IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.09.2008 Coram The Hon'ble Mr.Justice F.M.IBRAHIM KALIFULLA W.P.No.37024 of 2002 K.Gnanaguru ... Petitioner vs. 1.The Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Thambusamy Road, Kellys, Chennai – 10. 2.The General Manager, Tamil Nadu Civil Supplies Corporation Limited, Thambusamy Road, Kellys, Chennai – 10. 3.Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, No.7, Convon Smith Road, Gopalapuram, Chennai – 86. ...Respondents Petition filed under Article 226 of The Constitution of India, praying for the issuance of a writ of certiorarified mandamus to call for the entire records of the second respondent in his proceedings Proc.No.E2/108472/97 dated 04.01.2002 and that of the first respondent in his proceedings RC.No.E2/108472/97 dated 10.04.2002 and quash the same and consequently direct the respondents to fix the seniority of the petitioner above Tmt.R.V.Jayanthi and promote the petitioner to the cadre above the said R.V.Jayanthi with all consequential benefits, arrears of salary and all attendant service privileges, perquisites. For Petitioner : Mr.M.Sriram For Respondents : Mr.M.Devadoss https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner is aggrieved against the order of the second respondent dated 04.01.2002 and the confirmation of the same by the first respondent in his order dated 10.04.2002 in and by which the petitioner's claim for fixation of his seniority immediately above Tmt.R.V.Jayanthi came to be rejected and thereby his claim for promotion to the cadre above the said R.V.Jayanthi was not acceded to by the respondents. 2.The brief facts which are required to be stated are that the petitioner joined as a Helper in the Tamil Nadu Civil Supplies Corporation Limited in the year 1973. He was promoted as Time Scale Bill Clerk in the year 1974. On 19.01.1975, he was placed under suspension and a charge memo was issued to him on 16.10.1975. By order dated 16.12.1977, he was removed from service. Simultaneously, there was also a criminal case pending against him in C.C.No.7099 of 1979. The said case ended in acquittal on 09.11.1982. The petitioner's claim for reinstatement subsequent to his acquittal in the criminal case was rejected by the respondent Corporation on 05.08.1984. The petitioner filed W.P.No.4423 of 1984 challenging the rejection order. The writ petition was allowed on 10.12.1984 directing the respondent Corporation to hold a fresh enquiry against the petitioner and complete the same within a specified time limit. The said enquiry ultimately ended in an order of dismissal having been passed against the petitioner on 12.12.1985 and the said order was challenged by the petitioner in W.P.No.1008 of 1986. The writ petition was allowed on 07.07.1988. The respondent Corporation filed W.A.No.488 of 1989. The said writ appeal came to be disposed of recording the agreed terms of both parties. The terms of agreement were as under: "1.A sum of Rs.25,000/- already paid to the respondent will be treated as the backwages payable to him and no further amount will be claimed. 2.The respondent having been already reinstated, the seniority will be protected by treating the order of termination as not having been passed, but no retrospective promotion will be given but future promotion will be considered as above. 3.It is also agreed that he will be placed in the proper place of seniority by ignoring the order of termination." Thereafter, by order dated 11.05.1998, the petitioner was promoted as Junior Assistant with effect from 04.02.1998 stating that it was the date on which the vacancy arose in that post. The petitioner made a representation on 09.07.1998 for further promotion to the post of Assistant. The same was rejected by the impugned order of the second https://hcservices.ecourts.gov.in/hcservices/ respondent dated 04.01.2002 which was also confirmed by the first respondent in his order dated 10.04.2002. 3.Assailing the above orders, Mr.Sriram, learned counsel appearing for the petitioner contended that by virtue of the terms agreed between the parties as recorded in the writ appeal order dated 15.09.1997, the petitioner should be deemed to have been taken in service right from the date of his original appointment and the seniority ought to have been worked out on that basis. Learned counsel for the petitioner therefore contended that since the petitioner's immediate junior R.V.Jayanthi had secured further promotions to the post of Assistant, Superintendent, Assistant Manager and Deputy Manager, the petitioner was also entitled for such promotions on notional basis without any monetary advantage and granted such post which is now being held by R.V.Jayanthi viz., the post of Deputy Manager by placing the petitioner just above the said R.V.Jayanthi. Learned counsel contended that the impugned orders are therefore required to be set aside and the relief as claimed above should be accorded to the petitioner. 