The petitioner has filed this petition challenging the order of the 3rd respondent made in K.Dis No.431/E/2004 dated 23.12.2004 and for a direction to the respondents to refix his pay scale in the cadre of Office Superintendent with effect from 16.12.1993 as Rs.1,600-50-2,300-60-2,600/-, selection grade Office Superintendent from 27.12.1996 as Rs.6,500-200-10,500/- as Junior Administrative Officer with effect from 31.01.2000 as Rs.8,000-275-13,500/- with consequential other benefits such as increments, etc and pay the same to him.
2. The brief facts leading to the filing of this case are under :
(i) The petitioner entered the Tamil Nadu Ministerial Service in the Department of Director of Medical and Rural Services as Junior Assistant with effect from 03.05.1965. Then, he was given due promotion in the next category, i.e. in the post of Assistant on 27.12.1976. While he was working as Assistant, the 1st respondent herein issued a charge memo under Rule 17(b) of Tamil Nadu Civil Services (Discipline & Appeal) Rules, (hereinafter referred to as 'Rules') along with the main delinquent officers and also punished him with stoppage of increments for 3 years with cumulative effect without conducting proper enquiry as contemplated under the said Rules. The said punishment was challenged by the petitioner before the Tamil Nadu Administrative Tribunal (hereinafter referred to as the 'Tribunal') in O.A.No.4464 of 1995 and the Tribunal, by its order dated 05.07.2002 set aside the order of punishment made in G.O.(D) No.759, Health and Family Welfare Department, dated 09.06.1995.
(ii) Against the said order of the Tribunal, no appeal was preferred by the respondents and the petitioner's rank in the Ministerial Service was restored to its original position, thereby he became entitled to all the benefits in the service, such as promotion and consequential fixation of his pay with due increments, etc, namely, promotion as Office Superintendent from 16.12.1993 on par with his inter seniority viz., 1154 above his junior Thiru S.Balasubramanian, promotion as Junior Administrative Officer on par with his seniority above Mr.S.Balasubramanian as per the panel prepared for 1998-99 and promotion as Administrative Officer from 31.01.2000.
(iii) It is the further case of the petitioner that though the Tribunal by its order dated 05.07.2002 in O.A.No.4464 of 1995 had set aside the punishment order in G.O.(D) No.759 dated 09.06.1995 and no appeal was preferred against the said order, the 1st respondent has so far not taken any steps to regulate his promotion from the original inter seniority in consequence. Thereafter, the Tribunal, by its order dated 13.09.1995 in M.A.No.3784 of 1995 in O.A.No.4464 of 1995 issued directions to the respondents to give promotion to the petitioner as Office Superintendent which was considered by them after a lapse of two years from the date of the order. Then, the Tribunal, by an order dated 29.07.1998 in O.A.No.6156 of 1998 and by an order dated 09.12.1998 in O.A.No.10325 of 1998, directed the respondents to consider the representations of the petitioner dated 26.06.1998 and 02.12.1998 within the time stipulated. As there was no positive reply from the respondents, the petitioner filed another application in O.A.No.277 of 2000 before the Tribunal for a direction to include his name in the panel dated 06.12.1999 in the proceedings of the 1st respondent in R.Dis. 390/B2/3/99, which was ordered as prayed for. Against which, the respondents filed M.A.No.6284 of 2000 to vacate the direction which ended against them, resulting in confirmation of the earlier order in favour of the petitioner. On final conclusion, the Tribunal set aside the order of punishment imposed on the petitioner. According to the petitioner, his pay has to be fixed in the post of Administrative Officer with due increments therefrom till 30.09.2004, i.e., the date of his retirement.
