Madras High Court
The Secretary To Government vs M.Saravanan on 12 August, 2022
W.A.(MD)No.857 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.08.2022
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.857 of 2022
and
C.M.P.(MD)No.7093 of 2022
1.The Secretary to Government,
Municipal Administration and
Water Supply Department
Fort St.George, Chennai.
2.The Commissioner,
Municipal Administration,
Chepauk, Chennai.
3.The Commissioner,
Thoothukudi City Municipal Corporation,
Thoothukudi. ... Appellants
Vs.
M.Saravanan ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent to set
aside the order, dated 31.01.2022 made in W.P.(MD)No.9143 of 2021.
For Appellants :Mr.S.P.Maharajan
For Respondent :Mr.N.Dilip Kumar
***
1/12
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W.A.(MD)No.857 of 2022
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.)
This Writ Appeal is directed against the order of Writ Court
allowing a Writ Petition filed by the respondent herein in W.P.(MD)No.
9143 of 2021.
2.Heard Mr.S.P.Maharajan, learned Special Government Pleader
appearing for the appellants and Mr.N.Dilip Kumar, learned Counsel, who
takes notice on behalf of the respondent. By consent of both parties, the
present Writ Appeal is taken up for final disposal at admission stage.
Brief facts that are necessary for the disposal of this Writ
Appeal are as follows:
3.The Writ Petitioner/respondent was working as Junior
Engineer in the appellants department. The Writ Petitioner was entitled
to get promotion as Assistant Executive Engineer, whose name was also
added in the promotional panel, which was prepared on 05.04.2013. As
per the promotional panel, the Writ Petitioner is the senior most person.
However, the promotion was not effected even though there was vacancy
on account of an order of stay obtained on 12.04.2013 in W.P.(MD)No.
5932 of 2013. It is admitted before this Court that in view of the
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W.A.(MD)No.857 of 2022
pendency of the Writ Petition and the interim order, the Writ Petitioner
was not promoted. It is admitted that the Writ Petition filed in
W.P.(MD)No.5932 of 2013 challenging the promotional panel, dated
05.04.2013 was dismissed as withdrawn, subsequently.
4.A representation was made by the Writ Petitioner to give
effect to the promotion with effect from 05.04.2013 by promoting him
with effect from 05.04.2013. By order impugned in the Writ Petition vide
G.O.Ms.No.9, Municipal Administration and Water Supply Department,
dated 18.01.2021, the Writ Petitioner's request was rejected and the Writ
Petitioner was given promotion as Assistant Executive Engineer with
effect from 12.10.2020.
5.Challenging the same, the Writ Petitioner/respondent
approached this Court for issuing a Writ of Certioarified Mandamus to
quash the impugned order passed vide G.O.Ms.No.9, Municipal
Administration and Water Supply Department, dated 18.01.2021 and to
set aside the portion giving effect to the appointment by way of
promotion as Assistant Executive Engineer post from 12.10.2020.
6.Before the learned Single Judge, the Writ Petitioner gave up
monetary benefits, that may be follow by re-fixing the seniority in the
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W.A.(MD)No.857 of 2022
post of Assistant Executive Engineer with effect from 05.04.2013. Hence,
the prayer was also conceded by the learned Special Government Pleader
appearing for the respondents before the Writ Court. On the basis of the
concession of learned Special Government Pleader, the Writ Petition was
allowed with a direction to the appellants herein to treat the Writ
Petitioner's promotion as Assistant Executive Engineer with effect from
05.04.2013 for all other benefits except the monetary benefits.
Challenging the same, the above Writ Appeal is filed.
7.The learned Special Government Pleader appearing for the
appellants relied upon a judgment of Honourable Supreme Court in the
case of Director of Elementary Education, Odisha and others vs
Pramod Kumar Sahoo, reported in (2019) 10 SCC 674, wherein, it is
held as follows:
“11.The concession given by the learned State Counsel
before the Tribunal was a concession in law and contrary to the
statutory rules Such concession is not binding on the State for the
reason that there cannot be any estoppel against law. The rules
provide for a specific grade of pay, the concession given by the
learned State Counsel before the Tribunal is not binding on the
appellant.”
