Allowed

M.Nithiyanantham v. The Secretary to Government

Madras HC13 Aug 2019WP/18658/2018

Case brief

AI extract

What is this about?

The High Court, Madras allowed a writ petition filed by a retired Central Nazir seeking promotion to Bench Clerk Grade-I on par with his juniors. The court granted notional promotion with consequential pensionary benefits, directing no salary for the service period.

What did the court decide?

Notional promotion granted from juniors' promotion date with consequential pensionary benefits. No salary benefits for service period in promotional post.

M.Nithiyanantham Vs The Secretary to Government — Pension and Retirement Benefits | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 13.08.2019

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE C.SARAVANAN

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W.P.No.18658 of 2018

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M.Nithiyanantham,
Son of T.A.Malaimarunthu,
Central Nazir (retired),
Principal District Court,
Tiruvallur,
No.50, Madha Koil 3 rd Cross Street,
Kattankolathur-603 203. .. Petitioner
Vs.
1. The Secretary to Government,
Home (Courts) Department,
Fort St.George, Chennai-9.
2. The Registrar General,
High Court of Judicature of Madras,
Chennai-600 104.
3. The Principal District Judge,
Tiruvallur District at
Tiruvallur-602 001. .. Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Mandamus to direct the respondents 2 and 3 to grant promotion to the petitioner to the post of Bench Clerk Grade-I, on par with his juniors, namely (1) M.Kelappan, Sheristadar, Sub-Court, Poonamallee and (2) D.Rajendran, Sheristadar, Sub-Court, Tiruvallur, who were promoted as Bench Clerk Grade I with effect from 01.10.2015, the date on which the petitioner's juniors were promoted, with all consequential monetary and other attendant benefits with consequential missed promotions.

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https://hcservices.ecourts.gov.in/hcservices/

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For petitioner : Mr.M.Gnanasekar

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For respondents : Mr.V.Shanmuga Sundar, Spl.G.P. for R-1

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Mr.S.Kaithamalai Kuimaran for RR-2 and 3

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ORDER

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(The Order of the Court was made by R.Subbiah, J)

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The petitioner has filed the present Writ Petition praying for issuance of a Writ of Mandamus to direct the respondents 2 and 3 to grant promotion to the petitioner to the post of Bench Clerk Grade-I, on par with his juniors, namely (1) M.Kelappan, Sheristadar, Sub-Court, Poonamallee and (2) D.Rajendran, Sheristadar, Sub-Court, Tiruvallur, who were promoted as Bench Clerk Grade I with effect from 01.10.2015, the date on which the petitioner's juniors were promoted, with all consequential monetary and other attendant benefits with consequential missed promotions.

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It is the case of the petitioner that he joined duty as Copyist in the administration of the Principal District Court, Chengalpattu and subsequently transferred to the third respondent-Court (Principal District Court, Tiruvallur District), and he held various posts by promotion and lastly he was working as Central Nazir. On 31.05.2016, by proceedings in D.No.2600/A/2016, the petitioner was allowed to retire from service, pending clearance of Vigilance Certificate from the High Court and the relevant portion of the said proceedings, dated 31.05.2016 reads as follows:

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"In view of the reports of the District Munsif, Ambattur, the Judicial Magistrate, Ambattur, the Subordinate Judge, Ponneri, the District Munsif, Ponneri, the Principal District Munsif, Poonamallee, the Head Clerk Section, Copyist Section and Central Nazir Section of this Court and also report received from the Registrar, Vigilance, High Court, Madras in reference 2 to 8 read above, Thiru.M.Nithiyanandam, Central Nazir of this Court is permitted to retire on attaining the age of superannuation on the Afternoon of 31.05.2016 subject to receipt of clearance from the Registrar (Vigilance), High Court, Madras in ROC.No.1448/2012/B2 on the file of High Court, Madras."

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Earlier, On 22.05.2015, vide proceedings in No.2856/2015, charges were framed against the petitioner and upon initiation

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of disciplinary proceedings, vide letter No.546/2015, dated 30.10.2015, the Additional District Judge submitted the report. The disciplinary authority, namely the third respondent herein, by proceedings in No.6285/2015, dated 28.12.2015, dropped the action that was initiated against the petitioner.

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It is the further case of the petitioner that on 28.01.2016, he had submitted an application to the third respondent-PDJ, praying for promotion to the post of Bench Clerk-Grade-I. Since no action was forthcoming, the petitioner submitted another application on 04.04.2016 with all relevant documents, praying for promotion, but the same was also not considered. The petitioner submitted copies of all his representations, along with documents to the second respondentRegistrar General of this Court, through the third respondentPDJ, Tiruvallur, by letter dated 11.04.2016, which had reached the second respondent-Registrar General.

