(Prayer: Writ Appeal is preferred under Clause 15 of Letters Patent, against the order dated 23.6.2008, in WP No.39907 of 2006.)

M. Jaichandren, J.

1. This writ appeal has been filed against the order of the learned single Judge of this Court, dated 23.6.2008, in W.P.No.39907 of 2006.

2. The writ petitioner in the writ petition in W.P.No.39907 of 2006, is the respondent in the present writ appeal. The respondent in the said writ petition had filed the present writ appeal stating, inter alia, that the order of the learned single Judge of this Court, dated 23.6.2008, made in W.P.No.39907 of 2006, is unsustainable in the eye of law.

3. The petitioner in the writ petition, who is the respondent in the present writ appeal, had filed the Original Application, in O.A.No.563 of 1999, on the file of the Tamil Nadu State Administrative Tribunal, Chennai, praying for a writ of Certiorari to quash the order of the respondent therein, dated 29.6.1998, denying his right of getting the pay and allowances due to him, with retrospective effect on being included in the promotional list, as Joint Commissioner (CT), on par with his junior.

4. The learned single Judge of this Court, by his order, dated 23.6.2008, had set aside the impugned order of the appellant, dated 29.6.1998, and had directed the grant of arrears of pay and other attendant benefits, in favour of the petitioner, on par with that of his junior, from the date of his retrospective promotion.

5. The respondent in the writ petition had also been directed to revise the pay and other benefits due to the petitioner therein, within a period of four months from the date of receipt of a copy of the said order.

6. The respondent in the writ petition had filed the present writ appeal stating that the learned single Judge of this Court had failed to note that the respondent herein had been working as the Deputy Commissioner (CT), at the relevant point of time. When the panel of Joint Commissioner (CT) had been prepared for the year, 1994, charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules were pending against the respondent. Further, a case had also been registered against the respondent, by the Vigilance and Anti-corruption Department, with regard to the acquiring of wealth disproportionate to his known source of income.

7. It had also been stated that the learned single Judge had failed to note that the respondent had been included in the panel of Joint Commissioner (CT), above his junior, and he had joined in the said post, on 9.10.1997. The respondent had retired from service, on attaining the age of superannuation, on 31.10.1997.

8. It had also been stated that the learned single Judge had also failed to consider the fact that the respondent did not discharge his duties, as Joint Commissioner (CT), from 1994, when his juniors had been promoted. It had also been stated that the promotion of the respondent had been deferred due to the pendency of the charges, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and as an enquiry by the Vigilance and Anti-Corruption Department had been pending against him. However, his name had been considered for promotion, as Joint Commissioner (CT), after the proceedings had been dropped.

9. It had been further stated that the learned single Judge had erred in not considering the settled law that no person is entitled for pay and allowances for the particular post, without holding the said post, during the relevant period. Further, the learned Judge had failed to note that, according to Fundamental Rule 27, a Government servant shall begin to draw the pay and allowances relating to a particular post only with effect from the date when he assumes charge of the said post and when he had actually performed his duties in the said post. Therefore, the order of the learned judge, dated 23.6.2008, made in W.P.No.39907 of 2006, is liable to be set aside.

10. The main contention of the learned Government Advocate appearing on behalf of the appellant Department is that the order passed by the learned single Judge is contrary to Sub-Rule [17] of Rule 27 of Fundamental Rules, according to which, the 1st respondent is entitled to get the pay due to the promotional post only from the date when he had assumed charge in the said post, i.e. from 9.10.2007. He had further submitted that, even though the charges framed against the 1st respondent had been dropped, the 1st respondent would not be entitled to get the salary due to him, with retrospective effect, from the date on which his junior was promoted, in view of sub-Rule [17] of Rule 27 of the Fundamental Rules.

11. The learned Government Advocate appearing on behalf of the appellant Department had also submitted that the learned single Judge had allowed the claim of the 1st respondent and had directed the appellant Department to grant arrears of pay and other attendant benefits, on par with his junior, from the date of his retrospective promotion and had also directed the revision of pay and other benefits due to him, contrary to the provisions of Rule 27 of the Fundamental Rules. Therefore, the order passed by the learned single Judge is liable to be set aside.

12. Per contra, the learned counsel appearing on behalf of the 1st respondent had submitted that the order passed by the learned single Judge is right in law, as it had been passed relying upon the decisions of the Apex Court, wherein it had been held that if the charges framed against the persons concerned are dropped and they are exonerated from the charges levelled against them, they should be paid the salary due to them, with retrospective effect, from the date on which they ought to have been promoted to the promotional post. He had further submitted that the appellant Department had filed a reply, in O.A.No.985 of 1995, before the Tamil Nadu Administrative Tribunal, Chennai, stating that if the charges levelled against the 1st respondent are dropped, he would be paid the salary due to him, with retrospective effect from the date on which his junior was promoted to the promotional post. Therefore, according to the learned counsel appearing on behalf of the respondent, the learned single Judge had rightly passed the order in the writ petition, in favour of the respondent herein.

13. In view of the submissions made by the learned counsels appearing on behalf of the appellant, as well as the respondent, and on a perusal of the records available, we are of the considered view that the learned single Judge, in his order, dated 23.6.2008, made in W.P.No.39907 of 2006, had considered all the relevant facts and circumstances of the case and had arrived at his conclusion that the appellant should pay the salary due to the respondent herein with retrospective effect, form the date on which his junior had been promoted to the promotional post, since, the charges levelled against the respondent had not been proved.

14. The learned single Judge had noted that the Commissioner for disciplinary proceedings had sent the report, on completion of the enquiry, to the Government. Based on the said report, the appellant had issued a Government Order, dated 27.6.1997, exonerating the respondent from the charges levelled against him. Consequently, the respondent had been included in the panel of Joint Commissioner, for the year 1994, as per the Government order, dated 8.10.1997. Accordingly, he had been placed at rank 1A, above Nidhiyanantham.

15. It had been further noted that, even though the name of the respondent had been included in the panel for the year 1994, he had been given the monetary benefits only with effect from 1997, in the cadre of Joint Commissioner.

16. It is also noted that the appellant Department had filed a reply, in O.A.No.985 of 1995, before the Tamil Nadu State Administrative Tribunal, Chennai, wherein it had been stated that if the charges levelled against the respondent were dropped, he would be paid the salary due to him, with retrospective effect, from the date on which his junior had been promoted to the promotional post. In such circumstances, this Court finds no reason to interfere with the order passed by the learned single Judge, dated 23.6.2008, made in W.P.No.39907 of 2006. As such, the present writ appeal filed by the appellant is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. The appellant Department is directed to disburse the arrears of pay and other attend benefits, as ordered by the learned single Judge, in his order, dated 23.6.2008, within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Connected M.P.No.1 of 2011 is closed.