Madras High Court
M.Ernest Gabriel vs Tuticorin Port Trust on 11 July, 2013
Author: T.Raja
Bench: T.Raja
IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2013 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.No.9207 of 2004 M.Ernest Gabriel ... Petitioner Vs. 1.Tuticorin Port Trust, Rep. by its Chairman, Tuticorin 628 004. 2.M.Chithiraiputhiran Assistant Traffic Manager, Tuticorin Port Trust, Tuticorin 628 004. ... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus as stated therein. For Petitioner :Ms.R.Vaigai For R1 :Mr.A.Abdul Hameed for M/s.Anan, Abdul & Vinoth Associates For R2 : No Appearance ORDER
The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the order passed by the first respondent / the Chairman, Tuticorin Port Trust, Tuticorin, in Ref.No.S-5/9/2003-E.1, dated 12.09.2003, by calling for the records connected thereto and consequently, to direct the first respondent to promote the petitioner as Wharf Superintendent with effect from 07.06.1991 and Assistant Traffic Manager with effect from 16.04.1994 and pay higher salary as has been paid to the petitioner's junior viz. Second respondent, together with higher terminal benefits with interest at 12% per annum.
2. At the outset, it may be mentioned that Ms.Vaigai, learned counsel appearing for the petitioner stated that she is not pressing the first part of the prayer regarding promotion, however, she is pressing for stepping up of pay on par with his junior viz., the second respondent.
3. It is submitted by the learned counsel for the petitioner that, after the petitioner was appointed as Lower Division Clerk on 01.10.1963, he was promoted as Upper Division Clerk on 25.10.1972 and thereafter, he was further promoted as Supervisor on 10.06.1977. After two years from the date of his appointment in the post of Supervisor, his services were regularised in the post of Supervisor and he was also placed at 7th position in the Seniority List. Whileso, the second respondent was also appointed as Supervisor on 16.06.1980 and after eight years, his services were regularised in the cadre of Supervisor on 01.04.1988 with effect from 16.06.1980 and he was placed at 28th position in the Seniority List. From this, it is clear that the second respondent was much junior to the petitioner in the post of Supervisor. Whileso, a vacancy had arisen against the post of "Wharf Superintendent" in Class-II on 01.02.1991. As per the recruitment rules, the said vacancy was required to be filled up by promotion from the grade of Supervisor with 8 years service in that grade. But, the second respondent was promoted by the first respondent vide order dated 07.06.1991 on adhoc basis subject to obtaining clarification from the Central Government, especially, when he was not even within the normal or extended zone of consideration. Aggrieved by the said promotion, when a writ petition No.8008 of 1991 was filed by one A.J.Franklin, the first respondent herein also filed a counter stating that the adhoc promotion given to the second respondent was under review and the claim of the petitioner was also under consideration. In view of such submission made by the first respondent, the said writ petition was closed with a liberty to the first respondent to take a decision within period of twelve weeks. Subsequently, the first respondent promoted the said A.J.Franklin as Wharf Superintendent with effect from 31.12.1992.
4. At this juncture, learned counsel for the petitioner submitted that even during the pendency of the aforesaid writ petition, the second respondent was further promoted as Assistant Traffic Manager with effect from 16.04.1994, however, on the basis of the recommendation of the Departmental Promotion Committee, the first respondent passed an order dated 06.03.1998, promoting the petitioner along with A.J.Franklin as Wharf Superintendent on regular basis with effect from 07.06.1991 and 31.12.1992 respectively. But, unfortunately, the first respondent did not revert the second respondent and allowed him to continue as Wharf Superintendent, which is totally against the orders passed by this Court and relevant decision made by the Central Government. As a result, he was allowed to get more pay than the petitioner. Moreover, the first respondent also regularised the second respondent in the post of Wharf Superintendent with effect from 14.05.1993 and as Assistant Traffic Manager with effect from 31.08.1996. In view of that, the petitioner made a representation dated 15.12.1997, objecting to the promotion given to the second respondent as Wharf Superintendent by indicating that one R.Mayakuthan, senior-most Supervisor was wrongly left out, whereas the illegal promotions given to the second respondent as Wharf Superintendent and subsequent promotion as Assistant Traffic Manager were allowed to continue by the first respondent ignoring the fact that the petitioner was senior to the second respondent and that the petitioner should be promoted first prior to the second respondent. After some time, on 24.02.1998, the petitioner was promoted as Assistant Traffic Manager on adhoc basis. At this juncture, the first respondent, by considering the petitioner's representation dated 15.12.1997, realising the mistake in promoting the second respondent/junior most person in the post of Assistant Traffic Manager, cancelled the order of regularisation of adhoc promotions given to the second respondent with effect from 14.05.1993 and Assistant Traffic Manager with effect from 31.08.1996. Aggrieved by the same, the second respondent filed a writ petition in W.P.No.3013 of 1998 and thereby obtained an interim order of stay against the cancellation order passed by the first respondent. In view of that, he was allowed to continue in the said post without any interruption and as a result, he was drawing higher pay than the senior in the matter of fitment and increments. The petitioner herein filed a counter therein bringing to the notice of the Court that the second respondent herein is much junior to the petitioner herein, therefore, in terms of Rules and other orders passed by the Central Government, the second respondent cannot be promoted above the petitioner. Accepting the said claim of the petitioner, the said writ petition filed by the second respondent was dismissed on 18.02.2003. Even the first respondent, in their counter affidavit filed in W.P.No.3013 of 1998, specifically stated that the petitioner is the senior-most person and he is entitled to all the benefits, therefore, the second respondent cannot steal a march over the petitioner either in promotions or in getting monetary benefits. Unfortunately, after the dismissal of the writ petition filed by the second respondent, the first respondent regularised his promotion as Wharf Superintendent once again with effect from 14.05.1993, therefore, the said action of the first respondent is not only irrational, but also against the undertaking given before this Court, she argued.
