IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.3.2009 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.19173 of 2004 V.Ramakrishnan .. Petitioner vs. 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. .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records in connection with the impugned order passed by the fourth respondent in O.A.No.4117 of 1999, dated 4.9.2003 by confirming the order of the first respondent in G.O.(1D).No.122, dated 15.3.1999 and quash the same and further direct the respondents 1 to 3 to grant notional promotion to the petitioner as Assistant Director of Survey (Maps) or Assistant Director of Survey (Drawing) from the date on which he was due for promotion and grant all consequential service and monetary benefits. For petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.M.Muthappan For 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 the Survey and Settlement and Land Records Department. In course of time, he was promoted. During 1996, he was holding the post of Technical Officer and subsequently posted as Assistant Director of Survey (Drawing) and Assistant Director of Survey (Maps). One Baluswamy, was in-charge of the Office of Assistant Director of Survey (Drawings) and Assistant Director of Survey (Maps) during the year 1996 and he retired from service with effect from 31.7.1996 and the present petitioner was given full additional charge of the post of Assistant Director of Survey (Drawings) and Assistant Director of Survey (Maps) with effect from 1.8.1996. The petitioner retired from service on 30.9.1998. The grievance of the petitioner is that though he was eligible to be considered for promotion to the post of Assistant Director of Survey (Drawings) or to the post of Assistant Director of Survey (Maps), on account of non-preparation of the panel for the year July 1996 to June 1997 and even for the subsequent period, his legitimate expectation of being promoted to the promotional post of Assistant Director of Survey (Drawings) or to the post of Assistant Director of Survey (Maps) was belied on account of the indifferent attitude on the part of the appropriate Government in preparing the panel. Though representations had been made by the petitioner even during his tenure, no action was taken. As a matter of fact, recommendations had been made from time to time. But ultimately, such recommendation was not accepted on the ground that the petitioner had crossed the eligible age limit of 57 years and therefore, ultimately, the petitioner had to retire in the cadre of Technical Officer while still holding the post of Assistant Director of Survey (Drawing) and Assistant Director of Survey (Maps) as additional charges. The Original Application filed by the petitioner having been rejected by the Tribunal, the present Writ Petition has been filed. 3. Learned Senior Counsel appearing for the petitioner has placed reliance upon Rule 4 of the General Rules in Part-II of the Tamil Nadu State and Subordinate Services Rules, which contemplates that the panel is required to be prepared in respect of all suitable candidates by considering their eligibility as on 1st July of every year and as and when any vacancy arises during the currency of such panel, a person can be expected to be promoted to any vacancy in the promotional 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 the effect 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 the petitioner had not been included and subsequently, by the time of consideration of the name during the subsequent year, the petitioner had already crossed the age of 57 yeas and therefore, he was not eligible. 5. We are not impressed with such submissions made on behalf of the learned counsel appearing for the State Government for the following reasons. 6. First of all, as per the General Rules, a panel is to be prepared on 1st July of the year concerned. It is not in dispute that for the year 1996, that is to say, 1st July 1996 to 30th July 1997, no panel had been prepared, though the petitioner would have been fully eligible for consideration in the inclusion in the said panel. Similarly, if a panel would have been prepared on 1.7.1997, the petitioner would have been equally eligible as he had not completed the age of 57 years as on 1.6.1997. The stand of the Government that no vacancy was available on 1.7.1996, is also of no consequence, as the panel is prepared in contemplation of anticipated vacancy and not on the basis of the actual vacancy on the crucial date when the panel is required to be prepared. It is therefore evident that inspite of specific requirement under the Rules that the panel is required to be prepared by taking into account all eligible candidates available on the crucial date, no such panel had been prepared for the year 1996- 1997 and 1997-1998. In the process, even though the petitioner functioned as Assistant Director of Survey (Maps) and Assistant Director of Survey (Drawing), for almost two years, he was not given the benefit of promotion. Under such circumstances, we feel that the grievance of the petitioner is justified. 7. It is of course true that no person has got a right to claim promotion, though his right to be considered for promotion cannot be denied. In the present case, it is not the stand of the Government that the Government has taken conscious decision not to fill up the post which fell vacant with effect from 1.8.1996 and continued to remain vacant till 30.9.1998. Only because of the non-preparation of the panel in time for the relevant years, the petitioner has been denied his normal and legitimate expectation of being promoted to the post which had in fact fallen vacant. 8. Under the normal circumstances, we would have called upon the Government to consider the question of preparation of panel for the years 1996-1997 and 1997-1998. However, in view of the fact that more than 13 years have lapsed in the meantime and the petitioner himself was holding the post as being in full additional charge, we do not think that it is necessary to give any such direction to the Government for considering any question of preparation of panel for the 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 the petitioner would be deemed to have been promoted to the post of Assistant Director of Survey (Maps) or Assistant Director of Survey (Drawing) with effect from 1.8.1996 and on that basis, his pension shall be re-calculated and he would be paid the arrear pension, as he has retired in the meantime. However, he shall not be entitled to any amount towards arrear pay in the promotional post. 9. It is made clear that this order is given in the peculiar facts and circumstances of this case and the petitioner would not be entitled to any actual financial benefits, save and except that on the basis of such deemed promotion, his pension has to be re- calculated and the entire arrears of pension and the increase in pension on the basis of such increase in pension, should be paid to him and thereafter, he will be entitled to such increased pensionary benefits. The direction relating to payment of arrears of increase in pension shall be completed within a period of four months from the date of receipt of a copy of the present order. 10. With the above observations and directions, the Writ Petition is disposed of. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. 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.10750 Writ Petition No.19173 of 2004 KJI(CO) EM/29.4 https://hcservices.ecourts.gov.in/hcservices/