Madras High Court
M.Subramanian vs The Managing Director on 17 November, 2021
W.P.No.3721 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:17.11.2021
Coram
The Hon'ble Mr. Justice V.PARTHIBAN
W.P.No.3721 of 2021 &
W.M.P.No.4250 of 2021
M.Subramanian ...Petitioner
Vs.
1.The Managing Director,
Nadippisai Pulavar K.R.Ramasamy,
Co-operative Sugar Mills Ltd,
Thalainayar, Mayiladuthurai Taluk,
Nagapattinam District - 609 201.
2.The Commissioner of Sugar/Director of Sugar,
No.690, Anna Salai,
Periyar Building,
Chennai - 600 035.
...Respondents
PRAYER: Petition filed under Article 226 of the Constitution of
India praying to issue a writ of Certiorarified Mandamus calling for
the records on the file of the 1st respondent in proceedings
Rc.No.2365/2005/A1 dated 06.12.2019, quash the same and
consequently direct the respondents to pay the petitioner, salary
for the post of Office Manager and pay the difference in salary for
the period from 13.02.2007 to 31.08.2010 along with interest and
with all attendant terminal benefits.
For Petitioner .. Ms.D.Geetha
For Respondents .. Mr.G.Krishna Raja, AGP (for R.2)
No appearance for R.1
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1/12
W.P.No.3721 of 2021
ORDER
The case of the petitioner is that he was initially appointed in
the first respondent / Cooperative Sugar Mills Ltd., as a Store
Keeper in 1985 and subsequently was appointed as Cane Office
Manager In-charge. In 2010 after attaining the age of
superannuation, he retired from service while officiating as Office
Manager In-charge. The petitioner claims to be a Post Graduate
Degree holder in History and also in possession of Diploma in
Industrial Cooperative Management and Diploma in Labour Laws.
According to him, he had earlier served in the post of
Superintendent 'C' Grade which was feeder grade for promotional
post of Office Manager.
2.According to the petitioner, the qualification required for
the promotion to the post of Office Manager is a degree from any
recognized University with experience of 5 years in Supervisory
feeder category. The Bye-Laws which prescribed the qualification
also state that promotion from one level to another is based on
basic qualification, experience, merit, suitability and seniority. The
petitioner having worked as Store Keeper for many years and then
as Superintendent had acquired sufficient experience in the
operation of the Sugar Mills which cannot be disputed at all.
3.According to the petitioner, in 1997, the common cadre
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W.P.No.3721 of 2021
system in the public sector Sugar Mills came to be established and
certain guidelines thereafter issued in 1999 for filling up vacancies
arising in each Sugar Mill. In terms of the guidelines issued by the
second respondent, the posts which were lying to be vacant was
identified and to be filled up with qualified candidates. In respect
of the first respondent, a post of Office Manager was lying vacant
as on 01.07.2000. The permission was sought from the second
respondent for filling up the said post by promoting an eligible
candidate from among the available candidates in the first
respondent Mill itself. However, despite several reminders, no
response was forthcoming. In the said circumstances, the
petitioner being the senior most C-Grade Superintendent in the
feeder category, had applied for consideration for promotion.
Unfortunately, without filling up the post with the petitioner herein
who was the most eligible and experience candidate, the post had
been filled up on Ad-hoc basis by bringing candidates from other
Mills for a period of 4 years.
4.In 2004, the post of Office Manager became vacant again
and once again an application was sent by the petitioner but
however it was not considered and it was notified inviting
applications from others on 11.03.2005. The petitioner therefore
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W.P.No.3721 of 2021
was constrained to approach this Court in W.P.No.10840 of 2005
challenging the action of the first respondent. During the pendency
of the Writ Petition, the petitioner was officiating as Office
Manager, by proceedings dated 13.02.2007 and 21.02.2007 as Full
In-charge for the post of Office Manager. After a brief gap from
08.01.2018, the petitioner once again officiated as In-charge Office
Manager. Till his superannuation on 31.08.2010, according to him,
he was performing all the administrative functions and duties of a
regular Office Manager. Unfortunately, he was not paid salary
applicable to the post of regular Office Manager.
