Madras High Court

C.Markandan vs The District Collector on 9 April, 2025

Author: Battu Devanand

Bench: Battu Devanand

                                                                                        W.P.(MD)No.17863 of 2023

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              Reserved on : 26.03.2025

                                             Pronounced on : 09.04.2025

                                                          CORAM

                              THE HONOURABLE MR.JUSTICE BATTU DEVANAND

                                           W.P.(MD)No.17863 of 2023
                                         and WMP(MD)No.14948 of 2023

                C.Markandan                                                                    ... Petitioner
                                                               Vs.
                1.The District Collector,
                District Collector Office,
                Madurai – 625 020

                2.The District Revenue Officer,
                District Collector Office Campus,
                Madurai - 625 020

                3.The Revenue Divisional Officer,
                Usilampatti Division,
                Usilampatti,
                Madurai District.

                4.The Tahsildar,
                Peraiyur Taluk Office,
                Peraiyur,
                Madurai District.                                                              ... Respondents

                PRAYER in 24106 of 2024: Writ Petition filed under Article 226 of the
                Constitution of India for issuance of Writ of Certiorarified Mandamus, calling
                for records pertaining to the impugned order of the 4th respondent vide his


                1/19




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                                                                                         W.P.(MD)No.17863 of 2023

                letter in Na.Ka. No.2069/2019/A1 dated 09.02.2023 and quash the same as
                illegal and in so far as not regularizing the petitioners service for the period
                from 01.02.2018 to 18.03.2019 in the light of judgment passed by this High
                Court in WA (MD) No.147 of 2019 dated 05.03.2019 and consequently
                directing the respondents to grant retirement benefits along with interest within
                a stipulated time fixed by this Court.


                                       For Petitioner  : Mr.R.Karunanidhi
                                       For Respondents : Mr.N.Satheesh Kumar
                                                         Additional Government Pleader


                                                          ORDER

This writ petition has been filed to quash the proceedings issued by the

fourth respondent vide his letter in Na.Ka. No.2069/2019/A1 dated 09.02.2023

in so far as not regularizing his service for the period from 01.02.2018 to

18.03.2019 in the light of judgment passed by this Honble High Court in WA

(MD) No.147 of 2019 dated 05.03.2019 and for a consequential direction to the

respondents to grant retirement benefits along with interest within a stipulated

time fixed by this Court.

2. The brief facts that are necessary for the disposal of this writ petition

are as follows:

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(i) The petitioner was appointed as Village Thalaiyari as per the order of

the fourth respondent dated 17.03.1983 and he joined as Village Thalaiyari of

Muthu Nagaiahapuram on 20.03.1983. The petitioner produced the school

Transfer Certificate to the concerned authorities to show that his date of birth as

23.03.1961. But in his Service Register, his date of birth has been recorded as

28.01.1958 instead of 23.03.1961. It is the contention of the petitioner that this

error or mistake came to his knowledge only in the year 2015. Immediately

thereafter, the petitioner submitted a representation for change of his date of

birth in the Service Register to the fourth respondent. The fourth respondent

rejected his request stating that the request for change of date of birth ought to

have been submitted within five years from joining service. The petitioner

submitted the representation after 32 years and therefore, the same cannot be

entertained.

(ii) Thereafter, the petitioner submitted a representation to the first

respondent on 25.01.20166. Meanwhile, he was promoted as the Village

Administrative Officer on 13.10.2016. He continued in the service as the

Village Administrative Officer till 30.04.2018. To the shock and surprise of the

petitioner, the third respondent by order in Na.Ka.No.2696/2018/A1 dated

30.04.2018 rejected the appointment of the petitioner in the post of Village

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Administrative Officer. Immediately, he filed a writ petition against the order of

the third respondent dated 30.04.2018 before this Court in WP(MD)No.14497

of 2018 and the same was dismissed by this Court on 26.11.2018. Aggrieved by

the same, the petitioner preferred a Writ Appeal in WA.(MD). No. 147 of 2019.

A Division Bench of this Court allowed the writ appeal by its judgment dated

05.03.2019, holding that the appellant therein/petitioner is entitled to get his

date of birth changed as per the original date of birth as 23.03.1961 and

accordingly, he is entitled to continue in service till his retirement. The

respondents therein are directed to reinstate the petitioner within a week from

the date of receipt of a copy of the judgment. In compliance of the judgment of

the Division Bench of this Court, the petitioner was re-instated into service and

he continued his service as Village Administration Officer and retired from the

service on 31.03.2019.

(iii)Therafter, the petitioner submitted a detailed representations to the

respondents on 16.07.2019, 16.08.2019 and 04.07.2022 to disburse his

retirement benefits and other benefits expeditiously. But, there is no response.