5. Finally, by relying upon Fundamental Rule 22, she contended that cases for stepping up of the pay of seniors in a pay scale to that of juniors are generally considered, if both senior and junior officers belong to same categories and if junior is wrongly promoted by overlooking the seniority. As this was not considered, she pleaded, a direction may be given to the first respondent to grant the limited prayer as sought for, by setting aside the impugned order passed by the first respondent.
6. Per contra, learned counsel appearing for the first respondent, by filing a detailed counter, submitted that when the impugned order was passed cancelling the erroneous promotion given to the second respondent on the basis of the representation of the petitioner, no other benefit would enure to the petitioner. Even if it is presumed that a wrong benefit was given to the second respondent, it was subsequently cancelled by the first respondent, therefore, one error committed by the first respondent office would not pave the way for another error to be committed. Moreover, when the petitioner was given promotion as per his seniority and he was in no way affected during his tenure in the first respondent Port Trust, he is not entitled to derive benefits from the erroneous benefits given to the second respondent in matters of promotion or the higher salary, for the reason that the impugned order has cancelled his erroneous promotion. While referring to the order passed by this Court in W.P.No.8008 of 1991, dated 11.09.1997, it was submitted that this Court had given a direction to the first respondent stating that if the second respondent was given improper adhoc promotion, it was open to the first respondent to take appropriate decision. Accordingly, the adhoc promotion given to the second respondent and the claim of the petitioner were properly considered and finally, on the basis of clarification issued by the Central Government, the promotion given to the second respondent was rescinded by the impugned order making it clear that the second respondent was entitled to be promoted only from 01.07.2000 and therefore, the promotion given to the second respondent as Assistant Traffic Manager with effect from 31.08.1996 was cancelled. Hence, when the first respondent has already cancelled the improper adhoc promotion given to the second respondent, the argument placed before this Court by the learned counsel for the petitioner that the improper promotion and the benefits enured to the second respondent should also be extended to the petitioner, is absolutely untenable in law.
7. No representation for the second respondent, in spite of notice ordered by this Court on 04.11.2009.
8. Heard both sides.
9. It is no doubt true that the petitioner was placed at 7th position in the Seniority List at the time of his promotion as Supervisor on 10.06.1977, whereas the second respondent was promoted as Supervisor only on 16.06.1980 and he was placed at 28th position in the seniority list. Whileso, a vacancy had arisen in the grade of Wharf Superintendent in Class-II with effect from 01.02.1991. According to the Recruitment Rules, the said vacancy has to be filled up by promotion from the grade of Supervisor with 8 years service in the said grade. But, according to 40 point roster maintained for the post of Wharf Superintendent, the vacancy fell at roster point no.7 was meant for unreserved candidate, however, the vacancy was required to be treated as the one reserved for Scheduled Caste, for the reason that the single vacancy reserved for Scheduled Caste against point No.1 of the roaster was to be carried over to the third year of recruitment. It is also an admitted fact that, as per the Government instructions for filling up the vacancy by promotion on selection basis to Class I and Class II categories of posts, qualified SC / ST candidates, who are available within the normal or extended zone of consideration, could be considered for such promotion. While considering this issue, this Court in the earlier writ petition No.8008 of 1991, dated 11.09.1997, recorded the contention that there was no Scheduled Caste candidate available within the normal or extended zone of consideration and further stated that when a proposal was initiated to fill up the vacancy by promotion from the general category, the Liasion Officer for SC/ST interpreted that separate zone of consideration should be applicable to Class I and II posts and thereby he had recommended to fill up the vacancy with a Scheduled Caste candidate by applying separate zone of consideration subject to clarification from the Central Government. In view of the above clarification made by the Liasioning Officer for SC/ST, although the first respondent was of the view that the second respondent herein was not within the normal or extended zone of consideration among the eligible employees working in the feeder grade of Supervisor, he was given adhoc promotion to the grade of Wharf Superintendent with effect from 07.06.1991, pending clarification from the Government with regard to zone of consideration. In view of the position that