BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/02/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.(MD)No.3689 of 2008 R.Palanimani ... Petitioner Vs. The District Revenue Officer, (Formerly designated as Special Deputy Collector) Kallar Reclamation, Madurai-625 020. ... Respondent Prayer Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the Order dated 22.04.2005 made in Na.Ka.No.H1/36606/2002 of the Special Deputy Collector, Kallar Reclamation, Madurai-20, the respondent herein, and to quash the same and to direct the respondent to refix my scale of pay as per the order of the respondent in Na.Ka.No.H1/119573/2001 dated 23.03.2001 within a reasonable time. !For Petitioner ... Mr.R.Inbaraj ^For Respondent ... Mr.D.Sasikumar, Govt Advocate. :ORDER
The petitioner has filed the present writ petition seeking the relief of a
Writ of Certiorarified Mandamus in calling for the records relating to the Order
dated 22.04.2005 in Na.Ka.No.H1/36606/2002 of the respondent Special Deputy
Collector, Kallar Reclamation, Madurai-20, and to quash the same. Further the
petitioner has sought a relief of issuance of direction to the respondent to
refix his scale of pay as per the order of the respondent in
Na.Ka.No.H1/119573/2001 dated 23.03.2001 within a reasonable time to be
determined by this Court.
2.The petitioner was employed as the Headmistress of Government Kallar
Higher Secondary School, Pappapatti, Kallar Reclamation Department, Madurai.
She retired as superannuation on 30.05.2002.
3.The petitioner’s first appointment was Matron in Government Girls
Hostel, Chinnamanur, Theni District and she joined duty on 25.12.1968. She
worked as Matron of this Hostel from 25.12.1968 to 26.07.1973. On the
administrative ground she was transferred as Headmistress of Government Kallar
Middle School Uthamapuram, Theni District and joined duty on 27.07.1973. The
scale of pay of B.T.Assistant and Middle School B.T.Headmaster are one and the
same and the same namely Rs.1300-300-15-420-20-500.
4.The petitioner worked in the Government Kallar Middle School
Uthamapuram, Theni District, from 27.07.1973 to 20.07.1975. Later, she was
transferred to Government Hostel Chinnamanur as B.T.Matron. The B.T.Assistant
and B.T.Headmaster of the Middle School and B.T. Matron post are transferable
post in Kallar Reclamation Department and the scale of pay for these posts are
identical. She worked in the Hostel from 24.07.1975 to 09.07.1978.
5.According to the petitioner, she was transferred from Chinnamanur Girls’
Hostel to Markayankottai, Kallar Middle School, as Headmistress and she was
awarded with the Selection Grade on 26.12.1978 and the time scale was fixed at
Rs.690/- in the time scale of Rs.600-30-750-35-890-40-1050. She worked as an
Headmistress in the Middle School, she was transferred as Headmistress of
Government Kallar Middle School Vagurani and joined duty on 17.07.1980. She was
rendered her duty as Headmistress of Middle School from to 17.07.1980 to
31.10.1981.
6.The petitioner was transferred to Vellayammalpuram High School as
B.T.Assistant Teacher from the post of Middle School Headmistress of Vagurani,
on the administrative ground she obeyed the order and joined as B.T.Assistant
post and joined duty during June 1987.
7.The petitioner on the administrative ground She was transferred as
Headmistress of Government Kallar Middle School/Bommayan Goundampatti, where she
served as Headmistress from September 1987 to April 1989 she was awarded with a
Special Grade on 26.12.1988 and when she was served as Headmistress of Middle
School at Bommayan Goundampatti and her pay was fixed at Rs.1600-50-2300-60-
2660. The petitioner was transferred from Bommayan Goundampatti Middle School
transferred to Markayankottai Kallar Middle School as Headmistress and served
and joined duty on 05.05.1989 to till 26.01.1992.
