THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No.36693 of 2013
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
".... declaring the action of the respondents in not promoting the petitioner to the post of ADC/Controller on par with the petitioner's colleagues namely Syed Qamruddin, E. No. 100464, J. Ramesh, E.No.100473, M.M. Khan, E. 100527 who were promoted in 2009 and junior colleague Lal Mohammed, E. No. 305122 promoted in October 2012 as illegal, unjust and in violation of Art. 14, 16 and 21 of the Constitution of India and consequently the petitioner pray this Hon'ble Court may be pleased to direct the respondents to promote the petitioner on par with the petitioner colleagues from the year 2009 notionally and extend all its consequential benefits in the interest of justice and fair play."
2) Heard Sri V. Narasimha Goud, learned counsel for the petitioner, and Sri A. Srinivas Reddy, learned Standing Counsel appearing for the respondent Corporation.
3) The case of the petitioner, in brief, is that on an earlier occasion, when the petitioner was removed from service, he had approached the Industrial Tribunal-cum-Labour Court and raised an industrial dispute vide I.D. No.388 of 1989. The Labour Court vide award dated 01.09.1990 had directed reinstatement of the petitioner as a fresh candidate while 2 denying the continuity of service as well as back wages. Aggrieved by the same, the petitioner had approached this Court by way of a writ petition being W.P. No.15732 of 1992. This Court vide order dated 03.09.1996 had allowed the Writ Petition holding as under:
"In the result, the Writ Petition is allowed in part and in place of the award passed by the Labour Court, I direct that the petitioner is entitled to be reinstated into service with continuity of service. However, he is not entitled to back wages."
4) In pursuance of the order dated 03.09.1996 passed in W.P. No.15732 of 1992, the petitioner was reinstated into service. However, when the authorities did not extend him the notional increments in terms of the order, dated 03.09.1996, passed by this Court in W.P. No.15732 of 1992, the petitioner had again approached this Court and filed W.P. No.18066 of 2002. This Court while allowing the said writ petition vide order dated 19.09.2002 has held as under:
"The Division Bench while dealing an analogous question has held that when an award was passed by the Labour Court directing the respondents to reinstate the petitioner into service, the action of the respondent corporation in fixing the pay without taking into consideration the notional increments is illegal. It is further held that the Corporation cannot rely on any 3 circular or regulation that takes away the plain meaning of the award in the judgment.
Applying the ratio that emerges from the Division Bench judgment of this Court, the respondents are directed to fix the pay of the petitioner taking into consideration the notional increments from the date of removal till the date of reinstatement."
It is the grievance of the petitioner that in spite of the above referred two orders passed by this Court, the petitioner was denied the seniority while his juniors were given promotion. Even though the petitioner made representations and also got issued a legal notice 05.11.2012, the authorities have not taken any action. Therefore, the petitioner left with no other option has filed the present Writ Petition.
5) A counter affidavit has been filed by the respondents. A perusal of the same reveals that except reiterating the averments made in the writ affidavit, the counter is bereft of any other details. The respondents have simply stated that there are no representations given by the petitioner pending before them for consideration and that the petitioner never approached the office seeking re-fixation of his seniority. Further, that the petitioner kept silent and never represented nor ventilated his grievance with regard to fixation of his seniority. Hence, it is prayed to dismiss the Writ Petition.
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6) Learned counsel for the petitioner has vehemently contended that in spite of the specific directions of this Court vide order dated 03.09.1996 in W.P. No.15732 of 1992 and order dated 19.09.2002 in W.P. No.18066 of 2002, the petitioner was not extended the seniority and was not considered for promotion even though his juniors got promoted. Therefore, the learned counsel prayed this Court to issue suitable directions to the respondents for re-fixation of the seniority of the petitioner.
7) Per contra, the learned Standing Counsel has stated that at no point of time the petitioner had raised any grievance with regard to fixation of his seniority and for the first he raised objection by filing the present writ petition. Learned Standing Counsel has further stated that the petitioner had already retired from service and therefore fixation of his seniority at this point of time does not arise and therefore prayed this Court to dismiss the Writ Petition. Learned Standing Counsel has placed reliance on A.P. State Road Transport Corporation v. Abdul Kareem1, A.P. SRTC v. S. Narsagoud2 and J.K Synthetics Ltd. v. K.P. Agarwal3.
8) Perused the material on record.
1 (2005) 6 SCC 36
2 (2003) 2 SCC 212
3 (2007) 2 SCC 433
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9) Admittedly, in the present case, the orders passed by this
Court in the earlier round of litigation i.e. order dated 03.09.1996 in W.P. No.15732 of 1992 and order dated 19.09.2002 in W.P. No.18066 of 2002 have become final as the Corporation has not bothered to challenge the said orders. Insofar as the judgment in Abdul Kareem (1 supra) relied by the learned Standing Counsel is concerned, in the said judgment the employee approached the Labour Court, while upholding the departmental enquiry and the findings arrived thereat, the Labour Court directed the employee to be reinstated with continuity of service but without back wages. When the employee had approached the Hon'ble High Court, a learned Single Judge of the High Court had directed for fixing the wages payable to him on his reinstatement while taking into account the increments that he could had earned if he had been in service during the period of his absence from duty and further the employee wanted future increments notionally during the period of unauthorized absence. The said finding of the learned Single Judge was also confirmed by the Division Bench. Thereafter, in SLP filed by the Corporation, the Hon'ble Supreme Court while allowing the appeal has held that in the absence of any specific direction from the Court, the same cannot be granted as a matter of course.
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10) In Narsagoud's case (2 supra), the Hon'ble Supreme Court has held as under:
"9. We find merit in the submission so made. There is difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."
11) Further the facts in J.K. Synthetics Ltd. (3 supra) are also distinguishable to the facts of the present case. Thus, with all due respect to the learned Standing Counsel, the judgments relied are not applicable to the facts of the present case.
12) In this case, the petitioner is only seeking promotion as per his entitlement. In the counter filed by the respondents, they have nowhere stated that the petitioner is not entitled for promotion. Once the petitioner is reinstated into service with continuity of service with or without back wages, the said 7 service has to be counted for all purposes including for the purpose of granting promotion. An employee is entitled to promotion based on the number of years of service that he has put in and some conditions being fulfilled. As and when the promotions are due, they have to be extended to an employee by the employer. Merely because the petitioner is retired, it cannot be said that the promotion cannot be granted at this point of time.
13) It is also pertinent to note that the respondent Corporation had issued Circular No.PD 67/81-82, dated 18.12.1981 clarifying certain aspects in respect of the awards passed by the Labour Courts. Instruction No.6 thereof reads as under:
"In regard to promotion to higher post purely on the basis of seniority, notional promotion can be given to the employee, if he is not otherwise found unsuitable."
14) For the afore-stated reasons and in view of instruction No.6 mentioned in the Circular dated 18.12.1981 issued by the Corporation, the Writ Petition is liable to be allowed.
15) Accordingly, the Writ Petition is allowed. The respondents are directed to extend the benefit of promotion to the petitioner 8 as and when it was due and consequently re-calculate the arrears, if any, payable to the petitioner and pay them accordingly. The entire exercise shall be completed as expeditiously as possible preferably within a period of twelve weeks from the date of receipt of a copy of this order.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date: 17-04-2023 sur