M. Parasuraman vs The Secretary to Government, Handloom, Handicrafts, Textiles and Khadi Department, Fort St. George, Chennai-9 and The Chief Executive Officer, Tamil Nadu Khadi and Village Industries Board, Kuralagam, Chennai-108

Hon''ble the Chief Justice Mr. M.Y. Eqbal

This writ appeal is directed against the order dated 8.12.2011 passed by the learned single Judge in W.P. No. 7024 of 2009 in the writ petition

filed by the appellant herein for a direction to quash the letter of the first respondent dated 9.3.2009, give notional promotion to the appellant and

pay him all arrears of pay and allowances for the service period along with consequential terminal and pensionary benefits. The appellant/writ

petitioner joined the respondent-Khadi Board in the year 1971 as Typist. He was subsequently promoted to various cadres and last promoted as

Assistant Director in the year 1994, the next avenue of promotion being Deputy Director. The appellant''s name was included in the panel of

consideration for promotion to the post of Deputy Director in the year 2001. However, from the year 2002, he was being posted as Deputy

Director-Incharge and no regular promotion was given to him. He was relieved from service on 30.4.2007, having opted for voluntary retirement.

The case of the appellant was that though he was discharging the duties of Deputy Director, he had not been paid the salary for that post and was

being given only the pay of Assistant Director.

Per contra, the respondents contended before the learned single Judge that the respondent-Board had suffered severe financial crises, as a result

of which a number of posts have been surrendered and a number of employees had also been retrenched. The panel prepared in the year 2001

was rejected by the Government and therefore, the appellant could not be given regular promotion as Deputy Director. In view of the mass

retrenchment, many officers like the appellant were entrusted with responsibilities of higher posts, though working in the existing lower scales of

pay. According to the respondents, it was not only the appellant, but three others who worked as Deputy Directors, albeit drawing salary in the

cadre of Assistant Directors.

The learned single Judge, after hearing the elaborate submissions advanced on either side, observed that no doubt the appellant served in the

capacity of Deputy Director for a considerable period of five years, a formal order of promotion was not given to him, and only an order posting

him as Deputy Director (Incharge) was served o him. At the same time, the learned single Judge observed that if the stand of the respondents that

the Board was facing severe financial strain were to be accepted, the nothing prevented the Board from surrendering the surplus posts. The learned

single Judge, following the ratio laid down by the Supreme Court in the case Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and

Others, to the effect that rejecting or overlooking the claim of an individual for promotion, especially when that individual is eligible therefore, itself

is violation of fundamental right guaranteed under Article 16 of the Constitution, held that extracting the work of a higher post from the appellant

and denying him the pay due for that post was arbitrary and unjustified on the part of the respondents.

Accordingly, the learned single Judge allowed the writ petition and directed the respondents to pay the appellant, the salary fixed for the post of

Deputy Director for the period 2002 to 2007 during which period he served in that post. However, as regards his claim for promotion, the learned

single Judge, taking note of the fact that the Government had rejected the panel of the year 2001 and was yet to approve the subsequent panel,

held that the question of giving regular promotion to the appellant did not arise. Therefore, the learned single Judge negatived the claim of the

appellant for payment of retirement benefits in the scale of Deputy Director, since regular promotion was not effected in favour of the appellant.

The learned single Judge also rejected the appellant''s claim that the terminal benefits would have to be calculated only on the basis of the last

drawn pay and since the appellant was now being given the pay in the cadre of Deputy Director, his terminal benefits should also be fixed in the

said cadre, since he was not regularly promoted and was only in charge of such post. It is against the latter portion of the order passed by the

learned single Judge, the present appeal is filed.

Learned senior counsel appearing on behalf of the appellant submitted that the learned single Judge having approved of the appellant''s eligibility

for promotion, should have granted the relief of promotion of the appellant to the post of Deputy Director, which was the main relief sought for in

the writ petition. The fixing of the appellant''s pay in the cadre of Deputy Director for the period 2002 to 2007, but denial of the retirement benefits

in the said scale of pay on the ground that he was not regularly promoted was unjustified. According to the learned senior counsel, the learned

single Judge failed to appreciate the provision of law relating to payment of pension in respect of Government employees, in that Rule 43 of the

Tamil Nadu Pension Rules stipulates that pension shall be calculated at the rate of 50% of the last pay drawn, according to which the appellant''s

pay ought to be refixed in the post of Deputy Director, and rejecting such a claim on the ground that it would be applicable only in cases of regular

promotion was contrary to the specific provision contained in the Pension Rules.

We have heard the learned counsel appearing for both sides and perused the impugned order passed by the learned single Judge.

In the case of Selvaraj Vs. Lt. Governor of Island, Port Blair and Others, , the appellant was asked to look after the duties of Secretary

(Scouts), but he was not paid the salary in the said post on the ground that he was not regularly promoted to such post. Their lordships of the

Supreme Court allowed the appeal and granted the limited relief to the appellant, holding that on the principle of quantum meruit, the authorities

should have paid the appellant as per the emoluments available in the higher pay scale during the time he actually worked in the said post, though in

an officiating capacity and not as a regular promotee.

The facts of the above present case are almost identical to the case on hand. As in the present case, the appellant in the above case was not

regularly promoted, but was only asked to look after the duties of a post which was higher to his cadre. However, the question of calculation of

pension, whether it would be on the existing post or on the substantive post, did not arise before the Supreme Court. In the circumstances, the

Supreme Court directed payment of salary to the appellant in the higher post in which he officiated, based on the principle quantum meruit ''as

much as he deserved ​ the actual value of services performed''.

Applying the above principle, we are of the opinion that the learned single Judge was right in allowing the writ petition and directing payment of

salary applicable to the post of Deputy Director for the period in which the appellant served in that post. We also do not find any error in the

finding of the learned single Judge in rejecting the claim of the appellant for regular promotion to the post of Deputy Director or for payment of

retirement benefits in the scale of pay due in that post. For the reasons aforesaid, we find no merit in this appeal, which is accordingly dismissed.

However, there shall be no order to costs.