IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-08-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. KANNAN WRIT PETITION NO.24051 OF 2004 and WPMP.No.29194 OF 2004 1. The State of Tami Nadu, Represented by its Secrtary, Small Industries Department, Fort St. George, Chennai 600 009. 2. The Director of Industries and Commerce, Chepauk, Chennai 600 005. .. Petitioners Vs. 1. D. Balakumar 2. The Registrar, Tamil Nadu Administrative Tribunal, Chennai. 3. The Chairman, Tamil Nadu Public Service Commission, Chennai 600 002. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorari to call for the records pertaining to the order dated 9.7.2002 made in O.A.No.7454 of 1995, on the file of the Tamil Nadu Administrative Tribunal, Chennai, and quash the same. For Petitioner : Mrs. Geetha Thamaraiselvan Government Advocate For Respondents : Mr.L. Chandrakumar - - - O R D E R (Order of the Court was made by P.K. MISRA, J) Heard Mrs. Geetha Thamaraiselvan, Government Advocate, for https://hcservices.ecourts.gov.in/hcservices/ the petitioners and Mr.L. Chandrakumar, for Respondent No.1. 2. The present Respondent No.1 was initially appointed as Junior Tester Grade II in the Central Electrical Testing Laboratory, on 26.2.1977 and, subsequently, he was promoted as Foreman (Engineering) Grade II in the General Engineering Wing in the pay scale of Rs.400 - 700. Thereafter, Respondent No.1 was selected by the Tamil Nadu Public Service Commission on 22.6.1984 as Tester in the pay scale of Rs.600 - 1050 as a direct recruit. Subsequently, however, he was deemed to have been regularly appointed to the post of Junior Engineer on 5.7.1984. On 29.1.1986, the Respondent No.1 had exercised his option to come back to the General Engineering Wing of the Department in the post of Foreman (Engineering) Grade I. By the said date, there had been a change in the nomenclature on 1.4.1978 and the equivalent post of Foreman (Engineering) Grade I was Junior Engineer (Industries). Pay scale applicable to either of the posts was Rs.525 - 925. 3. The dispute relates to the question of promotion to the next post of Assistant Director of Industries and Commerce in the pay scale of Rs.750 - 1350. Such posts are filled up only by promotion from the post of Junior Engineer (Industries) in the pay scale of Rs.525 - 925 and the Assistant Engineer (Industries) in the pay scale of Rs.600 - 1050 in the ratio of 1:3. Respondent No.1 made representations for giving him promotion to the post of Assistant Director claiming that out of the proportion of one available to the Junior Engineer (Industries) for the Diploma Holders, the petitioner should be considered. However, one Mr.C. Selvaraj, junior to Respondent No.1, was promoted as Assistant Director. Challenging such promotion, Respondent No.1 had filed O.A.No.7454 of 1995, wherein the Tribunal had allowed the Original Application by giving the following directions :- "5. It is now stated that the petitioner was also Junior Engineer (Industries), but he was wrongly described as Foreman (Engineering) Grade I. In the reply, they admit this fact in paragraph 4 which reads as follows :- "It is submitted that even as he was working in a higher post of "Tester" in the Electronic Testing and Development Centre, Madras-41, the applicant on expressing option to come over to the General Engineering Wing by relinquishing all his rights in the posts held by him in the Electrical and Electronic Wing, he was reverted to the General Engineering wing as "Junior Engineer (Industries)" to which he was regularly promoted (from the feeder post "Foreman (Engineering) Grade II" as per his seniority) with effect from 5.7.1984, considering the lien held by him in that post by virtue of paper promotion and subsequent regularisation in that post. But while issuing the reversion and posting order to him in the https://hcservices.ecourts.gov.in/hcservices/ General Engineering Wing as Junior Engineer (Industries) in the Joint Director (Establishment)'s Proceedings No.10047/EDS2/86 dated 29.1.86, it was erroneously stated that he was being posted as "Foreman (Engineering) Grade I" in the Electro Medical Equipment Centre, Guindy (in the old nomenclature of the post), although the post became as "Junior Engineer (Industries)" after redesignation ordered by the Government in G.O.Ms.No.822 Industries dated 18.6.82." Therefore, it is clear that the petitioner was promoted from the category of Foreman (Engineering) Grade II as Junior Engineer, but what is stated now is that after giving promotion, he was wrongly given posting as Foreman (Engineering) Grade I. From the fact it is seen that the petitioner was serving as Foreman (Engineering) Grade