Madras High Court
The Secretary To Government vs C.Palaniselvam on 4 September, 2023
2023/MHC/4462
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.09.2023
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
AND
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.A.(MD)Nos.122 to 128 of 2014 and 532 of 2017
and
M.P.(MD)Nos.1, 1, 1, 1, 1, 1, 1, 2, 2, 2, 2, 2 and 2 of 2014
and C.M.P.(MD)No.4521 of 2017
W.A(MD)No.122 of 2014:-
1.The Secretary to Government,
Revenue Department,
Government of Tamilnadu,
Fort St.George, Chennai – 600 009.
2.The Director of Survey and Settlement,
Chepauk, Chennai -5.
3.The Assistant Director of Survey and
Land Records,
District Collectorate Compound,
Pudukottai District. ...Appellants
-Vs.-
K.Chinnaiah (Died)
1/9
https://www.mhc.tn.gov.in/judis
C.Palaniselvam ...Respondent
(C.Palaniselvam was brought on record as legal representative of
deceased K.Chinnaiah, respondent, vide order of this Court in C.M.P.
(MD)No.8574 of 2018 dated 04.09.2023)
PRAYER:- Writ Appeal - filed under Clause 15 of Letters Patent Act, to
set aside the order dated 13.02.2013 made in W.P.(MD)No.5257 of 2006
on the file of this Court.
For Appellants : Mr.T.Amjad Khan
Government Advocate
For Respondent : Mr.S.Vellaichamy
****
COMMON JUDGMENT
(Judgment of the Court was delivered by DR.ANITA SUMANTH, J.)
These Writ Appeals have been filed by the State challenging
orders passed by Writ Court on 13.02.2013 and 14.10.2015.
2.The Writ Petitioners had been appointed as Surveyor/Draftsman
by a Selection Committee on 17.04.1983. Thereafter, the Assistant
Director of Survey and Land Records had prepared a seniority list,
wherein, irregularities were found. The seniority list was challenged
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before the Tamilnadu Administrative Tribunal, set aside and directed to
be re-done.
3.The Writ Petitioners were of the view that even thereafter, the
fixation of seniority and pay over benefits have not been in proper
manner and had, hence, made representations to restore regularisation, as
per seniority list dated 20.12.1995. Since those representations have not
been disposed by a long time, a Writ Petition came to be filed, wherein,
the prayer was for a Mandamus directing the respondents/appellants to
follow seniority list dated 20.12.1995 in letter and spirit and accord due
regularisation between 1988 and 1991 with all service benefits as sought
for.
4.The Writ Petition came to be disposed on 10.06.2009. The Writ
Court has narrated the submissions of the Writ Petitioners and has also
noted the fact that the respondents did not file a counter. In fine, though
the petitioners had sought a positive direction for fixing seniority as well
as service benefits, all that was granted to them was a benefit by way of a
direction to the respondents/appellants to consider the representations of
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the petitioners within a period of eight weeks from date of receipt of a
copy of that order.
5.That order has attained finality, as the Writ Petitioners did not
pursue the rejection of their request for a positive direction, satisfied with
a direction for disposal of their representations. In consequence of the
aforesaid order, the respondents passed order dated 15.10.2010, wherein,
the seniority of the respondents was fixed on various dates between
18.07.1988 and 13.05.1995, though notionally only. It is relevant to note
that, the order fixing seniority on notional basis, has not been challenged
by the Writ Petitioners.
6.Instead, one of the Writ Petitioners, by name, C.Durairaju, chose
to file an application alleging contempt of order dated 10.06.2009. The
Contempt Petition came to be disposed by order dated 23.12.2014,
wherein, the Writ Court found that the official respondents ought to have
provided benefit of regularisation for the period that he was regularised
in terms of order dated 15.10.2010. There is no reference to the fact that
the regularisation had only been notional.
