of the petitioner is that even though he was eligible for promotion to the post of Assistant Executive Engineer from the post of Junior Engineer in the year 1994, when the panel was prepared for appointment on promotion, his name was not included in spite of his willingness to accept the promotion post. Petitioner's juniors, including the second respondent were promoted as Assistant Executive Engineers, overlooking his seniority and eligibility. Petitioner filed W.P.No.6350 of 1995 before this Court and challenged his non-promotion and also claimed promotion retrospectively with effect from 8.11.1994, the date when his juniors were given promotion with all consequential benefits. This Court by order dated 29.10.1998, allowed the writ petition and directed the first respondent to include the petitioner's name in the panel of Assistant Executive Engineer, for the year 1994 and consider his name for promotion with effect from 8.11.1994, the date on which the second respondent and one A.Chandrasekaran were promoted, with consequential service benefits from the said date. The first respondent, thereafter passed an order giving promotion retrospectively, without https://hcservices.ecourts.gov.in/hcservices/ monetary benefits. 4. Since monetary benefits were not given, which is in violation of the order of this Court, the petitioner filed Contempt Application No.375 of 1999 and after issuing notice in that application, the first respondent fixed the petitoner's pay in the post of Assistant Executive Engineer with effect from 8.11.1994 and regulated the pay fixation, however, sanctioned monetary benefit with effect from 13.1.1999, the date on which the petitioner actually joined in the post. When the contempt application came up for hearing, a counter affidavit was filed stating that the order passed by this Court was fully complied with and arrears of pay and allowances cannot be sanctioned. This Court, taking note of the earlier order passed, gave a finding that there was no contempt as the direction to consider the claim of the petitioner alone was ordered and liberty was given to the petitioner to agitate the monetary benefits separately. Since the petitioner filed contempt application, a prejudicial stand was taken by the first respondent and reduced the petitioner's scale of pay from Rs.9,375/- to Rs.9,100 as on 1.10.1999 and also directed to recover the excess amount said to have been paid by the order dated 15.12.2000 and the petitioner challenged the same in W.P.No.3221 of 2001. 5. In W.P.No.24963 of 2002, the petitioner has challenged the order dated 12.6.2002 altering the seniority of the petitioner and placing him below the second respondent and also the promotion given to the second respondent as Executive Engineer, pursuant to the said revised seniority list and for a direction to consider the name of the petitioner for promotion to the post of Executive Engineer with retrospective effect from 21.6.2002, the date on which the second respondent was promoted as Executive Engineer with all consequential service benefits, including seniority, pay, promotion and arrears of pay and allowances. 6. The grounds raised in the said writ petition are that the petitioner having been assigned seniority over the second respondent pursuant to the order passed by this Court in W.P.No.6350 of 1995, dated 29.10.1998, and the said order having been implemented by giving retrospective promotion with effect from 8.11.1994 on par with his junior viz., the second respondent and the seniority list in the cadre of Assistant Executive Engineer, having been revised, placing the petitioner above the second respondent on 26.8.1999, the second respondent cannot be again placed above the petitioner. The second respondent having not challenged nor contested petitioner's claim made in W.P.No.6350 of 1995 and also not challenged the order dated 26.8.1999, is not entitled to claim seniority over and above the petitioner, as he is estopped from contending that the petitioner is junior than him. Petitioner having been placed above the second respondent in the seniority list of the Assistant Executive Engineer of the year 1994, dated 26.8.1999, is eligible to be considered and https://hcservices.ecourts.gov.in/hcservices/ promoted to the post of Executive Engineer in preference to the second respondent, who is junior to the petitioner. The reason assigned to give promotion to the second respondent by order dated 21.6.2002 being the seniority, when the seniority is wrongly fixed contrary to the earlier order passed by this Court, the petitioner is eligible to be promoted from the said date. 7. The first respondent filed counter affidavit by contending that the second respondent joined in the original post of Technical Assistant on 4.1.1975, whereaa the petitioner joined in the post on 16.1.1975. Therefore the petitioner is junior to the second respondent. As per Service Rules (Regulation 17, Chapter-II), the seniority of the second respondent has been revised since there was an error in the seniority already fixed. The above revision was made to rectify the error and the petitioner is nowhere affected as per the rules, as he has not lost his original seniority. As per the revised seniority, the petitioner is assigned rank No.2 in the panel of Executive Engineers, prapared in the year 2001, which was issued on 12.6.2002 and as per the revised seniority, the second respondent was given promotion as Executive Engineer. 8. The second respondent in these writ petitions was served with notice as early as on 27.3.2001, but he has not chosen to appear in person or through counsel. 