(iv) In the meanwhile, the scale of pay for the post of Office Superintendent was fixed as Rs.1,600-60-2,660/- and the revised scale of pay for the post of selection grade Office Superintendent with effect from 27.12.1996 comes to Rs.6,500-200-10,500/-. The petitioner would state that this was to be availed counting the service rendered by him in the category of Selection Grade Assistant, as he has completed 10 years of service in the cadre of Office Superintendent; thereafter, as Junior Administrative Officer with effect from 26.11.1998, his pay scale has to be fixed as Rs.6,500-200-10,500/- with option for fixation of pay. According to the petitioner, he is entitled for the fixation of his scale of pay as Rs.8,000-275-13,500/- with effect from 31.01.2000 as Administrative Officer till his retirement on 30.09.2004 and if his pay scale is fixed consequent on his promotion right from Office Superintendent, he would have retired as Administrative Officer in the pay scale of Rs.8000-275-13,500/- till 30.09.2004; but, on the contrary, his last pay scale was fixed as Rs.7,975/-. Consequently, the order dated 23.12.2004 in K.Dis.No.431/E/2004 was passed by the Medical Officer Incharge ESI, Dispensary, Periyanaickenpalayam fixing the petitioner's pay scale as Rs.5,700-175-9,200/- with effect from 01.04.1997 and ordered to recover the alleged excess claim of pay and allowances of Rs.41,761/- in the DCRG claim of the petitioner. Challenging the said order of the 3rd respondent, the petitioner has filed the present writ petition.
3. In the additional affidavit, the petitioner has stated that after service of notice in the above writ petition, the 3rd respondent has ordered full payment of DCRG entitled to the petitioner and the same has been received by him as has been prayed for; the respondents vide proceedings No.83047/E2/3/2002 dated 10.02.2005 and proceedings No.K.Dis.No.01542/E2/05 dated 25.03.2005, have regularised the petitioner in the post of Office Superintendent, taking into account the original seniority on par with others and they have promoted the petitioner to the post of Junior Administrative Officer with effect from 03.06.1999 with consequential pensionary benefits only thereto and there has been no further action in that regard to give effect to that order. The petitioner has further stated that though he has been regularised in the post of Office Superintendent along with others, the consequential monetary benefits due to that post have not been provided as per rules. He would also state that the respondents have not appointed him to the post of selection grade Office Superintendent duly counting the services rendered by him in the lower post, which bear higher scale of pay of the selection grade Office Superintendent and that they have not given promotion due for the post of Administrative Officer with consequential monetary benefits.
4. The 1st respondent has filed counter affidavit and has stated that the petitioner was not included in the panel of Office Superintendent in the regular stream due to the disciplinary action initiated against him for certain lapses and for which he was awarded punishment by the Government in G.O.(D) No.759, Health and Family Welfare Department dated 09.06.1995 along with others. The petitioner challenged the said order of punishment before the Tribunal in O.A.No.4464 of 1995 and the Tribunal set aside the punishment order. The order of the Tribunal has not been challenged nor appeal has been filed against the said order. Since the Department, namely, the Unit Officer has not acted upon the orders of the Tribunal, the petitioner filed O.A.No.6156 of 1998 on 29.07.1998 and O.A.No.10325 of 1998 on 09.12.1998 before the Tribunal for restoration of his seniority and direction was issued by the Tribunal due to non-issuance of orders by the Department. The petitioner once again filed an Original Application in O.A.No.277 of 2000 before the Tribunal for a direction to include his name in the panel dated 06.12.1999. The unit authority, namely, the Director of Medical and Rural Health Services filed M.A.No.6284 of 2000 to vacate the directions ended in favour of the petitioner.
4a. Thereafter, the Director of Medical and Rural Health Services in Ref.No.83047/E2/3/02, dated 10.02.2005 restored the seniority of the petitioner in the post of Office Superintendent and Junior Administrative Officer and ordered to fix his pay with effect to Rule 17 of Fundamental Rules 27 and directed the Regional Administrative Medical Officer (ESI), Coimbatore to send proposals to the Government for fixation of pay through the Director of Medical and Rural Health Services (ESI), Chennai in May 2005. In the meantime, the pay of the petitioner in the post of Office Superintendent and Junior Administrative Officer has been fixed in consultation with the unit authority and proposals were sent to the Government and orders of the Government were awaited.
