Madras High Court
Geetha Mahadevan vs The Secretary To Government on 28 September, 2021
W.A.Nos. 930 & 931 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S. VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE A.A. NAKKIRAN
W.A.Nos. 930 & 931 of 2021
1. Geetha Mahadevan ..Appellant in W.A.No. 930 of 2021
2. N. Sathiyamurthy ..Appellant in W.A.No.931 of 2021
Vs.
1.The Secretary to Government,
Health & Family Welfare Department,
Fort St. George,
Chennai-600 009.
2. The Director of Medical & Rural,
Health Services,
Chennai-600 006. ....Respondents in both W.A's
Prayer in both W.A.'s: Writ Appeal filed under Clause 15 of Letter Patent
Act, to set aside the order dated 23.10.2018 passed in W.P.Nos.10485 &
11951 of 2014.
1/11
https://www.mhc.tn.gov.in/judis
W.A.Nos. 930 & 931 of 2021
For Appellants
(in both W.A's) : Mr.V.S. Jagadeesan
For Respondents
(in both W.A's) : Mr.K.V.Sanjeevkumar
Government Advocate.
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by S.VAIDYANATHAN,J)
These Writ Appeals are directed against the order dated 23.10.2018
passed in W.P.Nos.10485 & 11951 of 2019, in dismissing the Writ
Petitions filed by the Petitioners.
2. Since the issue involved in both the Writ Appeals are one and the
same, they are taken up together and disposed by a common order.
3. The grievance of the Appellants/Writ Petitioners herein is that
though they are fully qualified for the post of Superintendent for the panel
year of 2012, on the sole ground that the Appellants/Writ Petitioners had
already retired from service, on the date of preparation of panel, they could
not be promoted to the post of Superintendent and that apart in the order
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W.A.Nos. 930 & 931 of 2021
dated 04.03.2014 impugned in the Writ Petition, it was stated that since this
Court has granted an order of interim stay for conducting counselling, at the
time of giving posting as Office Superintendent, the proposed counselling
had been cancelled and therefore posting orders could not be given to the
petitioner on 04.01.2021 and after disposing the contempt petition, posting
orders were issued to the candidates during the month of November, by
which time the Appellants/Writ Petitioners retired from service on attaining
the age of Superannuation. Challenging the said order, the Writ Petitions
have been filed by the Appellants/Writ Petitioners.
4. The learned Single Judge dismissed the writ petitions filed by the
Appellants herein vide order dated 23.10.2018 on the ground that by the
time, when the promotion was given, the Appellants/Writ Petitioners have
retired from service and even it is taken that in the panel prepared, the
Appellants/Writ Petitioners' names were there, in the midst of approval of
panel, they all retired and therefore, their claim for such notional promotion
and fixation of pay on such promotional scale, appears to be without
substance. Challenging the same, the Appellants/Writ Petitioners have filed
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W.A.Nos. 930 & 931 of 2021
these Writ Appeals.
5. The learned counsel appearing for the Appellants submitted that
only due to the interim order passed in the contempt petition in C.P.No.6 of
2012 on 04.01.2012, promotional order was not issued to the Appellants
and subsequently due to the interim order dated 09.03.2012 passed in the
Writ Appeal in W.A.No.417 of 2012, the Respondents have decided to
operate the seniority list dated 02.01.2012 and accordingly, whose names
were found in the list dated 02.01.2012 should have been given promotion
and even if a person got retired, then notional promotion should have been
given to him and as the name of the Appellants are found in the seniority list
and as they are retirement from service, notional promotion should have
been given to them along with pensionary benefits. He further submitted
that the Writ Appeal in W.A.No.417 of 2012 got disposed of on 03.02.2014,
by setting aside the orders of the learned Single Judge and remanding the
matter to the learned Single Judge for fresh consideration.
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W.A.Nos. 930 & 931 of 2021
6. The learned counsel appearing for the Respondents submitted that
while giving orders to the candidates for the post of Office Superintendent,
since the Appellants/Writ Petitioners were retired from service on attaining
the age of superannuation, posting orders could not be issued to them. He
further submitted that as per the rules in force, though any Government
Servant is promoted either in regular panel or from the temporary list, as and
when he/she joined duty in the promotional post, then only they can claim
the monetary benefits.
7. Heard both sides. Perused the materials available on record.
8. Before the learned Single Judge, the Respondents have filed
Counter Affidavits. It is useful to extract Paragraphs 12 and 13 of the
Counter Affidavits, which reads as under:
"12. It is submitted that aggrieved
with the orders passed by this Court in
W.P.No.12740 of 2011 date 30.06.2011,
the Government have filed Writ Appeal
(W.A.No.417 of 2012 in W.P.No.12740 of
2010) before the Hon'ble Court with a
prayer to set aside the orders of this
Hon'ble Court passed on 30.06.2011
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W.A.Nos. 930 & 931 of 2021
including the orders passed in contempt
petition filed by the petitioners in contempt
petition filed by the petitioners in C.P.No.6
of 2012. In its interim orders dated
09.03.2012, this Hon'ble Court has
ordered that 'no coercive steps shall be
taken'. It is understood that from the
above orders of this Hon'ble Court that no
coercive steps need be initiated either on
the orders of this Hon'ble Court in
W.P.No.12740 of 2010 or in the contempt
petition filed by the petitioner filed by the
petitioner before this Hon'ble Court.