the adhoc promotion of the second respondent herein as well as the petitioner herein was under review, this Court gave a liberty to the first respondent to consider whether the adhoc promotion given to the second respondent was improper and if so, there was no difficulty for the writ petitioner therein-A.J.Franklin, who was senior to the second respondent herein and the petitioner herein to get appropriate relief. In the light of the order passed by this Court, the first respondent had already passed an order dated 24.02.1998 cancelling the regularisation of adhoc promotion of the second respondent as Wharf Superintendent with effect from 14.05.1993 and Assistant Traffic Manager with effect from 31.08.1996. Aggrieved by the said order, the second respondent herein filed a writ petition in W.P.No.3013 of 1998, impleading the Tuticorin Port Trust, A.J.Franklin and the petitioner herein as necessary party and thereafter, he obtained an interim order of stay against the order dated 24.02.1998 passed by the first respondent cancelling the promotion given to him. Finally, this Court dismissed the said writ petition on 18.02.2003, by holding that the impugned order passed by the first respondent dated 24.02.1998 was made only to enable the first respondent Port Trust to implement the order passed by this Court in W.P.No.8008 of 1991, dated 11.09.1997. Although the first respondent as early as 24.02.1998 had cancelled the adhoc promotion given to the second respondent as Wharf Superintendent with effect from 14.05.1993 and Assistant Traffic Manager with effect from 31.08.1996, it could be seen that the first respondent had taken a prompt action in setting right the wrong promotion given to the second respondent on 24.02.1998 itself. But, unfortunately, the second respondent filed a writ petition in W.P.No.3013 of 1998 challenging the said cancellation order and thereby obtained an order of stay. In view of the pendency of the writ petition, till the dismissal of the same on 18.02.2003, by virtue of the interim order passed in the writ petition, the second respondent herein was unjustly enriching the benefit conferred to him. Again, after the dismissal of the writ petition in W.P.No.3013 of 1998 filed by the second respondent herein on 18.02.2003, the first respondent passed the present impugned order reiterating its stand that adhoc promotion previously given to the second respondent should not be continued and he should be regularised only with effect from 01.07.2000, as rightly stated by the petitioner. Therefore, when the first respondent has rightly acted on the basis of the earlier two orders passed by this Court as stated above, no fault can be found against the first respondent. Moreover, the second respondent was given erroneous promotion only on the basis of a wrong clarification made by the Liasioning Officer for SC/ST, who interpreted that separate zone of consideration should be applicable to Class I and II posts to fill up the vacancy with a Scheduled Caste candidate by applying separate zone of consideration after obtaining approval from the Central Government. Further, when this Court in W.P.No.8008 of 1991, dated 11.09.1997, had directed the first respondent to rectify the mistake, the first respondent acting on the order passed by this Court, realising the mistake in giving adhoc promotion given to the second respondent, rescinded the same by order dated 24.02.1998. Subsequently, when the same was challenged unsuccessfully by filing a writ petition in W.P.No.3013 of 1998, the same was also dismissed on 18.02.2003 by this Court. Therefore, the application of Fundamental Rule 22 cannot be made applicable to the petitioner's case, for the reason that the instances brought before this Court, as stated above, do not constitute an anomaly for stepping up of pay with reference to juniors, for, the second respondent was not promoted on a regular basis.
10. Moreover, the contention of the learned counsel for the petitioner that even after the dismissal of the writ petition No.3013 of 1998, the second respondent was given promotion once again with effect from 14.05.1993 is not correct, since the first respondent by proceedings dated 21.04.2003 cancelled the regularisation of adhoc promotion of the second respondent herein from the post of Assistant Traffic Manager with effect from 31.08.1996.
10. Resultantly, it should be mentioned that what was given to the second respondent herein being only erroneous promotion and the same has been rightly set right by the first respondent by orders dated 24.02.1998 and 12.09.2003, the petitioner cannot claim any benefit, that was, admittedly, given unlawfully to the second respondent herein and subsequently snatched away by the first respondent, hence, what was taken away from the second respondent as illegal cannot be given to the petitioner legally.
11. In the result, for the aforesaid observations, the writ petition fails and it is dismissed accordingly. No Costs.
11.07.2013
Index : Yes/No
Internet:Yes/No
rkm
T.RAJA,J.
Rkm
To
1.The Chairman,
Tuticorin Port Trust,
Tuticorin 628 004.
W.P.No.9207 of 2004
11.07.2013