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Further, on 09.08.2016, the petitioner wrote a letter to the third respondent-Principal District Judge (PDJ), Tiruvallur, requesting to grant the pensionary benefits. He again submitted a petition, dated 08.11.2016 to the second respondent-Registrar General of this Court seeking for payment of retirement benefits. Further, on 30.08.2016, the petitioner made a representation to the second respondent-Registrar General of this Court, seeking for pensionary benefits. Thereafter, on 10.01.2017, vide proceedings in D.No.155/A/2017, the third respondent-PDJ asked the petitioner to submit his explanation, in pursuant to the Official Memorandum of the second respondentRegistrar General of this Court in R.O.C.No.30352/2016/C.1 + R.O.C.No.1448/2012-B2, dated 04.01.2017. The petitioner prayed time to submit his explanation, vide representation, dated 18.01.2017 to the third respondent-PDJ. On 23.01.2017, vide representation addressed to the second respondent-Registrar General, through the third respondent/PDJ, the petitioner had also sought for copy of the enquiry report of the First Additional District Judge, Tiruvallur. After several correspondences, the petitioner received enquiry report on 22.02.2017.

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Thereafter, on 02.03.2017 and 13.03.2017, the petitioner submitted his explanation to the second respondent-Registrar General, through the third respondent- PDJ, pursuant to which, while perusing the explanation of the petitioner, the High Court (through its Registrar (District Judiciary)), had observed as follows in the Official Memorandum in R.O.C.No.30352/2016/C.1 + R.O.C.No.1448/2012-B2, dated 27.06.2017:

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"The High Court, while perusing the explanation of Thiru.M.Nithiyanantham, formerly Central Nazir, Principal District Court, Tiruvallur, has observed as follows:

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"... .... satisfied with the explanation offered by the delinquent and

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https://hcservices.ecourts.gov.in/hcservices/

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view that no further action is required to be taken on this complaint file. Accordingly, the complaint file is hereby ordered to be closed. It is needless to mention that the delinquent is entitled for all the terminal benefits, which he is entitled to under law."

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As directed, the Principal District Judge, Tiruvallur, is required to act accordingly. .. .."

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It is the further case of the petitioner that on 11.01.2018, he had written a letter to the third respondent-PDJ, followed by another letter dated 02.05.2018, praying to give promotional benefits which were with-held by the respondents. By proceedings of the third respondent-PDJ in D.No.4588/A/2015, dated 25.09.2015, the petitioner's juniors, namely M.Kelappan, Sheristadar, Sub-Court, Poonamallee and D.Rajendran, Sheristadar, Sub-Court, Tiruvallur, were promoted as Bench Clerk Grade-I with effect from 01.10.2015. After the conclusion of departmental proceedings initiated against the petitioner and four months prior to the petitioner's retirement, two vacancies fell vacant in the promotion cadre of his postings, which the petitioner had held, but the third respondent-PDJ did not fill up the said vacancies. It is the further stand of the petitioner in his affidavit filed in support of the Writ Petition that the Vigilance Clearance was given by the High Court as early as on 24.07.2017 and there was no other enquiry pending or contemplated by the Vigilance Cell of the High Court against the petitioner.

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It is the grievance of the petitioner in his affidavit that in the normal course, since there were clear vacancies, he should have been promoted, but for the pendency of the enquiry initiated against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, he was not considered. The denial of promotion to the post of Bench Clerk Grade-I is only on account of the pendency of the proceedings initiated under Rule 17(b), which ended in favour of the petitioner by this Court by dropping the proceedings on 27.06.2017, as discussed above. Since the petitioner was deprived of promotion, he has filed the present Writ Petition for the relief stated supra.

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The third respondent has filed counter affidavit, interalia stating that the petitioner, while working as Head Clerk, Principal District Court, Thiruvallur, was placed in-charge of the Central Nazir Section, Principal District Court, Thiruvallur. A delivery warrant in E.P.No.05 of 2011 on the file of the Principal District Court, arising from a compromise

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https://hcservices.ecourts.gov.in/hcservices/