8.The petitioner during the duty of Headmistress of Government Kallar
Middle School, Bommayan Goundampatti while in serving on 12.09.1987 to
30.04.1989 she was eligible for fixation of pay as Headmistress of Middle School
as per Fifth Pay Commission report.
9.The petitioner when she was working as Headmistress of Middle School at
Markayankottai on the administrative ground she was transferred to Government
Higher School at Karunakkathampatti as B.T. Assistant and joined duty on
06.07.1990. She worked in the said School till 26.01.1992, she was promoted as
Headmistress of Government Kallar High School, Karunakkathampatti and joined
duty on 27.01.1992 and served till 01.12.1998. The petitioner was promoted as
Headmistress of Government Kallar Higher Secondary School, Pappapatti and
retired on 31.05.2002.
10.The learned Counsel for the petitioner submits that the petitioner and
other appointees got the promotion as Headmistress of High Schools and Higher
Secondary Schools and Post Graduate Assistant of High Secondary Schools
depending upon their educational qualifications and seniority. Also, the time
scale of pay for B.T. Assistant and Middle School B.T. Headmaster like the
petitioner were one and the same prior to the Fifth Pay Commission.
11.After the Fifth Pay Commission, the time scale of pay for B.T.
Assistant was Rs.1400-40-1600-50-2300-60-2600. The time scale of pay for Middle
School B.T. Headmaster in the Ordinary Grade Scale of pay was fixed as Rs.1640-
60-2600-75-2900.
12.It is the stand of the petitioner as per Rule 4(3) of the Tamil Nadu
Revised Scales of Pay Rule 1989, if the pay fixed in the officiating post is
lower than the pay fixed in the substantive post, it shall be fixed at the stage
next above the substantive pay and where the pay of a Government servant who has
moved from a lower post to a higher post or from Ordinary Grade to Selection
Grade is fixed at a stage lower than what would have been admissible in the
lower post or Ordinary Grade (if he is in the Selection Grade Post)his pay shall
be stepped up to the stage equal to the pay in the lower post or grade or if
there is no such stage to the next higher stage.
13.The petitioner contends that as per Rule 4(3) of the Tamil Nadu Revised
Scale of Pay Rules, 1989 her scale of pay have been revised. The respondent now
issued the impugned proceedings, referring to the objections raised by the
Accountant General of Tamil Nadu who is issued the impugned proceedings for
recovery of Rs.61,433/- and to be recovered from the salary payable from the
month of January 2004.
14.The main contention of the learned Counsel for the petitioner is that
no opportunity of calling for explanation from her as to why such an amount may
not be recovered according to Audit Report and therefore she has filed the
present writ petition.
15.In the grounds of writ petition it is averred that the impugned order
dated 22.04.2005, does not disclosed as to how the calculation for excess
payment of salary has been arrived and hence the claim is an non-speaking, as a
cryptic one. Also submit that the Government as per G.O.Ms.No.160, dated
23.08.2005 as stated that in paragraph 2(1) dated 01.06.2005, the Government has
issued G.O.Ms.No.160, School Education Department, dated 23.08.2005. Whereas
the Government Ordered that there will be no recovery of salary already paid to
those Headmistress for the period from 01.06.1998 to 01.08.2005 and the persons
serving as on 01.08.2005, the difference of salary will be added at their
personal pay and recovery or re-fixation of order will not be given effect to.
16.The learned Counsel for the petitioner submits that the respondent
failed to provide an opportunity to her to submit her reply to Accountant
General’s Audit Report by making her representations on her behalf before
passing the impugned order. Inasmuch as no opportunity has been provided before
passing the impugned order is liable to be quashed. The contents of the learned
Counsel for the petitioner it is represented that one A.C.Ramachandran who was
the Headmaster of Government Kallar Higher Secondary School, Rajathani filed an
O.A.No.331 of 2004 in the Tamil Nadu Administrative Tribunal against the
impugned order passed by the respondent in his proceedings dated 28.01.2004.