5.In the above circumstances, the petitioner appeared to
have made a representation on 12.10.2009 seeking fixation of
salary as applicable to the post of Office Manager during the period
of his service as Office Manager.
6.In the meanwhile, the Writ Petition filed by the petitioner
in W.P.No.10840 of 2005 came to be dismissed by this Court on
30.01.2019. As against that, the petitioner filed a Writ Appeal in
W.A.No.1399 of 2019, a Division Bench of this Court which heard
appeal was pleased to pass an order on 17.07.2019 and the
relevant paragraphs of the judgment read as under:
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W.P.No.3721 of 2021
"7. There is no right accrued to the appellant to
claim that he should be appointed substantively in the
post of Office Manager. The fact that he was given full
additional charge in the post of Office Manager would
not give him any right to claim appointment on regular
basis. It was for the Management to decide as to
whether a particular post should be filled up. The
Management has to take into account several factors,
before taking a decision, for filling up the post. It is not
for the Court to direct the Management to fill up the
post, without taking into account, the financial condition
of the Mill. We are therefore of the view that the
learned single Judge was justified in rejecting the
request for giving promotion to the appellant.
8. The next question is, as to whether the
Management was correct in not denying the salary to
the appellant, notwithstanding the fact he was given full
additional charge of the post of Office Manager.
9. The appellant has already given two
representations, the last one being dated 12.10.2009.
The Mill appears to have given a reply to the said
representation to the effect that on account of the
pendency of the writ petition, it would not be possible
to consider the claim for salary in the post of Office
Manager.
10. We direct the first respondent to consider the
representation dated 12.10.2009 on merits and taking
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W.P.No.3721 of 2021
into account the relevant regulations. The Management,
should also consider the fact that the appellant was
given full additional charge in the post of Office
Manager and he has been functioning as such till his
retirement. Such exercise shall be completed within a
period of three months from the date of receipt of a
copy of this judgment."
7.It appeared that pursuant to the above said order of the
Division Bench, the first respondent passed an order on the
representation of the petitioner rejecting his request vide
proceedings dated 06.12.2019. Being aggrieved by the rejection of
the request, the present Writ Petition has been filed challenging
the proceedings dated 06.12.2019.
8.Mrs.D.Geetha, learned counsel for the petitioner reiterated
the above facts. The principal contention of the learned counsel is
that after having allowed the petitioner to officiate as Office
Manager, it is not open to the first respondent to deny him the pay
and allowance as the Administrative Manager. The learned counsel
also contended that similarly placed persons with degrees had
been posted as Office Manager and held the post without any
issues raised. Only in respect of the petitioner alone, certain
objections were raised as to his qualification and non-eligibility.
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W.P.No.3721 of 2021
When the first respondent thought it fit to engage services of the
petitioner as Office Manager and extracted work from him, ought
not to be allowed to raise technical objections as to the lack of
qualification on the part of the petitioner or lack of funds in the
Mills.
9.According to the learned counsel, once the service of the
petitioner had been utilized by the first respondent as Manager In-
charge, whether he was fully qualified or not become immaterial.
The petitioner was made to work as In-charge Manager in order to
sub-serve the interest of the mill and hence denial of wages to him
is totally unfair, arbitrary and unjust.
10.On behalf of the first respondent, no counter has been
filed and no effective representation had also been forthcoming.
Since, the petitioner herein is 70 years old, being a very senior
citizen, this Court has taken a call to dispose of the matter on the
basis of the facts and the materials that are made available on
record.
