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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL  NO.7692 OF 2014

(Arising out of SLP (C) No. 5396 OF 2013)

A. FRANCIS ...    APPELLANT (S)

VERSUS

THE MANAGEMENT OF METROPOLITAN       ...  RESPONDENT (S) TRANSPORT CORPORATION LTD.,  TAMIL NADU

J U D G M E N T

RANJAN GOGOI, J.

1. Delay condoned.

2.  Leave granted.

3. In  view of  the limited notice issued by this  Court  on  

24th January,  2013,  the only  issue that  has to be decided  

in  the  present  appeal  is  the  entitlement  of  the  

appellant  –  A.   Francis  to  salary  in  the  higher  post  of  

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Assistant  Manager  wherein  he  had  worked  from  28th  

February, 2001 till 31st May, 2005.

4. The appellant was initially appointed as a clerk in the  

Tamil Nadu State Transport Department whereafter he was  

transferred  and  absorbed  in  the  newly  formed  Pallavan  

Transport  Corporation,  which  Corporation  subsequently  

came to be known as the Metropolitan Transport Corporation  

Ltd.,  Chennai.   He  was  promoted  to  the  post  of  ‘Section  

Officer’  in  the year 1991.   As a large number of  posts of  

Assistant Manager were lying vacant in the Corporation, by  

Order dated 28th February, 2001 the appellant was posted as  

Assistant  Manager  In-charge  (Public  Relations).   The  

aforesaid order made it clear that the same will not confer  

any  preferential  right  for  regular  promotion  and  that  the  

appellant will continue to draw his grade pay in his present  

cadre i.e. Assistant Labour Welfare Officer.  Well after he had  

retired  from service  with  effect  from 31st May,  2005,  the  

appellant  moved a  Writ  Petition  before  the  High  Court  of  

Judicature at Madras claiming, inter alia, the relief of higher  

salary of the post of Assistant Manager.  The aforesaid Writ  

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Petition  was  allowed  by  order  dated  4th December,  2009.  

Aggrieved,  the  Corporation  filed  a  Letters  Patent  Appeal  

before the High Court.  The direction of the learned Single  

Judge for payment of salary of the higher post for the period  

in  question  having  been  reversed  in  the  Letters  Patent  

Appeal, the appellant is before this Court.

5. We  have  heard  Ms.  C.K.  Sucharita,  learned  counsel  

appearing for  the appellant and Mr.  Subramonium Prasad,  

learned  AAG,  appearing  for  the  respondent.   We  have  

carefully considered the orders passed by the learned Single  

Judge as well as the appellate Bench of the High Court.

6. Ms.  C.K.  Sucharita,  learned counsel  for  the  appellant  

has vehemently contended that having discharged duties in  

the post of Assistant Manager, the appellant is entitled to the  

pay and emoluments of that office which had been granted  

to him by the learned Single Judge.  Relying on a decision of  

this Court in Secretary-cum-Chief Engineer, Chandigarh  

vs.  Hari  Om  Sharma  &  Ors.1,  learned  counsel  has  

contended that  the  Division Bench of  the High Court  was  1 (1998) 5 SCC 87

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plainly wrong in reversing the direction of the learned Single  

Judge.  In fact, learned counsel would urge that the ratio of  

the  decision  of  this  Court  in  Secretary-cum-Chief  

Engineer, Chandigarh (supra) is a complete answer to the  

issues arising in the present proceeding.

7. On the other hand, Mr. Subramonium Prasad, learned  

AAG,  appearing for  the respondent  has placed before the  

Court the terms of the order dated 28th February 2001 by  

which the appellant was allowed to discharge duties in the  

post of Assistant Manager.  It is pointed out that there was a  

specific condition stipulated in the order dated 28th February,  

2001 with regard to salary and emoluments,  namely, that  

the appellant would continue to draw the salary in the lower  

cadre i.e. Assistant Labour Welfare Officer.  The claim made  

with  regard to salary  of  the higher  post  is,  therefore,  not  

tenable in law.  Learned counsel has tried to distinguish the  

decision of this Court in  Secretary-cum-Chief Engineer,  

Chandigarh  (supra) by contending that the same must be  

understood in the context of the facts of the case.

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8. The  order  dated  28th February,  2001,  by  which  the  

appellant  was  allowed  to  discharge  duties  in  the  post  of  

Assistant  Manager  had  made  it  clear  that  the  appellant  

would  not  be  entitled  to  claim  any  benefit  therefrom  

including higher salary and further that he would continue to  

draw  his  salary  in  the  post  of  Assistant  Labour  Welfare  

Officer.   If  the  above  was  an  express  term  of  the  order  

allowing  him to  discharge  duties  in  the  higher  post,  it  is  

difficult  to  see  as  to  how  the  said  condition  can  be  

overlooked  or  ignored.   The  decision  of  this  Court  in  

Secretary-cum-Chief Engineer, Chandigarh  (supra) was  

rendered in a situation where the incumbent was promoted  

on ad hoc basis to the higher post.  The aforesaid decision is  

also  distinguishable  inasmuch  as  there  was  no  specific  

condition  in  the  promotion  order  which  debarred  the  

incumbent  from  the  salary  of  the  higher  post.   Such  a  

condition was incorporated in an undertaking taken from the  

employee which was held by this  Court  to  be contrary to  

public policy.

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9. For the aforesaid reasons, we do not find any merit in  

this appeal.  Consequently, the same is dismissed and the  

order  dated  29th September,  2011  passed  in  Writ  Appeal  

No.1181 of 2010 by the High Court of Judicature at Madras is  

affirmed.

      …....…………………………J.                            [RANJAN GOGOI]

      .……....………………………J.                             [M. Y. EQBAL]

NEW DELHI, AUGUST 13, 2014.

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