8.Relying upon the said judgment, the learned Special
Government Pleader states that the concession made by the learned
Special Government Pleader before the Writ Court is contrary to the
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W.A.(MD)No.857 of 2022
statutory rules. In other words, it is submitted that granting promotion
with retrospective effect is not authorised by any rules.
9.This Court is not inclined to dismiss this Writ Appeal merely
on the ground that the appeal is not maintainable, in view of the
concession made by the learned Special Government Pleader before the
Writ Court. The facts in this case are not in dispute. The learned Special
Government Pleader appearing for the appellants also admitted the
position that the Writ Petition in W.P.(MD)No.5932 of 2013 was filed by a
person, who had no locus standi to question the promotional panel of the
Writ Petitioner. It is also not in dispute that the Writ Petitioner would
have been promoted with effect from 05.04.2013, but for the interim
order granted in WP(MD)No.5932 of 2013. Therefore, the Writ Petitioner
was deprived of his promotion by order of this Court in a Writ Petition
filed by a person, who had no locus standi to question the promotional
panel. The Writ Petition was later dismissed.
10.Citing the facts, which are not in dispute, the learned
Counsel the respondent relied upon a judgment of Honourable Supreme
Court in the case of Amarjeet Singh and others vs Devi Ratan and
others, reported in (2010) 1 SCC 417, wherein, after referring to
various judgments of Honourable Supreme Court, it was held that the
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W.A.(MD)No.857 of 2022
law permits promotion with retrospective effect only in exceptional
circumstances, when there has been legal impediment in making the
promotions, like an intervention by the Court. It is useful to refer to the
principles reiterated by Hon'ble Supreme Court in other cases and
followed by the Honourable Supreme Court in the said judgment as seen
from paragraphs 17 to 27, which reads as follows:
“17.No litigant can derive any benefit from mere
pendency of case in a Court of Law, as the interim order always
merges in the final order to be passed in the case and if the writ
petition is ultimately dismissed, the interim order stands nullified
automatically. A party cannot be allowed to take any benefit of his
own wrongs by getting interim order and thereafter blame the
Court. The fact that the writ is found, ultimately, devoid of any
merit, shows that a frivolous writ petition had been filed. The
maxim "Actus Curiae neminem gravabit", which means that the act
of the Court shall prejudice no-one, becomes applicable in such a
case. In such a fact situation the Court is under an obligation to
undo the wrong done to a party by the act of the Court. Thus, any
undeserved or unfair advantage gained by a party invoking the
jurisdiction of the Court must be neutralised, as institution of
litigation cannot be permitted to confer any advantage on a suitor
from delayed action by the act of the Court. (Vide Shiv Shankar &
Ors. Vs. Board of Directors, Uttar Pradesh State Road Transport
Corporation & Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries
Ltd. Vs. Union of India & Ors., AIR 1998 SC 1566; and Jaipur
Municipal Corporation Vs. C.L. Mishra, (2005) 8 SCC423).
18.In Ram Krishna Verma & Ors. Vs. State of U.P. & Ors.,
AIR 1992 SC 1888 this Court examined the similar issue while
placing reliance upon its earlier judgment in Grindlays Bank Limited
Vs. Income Tax Officer, Calcutta & Ors., AIR 1980 SC 656 and held
that no person can suffer from the act of the Court and in case an
interim order has been passed and petitioner takes advantage
thereof and ultimately the petition is found to be without any
merit and is dismissed, the interest of justice requires that any
undeserved or unfair advantage gained by a party invoking the
jurisdiction of the Court must be neutralized.
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19.In Mahadeo Savlaram Sheke & Ors. Vs. Pune Municipal
Corporation & Anr., (1995) 3 SCC 33, this Court observed that while
granting the interim relief, the Court in exercise of its
discretionary power should also adopt the procedure of calling upon
the plaintiff to file a bond to the satisfaction of the Court that in
the event of his failing in the suit to obtain the relief asked for in
the plaint, he would adequately compensate the defendant for the
loss ensued due to the order of injunction granted in favour of the
plaintiff. Even otherwise the Court while exercising its equity
jurisdiction in granting injunction is also competent to grant
adequate compensation to mitigate the damages caused to the
defendant by grant of injunction. The pecuniary award of damages
is consequential to the adjudication of the dispute and the result
therein is incidental to the determination of the case by the Court.
