S. THILAGAVATHYversusSTATE OF TAMIL NADU AND ORS.

                     [2011) 6 S.C.R. 225

                      S. THILAGAVATHY                            A
                               V.
             STATE OF TAMIL NADU AND ORS.
               (Civil Appeal No. 3991 of 2011}
                         MAY 6, 2011
                                                                  B
     [J.M. PANCHAL AND GYAN SUDHA MISRA, JJ.]

        Appeal: Appeal against consent order/non-speaking
  order - Maintainability of - Appellant working as Instructor in
  grade I in respondent-Board - The Board passed order C
  transferring the appellant - Writ petition by appellant
  challenging her transfer order - Appellant thereafter not
  reporting for duty -- Order of discharge - Appellant filing writ
  petition, but withdrawing the same on assurance of
  reinstatement - Restored back on grade II instead of grade I D
  - Appellant filing writ petition after three years seeking
  reinstatement on grade I - Single judge of High Court
  dismissing writ petitions by combined order - Writ appeal
· dismissed by Division Bench on the ground that since the
  appellant had agreed to join at the transferred place and given E
  an assurance to that effect to the Single Judge, the appeal
  was not maintainable - On appeal, held: Division Bench was
  right in holding that the appellant could not 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 F
  the order of her transfer- No reason to interfere with that part
  of the order of the Single Judge - However, Division Bench
  did not deal with the issue concerning reinstatement on grade
  II post - In the said circumstance, the appellant ought to have
  taken steps by way of reviewpetition before the Division Bench G
  and pointed out the error that 'her appeal arising out of writ
  petition seeking reinstatement on grade I was not dealt with
  at all by the Division Bench - It is left open to the appellant
  to approach Division Bench by way of review.

                              225                                 H
    226      SUPREME COURT REPORTS             (2011] 6 S.C.R.


A      The appellant was an Organiser-cum-Tailoring
   Instructor in Grade-I in the Labour Welfare Board. The
  Board passed the order transferring the appeHant. The
  appellant filed a suit challenging the transfer order. The
  District Munsif granted interim injunction in favour of the
B appellant. The suit was finally dismissed by the District
  Munsif on the ground that the civil court had no
  jurisdiction in the said matter. The appellant filed another
                                                                  \
  writ petition no.9110/1997 challenging the transfer order.
  Meanwhile, in an enquiry against the appellant, the Board
c found that the appellant had abandoned the service as
  she had failed to report for duty and had also not filed
  any application for grant of leave. The Board passed the
  order of discharge. The appellant filed another writ
  petition but subsequently withdrew the same as
  accordingly to her, an assurance was given to her by the
0
  respondent that she would be restored back to the
  service as Grade I Officer on which she was appointed.
  After withdrawal of the said writ petition, the appellant was
  reinstated but on Grade II post. After about 3 years, she
E filed another writ petition no.4318/1997 before the High
  Court.

       The two writ petitions no.9110/97 and 4318/97 were
  clubbed together. By a common order, the Single judge
  of the High Court dismissed writ petition no.9110/97
F holding that the transfer order was not illegal or vitiated
  In any manner. Writ petition no.4318/97 was also
  dismissed by the Single Judge on the ground that there
  was no evidence to show that there was any assurance
  by the respondent-Board. The Single Judge also took
G 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 \
H
 S. THILAGAVATHY v. STATE OF TAMIL NADU AND 227
                     ORS.
reinstate her on Grade I post. The Single Judge inferred       A
that this· plea of the appellant was purely an afterthought
with no factual basis. She preferred a writ appeal before
the Division Bench which was also dismissed. The instant
appeal was filed challenging the order of the Division
Bench of the High Court.                                       B

    Disposing of the appeal, the Court

     HELD: 1.1. A perusal of the Impugned order passed
by the Division Bench showed that the Division Bench
although dismissed the writ appeal by common order, C
however, it dealt only with the facts of the case arising
out of writ petition No.9110/97 which was filed by the
appellant before the Single Judge challenging the order
of her transfer and upheld the order passed by the Single
Judge by which the writ petition was dismissed since the D
appellant had failed to establish before the Single Judge
that the order of transfer required interference. The
Division Bench observed that when the appellant had
agreed to join at the transferred place and given an
assurance to that effect to the Single Judge, the appeal E
against the consent order cannot be held maintainable.
The Division Bench was right in holding 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 F
against the order of her transfer. There is no reason to
interfere with this part of the order of the Single Judge
passed in the appeal arising out of writ petition No. 9110/
97. [Paras 10, 11) [231-H; 232-A-F]
    1.2. In so far as appeal arising out of writ petition No   G
4318/97 was concerned, the Division Bench had not dealt
with the case of the appellant wherein she had challenged
her reinstatement on Grade II post and had preferred the
appeal clearly contending that she should have been
                                                               H
    228       SUPREME COURT REPORTS              (2011] 6 S.C.R.


A reinstated on Grade I post on which she initiaUy claimed
  to have been appointed in the year 1986. But this plea
  was not dealt with by the Division Bench at all, which
  amounts to non-consideration of the appeal directed
  against the order passed in writ petition No. 4318/97. But,
B in the said circumstance, the appellant ought to have
  taken steps 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 was not dealt with at all one way or the other
c 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, yet it was
  necessary for the Division Bench to expressly state
D whether the appeal arising out of writ petition No.4318/
  97 was rejected. It is left 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
E writ petition No.4318/97 was not 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. [Paras
  12-14) [232-G-H; 233-A-G]
F
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3991 of 2011.

      From the Judgment & Order dated 14.3.2007 of the High
G Court of Judicature at Madras in Writ Appeal No. 621 of 1998.

          Pankaj Kumar, Malini Poduval for the Appellant

          T. Harish Kumar, R. Nedumaran for the Respondents.

H
   S. THILAGAVATHY v. STATE OF TAMIL NADU AND 229
                       ORS.

      The Judgment of the Court was delivered by                          A
       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      B
  tlie 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             C
  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          D
  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             E
  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          F
    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 three years. The         G
    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    H
    230       SUPREME COURT REPORTS                [2011] 6 S.C.R.


A 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
8
  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
C 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.

        7. After withdrawal of this writ petition, the appellant no
D 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 11 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
E 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 ll post although she
  should have been reinstated on grade I post. But she continued
  making representations which did not meet with any response
F 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
G petition No. 4318/97 assailing her reinstatement on grade II
  post of Organizer-cum-Tailoring lnstructress and not on grade
  I post of Organizer-cum-Tailoring Instructor, were both clubbed
  together along with two more writ petitions which the appellant
  had filed before the High Court but with which we are not
H concerned, as the writ appeal filed by the appellant before the
 S. THILAGAVATHY v. STATE OF TAMIL NADU AND                   23.1
          ORS. [GYAN SUDHA MISRA, J.]
Division Bench was only against the common order passed in           A
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       B
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     C
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
lnstructress 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       D
the ground that the appellantwas 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      E
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       F
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        G
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 learned        H
    232      SUPREME COURT REPORTS               [2011] 6 S.C.R.


A 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
B 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
c 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.

D      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 learned single Judge
  against the order of her transfer and hence it had rightly not
E 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
F 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
G 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
H appointed in the year 1986. But it appears that this plea has
 S. THILAGAVATHY v. STATE OF TAMIL NADU AND 233
          ORS. [GYAN SUDHA MISRA, J.]
not been dealt with by the Division Bench at all, which amounts        A
to non-consideration 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 B
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 Divisiqn 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 C
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 D
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 whether the appeal arising out of writ petition E
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.       F
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       G
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.
D.G.                                        Appeal disposed of.        H