11.From the above factual narrative, this Court cannot have
any other view except to agree with the conditions raised on behalf
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W.P.No.3721 of 2021
of the petitioner. Admittedly, the petitioner was officiating as
Manager In-charge for some period between 2007 and 2010 till his
retirement. The principal objection on behalf of the respondent as
disclosed in the impugned communication is lack of qualification on
the part of the petitioner. According to the first respondent, his PG
Degree without a UG Degree was not considered as eligible
qualification in terms of the provisions of the Cooperative Societies
Act. But the fact that he was holding the post as Additional In-
charge is admitted in the impugned communication. It is further
pointed out on behalf of the first respondent that there was a bar
in filling up of the vacant posts and also financial constraint faced
by the Mill. In the said circumstances, according to the first
respondent, the claim for salary for the post of Office Manager was
not feasible on account of his ineligibility and for other alleged
reasons stated therein.
12.This Court is unable to countenance such specious
objections raised on behalf of the first respondent. First of all, the
issue in regard to the ineligibility of the petitioner may be a valid
defence against the claim of the petitioner over appointing him on
a regular basis. Even according to the first respondent, there was a
bar in filling up of the vacancy but however, the post of Manager
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W.P.No.3721 of 2021
needed to be manned for the effective functioning of the Mill. In
such circumstances, having utilized the services of the petitioner
herein as Manager In-charge between 2007-2010, the salary and
allowance admissible to the post of Manager, in such
circumstances cannot be denied to him at all.
13.It is needless to mention that once the work of the post
had been extracted by the Management, it does not lie in the
mouth of the management to come up with factors like ineligibility
etc., such objections may hold good in case there was any regular
appointment to the post of Manager. But in a case like this, when
the petitioner was allowed to officiate as Manager In-charge and
the functioning of him was to the benefit of the Mill, the first
respondent certainly is not entitled to deny pay parity to him on
the ground that he was not eligible to be considered for regular
appointment in terms of the provisions of the Cooperative Societies
Act.
14.The other objection regarding financial constraint cannot
be countenanced in law at all for denying the petitioner his due for
a considerable period of time, once a person's service had been
utilized against a particular position/post. If this Court were to
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W.P.No.3721 of 2021
accept the explanation of the first respondent, that the petitioner
can be denied salary applicable to the position he held and
discharged between 2007 and 2010, it would amount approving
the action of the first respondent for exploiting the service of the
petitioner in violation of Article 14 of the Constitution of India.
15.This Court is of the view that the first respondent on one
hand cannot be allowed to make use of the service of the
petitioner as Manager In-charge, on the other hand can come up
with a specious plea that the petitioner was not ineligible for
regular appointment and therefore was not entitled to be paid
salary admissible to the post of Manager. In the above
circumstances, this Court is of the view that the writ petitioner has
made out a case for relief.
16.In the circumstances, the impugned proceedings in
Rc.No.2365/2005/A1 dated 06.12.2009 is hereby set aside and the
Writ Petition stands allowed. The first respondent is directed to pay
salary and admissible allowances for the post of Office Manager
and pay the differential amounts for the period he worked as
Manager In-charge between 2007 and 2010.
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W.P.No.3721 of 2021
17.The direction of the Court shall be complied with by the
first respondent within a period of eight weeks from the date of
receipt of copy of this order. No costs. Consequently, the
connected miscellaneous petition stands closed.
17.11.2021
mrm
Index:Yes/No
Internet:Yes
To
1.The Managing Director,
Nadippisai Pulavar K.R.Ramasamy,
Co-operative Sugar Mills Ltd,
Thalainayar, Mayiladuthurai Taluk,
Nagapattinam District - 609 201.
2.The Commissioner of Sugar/Director of Sugar,
No.690, Anna Salai,
Periyar Building,
Chennai - 600 035.
https://www.mhc.tn.gov.in/judis
W.P.No.3721 of 2021
V.PARTHIBAN,J.
mrm
W.P.No.3721 of 2021 and
W.M.P.No.4250 of 2021
17.11.2021
https://www.mhc.tn.gov.in/judis
