A. Sanjeevi, Vs The Secretary to Government

Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records relating to the Order passed by the 1^st respondent in G.O.M.S.No.148 Revenue (NIA-3(1) Dept. Dated 27.03.2015 and quash the same and consequently direct the respondents to fix the pay of the petitioners in the post of Assistant Director of Survey and Land Records for having worked in the post of Assistant Director of Survey and Land Records by holding full charge and consequently grant the petitioners viz., fixation of pay, terminal benefits etc., in the cadre of Assistant Director of Survey and Land Records.

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For Petitioners : Mr.V.Chandrasekaran For Respondents : Mr.K.H.Ravikumar Government Advocate

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O R D E R

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The petitioners herein, who are 16 in number, filed the present writ petition challenging the orders issued by the Government in G.O (Ms) No.148, Revenue [NI-A-3(1)] Department, dated 27.03.2015, whereby the claim made by the petitioners for fixation of their pay in the post of 'Assistant Director of Survey and Land Records' (hereinafter referred to as the 'Assistant

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Director') and certain other consequential reliefs such as fixation of pay, payment of terminal benefits etc., was rejected by the Government. The basis for the petitioner to make such claim is that they have worked in the post of Assistant Director by holding full charge.

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For better appreciation, it is necessary to state a few facts that are

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relevant for disposal of this writ petition.

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2.1. The petitioners 1 to 15 herein and the husband of the 16^th petitioner (hereinafter referred to as the 'petitioners') were all appointed in different cadres and were subsequently promoted to the post of 'Inspector of Survey' in various Districts of the State. While they were working as 'Inspector of Survey', the Respondent No.2 issued the proceedings dated 20.06.2000, directing for filling up of the post of 'Assistant Director' which are vacant by entrusting the additional charge of the said post to the senior most Inspector of Survey working in the District. Accordingly, the petitioners were kept in charge of the post of 'Assistant Director' during the years 2000 to 2008 for short span and then retired from service in the substantive post of 'Inspector of Survey' while holding the full charge of the post of 'Additional Director'. The date on which each of the petitioner was kept on full additional charge of the post of 'Additional Director' and the actual date of retirement of the

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respective petitioners is shown in the tabular form hereunder:-

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*Sl.No*	*Name of the petitioners* *in the writ petition*	*Date of Full* *Additional* *Charge*	*Date of* *Retirement*
1.	A.Sanjeevi	22.06.2005	31.05.2006
2.	K.Kandasamy	24.02.2005	28.02.2005
3.	E.G.Nandagopal	04.05.2005	30.06.2005
4.	V.Petchimuthu	20.08.2003	31.10.2004
5.	A.Sebastin	24.09.2004	31.08.2005
6.	E.Kumaresan	20.08.2003	31.01.2005
7.	A.Subramanian	24.09.2004	31.03.2005
8.	N.Balakrishnan	20.06.2000	03.12.2000
9.	V.Kumaresan	24.09.2004	30.11.2005
10.	Muthu Subramanian	24.09.2004	30.04.2005
11.	K.Kuppurajan	26.05.2005	30.09.2006
12.	S.Gopal	17.06.2004	31.03.2005
13.	T.Natrajan	23.01.2004	30.09.2004
14.	P.Karuppasamay	16.04.2008	30.06.2008
15.	A.Abdul Barakkath	24.09.2004	30.06.2005
16.	P.Manickam, the husband of 16^thPetitioner	20.06.2000	31.03.2001

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2.2. All the petitioners have retired from service prior to 30.06.2008

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and as a matter of act, husband of the 16^th petitioner retired from service on 31.03.2001 and 8^th petitioner retired on 03.12.2000. Except the 14^th petitioner, all other petitioners retired during the year 2004-2006. Having retired from service prior to the year 2008 and having received all the terminal benefits, they started making a claim for fixation of their pay in the

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post of 'Assistant Director' and for a consequential fixation of pay and revision of pension etc., by submitting individual representations from the year 2013 onwards. Having submitted the representations in the year 2013, the petitioners have approached this court by filing different writ petitions complaining the inaction of the respondents in considering the representations submitted by them and the said writ petitions came to be disposed of by orders dated 16.04.2014 and 12.12.2014, directing the respondents to consider the representations submitted by the petitioners.

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2.3. The operative portion of the order dated 16.04.2014 passed in

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W.P.Nos.10806 to 10810 of 2014 is extracted hereunder:-

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“ 5. Having regard to the limited prayer made in these writ petitions, without expressing any opinion whether the petitioners are entitled for salary as claimed by them, these writ petitions are disposed of, with a direction to the first respondent to consider the representations of the petitioners dated 23.08.2013, 23.08.2013, 04.09.2013, 22.08.2013 & 23.08.2013 respectively and pass appropriate orders strictly in accordance with law, within a period of four months from the date of receipt of a copy of this order. No costs. ”

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2.4. Similarly, the operative portion of the order dated 12.12.2014 in W.P.Nos.32661 to 32665 of 2014 etc., is extracted hereunder:-

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“ 4. Considering the submissions made and without going into the merits of the case, the respondent No.1 is directed to pass appropriate orders on the representation of the petitioners dated 07.11.2013, 21.03.2013, 24.07.2013, 26.11.2013, 22.08.2013, 26.08.2013, 21.03.2013, 25.01.2013, 02.09.2013 and 30.07.2013 respectively, on merits and in accordance with law within a period of twelve weeks from the date of receipt of a copy of this order. While passing appropriate orders, the respondent No.1 will have to take note of the applicability of the orders passed by this court in W.P.No.19173 of 2004 dated 30.03.2009, W.P.No.13431 of 2007 dated 02.08.2011 as well as the Government order passed in G.O.Ms.(1D) No.156, Revenue (NIA4[1]) Department dated 16.05.2013. ”

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2.5. From the above, it is evident that the basis for the petitioners to

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make the subject claim is an order passed by this court in W.P.No.19173 of 2004 dated 30.03.2009 and W.P.No.13431 of 2007 dated 02.08.2011. According to the petitioners, this court, on an earlier occasion considered an identical issue and passed orders in the above referred writ petitions and the said writ orders were also implemented by the respondents.

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2.6. However, the respondents, having considered the representations submitted by the petitioners, rejected their claim stating that the petitioners

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have worked in the post of 'Assistant Director' for a very short period on full additional charge basis and their cases have never came up for consideration for regular promotion and therefore, they are not entitled for the relief sought for. It is also further stated that in the impugned Government Order, that the orders passed by this court, which are relied upon by the petitioners, have no application to the case of the petitioners, as the petitioners in those writ petitioners were extended the benefit in terms of the order passed by this court. Thus, the claim of the petitioners was rejected by the respondents by passing the impugned order dated 27.03.2015. It is aggrieved by the said order dated 27.03.2015, the petitioners approached this court by filing the present writ petition.

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The respondents filed a counter-affidavit reiterating the contents of the impugned Government Order.

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Heard Mr.V.Chandrasekaran, learned counsel for the petitioners and Mr.K.H.Ravikumar, learned Government Advocate appearing for the respondents.

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Mr.Chandrasekaran, learned counsel for the petitioners contended

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that the petitioners herein are also similarly situated like the petitioners in W.P.No.19173 of 2004, namely Mr.V.Ramakrishnan, and the petitioners in W.P.No.6811 of 2007, namely Mr.Varadharajan, who were said to have been extended the benefit of identical claim that is being made by the petitioners in the instant of the writ petition. He also placed reliance on a decision of this court in the case of “T.Thangaraj -vs- Secretary to Government and another” reported in (2011) 2 CWC 610 and the order dated 08.02.2013 in W.A.No.912 of 2011 in support of the case of the petitioners. He also further contended that, having required the petitioners to discharge the functions of the post of 'Assistant Director' and in the light of the failure of the respondents to fill up the post of 'Assistant Director' on regular basis which are vacant by preparing the panels every year in terms of Rule 4 of the General Rules in Part II of the Tamil Nadu State and Subordinate Service Rules and Special Rules applicable to the post of 'Assistant Director' the petitioners were compelled to continue on temporary basis holding fill up the additional charge of the post of 'Assistant Director' till the date of their retirement and therefore, the petitioners are entitled for the claim as is being made in the present writ petition. He also further contended that the similar benefit was already extended to other similarly situated persons and has

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drawn the attention of this court to various orders which are already referred to herein above. Thus, he contended that the petitioners are entitled for the similar benefit which was already granted by this court to other similarly situated persons.

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On the other hand, Mr.K.H.Ravikumar, learned Government Advocate appearing for the respondents strenuously contended that the present writ petition is liable to be dismissed solely on the ground of delay and laches as the present writ petition came to be filed after a long lapse since the date of retirement of the petitioners from service. He also further contended that the earlier orders passed by this court which are relied upon by the learned counsel for the petitioners have no application to the facts of the case on hand and further contended that the Government has rightly rejected the claim of the petitioners herein by issuing the impugned order. He also further contended that the claim of the petitioners that they are the senior most persons and are entitled to claim for promotion as a matter of right is not supported by any factual matrix and further submitted that the petitioners were entrusted with the full additional charge of the post of 'Assistant Director' by considering their seniority in the respective District and whereas, the seniority that is relevant for filling up the post of 'Assistant Director' on

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regular basis is a state wise seniority. Thus, he contended that the seniority that is being claimed by the petitioners herein in their respective Districts is not a relevant criteria at all to make a claim for promotion to the post of 'Assistant Director'.

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This court has carefully considered the submissions made on either side and also perused the entire material on record.

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As seen from the undisputed facts noted herein above, especially the service particulars which are shown in the tabular form above would disclose that most of the petitioners have retired from service prior to the year 2006 except the 14^th petitioner, who retired from service on 30.06.2008. All the petitioners herein have made a claim for the subject relief for the first time only in the year 2013 by submitting representations from the month of June 2013 i.e., on coming to know that Mr.V.Ramakrishnan was extended the said benefit under G.O (1D) No.156, Revenue [Ni.A.4(1)] Department, dated 16.05.2013.

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Thus, it is evident that the petitioners have made their claim for the first time only after the issuance of G.O (1D) No.156 dated 16.05.2013. It is,

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but for the said Government Order, the petitioners have never thought of making any such claim though the petitioners have retired from service long back. From the above conduct of the petitioners, it is also evident that the sole basis for them to make the claim as is being made is only an order passed by this court in the case of Mr.V.Ramakrishnan in W.P.No.19173 of 2004 and the consequential Government Order issued in G.O (1D) No.156, dated 16.05.2013, implementing the order passed in W.P.No.19173 of 2004. Therefore, the petitioners are the fence sitter and hence they are not entitled for the relief as sought for in the light of the law laid down by the Hon'ble Court in the case of State of Uttar Pradesh and Others vs Arvind Kumar Srivastava and Others reported in (2015) 1 SCC 347. Further, absolutely no explanation is offered by the petitioners for the abnormal delay in approaching this Court. Hence, the writ petition is liable to be dismissed on the ground of delay and laches alone.

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Be that as it may, this Court is inclined to examine whether the benefit of the said order in W.P.No.19173 of 2004 can be extended to the petitioners herein. From the perusal of the said order, especially Paragraph No.9, it is evident that the learned Division Bench, while disposing the said writ petition, made it clear that the said order was passed in the peculiar facts

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and circumstances of the said case. The said Paragraph No.9 reads as under:-

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“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. ”

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Therefore, the said order passed in W.P.No.19173 of 2004 cannot be applied to the case of the petitioners herein as a matter of course. In the affidavit filed in support of the writ petition, the petitioners have not furnished any of their service particulars either their date of promotion to the post of 'Inspector of Survey' or the date on which they became eligible for promotion to the post of 'Assistant Director' or the panel year during which they reached the zone of consideration etc., In the absence of furnishing of any of the particulars which are crucial in order to ascertain the entitlement of the petitioners for being considered for promotion to the post of 'Assistant Director', it is not possible for this court to examine the same on merits. As this court has already came to the conclusion that the petitioners are not

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entitled for extending the benefit of order in W.P.No.19173 of 2004 which is

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the basis for the petitioners to make their claim, the petitioners cannot be said to be automatically entitled in the absence of the basic particulars as observed herein above.

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Then coming to the orders relied upon by the learned counsel for the petitioners in W.P.No.6811 of 2007 and W.P.No.13431 of 2007 is concerned, the same are not the orders dealing with the relief as is sought for by the petitioners in the present writ petition. The said orders are all dealing with the payment of salary for the period during which the petitioners therein have discharged the duties of the higher post holding the same has full additional charge. That is not the claim that is being made by the petitioners in the present writ petition nor the claim made before the Government. Therefore, the above said orders relied upon by the learned counsel for the petitioners absolutely have no application to the relief sought for in the present writ petition.

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Be that as it may, an identical claim made by one Mr.Ayyasami, before the Madurai Bench of this court in W.P (MD) No.9646 to 9654 of 2014 was considered by a Co-ordinate Bench of the Madurai Bench of this

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court and by an order dated 19.06.2019, the said writ petition was dismissed.

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The relevant paragraphs from the said order reads as under:-

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“5. All these writ petitioners were posted to function as in-charge Assistant Director of Survey and Land Records for a short-span of period. Thus, these positions were issued on certain administrative exigencies and such reasons to hold the post as in-charge would not confer any right on the writ petitioners to claim regular pensionary benefits attached to the higher posts, in which, they functioned as in-charge official.

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6. This court is of the considered opinion that temporary promotions and appointments are very much contemplated under the rules. So also additional charges, in-charge positions are also granted by the Higher Officials. All these temporary accommodations are provided, in order to run the public administrations smoothly. The Public administration is to be maintained with efficiency and there cannot be any public office without an official for the purpose of providing public services to the citizen at large. Under these circumstances, if a particular official is posted as an in-charge official or additional charge, he is temporarily posted to function in a particular post on administrative exigency and therefore, he cannot claim any regular benefits attached to the said post. If at all, any allowances or other perks attached to the post during the functioning can be availed and the regular benefits like terminal and retirement benefits are to be settled only with reference to the post in which, the official has been regularly appointed or promoted. For instance, if a provision for some allowances are provided or if the benefits to the Government vehicle is provided the same can be utilized, while functioning as in-charge Assistant

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Director of Survey and Land Records. However, the settlement of pensionary and terminal benefits are to be settled only with reference to the post, in which, the employee has been regularly appointed/ promoted and not otherwise.

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7. The courts have repeatedly held that incharge position is a temporary arrangement and mostly made on certain administrative exigencies. Such a position would not confer any right on the employee to claim the regular benefits attached to the posts. The regular terminal and pensionary benefits are to be settled only with reference to the post, to which, the employee is regularly promoted or appointed. This being the legal principles, this court is of the considered opinion that the respondents have rightly settled the terminal and pesnionary benefits to these petitioners in the cadre of Inspector of Survey and Land Records. Admittedly, the writ petitioners were functioning as in-charge Assistant Director of Survey and Land Records for a short-pan of period on certain administrative exigencies and therefore, they are not entitled to get pensionary and terminal benefits attached to the post of Assistant Director of Survey and Land Records. Thus, the order impugned passed by the first respondent is in consonance with the legal principles settled by the courts and there is no infirmity as such. ”

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The relief sought in this writ petition is identical to the relief sought in the above said writ petitions and therefore, the said decision of the Co-ordinate Bench of Madurai Bench of this court is binding on this Court and therefore, the present writ petition is also liable to be dismissed on this

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ground.

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In the light of the above, this court is of the considered view that

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the petitioners are not entitled for any relief sought for in the present writ petition and this court does not find any error or illegality in the impugned order passed by the respondents.

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