V.Ramakrishnan v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.3.2009CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.19173 of 2004V.Ramakrishnan .. Petitionervs.1. The State of Tamil Nadu, rep. by Secretary to Govt., Revenue Dept., Fort St.George, Chennai-9.2. The Chief Secretary to Govt., Fort St.George, Chennai-9.3. The Commissioner of Survey & Settlement, Chepauk, Chennai-5.4. The Registrar, Tamil Nadu Administrative Tribunal, Chennai-104... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorarified Mandamus,calling for the records in connection with the impugned order passedby the fourth respondent in O.A.No.4117 of 1999, dated 4.9.2003 byconfirming the order of the first respondent in G.O.(1D).No.122,dated 15.3.1999 and quash the same and further direct the respondents1 to 3 to grant notional promotion to the petitioner as AssistantDirector of Survey (Maps) or Assistant Director of Survey (Drawing)from the date on which he was due for promotion and grant allconsequential service and monetary benefits.For petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.M.MuthappanFor respondents: Mr.M.Dhandapani, Spl.G.P. https://hcservices.ecourts.gov.in/hcservices/ ORDER(The Order of the Court was made by P.K.Misra,J)Heard learned counsels appearing for the parties.2. The petitioner entered into service as Draftsman in theSurvey and Settlement and Land Records Department. In course of time,he was promoted. During 1996, he was holding the post of TechnicalOfficer and subsequently posted as Assistant Director of Survey(Drawing) and Assistant Director of Survey (Maps). One Baluswamy, wasin-charge of the Office of Assistant Director of Survey (Drawings)and Assistant Director of Survey (Maps) during the year 1996 and heretired from service with effect from 31.7.1996 and the presentpetitioner was given full additional charge of the post of AssistantDirector of Survey (Drawings) and Assistant Director of Survey (Maps)with effect from 1.8.1996. The petitioner retired from service on30.9.1998. The grievance of the petitioner is that though he waseligible to be considered for promotion to the post of AssistantDirector of Survey (Drawings) or to the post of Assistant Director ofSurvey (Maps), on account of non-preparation of the panel for theyear July 1996 to June 1997 and even for the subsequent period, hislegitimate expectation of being promoted to the promotional post ofAssistant Director of Survey (Drawings) or to the post of AssistantDirector of Survey (Maps) was belied on account of the indifferentattitude on the part of the appropriate Government in preparing thepanel. Though representations had been made by the petitioner evenduring his tenure, no action was taken. As a matter of fact,recommendations had been made from time to time. But ultimately, suchrecommendation was not accepted on the ground that the petitioner hadcrossed the eligible age limit of 57 years and therefore, ultimately,the petitioner had to retire in the cadre of Technical Officer whilestill holding the post of Assistant Director of Survey (Drawing) andAssistant Director of Survey (Maps) as additional charges. TheOriginal Application filed by the petitioner having been rejected bythe Tribunal, the present Writ Petition has been filed.3. Learned Senior Counsel appearing for the petitioner hasplaced reliance upon Rule 4 of the General Rules in Part-II of theTamil Nadu State and Subordinate Services Rules, which contemplatesthat the panel is required to be prepared in respect of all suitablecandidates by considering their eligibility as on 1st July of everyyear and as and when any vacancy arises during the currency of suchpanel, a person can be expected to be promoted to any vacancy in thepromotional post. This is apparent from Rule 4 of the General Rules,including the proviso. 4. In the present case, the stand of the Government is to theeffect that on 1.7.1996, no vacancy was available, as Balusamy was https://hcservices.ecourts.gov.in/hcservices/ holding the post on in-charge basis and therefore, the name of thepetitioner had not been included and subsequently, by the time ofconsideration of the name during the subsequent year, the petitionerhad already crossed the age of 57 yeas and therefore, he was noteligible.5. We are not impressed with such submissions made on behalf ofthe learned counsel appearing for the State Government for thefollowing reasons.6. First of all, as per the General Rules, a panel is to beprepared on 1st July of the year concerned. It is not in dispute thatfor the year 1996, that is to say, 1st July 1996 to 30th July 1997,no panel had been prepared, though the petitioner would have beenfully eligible for consideration in the inclusion in the said panel.Similarly, if a panel would have been prepared on 1.7.1997, thepetitioner would have been equally eligible as he had not completedthe age of 57 years as on 1.6.1997. The stand of the Government thatno vacancy was available on 1.7.1996, is also of no consequence, asthe panel is prepared in contemplation of anticipated vacancy and noton the basis of the actual vacancy on the crucial date when the panelis required to be prepared. It is therefore evident that inspite ofspecific requirement under the Rules that the panel is required to beprepared by taking into account all eligible candidates available onthe crucial date, no such panel had been prepared for the year 1996-1997 and 1997-1998. In the process, even though the petitionerfunctioned as Assistant Director of Survey (Maps) and AssistantDirector of Survey (Drawing), for almost two years, he was not giventhe benefit of promotion. Under such circumstances, we feel that thegrievance of the petitioner is justified.7. It is of course true that no person has got a right to claimpromotion, though his right to be considered for promotion cannot bedenied. In the present case, it is not the stand of the Governmentthat the Government has taken conscious decision not to fill up thepost which fell vacant with effect from 1.8.1996 and continued toremain vacant till 30.9.1998. Only because of the non-preparation ofthe panel in time for the relevant years, the petitioner has beendenied his normal and legitimate expectation of being promoted to thepost which had in fact fallen vacant.8. Under the normal circumstances, we would have called upon theGovernment to consider the question of preparation of panel for theyears 1996-1997 and 1997-1998. However, in view of the fact that morethan 13 years have lapsed in the meantime and the petitioner himselfwas holding the post as being in full additional charge, we do notthink that it is necessary to give any such direction to theGovernment for considering any question of preparation of panel forthe years 1996-1997 and 1997-1998. On the other hand, we feel that https://hcservices.ecourts.gov.in/hcservices/ the interest of justice would be served by observing that thepetitioner would be deemed to have been promoted to the post ofAssistant Director of Survey (Maps) or Assistant Director of Survey(Drawing) with effect from 1.8.1996 and on that basis, his pensionshall be re-calculated and he would be paid the arrear pension, as hehas retired in the meantime. However, he shall not be entitled to anyamount towards arrear pay in the promotional post. 9. It is made clear that this order is given in the peculiarfacts and circumstances of this case and the petitioner would not beentitled to any actual financial benefits, save and except that onthe basis of such deemed promotion, his pension has to be re-calculated and the entire arrears of pension and the increase inpension on the basis of such increase in pension, should be paid tohim and thereafter, he will be entitled to such increased pensionarybenefits. The direction relating to payment of arrears of increase inpension shall be completed within a period of four months from thedate of receipt of a copy of the present order.10. With the above observations and directions, the WritPetition is disposed of. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Secretary to Govt., State of Tamil Nadu, Revenue Dept., Fort St.George, Chennai-9.2. The Chief Secretary to Govt., Fort St.George, Chennai-9.3. The Commissioner of Survey & Settlement, Chepauk, Chennai-5.+ 1 CC to M/s.T.Ayngaraprabhu,Advocate,SR.10401+ 1 Cc to Government Pleader,SR.10750Writ Petition No.19173 of 2004KJI(CO)EM/29.4