The Court can do so in exercise of its inherent jurisdiction in doing
ex debito justitiae mitigating the damage suffered by the
defendant by the act of the Court in granting injunction restraining
the defendant from proceeding with the action complained of in
the suit. Such a procedure is necessary as a check on abuse of the
process of the Court and adequately compensate the damages or
injury suffered by the defendant by act of the Court at the behest
of the plaintiff.
20. In South Eastern Coalfields Ltd. Vs. State of M.P. &
Ors., AIR 2003 SC 4482, this Court examined this issue in detail and
held that no one shall suffer by an act of the Court. The factor
attracting applicability of restitution is not the act of the court
being wrongful or a mistake or error committed by the court; the
test is whether on account of an act of the party persuading the
court to pass an order held at the end as not sustainable, has
resulted in one party gaining an advantage it would not have
otherwise earned, or the other party has suffered an
impoverishment which it would not have suffered but for the order
of the court and the act of such party. There is nothing wrong in the
parties demanding being placed in the same position in which they
would have been had the court not intervened by its interim order
when at the end of the proceedings the court pronounces its
judicial verdict which does not match with and countenance its own
interim verdict. The injury, if any, caused by the act of the court
shall be undone and the gain which the party would have earned
unless it was interdicted by the order of the court would be
restored to or conferred on the party by suitably commanding the
party liable to do so. Any opinion to the contrary would lead to
unjust if not disastrous consequences.
21.The Court further held :
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".....Litigation may turn into a fruitful industry. Though litigation is
not gambling yet there is an element of chance in every litigation.
Unscrupulous litigants may feel encouraged to approach the courts,
persuading the court to pass interlocutory orders favourable to
them by making out a prima facie case when the issues are earlier
to be heard and determined on merits and if the concept of
restitution is excluded from application to interim orders, then the
litigant would stand to gain by swallowing the benefits yielding out
of the interim order even though the battle has been lost at the
end. This cannot be countenanced. We are, therefore, of the
opinion that the successful party finally held entitled to a relief
assessable in terms of money at the end of the litigation, is entitled
to be compensated......"
22.Similarly in Karnataka Rare Earth & Anr. Vs. Senior
Geologist, Department of Mines & Geology & Anr., (2004) 2 SCC 783,
a similar view has been reiterated by this Court observing that the
party who succeeds ultimately is to be placed in the same position
in which they would have been if the Court would not have passed
an interim order.
23.In Dr. A.R. Sircar Vs. State of U.P. & Ors., (1993)
Supp. 2 SCC 734, the dispute arose regarding the seniority of direct
recruits and promotees on the post of Professor of Medicine in a
medical college. The appellant therein faced the selection process
for direct appointment along with the respondents who had been
working on the said post on ad hoc basis. The appellant was duly
selected, however, the private respondents could not succeed. The
respondents filed the writ petition before the High Court and
precluded the appointment of appellant pursuant to his selection,
by obtaining the interim order and on the other hand they got their
ad hoc promotion to the post regularized under the rules. The
appellant could succeed in obtaining the appointment only after
dismissal of the writ petition against him after several years of his
selection. This Court held that in addition to the relief under the
statutory provisions the appellant was entitled in equity to get the
seniority over the respondents as they succeed in precluding his
appointment to the post by obtaining an interim order in a case
having no merits whatsoever.
24.Arya Nagar Inter College & Anr. Vs. Sree Kumar Tiwari
& Anr., AIR 1997 SC 3071, the services of the respondent therein
were terminated, however, he continued to be in service on the
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basis of interim order passed by the High Court in the writ petition
filed by him. During the pendency of the writ petition, the rules for
regularization of ad hoc appointees were amended and in pursuance
thereof his services also stood regularized. Ultimately, the writ
petition filed by the respondent was dismissed. This Court held that
his continuity in service and regularization had to be understood as
it was subject to the result of the writ petition. As the writ
petition was dismissed the order of regularising of his services,
passed during the pendency of the writ petition, became
inoperative.