4b. The 1st respondent would further state that the Government has to create a super numery post for drawal of arrears since the individual has already retired from service and that the individual's next promotion of Administrative Officer is also pending for want of his Service Register which is held up at the Government level. The order issued by the Chief Medical Officer, Periyanaickenpalayam in K.Dis.No.431/E/04, dated 23.12.2004 has been restored and the eligible amount was paid to him vide Cheque No.000846, dated 27.04.2005 for Rs.41,761/- and the same was received by him on 28.04.2005.
4c. It is further stated in the counter that the petitioner approached the Tribunal and by an order dated 05.07.2002, the Tribunal set aside the punishment imposed on the petitioner for the disciplinary action initiated against him under
Section 17(b) of the Rules. The orders setting aside the punishment awarded to him were received by the Director of Medical and Rural Health Services, Chennai only on 18.10.2004, i.e. after the retirement of the petitioner. Hence, the 1st respondent viz., the Director of Medical and Rural Health Services, Chennai in his Proceedings Ref.No.83047/E2/3/2002, dated 10.02.2005 promoted him to the post of Office Superintendent duly restoring his seniority in the appropriate panel as per para II (i) (3) of G.O.Ms.No.368 Personnel and Administrative Reforms (Per-B) Department, dated 18.10.1993. He was also permitted for fixation of pay under Rule 17 of Fundamental Rules 27. Since the petitioner has already retired on 30.09.2004, he is given a paper promotion and ordered for fixation of pay as per G.O.Ms.No.120 Personnel and Administrative Reforms Department, dated 06.07.2001 notionally, by fixing his pay in the post of Junior Administrative Officer as on the date on which his junior joined duty as Junior Administrative Officer on 03.06.1999 for the purpose of pension and other terminal benefits.
4d. It is also stated by the 1st respondent that after sending necessary proposal to the Government, the 1st respondent has called for necessary panel particulars from the Director of Medical and Rural Health Services (ESI), Chennai so as to send necessary proposal to the Government for considering the request of the petitioner for inclusion of his name in the panel for the post of Administrative Officer published for the year 2001-2002. Since, fixation of pay in the post of Office Superintendent is under process by the Director of Medical and Rural Health Services (ESI), Chennai and proposals have been sent to the Government along with the Service Register of the petitioner, the particulars are not readily available. However, the 1st respondent has requested the Director of Medical Health Services (ESI), Chennai to expedite the panel particulars in respect of the petitioner and on receipt of the same, necessary proposal will be sent to the Government by the 1st respondent immediately and his request will be complied if he is otherwise qualified as per Rules in existence. According to the 1st respondent, the writ petition is unnecessary and he prays for dismissal of the same.
5. The Accountant General (A & E), Tamil Nadu, the 4th respondent herein has filed counter stating that the 1st respondent herein, being the Field Officer of the Comptroller and Auditor General of India is vested with the authority of authorising payment of pensionary benefits in respect of the retired/deceased employees of the Government of Tamil Nadu, in accordance with the provisions of the Tamil Nadu Pension Rules and the Government Orders issued from time to time.
5a. He has further stated that the pensionary benefits of the petitioner has already been authorized by the Accountant General Office and a revised proposal for fixation of pay on par with his junior in the scale of 6500-10500 was returned to the 2nd respondent for want of comparitive pay fixation statement and the Service Registers of the Juniors and for other corrections in the Service Registers of the petitioner in April 2005, but the same are yet to be received back by the 4th respondent office. It is also his submission that the petitioner has challenged the orders of the 3rd respondent in letter dated 23.12.2004, wherein, the pay scales of the petitioner had been fixed at Rs.5700-9200 in the post of Superintendent instead of Rs.8000-13,500 in the post of Administrative Officer and the consequential recovery of excess pay and allowances from the DCRG payable. According to the 4th respondent, the grant of promotion and the fixation of pay in the corresponding scales of pay on promotion are beyond the scope of his office and that the grievance of the petitioner and the remedial action therefor necessarily lies with the other respondents.