Considering the above said interim orders
of this Hon'ble Court, the Contempt
Petition dismissed by this Hon'ble Court
vide its orders dated 02.11.2012.
13. It is submitted that the post of
Office Superintendent was very much
required for smooth functioning of the
administration in Government
Hospitals/Medical Institutions, the
Government in its Letter
No.18816/AA2/2011-9, Health and Family
Welfare Department, dated 12.11.2012,
permitted the second respondent herein to
fill up the post of Office Superintendent,
based on the option given by the
candidates during the counselling held on
04.01.2012, subject to following
conditions:
1. This is subject to the
outcome of the judgment pending in
W.A.No.417 of 2012.
2. The posts are reserved for
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W.A.Nos. 930 & 931 of 2021
the petitioners in Writ Petition
(respondent in Writ Appeal) as a
measure of abundant caution and to
ensure that there is no perception of
coerciveness.
3.In case the petitioner of the
Writ Petition (respondents in W.A.)
are successful, the entire seniority,
promotion and even place of posting
will be based on the final verdict and
the individuals benefit this on
account of this posting will not be
vested with any claim or seniority on
choice of places again to ensure no
element of coercion."
9. As per the averments made in the Counter Affidavit filed before the
Writ Court as well as the submissions made by the learned counsel
appearing for the State, there is no fault on the part of the Respondents in
granting promotion to the Writ Petitioners for the reason that pursuant to the
interim orders of the Court, the Respondents hands are tied from granting
benefits to the Appellants/Writ Petitioners.
10. A reading of the paragraph 21 of the Counter Affidavits would
make it very clear that the Writ Petitioners have been promoted temporarily
to the post of Office Superintendent, before giving posting orders, they were
retired and therefore they are not entitled for monetary benefits, but on the
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W.A.Nos. 930 & 931 of 2021
date of issuing posting orders, the Appellants/Writ Petitioners are under the
zone of consideration and if the candidates are eligible for promotion,
promotion orders could not be issued, based on the interim order of the
Court the promotion will have to be given to the Appellants/Writ Petitioners
with retrospective effect, unless otherwise there was an order depriving the
promotion and monetary benefits. In the present case on hand, there is no
such order and that the Appellants have already attained the age of
superannuation and when there was an order by the Department that
promotion would be subject to the result of the Writ Appeal, we find that
once they are eligible to be considered and promoted and merely because the
Writ Petitioners have been retired and not served in the promotional post,
will not justify the act of the Respondents in not granting promotion .
Further, the cut-off date for preparation of panel for promotion to the post of
Office Superintendent for the year 2011-2012 is 15.03.2011 and list was
drawn on 02.01.2012 and the Appellants/Writ Petitioners retired on
attaining the age of Superannuation on 31.01.2012 and the Writ Appeal
filed in W.A.No.417 of 2012 was disposed of on 03.02.2014 and after that
promotional orders have been issued to others who have been served in
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W.A.Nos. 930 & 931 of 2021
service and the same yardstick may be applied to the Appellants/Writ
Petitioners and they cannot be deprived of promotion. It is brought to the
attention of the Court that some of the juniors have been promoted. Even
though list was drawn on 02.01.2012, the Respondents have to be decided
to give promotion, without prejudice to the rights of the parties, as of now,
as the said Writ Appeal got to be disposed on 03.04.2014 and it is
represented that some of the juniors are promoted, there is no bar to grant
retirement benefits belatedly to the Appellants. Hence, the orders of the
learned Single Judge needs to be interfered with.
11. Accordingly the orders passed by the learned Single Judge on
23.10.2018 in W.P.Nos. 10485 and 11951 of 2014 are set aside. The
monetary benefits, by effecting the promotion will have to be extended to the
Appellants/Writ Petitioners within a period of four months from the date of
receipt of a copy of this order.
These Writ Petitions are disposed of in the light of aforesaid
observations. No costs.
[S.V.N., J.,] [A.A.N., J]
28.09.2021
https://www.mhc.tn.gov.in/judis
W.A.Nos. 930 & 931 of 2021
Index: Yes/no
Internet: Yes/no
arr/shk
To
1.The Secretary to Government,
Health & Family Welfare Department,
Fort St. George,
Chennai-600 009.
2. The Director of Medical & Rural,
Health Services,
Chennai-600 006.
https://www.mhc.tn.gov.in/judis
W.A.Nos. 930 & 931 of 2021
S. VAIDYANATHAN,J
and
A.A. NAKKIRAN, J
arr/shk
W.A.Nos. 930 & 931 of 2021
https://www.mhc.tn.gov.in/judis
W.A.Nos. 930 & 931 of 2021
28.09.2021
https://www.mhc.tn.gov.in/judis
