A government servant is entitled to arrears of salary and other material benefits if denied promotion or reverted due to the wrong committed by the employer, and the concept of notional promotion cannot be applied when the promotion is a right of the government servant.

1. In this petition, the petitioner challenges Ext. P7 order which is the same as Ext. R5. This order was passed subsequent to the filing of this Writ Petition. It was by an amendment to the Writ Peition, that this order was challenged.

2. The petitioner was originally appointed as a Clerk. He was working in that capacity in the Maharajah's College, Ernakulam from 1105 to 1119. He was thereafter promoted as Store-keeper in the Chemistry Department in the grade of Rs. 40-60, which scale was subsequently revised to Rs. 40-80 and later to Rs. 40-120.

3. When the Travancore-Cochin State was formed, the gradation list of non-gazetted ministerial staff was prepared. By some oversight, the name of the petitioner did not find a place in the said list In the Kerala Gazette of January 1957 also, wherein the list of rearrangement of ranks was published, the petitioner's name was omitted. The petitioner started making representations to the Government. I do not think it necessary to refer to the various representations made by him. The last representation dated 13-4-1962 made by him was to the Chief Secretary to the Government. By orders passed on 14101963. his claim for seniority was recognised and it was ordered that he should be deemed to have been promoted to the Upper Division cadre with effect from 141955. This is evidenced by Ext. P1.

4. In the meantime, a large number of Government servants who were juniors to him were promoted. Para.4 of Ext. P1 reads as follows:

"Shri. Menon however will not be eligible for any retrospective material benefit." The petitioner was aggrieved by this direction.

5. He started making representations to the Government complaining about the denial of material benefit to him retrospectively and contended that such denial was most arbitrary and not warranted by any rule of law. Since no favourable orders were passed on his representations, he moved this Court by O.P. No. 276 of 1964, praying that Ext. P1 order, to the extent it denied to him, the material benefit consistent with the conferment of promotion on 1-4-1955, be quashed. The judgment rendered by Govindan Nair J., as he then was, is Ext. P2 By then the petitioner had retired. The learned judge bad to consider two questions. (1) Whether the petitioner was entitled to arrears of salary by virtue of his promotion on 1-4-1955. (2) How bis pension should be calculated. The learned judge left open the first question to be decided by the Government but made this observation:

"In any view of the matter, it is essential that the salary of the petitioner is fixed with reference to the date on which be would have been promoted, had his name been included in the list at the appropriate time. The petitioner has now retired from service and such fixation is necessary for the purpose of deciding the quantum of the pension payable to him."

Thus the learned judge directed that calculation be made, of the salaries he would have drawn, had he been promoted at the relevant time and the salaries so calculated will be taken for the purpose of determining his pension. In the said judgment, reliance was placed by the learned judge, on a judgment of the Mysore High Court reported in 1962 Mysore 146 and confirmed by the Supreme Court in 1965 SC 868. I will have occasion to refer to these two authorities presently, while considering the merits of the petitioner's contention.

6. Aggrieved by the 1st portion of the judgment, the petitioner filed an appeal as Writ Appeal No. 124 of 1966. A Division Bench of this Court disposed of the Writ Appeal as follows:

"The appellant proposes to move the Government for relief in respect of the difference in salary which he claims for the period from the date on which he should have been promoted and the actual date on which he was promoted. This is in accordance with the view expressed by the learned Single Judge in the judgment under appeal. If the appellant is aggrieved by the orders which the Government pass in the matter, (he appe