After receipt of his representation on 19.07.2022, the third respondent sent

communication vide Na.Ka.No. 3032/2022/Al to the fourth respondent to take

necessary action to disburse his retirement benefits and other benefits to the

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petitioner.

(iv) Under these circumstances, the fourth Respondent without

considering the judgment of the Division Bench of this Court passed an order in

Na.Ka.No. 2069/2019/Al dated 09.02.2023 and rejected the retirement benefits

and other benefits for the period from 01.02.2018 to 18.03.2019. Aggrieved by

the said order, the present writ petition is filed.

3. The learned counsel for the petitioner submits that the impugned order

passed by the fourth respondent is unjust, unreasonable and arbitrary. The

learned counsel submits that a Division Bench of this Court, while allowing the

appeal filed by the petitioner by its judgment dated 05.03.2019, specifically held

that the petitioner is entitled to continue in service till his retirement. As such,

the impugned order issued by the fourth respondent denying the benefits from

the period 01.02.2018 to 18.03.2019 is contrary to the judgment of the Division

Bench. The learned counsel further contends that the impugned order is passed

without providing an opportunity of hearing or to submit an explanation by the

petitioner, which is violation of principles of natural justice. Accordingly, the

petitioner sought to quash the impugned order by allowing the writ petition.

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4(i)A Counter affidavit has been filed by the fourth respondent. It is

averred in the counter affidavit that as per the records, the service register was

opened for the petitioner only in the year 1997, even though the petitioner

joined the service as Village Thalaiyari in the year 1983. In the Service

of the same are indicated in the Service Register. The petitioner, who was

serving as Village Assistant can serve upto the age of 60 years. As such, the

petitioner's presumptive date of retirement as per the entry in the Service

birth in the service records as 23.03.1961 in the year 2015 and his

representation was rejected by the fourth respondent vide order dated

22.09.2015 on the ground that the request for change of date of birth can be

made only within five years from the date of joining in service. The petitioner

filed a suit and the learned District Munsif cum Judicial Magistrate, Peraiyur

ordered the fourth respondent to register the birth of the petitioner as

23.03.1961 in the birth register and to issue birth certificate as per the order

dated dated 26.05.2015 in Cr.M.P. 817 of 2015. In compliance of the order of

the learned District Munsif cum Judicial Magistrate, Peraiyur, birth certificate

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was issued to the Writ Petitioner in L.Dis.8674/2015 C1 dated 06.07.2015.

4(ii) It is further stated in the counter that in the meanwhile, the petitioner

was given promotion as Village Administrative Officer vide Roc.

30754/2016/G1 dated 19.06.2016 of the District Revenue Officer, Madurai. It is

not known as to how the petitioner herein could be given promotion as Village

Administrative Officer on 19.06.2016 when his presumptive date of birth on

attaining the age of 58 years was already crossed on the afternoon of

31.01.2016. In fact, as per the order of the Revenue Divisional Officer,

Usilampatti, dated 13.10.2016, the petitioner was posted as the Village

Administrative Officer and deputed for training vide proceedings dated

11.04.2017 of the Revenue Divisional officer. It is averred in the counter that on

the premise of setting right the wrong, the petitioner was permitted to retire in

the cadre of Village Assistant on attaining the age of superannuation on 60

years vide proceedings in ROC.No.2696/2018/A1 dated 30.04.2018 and the

excess amount paid to him in the post of Village Administrative Officer was

ordered to be recovered from him. Against the said order, the petitioner filed

WP(MD)No.14497 of 2018 to quash the said order and to permit him to

continue as the Village Administrative Officer and the same was dismissed by

this Court on 26.11.2018. In the writ appeal filed by the petitioner, a Division

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Bench of this Court by its judgment dated 05.03.2019 directed to provide

posting by changing his date of birth as 23.03.1961. As per the direction of the

Division Bench of this Court, the petitioner was permitted to re-join duty and

posted as the Village Administrative Officer,Kadaneri Group Village with effect

from 19.03.2019 and he was permitted to retire from service on attaining the age

of superannuation with effect from afternoon of 31.03.2019. Since he did not

serve during the period from 01.02.2018 to 18.03.2019 on the percept of 'no

work no pay' his pay was fixed notionally to enable him to get the pensionary

benefits in the cadre of Village Assistant where his entire service period

including the periods under suspension were regularized.