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decree passed in O.S.No.101 of 2005 on the file of the Principal District Court, Thanjavur was prepared by one Tmt.Komalavalli, the then Senior Bailiff and signed by the petitioner in the capacity of Central Nazir and the said delivery was effected by Thiru.M.A.Ravichandran. The said delivery warrant was prepared without excluding 300 Sq.Ft. of land out of 2400 Sq.Ft of land adjacent to the judgment debtor's property. Due to the above delivery, the judgment debtor/Thiru.S.Thiyagu @ Thiyagarajan, Virugambakkam, Chennai, has made complaint to the Registrar (Vigilance) of this Court, containing allegations with regard to the commission of forgery, fraud and fabrication of Court orders and records. Based on the said complaint, disciplinary proceedings had been initiated as against the petitioner and Tmt.Komalavalli, Senior Bailiff, by duly issuing a Memo and calling for explanation for their lapses committed while preparing and issuing the delivery warrant. The petitioner and the said Komalavalli submitted their explanation. Not satisfied with their explanation, necessary charges were framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules against them. After receipt of their reply, the First Additional District Judge, Thiruvallur had been appointed as Enquiry Officer to conduct enquiry. Finally, on considering the evidence of the complainant and Thiru.Anbalagan, Senior Bailiff and the other Department witnesses and on a perusal of the documents and the evidence of the delinquent, the Enquiry Officer held that the charges framed against the delinquents were debilitated and there is no oral or documentary evidence to prove that the delinquents acted perverse to the interest of the Judiciary or to the Order of the Court. As there is no valid reason to disagree with the Enquiry Report, the action against the delinquent had been dropped.

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In the counter of the third respondent, it is further stated that a report was submitted to the High Court in D.No.6282/A/2015, dated 28.12.2015 with regard to the findings of the Enquiry Officer/First Additional District and Sessions Judge and the final orders were passed by the third respondent/PDJ, Thiruvallur in D.No.4099/A/2015, dated 04.09.2015 dropping the charges framed against the delinquents in consonance with the findings of the Enquiry Officer/First Additional District Judge, Thiruvallur. The enquiry documents filed and the entire case records in E.P. records in E.P.No.5 of 2011, E.A.Nos.35, 36 and 37 of 2012 in O.S.No.101 of 2005 on the file of the Principal District Court, Thanjavur, have been submitted to the HIgh Court by the third respondent/PDJ in D.No.650/A/2016, dated 10.02.2016 as called for by this Court in its Official Memorandum in R.O.C.No.1448/2012, dated 03.02.2016. The petitioner was served with a copy of the findings/report and he has been directed to submit his explanation within the time stipulated by the High Court. The petitioner submitted explanation dated 02.03.2017 and the same had been submitted to

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https://hcservices.ecourts.gov.in/hcservices/

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the High Court in D.No.1197/A/2017, dated 21.03.2017. On a consideration of the explanation, the Registrar (District Judiciary) of the High Court had observed as per the High Court's Official Memorandum dated 27.06.2017 that, "... .. satisfied with the explanation offered by the delinquent and view that no further action is required to be taken on this complaint file. Accordingly, the complaint file is hereby ordered to be closed. It is needless to mention that the delinquent is entitled for all the terminal benefits, which he is entitled to under law." Until the disposal of the above proceedings, this Court had treated the petitioner as delinquent only. The High Court, by R.O.C.No.1448/2012/B2, dated 03.02.2016, had called for the entire enquiry file along with E.P. records in E.P.No.5 of 2011, E.A.Nos.35, 36 and 37 of 2012 in O.S.No.101 of 2005 on the file of the Principal District Court, Thanjavur upon further representation made by the complainant on the above enquiry. Therefore, the entire enquiry files and case records were submitted in the Principal District Court's letter D.No.650/A/2016, dated 10.02.2016 itself. Therefore, the requests made by the petitioner dated 28.01.2016 and 11.04.2016 cannot be considered as Grade-I Bench Clerk, though it has fallen vacant, until further orders from the High Court.

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It is further averrd in the counter affidavit filed by the third respondent that being the senior most person in the Judicial Service, the petitioner is well aware of the procedures and the consequential proceedings, if any pending before the High Court, the District Judiciary cannot conclude anything except orders if any passed thereon. Finally, after due consideration, this Court, in its Office Memorandum in R.O.C.30352/2016/C1 and R.O.C.No.1448/2012-B2, dated 27.06.2017, had passed orders as stated above.

