Madras High Court
The Secretary To Government vs M.Jeyam on 13 September, 2023
W.A.(MD) No.1543 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.(MD) No.1543 of 2023
and
C.M.P.(MD) No.11989 of 2023
1.The Secretary to Government
Social Welfare and Nutritious
Meal Programme Department
Secretariat, Chennai-600 009
2.The Commissioner of Social Welfare
and Nutritious Meal Programme
SIDCO Complex, 2nd Floor
Thiru Vi.Ka.Indistrial Estate
Guindy, Chennai-600 032 ... Appellants
-vs-
M.Jeyam ... Respondent
Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order, dated 12.04.2022, passed in W.P.(MD) No.18695 of 2016, on the file of
this Court.
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W.A.(MD) No.1543 of 2023
For Appellants : Mr.Veera Kathiravan
Additional Advocate General
assisted by Mr.J.Ashok
Additional Government Pleader
For Respondent : Mr.S.Visvalingam
JUDGMENT
[Judgment of the Court was made by D.BHARATHA CHAKRAVARTHY, J.]
This writ appeal is directed against the order of the learned Single
Judge, dated 12.04.2022, passed in W.P.(MD) No.18695 of 2016.
2. By the said order, the writ petition in W.P.(MD) No.18695 of
2016 filed by the respondent praying for issuance of a writ of certiorarified
mandamus to quash the order dated 10.08.2016, passed by the second
appellant and to consequently direct the appellants to promote her notionally
as Child Development Project Officer on par with her juniors and send revised
pension proposals to the Accountant General, Chennai, within a stipulated
time, was allowed by the learned Single Judge, on the following terms:
“11.Therefore, this Court is of the considered opinion
that the petitioner is entitled to promotion. Therefore, the
respondents are directed to place the petitioner's name above
the said Valliammal and grant promotion on the same date when
the said Valliammal was granted promotion, thereafter, confer
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W.A.(MD) No.1543 of 2023
all monetary benefits and pensionary benefits from that date
onwards. The petitioner has attained superannuation and has
retired from service. The first respondent is directed to submit
the proposal for pensionary benefits after granting promotion.
The petitioner is directed to submit the entire service records to
the first and second respondents along with a copy of this order.
Thereafter, the second respondent is directed to pass orders
within a period of 8 weeks from the date of receipt of a copy of
this order. Thereafter, the first respondent shall pass an order
within a period of eight weeks.”
3. The case of the respondent / writ petitioner is that she was
working as Grade-I Supervisor in the office of the Integrated Child
Development Service, Kangeyam and retired from service upon
superannuation on 28.02.2015. The seniority number of the respondent was
373 in the Grade-I Supervisor. The seniority number of one Valliammal was
388. While so, vide G.O.(3D) No.03, Social Welfare and Nutritious Meal
Programme, Chennai, dated 28.02.2011, the said Valliammal and other
juniors were promoted to the next higher post of Child Development Project
Officer, while the candidature of the respondent was overlooked and omitted.
Therefore, the respondent preferred an appeal to the first appellant on
03.03.2011 through proper channel. By a communication dated 03.03.2011,
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W.A.(MD) No.1543 of 2023
the District Project Officer, Tiruppur, forwarded the said appeal to the Director
of Social Welfare, Chennai.
4. Since the appeal was not considered by the appellants in time,
the respondent filed W.P.(MD) No.11716 of 2016 before this Court for issuance
of a writ of mandamus directing the appellants to pass appropriate orders on
her appeal dated 03.03.2011. By order dated 01.07.2016, the said writ
petition was disposed of with a direction to the appellants to pass orders on
the appeal filed by the respondent on merits and in accordance with law,
within a period of four weeks from the date of receipt of a copy of the order.
5. Thereafter, by a communication dated 05.08.2016, the
appellants stated that in view of the fire accident that took place in the office,
the records are not available and therefore, directed the respondent to furnish
fresh copies of the same through proper channel. Accordingly, when the
respondent submitted a fresh representation, the order impugned in the writ
petition dated 10.08.2016 was passed by the second appellant denying
promotion to the respondent.
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W.A.(MD) No.1543 of 2023
6. It is stated in the impugned order that promotion was granted
in the year 2011 and the appeal papers were not available and only after
disposal of the writ petition in W.P.(MD) No.11716 of 2016, belatedly, the
appeal papers were again resubmitted and therefore, since the appeal and
claim of the respondent were belated, her request for promotion was rejected.
Challenging the same, the respondent filed W.P.(MD) No.18695 of 2016.
7. The said writ petition was resisted by the appellants by filing a
counter affidavit. In the counter affidavit, the only ground raised by the
appellant was that the claim of the respondent is belated.
8. The learned Single Judge, by order dated 12.04.2022,
considered the issue and after holding that when the appeal preferred by the
respondent has been directed to be disposed of by the earlier order of this
Court, the claim of the respondent cannot be rejected, merely because appeal
papers were not available. The learned Single Judge also held that the
respondent had not approached the Court belatedly and allowed the writ
petition on the terms extracted above.
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W.A.(MD) No.1543 of 2023
9. Aggrieved by the same, the Department has filed this writ
appeal.