6. On the background pleadings, I have heard Mr.K.Rajkumar, learned counsel for the petitioner, Mr.A.Suresh, learned Government Advocate for respondents 1 to 3 and Ms.T.S.Selvarani, learned counsel appearing for the 4th respondent.
7. At the outset, learned counsel for the petitioner would submit that the prayer sought in the writ petition with regard to the challenge made to the impugned order dated 23.12.2004 has been withdrawn as per the proceedings of the respondents dated 25.03.2005 in No.K.Dis.No.01542/E2/05; therefore, the relief sought for in respect of the impugned proceedings has become infructuous and that the writ petition may be dismissed.
7a. Learned counsel would further contend that the relief sought by the petitioner in respect of the consequential promotion to the post of Office Superintendent has been given effect from 16.12.1993 as prayed for in the writ petition, but, the arrears accrued therein from 16.12.1993 has not been granted and the notional promotion to the post of Junior Administrative Officer has been granted to the petitioner with effect from 03.06.1999, but the arrears accrued therein has not been granted. Therefore, though the challenge made to the impugned order has become infructuous, the consequential relief sought by the petitioner has not been granted to him in respect of arrears of salary in the promoted posts of Office Superintendent and Junior Administrative Officer from the respective dates and the further relief of promotion to the post of Administrative Officer from 31.01.2000 on par with his immediate juniors with arrears and also for sanction of Selection Grade Office Superintendent with effect from 27.12.1996 to 02.06.1999 along with re-fixation of his retirement benefits as on the date of retirement on 30.09.2004 has to be considered by the respondents. Therefore, he would submit that the grievance of the petitioner may be considered in accordance with law and as per Rules.
7b. At the end of his arguments, learned counsel for the petitioner had a specific apprehension about the stand taken by the respondents in the counter that the grant of notional benefits has to be considered only for the purpose of pension and other terminal benefits and therefore, as per Rule 17 of Fundamental Rules 27, the petitioner is entitled only for pensionary benefits and not for other benefits. He would submit that the petitioner's claim for arrears of salary and other benefits in the notional promotions so far made have to be considered by the respondents and he pointed out that the respondents, in the counter affidavit have not indicated about any proposal in respect of the arrears amount claimed by the petitioner.
7c. In support of his contentions, learned counsel for the petitioner has relied on the following :
(i) a decision of the Supreme Court reported in (1993) 23 Administrative Tribunals Cases 322 in the case of Union of India and others vs. K.V.Jankiraman and others :
25. 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.
26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine disciplinary in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum :
"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."
(ii) yet another decision of the Supreme Court reported in AIR 1962 SC 1334 in the case of Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh :
"13. This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not be in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work. "
(iii) an unreported decision of this court dated 21.01.2008 in W.P.Nos.825 and 826 of 2007 in the case of K.Gurusamy vs. The Commissioner, Commercial Taxes, Chennai 600 006 :
"21. Since the petitioner was denied his legitimate promotion only on the basis of the issuance of charge-memo issued under Rule 17(b) of the Rules and subsequently imposed with the punishment of stoppage of increment for one year, which itself has been held to be not valid by this court and since no other reasons are pleaded to deny his promotion, the petitioner is directed to be given all his monetary benefits, which will accrue to him in the post of ACTO."