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It is further stated in the counter that the promotions were given to the juniors of the petitioner, namely Thiru.M.Kelappan, Sheristatdar and Thiru.D.Rajendran, Sheristadar in Category 2 of Class IV of the Tamil Nadu Judicial Ministerial Service to the post of Bench Clerk Grade-I, since the entire enquiry file relating to the petitioner, had been submitted to this Court and orders were awaited. Only during the pendency of the orders of the High Court, it was decided to fill up the post of Bench Clerk Grade-I, Principal District Court, Thiruvallur, only in the interest of justice and the litigants and also to avoid dislocation of works in the Bench Clerk Sections. The petitioner was permitted to retire on attaining the age of superannuation on 31.05.2016 itself, subject to receipt of clearance from the Registrar (Vigilance) of the High Court. The petitioner is aware of the fact that his request for promotion was not considered due to the pendency of disciplinary proceedings and the subsequent representation made by the petitioner upon the findings of the Enqury Officer in the

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https://hcservices.ecourts.gov.in/hcservices/

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disciplinary proceedings against the petitioner.

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In such cases, until completion of the entire proceedings, the request of the petitioner could not be complied with, as the representation of the petitioner, dated 01.10.2015 could not be considered due to the pendency of the proceedings before the High Court. It is also stated in the counter that in respect of the petitioner's request with regard to grant of promotion on par with his juniors in the post of Grade-I Bench Clerk as per Para 4(a) of G.O.Ms.No.203, P & AR (S) Department, dated 30.10.2018 and Government Letter No.29866/S/2001-2, dated 24.08.2001, which reads that @gjtp cah;t[f;fhz njh;;e;njhh; bgah; gl;oaypy; bgah; nrh;f;fg;glhky; js;sp itf;fg;gl;l (deferred) muR CHpah;. taJ Kjph;tpd; fhuzkhf Xa;t[ bgw;w gpd;dh;. KiwaPL-nky;KiwaPL murpd; ghprPyidf;F gpd;dh; jFjp kw;Wk; KJepiy mog;gilapy; Xa;t[ bgWtjw;F Ke;ija gl;oaypy; nrh;f;fg;gLthh;fnsahdhy; mj;jifnahUf;F ,isnahh; gjtp cah;t[ bgw;w ehis mog;gilahff; bfhz;L Xa;t{jpak; kw;Wk; Vida Xa;t[fhyg; gzpg;gad;fs; midj;Jk; mila[k;;bghUl;L. mog;gil tpjp 27?y;. tpjpKiwik (17)d; fPHl Xa;t[ bgw;w ehsd;W fUj;jpayhd (notional) Cjpa eph;;zak; bra;a ntz;Lk;@, i.e. otherwise the individual is entitled to fix his pay on par with that of his juniors and not entitled for the monetary benefits from the date of his normal seniority what he is sought for as if he was promoted on that date only.

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Thus, according to the third respondent/PDJ, there is no delay on the part of the administration and the departmental enquiry has been initiated against the petitioner upon the directions of this Court and therefore, the denial of promotion is caused due to the aforesaid reasons and therefore,the third respondent-PDJ prayed to dismiss the Writ Petition as devoid of merits.

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When the Writ Petition is taken up for consideration, the learned counsel for the petitioner made detailed submissions adverting to the averments made in the affidavit filed in support of the Writ Petition. The learned counsel further submitted that if notional promotion is given, that would suffice and the petitioner is not claiming any service benefits for the period he has not worked under the promotional post, and thus, he would get enhancement of the pension amount.

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Heard the submissions made by the learned Special Government Pleader appearing for the first respondent and the learned Standing Counsel appearing for the respondents 2 and 3.

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In view of the above submissions made by the learned counsel for the petitioner, this Writ Petition is allowed to the extent indicated below:

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The respondents are directed to give notional promotion to the petitioner from the date his immediate juniors, namely M.Kelappan and D.Rajendran, as stated in the prayer of the Writ petition, were promoted and consequently give him necessary pensionary benefits the petitioner is entitled to. It is made clear that the petitioner is not entitled for any salary

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https://hcservices.ecourts.gov.in/hcservices/

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benefits during the period of his service in the promotional post, as conceded above by the learned counsel for the petitioner.

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No costs.

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Sd/-
Assistant Registrar(CCC)
//True copy//
Sub Assistant Registrar
cs
To
1. The Secretary to Government,
Home (Courts) Department,
Fort St.George, Chennai-9.
2. The Registrar General,
High Court of Judicature of Madras,
Chennai-600 104.
3. The Principal District Judge,
Tiruvallur District at Tiruvallur-602 001.
+1cc to Mr.M.Gnanasekar, Advocate SR.No.69012
+1cc to Mr.S.Kaithamalai Kuimaran, Advocate SR.No.68795
+1cc to Government Pleader SR.No.69740
W.P.No.18658 of 2018
LN(CO)
GMY(12/09/2019)

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https://hcservices.ecourts.gov.in/hcservices/

M.Nithiyanantham v. The Secretary to Government

Case brief

What is this about?

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M.Nithiyanantham v. The Secretary to Government

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