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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Petitioner has approached this Court, with a prayer for issuance of a writ, in the nature of Mandamus, directing the Respondents, to consider the case of the Petitioner for notional promotion, as also for re-fixation of pension, after giving benefit of Pay Revision, and by taking into consideration the revised pay scales of the post, held by the Petitioner, at the time of retirement.
The Petitioner was appointed as Assistant Sub Inspector of Police on 05.07.1965, and was promoted as Inspector of Police in the year 1982.
The Petitioner was charged for misconduct, vide Charge Memo in P.R. No. 416/1987, and a minor punishment of Censure was imposed on the Petitioner. The Petitioner was also not awarded increments, for the reason that the second Respondent had initiated suo motu review proceedings, for enhancement of punishment awarded to the Petitioner. Thereafter, vide order dated 09.06.1992, the review proceedings were dropped.
The Respondents, instead of giving consequential benefit, to the Petitioner, in view of the conclusion of the enquiry proceedings, which resulted in punishment of Censure, issued second suo motu review notice on 28.10.1994.
The second notice for review, was challenged by the Petitioner, by filing Original Application No. 1044 of 1995, before the learned Tamil Nadu 3 Administrative Tribunal. The further proceedings were stayed.
In view of the pendency of the proceedings before the learned Tamil Nadu Administrative Tribunal, the Petitioner was not allowed to retire, and placed under suspension, on 28.05.2001, as he was to attain the age of superannuation on 31.05.2001.
The order, placing the Petitioner under suspension, and not permitting him to retire, was again challenged before the learned Tamil Nadu Administrative Tribunal. In that Application, interim directions were issued, directing the Respondents, to allow the Petitioner, to retire from service, without prejudice to the departmental proceedings.
The Original Application filed by the Petitioner was finally allowed on 23.04.2002, by the learned Tamil Nadu Administrative Tribunal, holding that the State Government had No. jurisdiction for second review.
The second Original application filed by the Petitioner against refusal of the Respondents, to permit the Petitioner, to retire from service on attaining the age of superannuation was also allowed. The Respondents were directed to implement the order of the learned Tamil Nadu Administrative Tribunal within a period of eight weeks.
The Respondents / State Government, challenged the order of the learned Tamil Nadu Administrative Tribunal by filing W.P. No. 23380 of 2004, which was finally dismissed by the Hon''ble Division Bench, of this Court on 09.06.2008.
The Petitioner, immediately thereafter made a representation, for grant of consequential benefits, resulting from the judicial order passed in his favour, but the Respondents failed to grant proper and necessary relief, but instead, fixed the pension of the Petitioner, on the basis of last drawn pay, without taking into consideration the Revision of pay by the v. and VI Pay Commission with effect from 01.01.1996.
The Learned Counsel for the Petitioner, in support of the prayer vehemently contended, that the action of the Respondents, in not granting consequential benefits of promotion etc., and not fixing the pension of the Petitioner in terms with the Government Instructions, by taking into consideration revised pay scale are totally arbitrary, thus, hit by Article 14 of the Constitution of India.
It is also the contention of the Learned Counsel for the Petitioner, that the Respondents have failed in their statutory legal obligation, in granting consequential relief, arising out of the judicial orders i.e., to consider his case for the purposes of notional promotion, from the date of his juniors were promoted, in accordance with law and Rules.
The learned Additional Government Pleader, contends that the writ petition is not maintainable, as the necessary relief, under the orders passed by the learned Tamil Nadu Administrative Tribunal already stands granted, as the retiral benefits and pension of the Petitioner has been released.
It is also the contention of the learned Additional Government Pleader, that the Petitioner cannot be considered for promotion, as he ceased to be in service, therefore, cannot be promoted with retrospective effect.
On consideration, I find force in the contentions raised by the Learned Counsel for the Petitioner.
The Petitioner was awarded a minor punishment of Censure, which cannot be a bar, for consideration of the case for promotion (though it may be taken into consideration to see the eligibility), from the date his juniors were promoted.
The only reason for non-consideration, of the case of the Petitioner for promotion was that the Respondent had taken a decision to review, the order of punishment, with an intention to enhance the punishment, thus it was presumed that the departmental proceedings had not attained finality. The other contention was that in case punishment is enhanced to major penalty, that may be even bar for further promotion.
Once it was authoritatively decided, that the Respondents had No. right to suo motu review, after having dropped the review, there remained No. impediment in considering the case of the Petitioner, for promotion from the date his junior was so promoted.
However, as the Petitioner stands retired, he can be only considered for notional promotion, from the date of his junior were promoted, subject to his being eligible for promotion, in accordance with Rules and keeping in view the result of this petition.
The Respondents are, directed to consider the case of the Petitioner, for notional promotion from the date his immediate junior was promoted, as per Rules of promotion.
It is also not in dispute that under the Government Instructions, the pension payable to the employees is to be fixed, on the basis of the revised pay of the post as on 01.01.1996. The Petitioner, therefore, is entitled to fixation of pension, on the basis of the revised pay as on 01.01.1996 as per v. and VI Pay Commission for the post, which was held / deemed to be have been held by the Petitioner, in case he succeeds in his prayer for notional promotion.
Consequently, the Respondents are also directed to re-fix the pension of the Petitioner, as per the Government Instructions, as per the revised pay scales, of the post held by the Petitioner, at the time of his retirement. In case the pension is already fixed as per revised pay scale, then No. further action is called for.
Directions issued by this Court be complied within SIX months of receipt of certified copy of this order.
No. costs.