25. In view of the above, the appellants are entitled for
the relief purely on equitable grounds without going into any other
legal issue and appeals deserve to be allowed and the seniority list
quashed by the High Court has to be restored.
26. There is another aspect of the matter. The
appellants and the respondents have been considered by the DPC
held on 19.12.1998 to fill up 42 vacancies under the unamended
rules. However, at the cost of repetition, it may be pertinent to
mention here that only 30 candidates/appellants were found
suitable by the DPC held on 19.12.1998 and had been promoted,
under the unamended Rules on the criterion of "merit". The
respondents had been promoted under the amended rules by
carrying forward 12 vacancies, by another DPC held subsequently on
22.1.1999 on different criterion, i.e., "Seniority subject to rejection
being unfit". Indisputably, these 12 officers/respondents were found
unsuitable for promotion under the unamended rules by the DPC
held on 19.12.1998. Subsequent thereto, both set of officers had
been promoted notionally from the back dates. The appellants had
been given promotions as AEC against the vacancies for the year
1994-95 while the respondents were given notional promotions
against the vacancies for the years 1996 and 1997. The seniority list
dated 12.7.2000 was prepared accordingly. As the appellants had
been given notional promotion w.e.f. 6.12.1995 and the respondents
w.e.f. 28.2.1997 and 13.8.1997, their inter se seniority had rightly
been determined while issuing seniority list dated 12.7.2000.
27.The law permits promotion with retrospective effect
only in exceptional circumstances when there has been some legal
impediment in making the promotions, like an intervention by the
Court. An officer cannot be granted seniority prior to his birth in
the cadre adversely affecting the seniority of other officer who had
been appointed prior to him. "The late comers to the regular
stream cannot steal a march over the early arrivals in the regular
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queue" (vide Dr. S.P. Kapoor vs. State of Himachal Pradesh AIR 1981
SC 2181; Shitala Prasad Shukla vs. State of U.P. & Ors., AIR 1986 SC
1859; and Uttaranchal Forest Rangers' Assn. (Direct Recruit) & Ors.
vs. State of U.P. & Ors., (2006) 10 SCC 346).”
11.The learned Counsel for the respondent also relied upon yet
another judgment of Honourable Supreme Court in the case of State of
Uttar Pradesh and others vs Prem Chopra, reported in 2022 Live
Law (SC) 378.
12.The learned Counsel for the respondent relied upon the
above judgments for the proposition that the Writ Petitioner/respondent
was entitled to get promotion with retrospective effect by virtue of the
precedents particularly, the two judgments of Honourable Supreme Court
above referred to. The relief conceded by the learned Special
Government Pleader for the respondents before the Writ Court is to grant
promotion to the Writ Petitioner with retrospective effect without
monetary benefits and the appellants are benefited by the order based on
the concession made by the learned Special Government Pleader
appearing for the respondents before the Writ Court.
13.Though argument was advanced by the learned Special
Government Pleader for the appellants to the effect that retrospective
promotion cannot be permitted, as there is no rule for granting
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retrospective promotion, the view expressed by the Honourable Supreme
Court in the judgments above referred to clearly indicate that the
respondent, whose promotion was deferred for more than seven years
purely on account of an interim order granted in a Writ Petition, which
was later dismissed, is entitled to get retrospective promotion. Hence,
this Court find no merit in this Writ Appeal. Accordingly, this Writ Appeal
is dismissed. The first appellant is directed to pass appropriate orders,
as it was directed by the learned Single Judge within a period of six
weeks from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
[S.S.S.R., J.] [S.S.Y., J.]
12.08.2022
Index : Yes / No
cmr
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W.A.(MD)No.857 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
cmr
W.A(MD)No.857 of 2022
12.08.2022
https://www.mhc.tn.gov.in/judis