5. Basing on the averments made in the counter affidavit, the learned

Additional Government Pleader would submit that during the period of absence

from 31.01.2018 to 18.03.2019, the petitioner's pay was notionally fixed on the

basis of 'no work no pay' and his pensionary benefits would not be affected. He

would further submit that in fact, on the proposal submitted to the Accountant

General, to sanction final settlement of General Provident Fund payable to the

petitioner, the Accountant General raised several queries vide letter dated

12.04.2022. Only with great difficulty, the details were obtained from the

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petitioner and revised proposals was submitted to the Accountant General and

on getting the final closure of the General Provident Fund account, a sum of

Rs.3,93,881/- was sanctioned and sent to the account of the petitioner on

27.05.2022.

6. With respect to the pension proposals, the learned Additional

Government Pleader submits that the petitioner is not co-operating with the

fourth respondent for sending pensionary proposals and he is refused to provide

details and photographs of himself with his wife and even refused to sign in the

pension proposals and as a result of which sending pension proposals are being

unduly delayed. The petitioner was reminded by a letter in ROC.No.

2069/2019/A1 dated 03.09.2022 and by a letter dated 09.02.2013. But the

petitioner was insisting that he should be paid salary for the period of absence

only then he would submit pension proposals.

7. This Court gave its anxious consideration to the submissions made by

the respective counsels and carefully examined the materials available on

record.

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8. The petitioner was appointed as the Village Assistant (Thalaiyari) in

the year 1983. He was promoted as the Village Administrative Officer in the

year 2016. He continued his service as the Village Administrative Officer till

30.04.2019. The contention of the petitioner is that as per his School Transfer

Certificate his date of birth is 23.03.1961. But the concerned officers wrongly

entered his date of birth as 28.01.1958 in the service register. It is true that he

has to make application to rectify the mistake for changing the date of birth

within five years from joining the service as per Rule 49(c) of General Serviced

for Tamil Nadu State and Subordinate Services Rules. But the petitioner made

representation seeking to alter his date of birth in the year 2015 and the same

was rejected on the ground that the request is not made within five years from

the date of joining into service. Thereafter, the petitioner obtained orders from

the competent civil court i.e the District Munsif cum Judicial Magistrate,

Peraiyur in Cr.M.P.No.817 of 2015 dated 26.05.2015. Thereafter, the fourth

respondent issued birth certificate to the petitioner on 03.07.2015. Meanwhile,

the petitioner was promoted as the Village Administrative Officer and he joined

duty as the Village Administrative Officer on 13.10.2016. Thereafter, he was

permitted to retire from afternoon of 30.04.2018. However, he was permitted to

re-join duties in the light of the judgment of the Division Bench and as per the

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proceedings of the Revenue Divisional Officer dated 19.03.2019 and he joined

duty on 19.03.2019 and he was permitted to retire from service with effect from

31.03.2019 AN . The contention of the respondents is that since the petitioner

did not serve during the period from 31.01.2018 to 18.03.2019 on the percept of

'no work no pay' his pay was fixed notionally to enable him to get pensionary

benefits in the cadre of Village Assistant.

9. As seen from the materials available on record and as per the

contention of both parties, it is an admitted fact that till 30.04.2018, the

petitioner is in service. He was permitted to retire from the afternoon of

30.04.2018. Thereafter, in compliance of the judgment dated 05.03.2019 of the

Division Bench of this Court in WA(MD)No.147 of 2019, the Revenue

Divisional Officer, Usilampatti issued proceedings on 19.03.2019 to re-instate

the petitioner as the Village Administrative Officer and posted him as the

Village Administrative Officer at Kadaneri Group Village and the petitioner

joined duty on 19.03.2019. Thereafter, he was permitted to retire from service

on attaining the age of superannuation with effect from afternoon of

31.03.2019. As seen from the above, it is clear that from 01.02.2018 to

18.03.2019, the petitioner was not allowed to continue in service by the

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respondents taking into consideration of his date of birth as 28.01.1958. In

compliance of the judgment dated 05.03.2019 in WA(MD)No.147 of 2019 of a

Division Bench of this Court wherein it was declared that the petitioner is

entitled to get his date of birth changed as 23.03.1961 and in compliance of the

direction of this Court to continue the petitioner till his retirement by by

re-instating him, the petitioner was re-instated with effect from 19.03.2019 as

per the order of the Revenue Divisional Officer, Usilampatti. In the considered

opinion of this Court, the petitioner is not at fault to continue in service as

Village Administrative Officer from 01.02.2018 to 18.03.2019. As such, the

respondents cannot take a stand that since the petitioner did not serve during the

period from 01.02.2018 to 18.03.2019 on the percept of 'no work no pay' his

pay was fixed notionally to enable him to get pensionary benefits. The said

contention of the respondents is untenable and unsustainable in the eye of law.