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7. As against that order, the official respondents filed a Contempt
Appeal in Cont.A.(MD)No.1 of 2015. That appeal came to be decided on
28.04.2019, wherein, the Division Bench has specifically noted the fact
that the Writ Court had not issued any positive order directing
regularisation on 10.06.2009. All that had been granted to the Writ
Petitioners was the benefit of direction to the respondents to dispose their
representations. The representations had, indeed, been disposed on
15.10.2010 and hence, to that extent, there could not be no allegation of
contempt insofar as the order dated 10.06.2009 is concerned.
8.The Division Bench also noted the position that what has been
sought in the Contempt Petition, was grant of benefits in real terms as
against the direction in order dated 15.10.2010 to the effect that the
regularisation was only notional with effect from stipulated dates. They
were of the considered view that the prayer was not part of the relief that
had been sought at any stage and the Writ Petitioners, having accepted
order dated 15.10.2010 could not be seen to expand the scope of the
original relief at the stage of contempt.
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9.If at all the Writ Petitioners had aggrieved by the fact that order
dated 15.10.2010 only granted notional benefits and no relief in real
terms, the appropriate course of action would have been for the Writ
petitioners to challenge order dated 15.10.2010, which has not been done
till date. Hence, the Contempt Appeal came to be allowed by the Court.
10.As against that order, C.Durairaju filed an SLP in S.L.P.(C)Nos.
17378 of 2015, but chose to withdraw that SLP, when the matter was
listed for hearing 24.09.2015 seeking leave of the Court to file an
independent Writ Petition for the relief of granting seniority and
consequential benefit of regularisation. The Hon’ble Apex Court granted
liberty stating that if such Writ Petition is presented within two weeks
from that date, the High Court should look into the same within six
weeks therefrom, adjudicating it on its merits.
11.Thereafter, the petitioners have once again reiterated their
request for a Mandamus simplicitor directing the respondents to accord
due regularisation in the post of Surveyor and Draftsman with effect from
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18.07.1988 with all attendant and monetary benefits. The Writ Court
had noted the trajectory of events and directed the respondents to pay
monetary benefits from 18.07.1988 within a period of two months from
date of receipt of that order, as against which order, the present appeals
have been filed.
12.The appellants would harp on the admitted position that the
relief sought for could not be granted by way of a Mandamus in light of
order dated 15.10.2010 staring them in the face. Till such time the order
in Contempt Petition thereof was disturbed/varied, the Writ Petitioner
would not be entitled for anything more than a notional regularisation.
13.It is true that the Writ Petitioners thus far, obtained relief only
on paper. However, they have chosen to accede to the same, consciously
not challenging order dated 15.10.2010, despite there being several
opportunities for them to have done so. The fact that no positive
order/relief was granted to them by the Writ Court was specifically noted
in Contempt Appeal by order of the Division Bench dated 28.04.2015.
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14.The Division Bench had also noted specifically therein that the
ambit of the Contempt Appeal could not be expanded to cover those
reliefs that were never contemplated by the Writ Petitioners at the first
instance. Despite this, what the Writ Petitioners have merely reiterated
the prayer for Mandamus without seeking quash of order dated
15.10.2010 at the relevant point of time, for reasons best known to them.
15.There is a limit to which a prayer for Mandamus may be
stretched. In the present case, the Writ Petitioner's claim has expressively
been denied by way of order dated 15.10.2010 and that order has attained
finality. Thus, and having taken note of the detailed trajectory of events
that have unfolded from 2009 onwards, we are of the considered view
that these Writ Appeals are liable to be allowed and the order of Writ
Court reversed. These Writ Appeals are allowed. No costs.
Consequently, connected miscellaneous petitions are closed.
[A.S.M.J.,] & [R.V.J.,]
NCC :Yes/No 04.09.2023
Index :Yes/No (2/2)
cmr
https://www.mhc.tn.gov.in/judis
DR.ANITA SUMANTH, J.
AND
R.VIJAYAKUMAR, J.
cmr
W.A.(MD)Nos.122 to 128 of 2014 and 532 of 2017
04.09.2023
(2/2)
https://www.mhc.tn.gov.in/judis