9. The learned counsel appearing for the petitioner submitted that the issue with regard to the seniority of the petitioner and the second respondent has already been concluded by the decision of this Court made in W.P.No.6350 of 1995 dated 29.10.1998 and the said order was implemented by the first respondent by giving promotion to the petitioner with retrospective effect on par with his immediate junior, with effect from 8.11.1994, without monetary benefit and therefore the first respondent cannot place the second respondent above the petitioner on the basis of the averments made in the counter affidavit i.e., the second respondent originally joined in the service on 4.1.1975 and the petitioner joined only on 16.1.1995. The learned counsel also submitted that the date of joining in service is irrelevant and seniority has to be fixed on the basis of the rank in the selection order. The learned counsel also submitted that before passing the order of recovery and revision of seniority, the petitioner was not given any notice or opportunity of hearing and therefore the first respondent has not only violated the order of this Court, but also violated the principles of natural justice. The learned counsel further submitted that the recovery order passed against the petitioner is also unsustainable since as per the earlier order only backwages was denied and other monetary benefits including incremental arrears are bound to be given. The petitioner retired from service on 30.4.2009 and the second respondent retired on 30.6.2008 and therefore the petitioner is entitled to get salary and other benefits from 12.6.2002 by giving https://hcservices.ecourts.gov.in/hcservices/ retrospective promotion, as earned by the second respondent. 10. The learned counsel for the first respondent submitted that even though earlier order was passed giving seniority to the petitioner over and above the second respondent and retrospective promotion was given on par with the petitioner's junior, the first respondent taking note of the date of joining of the petitioner as well as the second respondent, revised the seniority list and prepared the panel for promotion to the post of Executive Engineer for the year 2001 and based on the panel, the second respondent was given promotion as Executive Engineer by order dated 12.6.2002. There is no illegality in the said order. The date of joining having been taken into account for fixing the seniority, the petitioner is not prejudiced and therefore no notice need be given to the petitioner. 11. I have considered the rival submissions made by the learned counsel for the petitioner and respective consels for the first respondent. 12. The petitioner and the second respondent were selected and appointed as Technical Assistant in the first respondent Corporation by order dated 28.12.1974. The issue as to whether the petitioner, or the second respondent is senior in the cadre of Assistant Executive Engineer was considered by this Court (Hon'ble Mr.Justice P.Sathasivam, as he then was) in W.P.No.6350 of 1995 order dated 29.10.1998 and in the said order it is held as follows: "..... I am of the opinion that the action of the first respondent in not including the petitioner in the panel of Assistant Executive Engineer (Civil) for the year 1994 cannot be accepted. Accordingly, I sustain the contention raised by the learned counsel for the petitioner. I have already stated that the petitioner has no grievance with regard to inclusion of respondents 2 and 3 in the said panel. Accordingly, there shall be a direction to the first respondent to include the petitioner's name in the panel of Assistant Executive Engineer (Civil) for the year 1994 and consider his claim for promotion and appointment to the post of Assistant Executive Engineer (Civil) with effect from 8.11.1994, the date on which his junior, namely the 4th respondent was promoted with all consequential service benefits from that date i.e., 8.11.1994. Writ petition is allowed to the extent mentioned above. No costs. Time for compliance four weeks." https://hcservices.ecourts.gov.in/hcservices/ The first respondent accepted the said order of this Court and by order dated 21.12.1998 passed the following order: "2) In view of the Court judgment, it has been decided to consider the case of Thiru S.Ramalingam, Junior Engineer to include his name in the panel of Assistant Executive Engineer on par with A.Chandrasekaran, now as Assistant Executive Engineer in Tirunelveli Region. 3) Accordingly Thiru S.Ramalingam is ordered to be included in the panel of Assistant Executive Engineer for the year 1994 and his ranking placed in between Thiru K.Veeraraghavan, Sl.No.2 and Thiru A.Chandrasekaran, Sl.No.3. Thiru S.Ramalingam is deemed to have been promoted as Assistant Executive Engineer, on par with his immediate junior with effect from 8.11.1994. Without monetary benefit. 4) Thiru S.Ramalingam, on promotion as A.E.E., is posted to Villupuram Region in the existing vacancy. The Senior Regional Manager, Villupuram, is requested to regulate the pay of the individual accordingly on par with Thiru A.Chandrasekaran, A.E.E., Tirunelveli Region and report the date of joining of the said individual to Head Office forthwith. 5) The Senior Regional Manager, Pudukkottai, is requested to relieve the individual immediately with direction to join duty in the posting place at once." The petitioner was also fixed with the scale of pay in the promoted post with effect from 8.11.1994 by order dated 19.7.1999 and he was not given the backwages. However, the entire service was notionally counted in the promotion post and salary was fixed and paid from the date of joining in the promoted post i.e, from 13.1.1999. 13. By order dated 26.8.1999, seniority list was also modified in the cadre of Assistant Executive Engineer (Civil) for the year 1994, published on 4.11.1994 by ordering as follows: "Accordingly, the final list of A.E.E.for the year 1994 is published as follows:- ---------------------------------------------------------------- S.No. Name of the JE Region in which working ---------------------------------------------------------------- 1. MV.Govindarajan Already promoted Chennai as AEE. https://hcservices.ecourts.gov.in/hcservices/ 2. N.Ganapathy To be included in Thanjavur Subramanian the panel as per Division Board's decision. 3. K.Veeraraghavan Already promoted Head Office as AEE 4. S.Ramalingam Already promoted Villupuram as AEE and now included as per court order. 