The petitioner as well as A.C.Ramachandran’s scale of pay was reduced but
without any notice to A.C.Ramachandran passed the recovery order by re-fixing
his pay and recovery was taken effect from his pay bills. The O.A.No.331 of
2004 was transferred to Madras High Court and numbers as W.P.No.32514 of 2005.
The petitioner’s salary as Headmistress has been fixed as per the Fifth Pay
Commission Report and the same is said to have been wrongly determined by the
impugned order dated 22.04.2005.
17.The learned Counsel for the petitioner submits that this Court in
W.P.No.32514 of 2005 has refixed the pay scale of A.C.Ramachandran, Headmistress
as on 01.06.1998, cancelling the recovery order passed by him. The said
A.C.Ramachandran and the petitioner worked as Headmasters of Higher Secondary
Schools in Kallar Reclamation Department and the recovery order has been passed
against only the petitioner.
18.Per contra, the learned Government Advocate appearing for the
Respondent submits that the order passed by the Madurai Bench of this Court in
W.P.(MD)No.8930 of 2007 was challenged by the Respondent in W.A.(MD)No.392 of
2010 and the same was dismissed by this Court on 16.07.2010. In a similar
cases, the Honourable High Court’s order were implemented by the Respondent and
the individuals namely A.C.Ramanchandran, Periakaruppanan and M.Sannasi who
enjoyed the benefits of the High Court order. It is the contention of the
Respondent that the Accountant General, Chennai, in his inspection report dated
20.12.2001 has observed that the petitioner appointed as Middle School Teacher
and her pay was refixed from 01.06.1988 onwards. With reference to the pay she
would have drawn in the post of Middle School Headmaster as per Rule 4(3) though
she was not actually worked as Middle School Headmaster on 01.06.1988.
19.The Accountant General also pointed out that as per the clarification
issued in Government letter No.197/CMPC/93-1 dated 08-11-1993 the B.T.Assistants
and Tamil Pandits appointed for the post of Middle School Headmasters prior to
01.06.1988 cannot claim the pay of the Middle School Headmasters.
20.The Accountant General has requested to recover the excess payment on
account of re-fixation under Rule 4(3). As such the pay of the petitioner was
refixed in this office proceedings Roc.No.H1/36606/02 dated 10.02.2003 and
22.04.2005 which works out Rs.61,433/-. This sum has been ordered to be
recovered from Death-cum-Gratuity(DCRG) benefits. The learned Government
Advocate puts forward a plea that as per G.O.Ms.No.57 Finance(Pay Cell-II)
Department dated 28.01.1991, the Government has clarified the re-fixation under
Rule 4(3) can be applied for re-fixation of pay at any point of time on or after
01.06.1988. Moreover, in Government letter No.85197/CMPC/93-1 dated 08.11.1993
the Government has clarified that the post of primary School Headmaster is on
Rs.1400-2600 and the post of B.T.Assistant/Tamil Pandits is on Rs.1,400-2,600/-.
However, the post of Middle School Headmaster is on Rs.1,640-2900. Hence, the
B.T. Assistant/ Tamil Pandits appointed for the post of Middle School Headmaster
prior to 01.06.1988 cannot claim the pay of the Middle School Headmaster.
21.The learned Government Advocate contends that the petitioner was
selected as B.T. Assistant and she was drawing the pay in the time scale of pay
admissible to the post of B.T. Assistant till 31.05.1988. The Government has
issued a letter of clarification in Ref.No.85197/CMPC/93-1 dated 08.11.1993, in
and by which the Middle School Headmasters (Secondary Grade)who were promoted
and appointed to the post of B.T. Assistant/Tamil Pandits prior to 01.06.1988
from the post of Secondary Grade Teachers, cannot claim the pay of the Middle
School Headmasters. Hence, directly appointed B.T. Assistants and who continued
as B.T. Assistants till 31.05.1988 or till the promotion of next cadre also
cannot claim the pay of the Middle School Headmaster as per Rule 4(3)of the
Tamil Nadu Revised Scale of Pay Rules, 1989, since the substantive post is B.T.
