REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3991         OF 2011 (Arising out of S.L.P. (C ) No. 13057/2008)

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.  

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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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