BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23/08/2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
WRIT PETITION (MD) No.15 of 2007
and
M.P.(MD)No.1 and 2 of 2007
P.Mohamed Abdullah .. Petitioner
vs.
1.The Joint Director of Medical &
Rural Health Services,
Sivagangai,
Sivagangai District.
2.The Chief Accountant General,
Tamil Nadu,
Chennai - 18. .. Respondents
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Certiorarified Mandamus calling for the records relating to the
impugned proceedings in Na.Ka.No.1370/Ne 2/06 dated 7.10.2006 on the file of the
1st respondent and quash the same as illegal and consequently direct the
respondents to fix the petitioner's scale of pay as 1640-2900 as per
G.O.Ms.No.304/Finance(Pay Cell) Department dated 28.3.1990 and pay the
petitioner's gratuity in accordance with law within the period that may be
stipulated by this Court.
!For petitioner ... Mr.M.Ajmal Khan
^For respondents ... Mr.S.C.Herold Singh,
Government Advocate
:ORDER
The petitioner in the present Writ Petition seeks to challenge the
impugned order dated 7.10.2006 passed by the first respondent cancelling the
Special grade granted to him for holding the post of Laboratory Technician
Grade-II.
2. The petitioner was appointed as a Laboratory Technician of Grade II on
10.1.1973. On completion of 10 years in the post of Laboratory Technician
Grade-II on 10.1.1983, he was granted selection grade and further, on completion
of 20 years on 10.1.1993, he was also granted the Special Grade.
3. By G.O.Ms.No.304/Finance (Pay Cell) Department dated 28.3.1990, the
scale of pay for the Special Grade Laboratory Technician Grade – II was fixed as
Rs.1640 – 2900 but the petitioner was not given the said scale and his pay was
fixed as Rs.1600 – 2660. Another similarly placed person by name Mohamed
Farook, who got retired on 31.7.2004, was given the scale of pay of Rs.1640-
2900. The scale of the petitioner was fixed as Rs.1600-2600 instead of
Rs.1640-2900. No notice was given to the petitioner in this regard.
4. The petitioner got retired from the service by an order dated 27.6.2006
with effect from 30.6.2006. Thereafter, the petitioner had sent a
representation to the first respondent to fix his correct pay.
5. According to the respondents, even though the petitioner was entitled
to be fixed in the Special Grade from the scale of Rs.1640-2900 by
G.O.Ms.No.304/Finance(Pay Cell) Department dated 28.3.1990, the Special Grade
cannot exceed the scale of the Laboratory Technician Grade I and therefore,
reduced pay has been given to him. This had resulted in an excess payment made
to the petitioner, which is now sought to be recovered. But, before passing the
impugned order, no notice was given to the petitioner and it is not as if the
petitioner had made any mis-representation.
6. The contention of the respondent cannot be made after a long lapse of
time and in case where there was no mis-representation on the side of the
petitioner, the respondents cannot order the recovery of alleged excess amount
refunded.
7. This Court while issuing notice of motion in the Writ Petition, granted
an interim order against the recovery on 3.1.2007.
8. The Supreme Court in the judgment relating to Sahib Ram vs. State of
Haryana and others [1995 Supp (1) Supreme Court Cases 18] has held that recovery
can be restrained where upgraded pay scale given due to wrong construction of
relevant order by the authority concerned without any misrepresentation by the
employee. The following passage found in para 5 is relevant for the purpose of
this case:
“5. Admittedly, the appellant does not possess the required educational
qualifications. Under the circumstances, the appellant would not be entitled to
the relaxation. The Principal erred in granting him the relaxation. Since the
date of relaxation the appellant had been paid his salary on the revised scale.
However, it is not on account of any misrepresentation made by the appellant
that the benefit of the higher pay scale was given to him but by wrong
construction made by the Principal for which the appellant cannot be held to be
at fault. Under the circumstances the amount paid till date may not be
recovered from the appellant….”
9. Under the Circumstances, the Writ Petition will stand allowed. No
costs. Consequently, connected Miscellaneous Petitions are closed.
asvm
To
1.The Joint Director of Medical &
Rural Health Services,
Sivagangai,
Sivagangai District.
2.The Chief Accountant General,
Tamil Nadu,
Chennai – 18.