Assistant admissible to the post of till 31.05.1988 or till their promotion to
the next cadre. The clarification issued in Government Lr.No.85197/CMPC/93-1
dated 08.11.1993 is quiet applicable to the facts of the present case to the
petitioner and even as per Rule 4(3)of Tamil Nadu Revised Scale of Pay Rules,
1989, the petitioner is not eligible to claim the pay of Middle School
Headmaster since the substantive post is only to B.T. Assistant.
22. Apart from the above, the learned Government Advocate appearing for
the Respondent contents that only on 01.06.1988 higher scale of pay was awarded
to the post of Middle School Headmaster and it become promotive post as B.T.
Assistant. Therefore, the Government have clarified generally that B.T.
Assistant/Tamil Pandits appointed from post of Middle School Headmaster prior to
01.06.1988 cannot claim the pay of Middle School Headmaster under Rule 4(3).
This includes the Secondary Grade Middle School Headmaster to B.T. Assistants
directly appointed prior to 01.06.1988.
23.In the counter filed by the Respondent it is lastly mentioned that the
excess payment of salary due to wrong fixation was only due to the
misrepresentation of the petitioner letter dated 12.12.2000 and the petitioner
being ahe Higher Secondary School Headmaster of correctly inform in the Special
Deputy Collector (K.R.)Madurai in regard to fixation of pay has misguided in
resultantly the petitioner has received as excess payment to which she is not
eligible at all and therefore the excess amount received by the petitioner is
liable to be recovered from her.
24.A perusal of the letter of the petitioner dated 12.12.2000, addressed
to the respondent shows that the petitioner as among other things requested for
setting aside the pay fixation order and to fix the Middle School Headmaster
salary as per Rule 4(3) of the Tamil Nadu Revised Scale of Pay Rules, 1989. As
far as the present case is concerned the petitioner has addressed a letter dated
12.12.2000, to the respondent requesting for fixation of Middle School
Headmaster salary it is the duty of the respondent to act on the said
representation in a dispassionate manner and to fix the proper salary of the
petitioner in the considered opinion of this Court.
25.The learned Counsel for the petitioner cites the order passed by this
Court in W.P.No.32814 of 2005 dated 22.02.2006 between the A.C.Ramachandran -vs-
State of Tamil Nadu rep.by the Secretary to the Government Finance (CMPC)
Department Fort.St.George, Chennai and three others, wherein, in paragraphs 3
and 4 it is observed and held as follows:
“3.Learned Counsel for the petitioner also cited a judgment of the
Honourable Supreme Court reported in (1995) 1 SCC 18 (Sahib Ram -Vs- State of
Haryana) wherein, it is categorically held that the benefit of revision of pay
scale having been granted by wrong construction made by the Department and not
on any misrepresentation of the Government servant, he cannot be found fault
with and the excess amount paid, shall not be recovered from him. The learned
counsel also argued that before passing the Impugned Order, no notice was issued
to the petitioner and that action of the respondent is against the principles of
natural justice.
4.In view of the above said Government Order as well as the above cited
judgment and having regard to the non observance of the principles of natural
justice, the impugned order is quashed and the writ petition is allowed. No
costs.”
26.Pursuant to the order passed by this Court, by order dated 02.06.2007
the Respondent has implemented the order of this Court in W.P.No.32814 of 2005
dated 22.02.2006 and the petitioner’s pay has been re-fixed and the amount
recovered was repaid to him.
