Unserved and unproduced promotion cancellation order cannot deny retired employee's cadre benefits.

ORDER

Heard Mr.D.Soundar Raj, learned Counsel for the petitioner and Mr.K.Kathiresan, learned Standing Counsel for the respondent and perused the record.

2. The petitioner, by the present Writ Petition, while assailing the action of the respondent in issuing the proceedings in Lr.No.029339/C3/SETC/2017, dated 05.02.2019 had sought for quashing the same with a consequential direction to the respondent to fix his salary in the cadre of Checking Inspector and also sanction fifth review benefits along with payment of arrears.

3. The case of the petitioner in brief is that he was promoted to the post of Checking Inspector from the cadre of Senior Conductor vide proceedings, dated 18.01.2012 and had retired from the said post of Checking Inspector on 30.06.2013; and that the respondent has not granted him the benefits attached to the post of Checking Inspector and only granted benefits that are payable to the Senior Conductor, which action it is contended as highly illegal and arbitrary.

4. Counter-affidavit, on behalf of the respondent, is filed. The respondent, by the counter-affidavit, contended that the representation submitted by the petitioner pursuant to the order, dated 30.11.2018 in W.P.No.31575 of 2018, was considered and was rejected by the respondent by the impugned proceedings as the petitioner’s promotion to the post of Checking Inspector was canceled vide order, dated 04.12.2012 and accordingly, necessary entries have been made in the service record of the petitioner; that the petitioner suppressing the aforesaid fact of cancellation of his promotion, had approached this Court initially by filing the Writ Petition in W.P.No.31575 of 2018 as well as the present Writ Petition i.e., W.P.No.10212 of 2019.

5. I have taken note of the respective submissions made by the learned Counsel on either side.

6. While it is the specific case of the petitioner that the petitioner has been promoted to the cadre of Checking Inspector on 18.01.2012 and had continued in the same position till his retirement on 30.06.2013, the respondent, by the counter-affidavit, has categorically claimed of the petitioner’s promotion to the post of Checking Inspector having been canceled on 04.12.2012.

7. The stand of the respondent in the counter-affidavit is extracted hereunder:-

“11. I submit that, it is also found from the available Note File records from the HR section that the petitioner has undergone Bye Pass Surgery and subsequently referred to Medical Board; and the Medical Board has opined that the above Petitioner is unfit for the post of Conductor; and in continuation based on the Medical Board report, the Promotion order issued to the above Petitioner was cancelled vide Order No:035607/HR3/SETCTN/2012, dated:04.12.2012 ie, 6 months before the date of retirement; and hence he was in the cadre of Conductor till retirement.

12. I submit that, accordingly in the Service Record Book, it was entered as the petitioner’s promotion order No. 035607/HR3/SETCTN/2011 dated January 18, 2012, was subsequently cancelled vide Order No. 035607/HR3/SETC/2012 dated December 4, 2012. The relevant SR book entry is enclosed for reference.

13. I submit that, the petitioner failed to disclose the cancellation of promotion order by the Checking Inspector in the affidavits filed in both WP(MD)No:31575 of 2018 and WP No: 10212 of 2019.”

8. Though the respondent, by the counter-affidavit, had claimed of cancellation of the promotion, no material is placed before this Court to show that the aforesaid proceeding, dated 04.12.2012 had been served on the petitioner for him to be aware of his promotion being canceled.

9. Since the respondent, by the counter-aff