4.Mr.Devadoss, learned standing counsel for the respondents, on the other hand, submitted that subsequent to the agreed order passed in W.A.No.488 of 1989 dated 15.09.1997, the petitioner was granted the post of Junior Assistant on and from 04.02.1998 and that subsequently, his promotion to the said post was made on the date when the vacancy arose in that post viz., in November, 1997 itself. Learned standing counsel then contended that since as per the agreed terms, there was no provision for granting retrospective promotions, there was no scope for countenancing the claim of the petitioner for granting notional promotion. Learned standing counsel pointed out that even if the petitioner's seniority is to be maintained ignoring the orders of termination, the statutory period of work in the respective posts for the minimum required number of years of service cannot be given a go by as each of such higher post would involve higher responsibilities, which the petitioner was bound to undergo and only thereafter he can aspire to hold such higher post. The learned standing counsel therefore contended that the prayer of the petitioner was rightly rejected by the orders impugned in the writ petition and the same do not call for any interference. 5.Having heard the learned counsel for the respective parties and after perusing the order passed in W.A.No.488 of 1989 dated 15.09.1997 and the subsequent order of the respondent dated 11.05.1998, the impugned orders dated 04.01.2002 and 10.04.2002 and the counter affidavit as well as the additional counter affidavit filed in this writ petition, I am of the view that as per the terms agreed between the parties which was recorded in the writ appeal order dated 15.09.1997, the respondent Corporation is bound to maintain the seniority of the petitioner based on his original entry into service by ignoring the orders of termination. In fact, the https://hcservices.ecourts.gov.in/hcservices/ respondent Corporation while passing the order dated 11.05.1998 has correctly understood the said position, which is reflected in the said order itself which is to the following effect: "3.He is promoted as Junior Assistant in the time scale of pay of Rs.975-25-1150-30-1660 with effect from 04.02.1998, the date on which the vacancies created subsequent to the judgment on the writ appeal. His seniority will be protected in the cadre of Junior Assistant with reference to his seniority in the feeder category." (underlining is mine)" 6.Though it was stated in the said order that in the post of Junior Assistant, the vacancy arose only on 04.02.1998, learned standing counsel for the respondents now states that the same was subsequently rectified and the petitioner was accommodated in the said post from 10.11.1997. Inasmuch as, as per the agreed terms, the respondent Corporation tacitly agreed to maintain the seniority of the petitioner in the feeder category, the subsequent benefit of promotion for the petitioner ought to have been worked out based on the said seniority. 7.A perusal of the additional counter affidavit of the respondent Corporation discloses that the petitioner's immediate junior R.V.Jayanthi was promoted to the post of Junior Assistant on 01.06.1996. She was stated to have joined the post of Time Scale Bill Clerk on 31.05.1975 whereas the petitioner was promoted to the said post in the year 1974 itself. It is stated that as per the prescribed rules which are in force in the respondent Corporation, in order to aspire for the subsequent promotion to the post of Assistant, one will have to work for a minimum period of four years in the post of Junior Assistant. It is also stated that similar such minimum required number of years of service in the post of Assistant has to be rendered, apart from passing the commercial book keeping test for any one in the post of Junior Assistant to claim promotion to the post of Assistant. In the case of the petitioner's junior R.V.Jayanthi, after her promotion as Junior Assistant on 01.06.1976, she got her next promotion to the post of Assistant on 14.11.1979 and that she got her subsequent promotion to the post of Assistant on 18.10.1984 i.e. after four years of service as Assistant. That apart, it is needless to state that any promotional chances from one post to another higher post can be considered, if at all, any vacancy exists in the higher post. 8.Keeping the above factors in mind, if the claim of