27.Likewise, G.Sannachi has filed the writ petition in W.P.No.28617
of 2005 before this court against the State of Tamil Nadu rep.by the Secretary
to the Government Finance (CMPC) Department Fort.St.George, Chennai and three
others, wherein, in paragraphs 3 and 4 laid down as follows:
“3.Learned Counsel for the petitioner also cited a judgment of the
Honourable Supreme Court reported in (1995) 1 SCC 18 (Sahib Ram -Vs- State of
Haryana) wherein, it is categorically held that the benefit of revision of pay
scale having been granted by wrong construction made by the Department and not
on any misrepresentation of the Government servant, he cannot be found fault
with and the excess amount paid, shall not be recovered from him. The learned
counsel also argued that before passing the Impugned Order, no notice was issued
to the petitioner and that action of the respondent is against the principles of
natural justice.
4.In view of the above said Government Order as well as the above cited
judgment and having regard to the non observance of the principles of natural
justice, the impugned order is quashed and the writ petition is allowed. No
costs.”
The said order passed by this Court in W.P.No.32816 of 2005 dated 22.02.2006 has
been complied with by the Respondent.
28.Also, in W.P.No.8930 of 2007 between K.Karmegam -vs- The District
Revenue Officer(Formerly designated as Special Deputy Collector), Kallar
Reclamation, Madurai-20, on 13.11.2007 in paragraph ‘3’ observed as follows:
“3.In view of the said undisputed facts and having regard to the fact that
the recovery order is passed without any notice and the salary having been fixed
without any suppression of the fact on the part of the petitioner, the impugned
order of recovery cannot be sustained and consequently the impugned order is set
aside and the writ petition is allowed in terms of order passed in W.P.No.32814
of 2005 dated 22.02.2006. No costs. Consequently, the connected miscellaneous
petition is closed.”
29.As against the order dated 13.11.2007 in W.P.No.8930 of 2007, a Writ
Appeal in W.A.No.392 of 2010 has been filed by the respondent. The said writ
appeal has been dismissed by a Division Bench of this Court on 16.07.2010.
30.The learned Counsel for the petitioner seeks in aid of the aforesaid
writ petition order and an order of W.A.No.392 of 2010, to the effect that in
similar cases where the petitioner is placed this Court has set aside the
impugned order of recovery and hence applying the said principles the present
writ petition is also to be allowed by this Court in the interest of justice.
31.As far as the present case is concerned although the petitioner has
reportedly addressed to the communication to the respondent dated 12.12.2000 in
regard to the fixation of her salary it cannot be said by any stretch of
imagination that the petitioner has himself represented to the respondent as
regards to the fixation of salary for the reason that it is for the appointing
Authority/Employer to fix the proper pay scale of the petitioner in a particular
post after looking into the relevant rules, Government Orders.
32.The original fixation of the petitioner salary is as per the
proceedings of the respondent dated 23.03.2001. The impugned order dated
22.04.2005, passed by the respondent in and by which a sum of Rs.67,578/- has
been said to be an excess payment made to the petitioner which has been deducted
from its gratuity amount payable to her.
33.In view of the fact that the petitioner has been given the benefit by
means of wrong fixation and since no notice has been issued to the petitioner in
regard to the recovery of a sum of Rs.67,578/- this Court is of the considered
view that an excess amount paid to the petitioner shall not be recovered from
her by the respondent inasmuch as it is the duty of the
respondent/employer/appointing authority to fix the correct salary of the
petitioner in proper scale. Further the impugned order of recovery is in
violation of principles of natural justice, in that, no notice has been issued
prior to the issuance of recovery order, this Court come to an inevitable
conclusion that an excess amount of Rs.67,578/ recovered from the petitioner
from gratuity is to be repaid to the petitioner by the respondent within a
period of two months from the date of receipt of a copy of the order. Further,
the respondent is directed to fix the petitioner’s salary in a proper scale of
payafter providing necessary opportunity to the petitioner to make her
representation if any in the manner known to law.
34.With the above directions, the writ petition is allowed, leaving the
parties to bear their own costs.
gsr
TO
The District Revenue Officer,
(Formerly designated as Special
Deputy Collector)
Kallar Reclamation,
Madurai-625 020.