II. When promotion was given, he should be given promotion as Junior Engineer (Industries). I do not find that the respondents have wrongly described the petitioner as Foreman (Engineering) Grade I. Further in the reply it is stated that since the petitioner has been wrongly described as Foreman (Engineering) Grade I, his name has not been included in the panel. This is incorrect. It is also now stated that the fourth respondent is dead. 6. In the circumstances, promotion shall be given to the petitioner as Assistant Director of Industries and Commerce with effect from the date on which said Thiru Selvaraj was given promotion as per the panel dated 22.11.1995 for the year 1994-95. The petition is ordered accordingly." Such order of the Tribunal is in question in the present writ petition at the instance of the State Government. 4. Learned counsel appearing for the petitioners has vehemently contended that in fact Respondent No.1, having volunteered to go back to the General Engineering Wing, cannot claim any benefit on the basis of his previous service rendered as a Tester. It is further stated that by the time the Respondent No.1 came to be posted as Foreman (Engineering) Grade I, there was no such post available and, therefore, he should have been posted as Foreman (Engineering) Grade II and on that basis he cannot be considered as eligible. 5. We have heard the counsels appearing for both the parties at length and gone through the materials on record. 6. We find that even though the post of Foreman (Engineering) Grade I has been redesignated as Junior Engineer (Industries) from 1.4.1978, Respondent No.1 was in fact posted as Foreman (Engineering) Grade I and the pay scale of Rs.525 - 925 was https://hcservices.ecourts.gov.in/hcservices/ made available to him. It is thus obvious that though the Department actually intended him to post as Foreman (Engineering) Grade II, he was posted as Foreman (Engineering) Grade I in the pay scale of Rs.525 - 925. The contention of the petitioners that Respondent No.1 was intended to be posted as Foreman (Engineering) Grade II cannot be accepted as the pay scale for the Foreman (Engineering) Grade II was Rs.400 - 700, whereas the Respondent No.1 was actually placed in the pay scale of Rs.525 - 925. The Tribunal has considered all the relevant aspects and come to the conclusion that Respondent No.1 was entitled to be considered for the post of Assistant Director. 7. It now transpires that Respondent No.4 had expired in the meantime. Moreover, Respondent No.1 himself has been promoted as the Assistant Director on 17.4.2001. The contention of the Respondent No.1 was to the effect that on account of the so called non- availability of Junior Engineer (Industries) for promotion to the post of Assistant Director in the ratio of 1:3, C. Selvaraj, who was a degree-holder, had been promoted in the year 1995. The Tribunal has given a direction to the Department to consider the question of promotion of the present Respondent No.1 with effect from the date on which such C.Selvaraj was given promotion as per the panel dated 22.11.1995. It is also not in dispute that Respondent No.1 has been superannuated in the meantime. 8. Having regard to all these subsequent events, namely the death of C. Selvaraj and the superannuation of present Respondent No.1, we feel that the order of the Tribunal shall be clarified to the extent that Respondent No.1 shall be deemed to have been notionally promoted with effect from the date on which C. Selvaraj was given promotion and on that basis by notionally calculating the increments, the pension payable after the retirement of Respondent No.1 in 2004 would be recalculated. It is made clear that no arrear amount would be payable towards the salary component, but the pension shall be recalculated on the footing that Respondent No.1 had been notionally promoted as Assistant Director with effect from the date on which C. Selvaraj was actually promoted and on that basis the arrear pension should be recalculated and paid and future pension also shall be paid. This exercise may be completed within a period of three months from the date of receipt of a copy of this order. 9. Subject to the aforesaid observations and directions, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ dpk To 1.The Chairman, Tamil Nadu Public Service Commission, Chennai 600 002. 2.The Secretary to Govt. Small Industries Department, Fort St. George, Chennai 600 009. 3. The Director of Industries and Commerce, Chepauk, Chennai 600 005. +1cc to Govt. Pleader Sr 48863 +1cc to Mr.L.Chandrakumar, Advocate Sr 48653 SJ(CO) km/20.10. W.P.24051/2004 https://hcservices.ecourts.gov.in/hcservices/