the petitioner is considered, it will have to be stated that after the petitioner's prospective promotion granted with effect from 10.11.1997, his claim for further promotion to the post of Assistant ought to have been considered atleast three years after his service as Junior Assistant as was the case in respect of the petitioner's https://hcservices.ecourts.gov.in/hcservices/ junior R.V.Jayanthi. If that be so, the petitioner's claim for the post of Assistant subject to the petitioner satisfying the other stipulations of passing Commercial Book Keeping Test within the said period ought to have been considered and in the event of any vacancy available on and after 10.11.2000, the petitioner ought to have been accorded such status. The stand of the respondent Corporation in their counter affidavit in stating that his further promotion would be considered after the completion of his qualified service in the cadre of Junior Assistant and subject to the petitioner acquiring the necessary seniority and qualification in that post cannot be acceded inasmuch as such a stand of the respondent is contradictory to the terms agreed between the parties as recorded in the W.A.No.488 of 1989 dated 15.09.1997. 9.At the risk of repetition, it will have to be stated that as per the agreed terms, the respondent agreed to maintain the petitioner's seniority as was available to him in the feeder category which was also duly accepted and reflected in the respondent's own order dated 11.05.1998, which has been extracted in the earlier part of this order. Therefore, as and when the petitioner acquired the required qualifying service subject to passing of the qualifying test in the post of Junior Assistant, the petitioner ought to have been considered in any available vacancy after completion of the qualifying service i.e. on or after 10.11.2000. Similarly, after completion of the required number of minimum years of service in the post of Assistant, the petitioner's further chance of promotion to the post of Superintendent should have also been considered by the respondent Corporation. It is stated that the petitioner will be reaching the age of superannuation on 30.09.2008. 10.In the circumstances, since the scope of granting any such promotion is very bleak, at the present point of time, while the impugned orders of the respondent Corporation in rejecting the petitioner's claim cannot be sustained, I am of the view that the respondent Corporation can at least be directed to accord notional promotion to those positions subject to availability of vacancy at the relevant point of time viz., after 10.11.1997 to the post of Assistant and after the required period of service in the post of Assistant to the post of Superintendent so that the petitioner's promotional benefits after his retirement could be worked out on that basis. 11.Having regard to the above conclusion, the writ petition stands allowed. The impugned orders are set aside. However, the respondent Corporation is directed to notionally workout the petitioner's claim for promotion as directed in para 10 of this order and pass appropriate orders expeditiously, preferably within a period of six weeks from the date of receipt of a copy of this order. However, passing of such orders as directed shall not stand in the way of the Respondents to allow the petitioner to retire on the due https://hcservices.ecourts.gov.in/hcservices/ date and sanction whatever benefits payable to him based on the present position held by him in order to avoid undue delay in the settlement of terminal benefits to him. Thereafter, as soon as orders are passed in compliance with the directions of this order if due to availability of vacancy position in the higher posts, he is granted the notional promotion and appropriate higher scale applicable to such posts the terminal benefits alone at the applicable higher rate can be sanctioned and the difference be paid expeditiously and in any case within four weeks from the date of passing of such order. It is further made clear that grant of such notional promotion, if any, shall not entitle for payment of difference in salary for the past period. No costs. Sd/- Asst. Registrar /True Copy/ Sub Asst. Registrar mmi To 1.The Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Thambusamy Road, Kellys, Chennai – 10. 2.The General Manager, Tamil Nadu Civil Supplies Corporation Limited, Thambusamy Road, Kellys, Chennai – 10. 3.The Senior Regional Manager, Tamil Nadu Civil Supplies Corporation Limited, No.7, Convon Smith Road, Gopalapuram, Chennai – 86. 1 C.C. to Mr.M.Sriram, Advocate, SR.No.54980 W.P.No.37024 of 2002 ssj(co) pmk/21.10.2008. https://hcservices.ecourts.gov.in/hcservices/