10. The learned counsel for the petitioner has drawn attention of this

Court to the judgment of the Apex Court in the Commissioner of Karnataka

Housing Board Vs. C.Muddaiah reported in (2007) 7 SCC 689 disputing the

contention of the respondents 'no work no pay'. The relevant portion of the said

judgment is extracted herein under:

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''34. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected''.

11. The learned counsel for the petitioner also placed reliance on the

order dated 29.10.2024 in WP.No.9660 of 2019 of this Court. The relevant

portion of the said order is extracted herein under:

''13.On a comprehensive examination of the entire facts and circumstances of the case, it has to be accepted that the petitioner is not at fault in joining the duty as the respondents did not allow him. Though the WEBCO petitioner has claimed salary for the period from 28.12.2015 to 30.01.2017, in the considered opinion of this Court, he is not fully entitled to the same. Against

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the order of transfer dated 18.02.2016 without reporting to duty, he approached this Court by filing a Writ Petition only on 19.04.2016. The said legal proceedings are concluded only on 09.01.2017 when the Contempt Petition No.2716 of 2016 was closed. Thereafter, he joined duty at Hyderabad Unit on 31.01.2017. As such, in our considered view, the petitioner is entitled for the salary from 19.04.2016 to 30.01.2017 only.

14.A Division Bench of High Court of Calcutta in the case of "Hari Narayan Kirtania" (cited supra), has observed in paragraphs 30 and 31 which are extracted as under:

"30. It is not expected that the petitioner will proceed to Jaipur to join in the transferred post there since the said transfer followed by release of the petitioner from Calcutta Office was stayed for the interim period by the order of the Court together with the direction to allow the petitioner to continue in his pre- transfer posting. The absence of the petitioner from duty was not intentional on the part of the petitioner since he was prevented by the respondents, time and again, on the plea of instruction from the Ministry concerned. Respondents never informed the petitioner specifically about any such instruction of the Ministry.

31. It is our view that when the petitioner, time and again, made representations to the respondents to permit him to join at Calcutta Office after the stay order was passed by this Court in the writ application filed by him, and since his repeated representations were denied by the respondents by not allowing

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him to join his pre-transfer post at Calcutta he should not be penalised without any payment of salary on the plea of "No Work No Pay" basis, during his absence from the office. It can never be stated that the petitioner was at fault during that period by not doing any office work.

15. In Partha Sarathi Dash case (cited supra), the High Court Orisa at Cuttack held in paragraph 11 as under:

"11. This by itself shows that the petitioner was never terminated from service nor was allowed to work. The plea of abolition of the post or of treating the Petitioner as a surplus staff has not found favour with this Court in the earlier Writ Petition. Law is well settled that where an employee is willing to work but is prevented by the employer to do so unlawfully, he cannot be blamed much less denied his legitimate benefits such as salary etc. by invoking the principle of no work no pay. Law is well settled that the principle of 'no work no pay' is not absolute as was held by the Apex Court in the case of Commissioner. Karnataka Housing Board vrs. C. Muddaiah; reported in (2007) 7 SCC 689 and also in Union Territory of Dadra & Nagar Haveli V. Gulabhia M. Lad, reported in (2010) 5 SCC 775. Thus, there is no way by which the Petitioner can be deprived of his legitimate dues for the period during which he was wrongfully refused employment.

16. For the aforesaid reasons and by following the judgments stated supra, this Court is of the considered view that

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the petitioner should not be penalized without any payment of salary on the plea of 'no work no pay'. However, taking into consideration that the petitioner was not at fault in not joining duty during the period from 19.04.2016 to 30.01.2017, he is entitled to the salary. Accordingly, the Writ Petition is allowed in part with the following directions:

1. The impugned proceedings issued by the 1" respondent in Ref:IM/HR/40640 dated 07.02.2018 is hereby quashed.

2. The first respondent is directed to pay salary to the petitioner for the 3 COPYperiod from 19.04.2016 to 30.01.2017 within a period of eight weeks from the date of receipt of a copy of this order”.

12. On a comprehensive examination of the entire facts and

circumstances of the case, it came to understand that the petitioner is not at fault

for not continuing in service as the Village Administrative Officer from

01.02.2018 to 18.03.2019. As such, in the considered opinion of this Court, the

petitioner is entitled for all service benefits continuously till his retirement i.e

on 31.03.2019 FN. Accordingly, this Court holds that the order issued by the

fourth respondent dated 09.02.2023 impugned in this writ petition is illegal,

unjust and against the judgment dated 05.03.2019 in WA(MD)No.147 of 2019

and it is liable to be quashed.

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13. Accordingly, this writ petition is allowed with the following

directions: