Madras High Court
A.S.Janaardhanan vs The District Collector on 25 September, 2006
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 25/09/2006 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P(MD)No.7012 of 2006 A.S.Janaardhanan ... Petitioner Vs. 1. The District Collector, Madurai District, Madurai. 2. The Commissioner of Revenue, Administrative Officer, Chepauk, Chennai - 600 005. 3. The Secretary to Government of Tamil Nadu, Revenue Department, Secretariat, Fort St.George, Chennai - 600 009. ... Respondents Prayer Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the 3rd respondent in reference letter No.44589/Ser.3(1)/2005-2 dated 5.7.2006 and quash the order passed by the 3rd respondent and direct the 3rd respondent to sanction the fixation of arrears of pay and allowances with interest thereon with retrospective effect from 3.7.1995 to 7.11.2002 in the cadre of Deputy Tahsildar and to sanction the fixation of arrears of pay and allowances with interest thereon in the cadre of Tahsildar with effect from 8.11.20002 to 30.11.2004 on par with the petitioners junior N.S.Sivakumar, who joined on the dates mentioned above. (Prayer amended as per the order of the Court dated 7/9/2006 in M.P.No.1/2006) !For Petitioner ... Mr.S.Visvalingam ^For Respondents ... Mr.D.Gandhiraj, Government Advocate :ORDER
The amended prayer in the writ petition is to issue a writ of certiorarified mandamus calling for the records of the 3rd respondent in reference letter No.44589/Ser.3(1)/2005-2, dated 5.7.2006 and quash the order passed by the 3rd respondent and direct the 3rd respondent to sanction fixation of arrears of pay and allowances with interest thereon with retrospective effect from 3.7.1995 to 7.11.2002 in the cadre of Deputy Tahsildar and to sanction the fixation of arrears of pay and allowances with interest thereon in the cadre of Tahsildar with effect from 8.11.2002 to 30.11.2004 on par with the petitioner's junior N.S.Sivakumar.
2. The brief facts necessary for disposal of the writ petition are as follows.
(a) Petitioner was appointed as Junior Assistant in the Revenue Department through TNPSC and he joined duty on 16.12.1971. He was subsequently promoted as Revenue Inspector and posted at Thirupparankundram Firka of Madurai south taluk.
(b) Petitioner countersigned a patta in the year 1986 in favour of one Lakshmi and Dhanam after observing all formalities as per the Revenue Standing Orders and later on it was found false. According to the petitioner, as per the Revenue Standing Order No.30, if patta is not found correct, it will be cancelled and that patta will be issued to a correct person, after verifying all the records and the aggrieved person can file an appeal before the Revenue Divisional Officer, further appeal to the District Revenue Officer and then to the District Collector and Special Deputy Collector, meant for patta and land disputes and ultimately to the Commissioner of Revenue Administration.
(c) Petitioner states that for the alleged issue of false patta, a criminal case was registered against the petitioner on 9.10.1992 in crime No.21 of 1989 by the District Crime Branch and it was tried in C.C.No.1308 of 1992 by the learned Judicial Magistrate No.I, Madurai and the same was disposed of on 15.3.1999, holding that the petitioner is not found guilty. Petitioner was the 9th accused in the said case.
(d) It is the further case of the petitioner that due to the pendency of the criminal case, he was not promoted as Deputy Tahsildar and his name was also not included in the panel of the year 1994. After the acquittal in the criminal case, petitioner filed application for inclusion of his name in the panel of Deputy Tahsildar for the year 1994 and also to give him all monetary benefits as it was given to his Junior N.S.Sivakumar, who joined as Deputy Tahsildar on 3.7.1995. Since there was no reply petitioner filed O.A.No.5666 of 2001 on the file of the Tamil Nadu Administrative Tribunal and by order dated 3.9.2001 the Tribunal directed to include the petitioner's name in the panel of Deputy Tahsildar for the year 1994. Thereafter Government issued G.O.3(D)No.1, Revenue Services Department, dated 4.2.2003 ordering to include the name of the petitioner in the panel of Deputy Tahsildar for the year 1994, pursuant to which the District Collector passed an order on 31.3.2003.
(e) In the meantime, petitioner became eligible for the panel of Deputy Tahsildar for the year 2000 and joined as Deputy Tahsildar on 1.1.2003 at Taluk Office, Madurai South. Petitioner gave a representation for inclusion of his name in the list of Tahsildar for the year 2001 and the Government issued G.O.No.2(D) No.624 Revenue Services 3(1) Department, dated 11.10.2004 and included petitioner's name in the list of Tahsildar for the year 2001 and the District Collector by his proceeding dated 3.11.2004 issued orders and the petitioner also joined as Tahsildar (DRS) Madurai North on 12.11.2004 and retired on 30.11.2004.
(f) Since the petitioner was acquitted from the criminal charges, his name is bound to be included in the list of Deputy Tahsildar for the year 1994 and he is entitled to be given all service benefits including monetary benefits with effect from 3.7.1005 i.e, from the date of promotion given to his Junior N.S.Sivakumar. Petitioner submitted a representation for claiming the said benefit before the Commissioner of Revenue Administration on 12.6.2003 and the same was rejected against which petitioner filed appeal before the Secretary Revenue Department on 12.10.2004 and no order has been passed till date. Therefore petitioner has filed the present writ petition seeking fixation of his pay and allowances with effect from 3.7.1995 to 30.11.2004 with interest.
3. The respondents have filed counter affidavit wherein it is stated that petitioner's name was not included in the list of Deputy Tahsildar in the year 1994 in the list published on 29.6.1994 as he was involved in criminal case in C.C.No.1308 of 1992 and his junior N.S.Sivakumar was included in the panel and after acquittal petitioner's name was included in the panel of the Deputy Tahsildar for the year 2000 and his services in the cadre of Deputy Tahsildar was regularised from 2.1.2003. In G.O.3(D) dated 4.2.2003 a direction was issued, pursuant to the order passed by the Tribunal to include petitioner's name in the panel of Deputy Tahsildar for the year 1994, if he is otherwise found fit and suitable for promotion. Petitioner sent petition to the Special Commissioner and Commissioner of Revenue Administration on 11.4.2003 and prayed for inclusion of his name in the list of Tahsildar for the year 2001 with due seniority on par with his juniors. First respondent sent a proposal to the Special Commissioner to effect relaxation of Rule 7(b) and 8(a) of the Tamil Nadu Revenue Subordinate Service Rules, so as to include his name in the panel for Tahsildar for the year 2001 and the Government relaxed the said rule by issuing G.O.2(D)No.624 dated 11.10.2004 and accordingly petitioner's name was included in the panel of Tahsildar in the year 2001. Petitioner's claim to pay Deputy Tahsildar Salary from 3.7.1995 till 7.11.2002 and to pay Tahsildar pay from 8.11.2002 to 30.11.2005 was rejected as he has not acted as Deputy Tahsildar during the said period and he has not completed Police Training for 42 days, Magisterial Training for the period of 6 months/4 months and not completed the period of probation.
4. The learned counsel for the petitioner argued that admittedly as per the counter affidavit, petitioner's name was not included in 1994 panel on the ground of pendency of criminal case and as the criminal case ended in acquittal, the consequences should follow that the petitioner's name is to be included in the panel and bound to be given promotion as Deputy Tahsildar as his junior was promoted and the rejection of notional promotion given to the petitioner from 3.7.1995 is totally erroneous and the petitioner is entitled to be given promotion as Deputy Tahsildar from the said date with all monetary benefits.
5. The learned Government Advocate on the basis of the counter affidavit argued that because of the pendency of the criminal case, petitioner's name was not included in the panel and the petitioner was given promotion after his acquittal in the criminal case. Petitioner having not worked as Deputy Tahsildar, is not entitled to claim salary for the above period.
6. I have considered the rival submissions made by the learned counsel for the petitioner as well as the respondents.
7. Admittedly, petitioner was acquitted in the criminal case and only due to the pendency of the criminal case he was denied promotion earlier. The acquittal in the criminal case absolved the petitioner from the charge and the denial of promotion due to the said pendency of the criminal case should be remedied by giving promotion from the date when his junior was promoted. Notional promotion is ordered to be given by the Special Commissioner, Chennai- 5, by order dated 14.6.2006 stating that monetary benefit can be given only from the date of actual joining as per FR.27. Even according to the counter affidavit, only due to the pendency of the criminal case, petitioner was not given promotion and if there is no criminal case petitioner ought to have been given promotion from 3.7.1995.
8. (a) Similar issue arose before the Honourable Supreme Court in the decision reported in AIR 1991 SC 2010 (Union of India v. K.V.Janakiraman) wherein in para 7 the Honourable Supreme Court held thus, "We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases."
The facts in that case is similar to the one in the present case, where the petitioner was not given promotion due to the pendency of the criminal case.
(b) In 1990 (1) SLJ 185 (C.O.Arumugam and others Vs. The State of Tamil Nadu and others), (para 5) it is held thus, "As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered from promotion according to his turn it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings of charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
(c) A Division Bench of this Court in the decision reported in 2005 (4) CTC 7 (The Secretary, Vallalar Gurukulam Higher Secondary School, Vadalur, Cuddalore District v. District Educational Officer, Cuddalore, Cuddalore District and another) in para 6 held thus, "........ Once a person is acquitted in a criminal case, it has to be deemed that he never committed that offence. This is because every judgment operates retrospectively unless expressly made prospectively, unlike a legislation which normally operates prospectively unless expressly made retrospectively. Since the employee has been acquitted in the criminal case that judgment will operate retrospectively and it has to be deemed that the teacher concerned was never guilty of that offence. Consequently, he is entitled to his salary for the period of his unemployment and he is entitled to reinstatement. We see no infirmily in the order of the learned single Judge. The position may have been different if disciplinary proceedings had also been instituted against the respondent, but that was not done."
(d) I have also considered similar issue in W.P.No.40895 of 2005 and by order dated 22.3.2006, following the above cited decision in 1990 (1) SLJ 185, directed the respondent therein to give promotion to the petitioner from the date of promotion given to his junior.
9. Following the above cited decisions, I hold that the respondents are not justified in denying salary to the petitioner in the post of Deputy Tahsildar from 3.7.1995 and therefore the impugned order is set aside. The respondents are directed to fix the salary and other benefits of the petitioner in the post of Deputy Tahsildar from 3.7.1995 to 7.11.2002 and in the post of Tahsildar from 8.11.2002 till 30.11.2004 and calculate the difference in pay after taking into consideration the salary already paid to the petitioner and pay the same within a period of eight weeks from the date of receipt of copy of this order. Consequently, the pension payable to the petitioner shall also be revised from 1.12.2004 and the difference in pension shall also be paid within the period mentioned above. Petitioner is not entitled to get interest for the above period.
The writ petition is ordered in the above terms. No costs. Conected miscellaneous petition is closed.
Vr To
1. The District Collector, Madurai District, Madurai.
2. The Commissioner of Revenue, Administrative Officer, Chepauk, Chennai - 600 005.
3. The Secretary to Government of Tamil Nadu, Revenue Department, Secretariat, Fort St.George, Chennai - 600 009.