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Judgment
The petitioner has come up with this contempt petition to punish
the respondents for committing contempt of the order dated 14 June
2013 in W.P.No.18043 of 2012, whereby and where under, the Division
Bench directed them to take into consideration her services from
11.04.1990 for the purpose of calculating the period of service for
further promotion.
Background Facts
The petitioner filed Original Application in O.A.No.19 of 2011
before the Central Administrative Tribunal, to quash the communication
dated 5 September 2007 issued by the Department of Personnel and
Administrative Reforms, Puducherry and count her past service from
01.12.1980 to 15.06.1990 for the purpose of calculating the total period
of service. The petitioner made a further claim to promote her as
Stenographer Gr.II with effect from 15.06.1995 and again as
Stenographer Gr.I with effect from 15.06.2000 and as Private Secretary
with effect from 15.06.2003 with consequential seniority and arrears of
pay.
The Tribunal rejected the prayer for counting her past service
from 1980 to 1990. However, the Tribunal directed the respondents to
consider her for further promotions taking into account her service in the
regular establishment from 11.04.1990. The petitioner, dissatisfied with
the order dated 28 March 2012 in O.A.No.19 of 2011 filed a writ petition
in W.P.No.18043 of 2012.
The Division Bench concurred with the views expressed by the
Central Administrative Tribunal that her past service from 01.12.1981 to
14.06.1990 as part time Stenographer and part time Clerk-cum-Typist
could not be counted for further promotions. The Division Bench issued
a direction to the respondents to take into consideration her services
from 11.04.1990 for further promotion.
Since the respondents failed to take follow up action, pursuant
to the order dated 14 June 2013 in W.P.No.18043 of 2012, the petitioner
initiated the present proceedings for contempt.
When the contempt petition came up for hearing on
17.03.2016, the learned Special Government Pleader (Service) appearing
for the Government of Puducherry took notice. The matter was
adjourned by two weeks for filing affidavit of compliance. Thereafter,
the respondents passed orders in compliance of the direction given by
this Court and filed a compliance report dated 28 March 2016. The
petitioner on her part filed an affidavit contending that the order has not
been complied with in its letter and spirit.
Since the petitioner was not satisfied with the compliance
report filed by the third respondent on behalf of the respondents, the
learned counsel on record was directed to prepare a chart to
demonstrate that the respondents are yet to give her relief taking into
account the order passed in W.P.No.18043 of 2012.
The learned counsel for the petitioner produced a chart
indicating the directions in W.P.No.18043 of 2012, steps taken for
implementation of the order by the respondents and the admitted facts
disregarded by them and finally, entitlement of the petitioner.
The third respondent filed a reply affidavit explaining the action
taken by the Puducherry Administration to grant benefits to the
petitioner pursuant to the order dated 14 June 2013 in W.P.No.18043 of
2012.
Submissions
Ms.R.Vaigai, the learned Senior Counsel for the petitioner
contended that the respondents ought to have considered the petitioner
for further promotion in the hierarchy of Stenographer by treating her
appointment as Steno-cum-Typist as Stenographer Grade III. According
to the learned Senior Counsel, the respondents were not correct in
clubbing the post of Stenographer Grade III with the larger cadre of
Lower Division Clerks working in the Government of Puducherry. The
learned Senior Counsel further contended that taking into account the
fact that the petitioner worked in the isolated post available in the office
of the Government Pleader, Puducherry, the Government ought to have
promoted her as Stenographer Grade III, which is now re-designated as
Stenographer Grade II and thereafter as Private Secretary with effect
from 15.06.1998. The learned Senior Counsel submitted that the
respondents erred in deducting a portion of the amount towards TDS
without understanding the legal position that there is no liability to pay
tax on salary arrears spread over a point of time.
Mr.R.Syed Mustafa, learned Special Government Pleader
(Service) appearing for the respondents, contended that the
respondents have complied with the order passed by the writ Court fully.
The learned Special Government Pleader submitted that the petitioner
was initially engaged as a Part-time Clerk-cum-Typist by the then
Government Pleader. It was not a regular appointment. The Government
have considered her case sympathetically and the same is evident by
the order in G.O.Ms.No.155/90/LLD dated 11 April 1990, re-designating
one post of Clerk as Steno-cum-Typist bearing the pre-revised scale of
Rs.3050-4590, which is equivalent to the post of Lower Division Clerk
and transferring the said post to the office of the Government Pleader,
Chennai, to accommodate her. According to the learned Special
Government Pleader, the petitioner was appointed as Steno-cum-Typist
by order dated 15.06.1990 in the office of Government Pleader for
Puducherry at Chennai. It is his contention that no post of Stenographer
Grade III in the pre-revised scale had ever been created in the office of
the Government Pleader for Puducherry at Chennai and as such, there is
absolutely no merit in the claim made by the petitioner that she should
be appointed in the post of Stenographer Grade III with effect from
11.04.1990.
The learned Special Government Pleader contested the
arguments advanced on behalf of the petitioner on the basis of the
finding in Paragraph 42 of the order in W.P.No.18043 of 2012. According
to the learned Special Government Pleader, the said finding has to be
read as a whole and it cannot be taken in isolation. He would contend
that the only direction given by the Division Bench was to consider the
services of the petitioner from 11.04.1990 for all practical purposes. The
respondents while promoting the petitioner to the post of Stenographer
Grade III on par with her juniors, ensured that appointment was
reckoned from 11.04.1990 from the post of Steno-cum Typist, which
was equivalent to the post of Lower Division Clerk. According to the
learned Special Government Pleader, there is nothing to be complied
with hereafter and as such, the contempt petition is liable to be
dismissed.