(iv) yet another decision of this court reported in 2009 (3) TLNJ 132 (Civil) in the case of State of Tamil Nadu, rep. by Principal Secretary, Home (SC Department) vs. R.Ramarajan and others :
"For the above said reasons, we see no reason to interfere in any manner with the order passed by the CAT. Accordingly, the order passed by the CAT quashing the very charge-memo dated 29.09.2006 issued against the first respondent is confirmed. That being the position, in the light of the recommendation made by the Screening Committee, which we quoted above, the first respondent being fit for promotion to the rank of DIG, in the peculiar facts and circumstances of the case and since it is reported that the first respondent is due to retire on 30.06.2009, we deem it appropriate to direct the Government to forthwith promote the first respondent to the post of DIG and to extend him all other service benefits to which the first respondent is entitled for as a result of quashing of charge-memo."
8. It is seen that as regards the relief sought in the writ petition, the respondents have considered the grant of same to the petitioner to the extent possible and in respect of the remaining consequential relief, it is the stand of the respondents that a proposal has been sent to the Government and that the petitioner's request will be complied with as and when they receive orders from the Government, if he is otherwise qualified as per the Rules in existence. Now, the apprehension of the petitioner is that while considering the grant of consequential relief, the respondents may not pay the arrears of salary to him, as he has already been entitled to get the notional benefits. Therefore, the only question that has to be looked into in this matter is whether the petitioner is entitled for arrears of salary or not.
9. I have perused the decisions relied on by the learned counsel for the petitioner. It is seen that in K.V.Janakiraman's case, the Supreme Court has laid down a clear ratio that when an employee is completely exonerated, meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary proceedings. It is also seen that the normal rule of "no work no pay" is not applicable to cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. It is further laid down by the Supreme Court that whether the Officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceedings; where the authority denies arrears of salary or part of it, it will record its reasons for doing so.
10. The above view has been endorsed by this court in Gurusamy's case, wherein, the learned Judge after taking into consideration the case of the petitioner therein has held that since the petitioner was denied his legitimate promotion only on the basis of the issuance of charge-memo under Rule 17(b) of the Rules and subsequently imposed with the punishment of stoppage of increment for one year, which itself has been held to be not valid by this court and since no other reasons are pleaded to deny his promotion, the petitioner is directed to be given all his monetary benefits, which will accrue to him in the post sought by him.
11. A question has been raised by the learned Government Advocate appearing for the respondents that only in accordance with Rule 17 of the Fundamental Rule 27, grant of notional benefits to the petitioner has to be taken into account. The Supreme Court, in the case of Devendra Pratap Narain Rai Sharma similar to the nature of the case on hand has held that Rule 54 has no application to cases like the present in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated; the said rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a departmental appeal. But in the case therein, the order of dismissal was declared invalid in a civil suit; the effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous; the effect of the adjudication of the civil court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant and it would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.
12. In the light of the above discussion and in view of the present circumstances, as the respondents have taken a clear stand that the claim of the petitioner will be considered based on the relevant proceedings and also taking into account the statement made by the respondents that once they receive orders from the Government on the proposal, they will pass further orders, it is not necessary to dwell into the aspect of granting consequential relief sought by the petitioner.
13. Therefore, I am only inclined to direct the respondents to consider the grievance of the petitioner as and when they receive orders from the Government for granting the consequential relief sought by the petitioner and also for payment of arrears. Accordingly the respondents are directed to take into account the above rulings of the Supreme Court and this court while deciding the issue and consider the petitioner's claim for payment of arrears and pass appropriate orders within a period of twelve (12) weeks from the date of receipt of a copy of this order.
The writ petition is disposed of with the above direction. No costs. Consequently, connected W.P.M.P.No.784 of 2005 is closed.
abe To:
1. The Director of Medical and Rural Health Services, 3rd Floor, DMS Complex, 258-261 Anna Salai, Teynampet, Chennai 600 006.
2. The Regional Administrative Medical Officer (ESI), Coimbatore 20.
3. The Chief Medical Officer, ESI Dispensary, Perinaiken Palayam, Coimbatore 20.
4. The Accountant General I (A & E), Tamil Nadu, Chennai 600 018