5. A.Chandrasekaran Already promoted Tirunelveli as AEE. 6. S.Dakshinamurthy Already promoted Thanjavur as AEE. 7. N.Rajendran Already promoted Trichy as AEE. 8. G.Balasubramanian To be promoted Coimbatore as AEE as per Board's decision. ---------------------------------------------------------------- The name of following Assistant Executive Engineer who has been taken up for consideration and rejected. ---------------------------------------------------------------- S.No. Name and designation Region in which now working ---------------------------------------------------------------- 1. S.Kanagarathinam, AE Head Office ---------------------------------------------------------------- The Regional Heads concerned are requested to communicate the final list to the persons concerned besides publishing the same and furnish the date of publication in the Notice Board." Thus, it is evident that the first respondent accepted the Judgment of this Court, placed the petitioner above the second respondent in the revised final seniority list prepared as per the direction of this Court and also paid the monetary benefit from the date of joining in the promoted post. The first respondent has not stated any reason to modify the said final seniority list while preparing the panel for Executive Engineers for the year 2001 from the cadre of Assistant Executive Engineers, wherein the second respondent is placed above the petitioner. When the seniority is already fixed finally pursuant to the order of this Court it is not open to the first respondent to revise the same and the said action of the first respondent is contrary to the earlier order of this Court. https://hcservices.ecourts.gov.in/hcservices/ 14. The reason stated in the counter affidavit that the petitioner joined in the post of Technical Assistant on 16.1.1975 after 12 days of joining second respondent cannot be sustained in view of the fact that the said issue was already considered by this Court and this Court gave a clear finding that the petitioner is senior than the second respondent. Further, no notice or opportunity of hearing was given to the peititoner before altering the final seniority list and promotion was given to the second respondent based on the said seniority. The second respondent has already retired on 30.6.2008 and the petitioner retired on 30.4.2009. 15. Normally, unless a person works in the promotion post, he is not eligible to get salary for the promoted post, and if a person retires during the pendency of his claim, notional promotion would be ordered to fix the terminal benefits/pension, based on the salary payable to the higher post. Here in this case, in spite of this Court's order holding that the petitioner is senior than the second respondent, the second respondent was erroneously placed above the petitioner in the panel for promotion to the post of Executive Engineer. Thus, the first respondent prevented the petitioner from discharging his duties as Executive Engineer and allowed the second respondent to serve as Executive Engineer and receive salary. The Honourable Supreme Court in the decision reported in 2007 (6) Supreme 97 (The Commissioner,Karnataka Housing Board v. C.Muddaiah) considered similar issue as to whether a person, who was prevented from working by the Department illegally, can be given all monetary benefit, even if he has not worked in the post. In paragraph 32 the Supreme Court held thus: "32. ........... There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a https://hcservices.ecourts.gov.in/hcservices/ party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law .........................." Applying the said judgment to the facts of this case, I hold that the petitioner is entitled to get promotion as Executive Engineer with all benefits which are extended to the second respondent. As stated supra, petitioner is prevented from discharging the duties of the Executive Engineer by the first respondent erroneously and therefore the petitioner is entitled to get difference in pay and other benefits, which were given to the second respondent by the impugned promotion order. 16. The order of recovery passed against the petitioner is also unsustainable in view of the fact that pursuant to the order of this Court the petitioner's seniority was properly fixed, retrospective promotion was given and notional pay was fixed without any misrepresentation or suppression of fact on the side of the petitioner. It is well settled in law that if salary is paid by the department without any misrepresentation by the petitioner, the amount already paid cannot be recovered. The Honourable Supreme Court in the decision reported in 2009 (1) Supreme 163 (Syed Abdul Qadir & Others v. Stateof Bihar & Others) in paragraph 28 held as follows: "28. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the https://hcservices.ecourts.gov.in/hcservices/ rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants- teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardhip to the appellants-teachers, we are of the view that no recovery of the amount that that has been paid in excess to the appellants-teachers should be made." 17. On the basis of the above findings, the impugned order in W.P.No.3221 of 2001 is set aside. W.P.No.24963 of 2002 is disposed of with direction to the first respondent to give promotion to the petitioner in the cadre of Executive Engineer with monetary benefits from the date of promotion given to the second respondent as Executive Engineer. Necessary order is directed to be passed by the first respondent to implement this order within a period of six weeks from the date of receipt of copy of this order. Both the writ petitions are ordered accordingly. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar vr To The Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Madras - 10. + 1 cc to Mr.S.Sadasharam,Advocate,SR.31530 W.P.No.3221 of 2001 & W.P.No.24963 of 2002 TS(CO) EM/27.7.09 https://hcservices.ecourts.gov.in/hcservices/