10. Mr.Veera Kathiravan, learned Additional Advocate General
appearing for the appellants would submit that when the writ petition is filed
claiming the benefit of promotion, it cannot be entertained belatedly. He
would further submit that the present attempt of the respondent is a post-
retirement attempt and therefore, the prayer of the respondent is hit by delay
and laches. He would further submit that in any event, the learned Single
Judge has directed payment of all the arrears, which is not even the prayer of
the respondent in her writ petition. He would also submit that when the
impugned order rejects the prayer of the respondent only on the ground of
delay and when the learned Single Judge found that the same untenable, the
matter should be remanded back to the appellants to consider the issue afresh
and straightaway promotion ought not to have been ordered.
11. Per contra, Mr.S.Visvalingam, learned counsel appearing for
the respondent, would submit that it is not a case of filing a writ petition after
retirement upon attaining superannuation. As a matter of fact, promotion was
granted to the said Valliammal and other juniors on 28.02.2011 and
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W.A.(MD) No.1543 of 2023
immediately thereof, within three days, an appeal was preferred by the
respondent through proper channel. The communication dated 03.03.2011 of
the District Project Officer, Tiruppur, forwarded the appeal to the Director of
Social Welfare, Chennai, would itself show that the respondent did not sleep
over her rights. Therefore, when no action has been taken, the respondent
earlier filed a writ petition before this Court, in which the appeal preferred by
her was directed to be considered on merits and in accordance with law. Even
then, the appeal was dismissed only on the technical ground of non-
availability of appeal papers due to the fire accident and also on the ground of
delay. Therefore, the learned Single Judge has rightly allowed the writ petition
filed by the respondent.
12. We have considered the rival submissions of either side and
perused the materials available on record.
13. Firstly, it can be seen that the respondent has filed the appeal
within the time i.e., within three days from the date of promotion. The said
fact is fortified by the letter dated 03.03.2011 sent by the District Project
Officer, Tiruppur, to the Director of Social Welfare, Chennai. The appeal was
not considered in time and not considered at all because of the fire accident,
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W.A.(MD) No.1543 of 2023
which happened in the office of the appellants and therefore, the delay is only
on account of the same and it cannot be attributed on the part of the
respondent. In any event, non-filing of appeal within the time or the delay in
approaching the Court was never canvassed by the appellants when the
respondent earlier filed W.P.(MD) No.11716 of 2016 and when the appeal filed
by the respondent was directed to be considered within a period fixed by this
Court, thereafter, it was not open for the appellants to again turn down the
appeal on the very same ground of non-availability of appeal papers or on the
ground of delay. When the appeal was filed within the time, there was no
question of rejecting the same on the ground of delay. When the appeal was
ultimately decided only by the order dated 10.08.2016, filing of the writ
petition in W.P.(MD) No.18695 of 2016 was on 24.09.2016, it cannot be hit by
delay and laches.
14. The next submission of the learned Additional Advocate
General that the matter could only have been remanded back to the appellants
also deserves no consideration in the instant case, because even though the
respondent has raised a specific ground that the said Valliammal is junior to
the respondent and she has also given the seniority numbers in the post of
Supervisor and when the same are all absolutely not in dispute and even in
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W.A.(MD) No.1543 of 2023
the counter affidavit when the said allegations were not denied and nothing
has been stated about the availability of other grounds etc., for consideration,
there was absolutely no occasion for this Court to remand the matter back to
the appellants. Suffice to state that the only ground on which the appellants
have rejected the claim of the respondent is that delay and laches and
therefore, once the learned Single Judge found that there was no delay and
laches, the writ petition shall stand automatically allowed. Therefore, we
reject the submission of the learned Additional Advocate General that the
matter should have been remanded back to the appellants. Even before us
neither in the grounds of the writ appeal nor by way of any affidavit, any other
disqualification or error in the claim of the respondent is brought to light.
15. Finally, we find merit in the third contention of the learned
Additional Advocate General that the learned Single Judge has allowed the
writ petition on the terms as extracted above, whereby the appellants are
liable to pay the entire arrears to the respondent. As a matter of fact, in the
writ petition itself, the respondent had claimed only notional promotion and
for sending revised pension proposals to the Accountant General. Therefore,
to that extent, we allow this writ appeal and hold that the writ petition in W.P.
(MD) No.18695 of 2016 shall be allowed as prayed for by the respondent.
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W.A.(MD) No.1543 of 2023
16. In the result, this writ appeal is partly allowed. The order
dated 12.04.2022, passed by the learned Single Judge in W.P.(MD) No.18695
of 2016, is modified to the effect that W.P.(MD) No.18695 of 2016 is allowed as
prayed for. However, the appellants herein will be liable to pay the arrears of
pension alone to the respondent. No costs. Consequently, connected
miscellaneous petition is closed.
[S.S.S.R., J.] [D.B.C., J.]
13.09.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
krk
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https://www.mhc.tn.gov.in/judis
W.A.(MD) No.1543 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
krk
W.A.(MD) No.1543 of 2023
and
C.M.P.(MD) No.11989 of 2023
13.09.2023
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https://www.mhc.tn.gov.in/judis
