S.Thilagavathy vs State Of Tamilnadu And Ors

S. THILAGAVATHY ..Appellant

Versus

STATE OF TAMIL NADU & ORS. ..Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

1. Leave granted.

2. Heard learned counsel for the contesting parties.

3. This appeal by grant of special leave is directed

against the judgment and order dated 14.3.2007 passed by

the Division Bench of the High Court of Judicature at

Madras in Writ Appeal No.621 of 1998 whereby the learned

Judges were pleased to dismiss the writ appeal and upheld

the common order dated 19.1.1998 of the learned single

Judge given out in two Writ Petitions bearing Nos. 9110 &

4318/97.

4. In order to explain the controversy with clarity, it

may be essential to state that the appellant Smt. S.

Thilagavathy who had joined as an Orgnizer -cum-

Tailoring Instructor in Grade I on 27.1.1986 in the Labour

Welfare Board, Government of Tamil Nadu, challenged her

transfer order from Trichy to Kovilpatti dated 16.6.1993,

by filing a suit bearing O.S.No. 1460/93 before the District

Munsif, Trichy. The learned District Munsif was pleased

to grant interim injunction in favour of the appellant

against the transfer order. However, the suit was finally

dismissed, by the District Munsif vide judgment and order

dated 21.9.1993 on the ground that the civil court had no

jurisdiction in the said matter.

5. Subsequent development in the matter also took

place thereafter, as the Secretary, Tamil Nadu Welfare

Board , Chennai vide Order dated 29.9.1993 discharged the

appellant from service referring to certain omissions and

commissions on the part of the appellant after an enquiry

was conducted against the appellant, which lasted for over

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three years. The order of discharge indicated that the

appellant had abandoned the service as she had failed to

report for duty ever since 24.6.1993 and had also not filed

any application for grant of leave. It also stated that the

interim injunction granted in favour of the appellant by the

District Munsif against the transfer order of the appellant,

would not enure any benefit in her favour as it was not

obtained within three days of the order of transfer dated

16.6.1993.

6. The appellant herein feeling aggrieved with the

order of discharge issued by the respondent No.2 herein,

filed another writ petition bearing No.18550/93 in the

High Court of Judicature at Madras on several grounds

but the appellant withdrew the said writ petition as

according to her case, an assurance was given to her by the

respondent that she would be restored back to the service

as Grade I officer on which she has been appointed. It is

the specific case of the appellant that she had withdrawn

her writ petition in the High Court, in view of the this

assurance.

3 7. After withdrawal of this writ petition, the

appellant no doubt was reinstated, but it is her case that

she was reinstated not on grade I post to which she was

appointed and was holding prior to her discharge but on

grade II post although she was entitled to be restored to her

original post of grade I on which she had been appointed,

and she could not have been reinstated on a lower grade II

post. It is her further case that in view of the dire

necessity or pressing need of her livelihood, she was

compelled to join on a lower grade II post although she

should have been reinstated on grade I post. But she

continued making representations which did not meet with

any response from the authorities concerned. She,

therefore, filed another writ petition No.4318/97 in the

High Court of Madras in March 1997.

8. The two writ petitions filed by the appellant

challenging her transfer order bearing writ petition

No.9110/97 and her writ petition No. 4318/97 assailing her

reinstatement on grade II post of Organizer -cum-Tailoring

Instructress and not on grade I post of Organizer-cum-

Tailoring Instructor, were both clubbed together along with

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two more writ petitions which the appellant had filed before

the High Court but with which we are not concerned, as

the writ appeal filed by the appellant before the Division

Bench was only against the common order passed in writ

petition Nos. 4318 and 9110/97, which the learned single

Judge was pleased to dismiss by a common order as it was

held that the order of transfer was not fit to be interfered

with since the same was not illegal or vitiated in any other

manner. In the result, writ petition No.9110/97 had been

dismissed due to which the appellant had sought a week's

time from the court, to report for duty at the place to

which she had been transferred.