Discussion
The factual matrix indicates that the petitioner was initially
appointed as Part-time Clerk-cum-Typist with effect from 01.12.1981
pursuant to the Office Order No.48, dated 2 January 1989, issued by
the Law Department, Puducherry. Thereafter, she was appointed as
Part-time Stenographer on a consolidated pay of Rs.1100/- per month
with effect from 01.07.1988.
The Puducherry Administration taking into account the series
of representations submitted by the petitioner re-designated one post of
Clerk as Steno-cum-Typist carrying the pre-revised scale of Rs.3050-
4590, which is equivalent to the post of Lower Division Clerk and
transferred the said post to the Office of the Government Pleader,
Puducherry at Chennai so as to accommodate her. As a follow up
action, by order, dated 15 June 1990, the petitioner was appointed as
Steno-cum-Typist in the Office of the Government Pleader, Puducherry
at Chennai.
The reply affidavit filed by the third respondent shows that the
petitioner accepted the regular post of Steno-cum-Typist and joined the
said post on 15.06.1990. The request made by the petitioner to count
her Part-time engagement as qualifying service was not considered
favourably by the respondents, in the absence of rules to count such
service.
The claim of the petitioner that she is entitled to the post of
Stenographer Grade III, which is now re-designated as Stenographer
Grade II in the pre-revised scale of Rs.4000-6000 was opposed by the
respondents by contending that no such post of Stenographer Grade III
had ever been created in the Office of the Government Pleader, so as to
make a justifiable claim by the petitioner for appointment to the said
post. In fact, the respondents contended that the petitioner could not be
appointed by direct recruitment, as she was not in possession of the
required qualification of Typewriting in regional language i.e, Tamil.
However, she was considered under promotion quota from among the
Lower Division Clerks with three years of service, based on seniority-
cum-merit with a condition that she should pass Speed Test in
Shorthand at 80 words per minute. Even though the petitioner failed to
appear for the Shorthand test at 80 words per minute conducted by the
Department of Personnel and Administrative Reforms, Puducherry,
which is mandatory for promotion from Lower Division Clerk to
Stenographer Grade III, her qualification of Shorthand English Higher
Grade has been taken into account as equivalent and thereby, she was
given promotion as Stenographer Grade III vide Memorandum dated
21.03.2001. The promotion was given with a condition that she should
pass Tamil Typewriting (Lower) within a period of two years. It was
clearly indicated that failure on part of the petitioner to pass the Tamil
Typewriting Exam would result in reverting her back to the post of
Lower Division Clerk. The petitioner accepted the said order dated
21.03.2001. According to the respondents, the petitioner never
attempted to pass the required Typewriting Test in Tamil (Lower) either
within the probation period or even thereafter. It is the contention of the
respondents that the petitioner ought to have been reverted back to the
post of Lower Division Clerk on account of her failure to pass the
required Typewriting test in Tamil. However taking into account her age
and service totally rendered, approval of Lt.Governor was obtained and
thereby, she was exempted from passing the Typewriting Test in
regional language vide order in G.O.Ms.No.7/2006 dated 19 May 2006.
The compliance report and the reply statement filed by the
respondents clearly indicate that pursuant to the direction given by the
Division Bench, the petitioner was granted promotion to the post of
Stenographer Grade III, which is now re-designated as Stenographer
Grade II vide memorandum dated 17 October 2014.
It is also a matter of record that based on the revised
seniority, the petitioner has been granted promotion to the post of
Stenographer Grade II, which is now re-designated as Stenographer
Grade-I with effect from 6 January 2006, vide proceedings dated 17
October 2014 with consequential monetary benefits.
The Office Order, dated 21 March 2016 issued by the
Directorate of School Education, Puducherry indicates that the pay of
the petitioner was revised and it was re-fixed at Rs.9300+ Rs.4200 (GP)
in the pay sale of Rs.9300-34800+4200 with effect from 06.01.2006.
The petitioner was paid a sum of Rs.1,99,365/- towards settlement of
pay arrears after deducting a sum of Rs.22,150/- towards Income Tax.
In order to verify as to whether the order was complied with
in its entirety, we have perused the entire materials available on record.
We have also perused the order passed by the Tribunal in O.A.No.19 of
2011 and the order dated 14 June 2013 in W.P.No.18043 of 2012. We
have taken note of the contentions advanced by the learned Senior
Counsel for the petitioner and the reply given by the learned Special
Government Pleader. We are convinced that the respondents have
complied with the order passed by the Tribunal in all respects. There is
no cause of action for the petitioner to make a grievance henceforth
that she has not been given due service benefits. In short, the petitioner
has been given the entire benefits by taking into account her services
from 11.04.1990. The matter should come to an end on account of the
compliance reported by the respondents. Since whatever is due to the
petitioner as per the direction of the writ Court in W.P.No.18043 of 2012
has been given to her, there is no cause for the petitioner hereafter to
make a grievance that she is yet to receive certain benefits from the
Government.
We therefore hold that the respondents have complied with
the direction of this Court in its entirety and as such, they are not liable
to be proceeded for contempt.
The learned Senior Counsel for the petitioner submitted that
the respondents deducted tax from the amount payable to the
petitioner, ignoring the legal position that the amount of past benefits
being one spread over would not attract income tax. We give liberty to
the petitioner to take up the issue with the jurisdictional income tax
officer. The respondents are directed to provide necessary documents to
the petitioner on demand, so as to enable her to make a claim for
refund of the tax deducted at source.
The contempt petition is disposed of with the above
observation.