9. The learned single Judge was also pleased to

dismiss the writ petition No.4318/97 as the learned single

Judge noticed that the appellant had joined the service of

the second respondent on 27.1.1986 and after discharge of

service, she was reinstated on 17.3.1994 as Organizer -

cum- Tailoring Instructress grade II in the scale of Rs. 905-

1500/-. The learned single Judge however dismissed her

writ petition refusing to hold that she was entitled to be

reinstated on grade I post on the ground that the appellant

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was unable to produce any record containing such

assurance although the respondent-Board by its affidavit

filed through its Secretary had denied having given any

assurance or promise to the appellant. The learned single

Judge also took notice of the fact that after her

reinstatement on grade II post, the appellant had remained

silent for well over a period of three years and only after a

lapse of three years in the year 1997, she filed a writ

petition alleging that there was an assurance from the

respondent-Board to reinstate her on grade I post. The

learned single Judge inferred that this plea of the

appellant was purely an afterthought with no factual basis

and hence the writ petition was dismissed. Thus the two

writ petitions filed by the appellant which included the

challenge to her transfer order as also her reinstatement on

grade II post instead of grade I post, were dismissed by the

learned single Judge by a common order on 19.1.1998

against which she preferred a writ appeal before the

Division Bench which was also dismissed.

10. However, on perusal of the impugned order

passed by the Division Bench, it is quite apparent that the

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learned Judges of the Division Bench although were

pleased to dismiss the writ appeal by its common order

dated 14.3.2007, it dealt only with the facts of the case

arising out of writ petition No.9110/97 which had been

filed by the appellant before the learned single Judge

challenging the order of her transfer and upheld the order

passed by the learned single Judge by which the writ

petition was dismissed since the appellant had failed to

establish before the learned single Judge that the order of

transfer required interference. The Division Bench was

pleased to observe that when the appellant had agreed to

join at the transferred place and given an assurance to

that effect to the learned single Judge, the appeal against

the consent order cannot be held maintainable and hence

the appeal against the same was dismissed by the Division

Bench vide the impugned order under challenge in this

appeal.

11. But having heard the learned counsel for the

appellant, we do not find any ground to interfere with the

aforesaid reason assigned by the learned single Judge as

the appellant had already given up her contest before the

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learned single Judge against the order of her transfer and

hence it had rightly not been allowed to be challenged by

the Division Bench. As we agree with the view of the

Division Bench that the appellant could not have been

allowed to prefer a writ appeal against the order which

was passed with her consent as she had given up her

challenge before the single Judge against the order of her

transfer, we see no reason to interfere with this part of the

order of the learned single Judge passed in the appeal

arising out of writ petition No. 9110/97.

12. However, we have noticed that the learned

Judges of the Division Bench have not dealt with the case of

the appellant in so far as her appeal arising out of writ

petition No 4318/97 is concerned, wherein the appellant

had challenged her reinstatement on grade II post and had

preferred the appeal clearly contending that she should

have been reinstated on grade I post on which she initially

claimed to have been appointed in the year 1986. But it

appears that this plea has not been dealt with by the

Division Bench at all, which amounts to non-consideration

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of the appeal directed against the order passed in writ

petition No. 4318/97.

13. But, in the aforesaid circumstance, the appellant

in our considered view ought to have taken steps in the

High Court by way of a review petition before the Division

Bench wherein it was open to the appellant to point out

the error that her appeal arising out of writ petition

No.4318/97 has not been dealt with at all one way or the

other by the Division Bench and this was a factual error on

the part of the Division Bench. Although it is quite

possible to infer under the circumstance, that the Division

Bench has impliedly dismissed the writ appeal arising out

of writ petition No. 4318/97 by a non-speaking order, in

view of the observation of the single Judge that the plea of

the appellant on this count was an afterthought on the

part of the appellant claiming reinstatement on grade I

post, since she had discharged duties on grade II post for

a long period of three years and thereafter by way of an

afterthought, filed a writ petition challenging that her

reinstatement on grade II post was illegal and arbitrary, yet

it was necessary for the Division Bench to expressly state

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whether the appeal arising out of writ petition No.4318/97

was rejected.

14. However, since the learned Judges of the Division

Bench have not passed any order in the writ appeal dealing

with this plea of the appellant arising out of writ petition

No. 4318/97, we leave it open to the appellant to approach

the Division Bench by way of a review petition pointing out

the error apparent on the face of the record to the effect that

her appeal directed against the order in writ petition

No.4318/97 has not been dealt with at all and has been

dismissed without indicating any reason whatsoever. If a

review petition to that effect is filed, the same shall be

dealt with in accordance with law. Subject to this liberty,

we dismiss this appeal but in the circumstance without

any order as to costs.

....................................J

(J.M. Panchal)

....................................J

(Gyan Sudha Misra)

New Delhi,

May 6, 2011

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