BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.(MD)No.1414 of 2008 T.S.Ragavan ... Petitioner Vs. 1.The Secretary to Government, Highways Department, Secretatiat, Chennai-9. 2.The Chief Engineer, Highways, Chennai-5. 3.The Superintending Engineer, National Highways, Trichy. 4.The Superintendent Engineer, National Highways, Madurai-20. ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records connected in the impugned order passed by the Second Respondent in his Letter No.Nir 5(1)/91364/2004 dated 23.08.2007 and quash the same and consequently direct the Second Respondent to re-fix his pay in the category of selection grade Draughtsman Grade-I and consequential monitory and other retirement benefits due to him. !For Petitioner ... Mr.R.Renga Ramanujam ^For Respondents... Mr.D.Sasikumar, Govt. Advocate. :ORDER
The petitioner has filed the present writ petition seeking a relief of
Writ of Certiorarified Mandamus to call for the records pertaining to the
impugned order passed by the Second Respondent in his Letter No.Nir
5(1)/91364/2004 dated 23.08.2007 and to quash the same and further the
petitioner has sought for issuance of a direction to the Second Respondent to
re-fix his pay in the category of Selection Grade Draughtsman Grade-I and to pay
the consequential monetary and other retirement benefits.
2.The petitioner was appointed as Road Inspector and joined on 04.04.1952.
He was promoted as Draughtsman Grade-III with effect from 07.11.1957. Later, he
was promoted as Junior Engineer on 15.11.1970. Being a I.T.I Group Certificate
Holder in Civil Engineering, the petitioner is fully qualified to hold the post
of Draughtsman.
3.According to the petitioner, he had not exercised his option to become
Junior Engineer. However, he was promoted as Junior Engineer in view of the
exigency of service, as there was acute shortage of qualified and experienced
Technical Personnel in view of the formation of National Highways, Rural Roads
Wing and several on going schemes in the early 1970. As such he was promoted
as Junior Engineer and joined on 15.11.1970. His service in the category of
Junior Engineer was also regularised by the order of the Second Respondent dated
10.12.1970. It was mentioned in the said order that pending fixation of pay in
the post of Junior Engineer, he was entitled to draw his pay in the category of
Draughtsman. He passed the requisite Departmental Examination in May 1972.
4.The petitioner completed his probation satisfactorily by virtue of the
proceedings with effect from 28.12.1972 as per the order of the Third Respondent
dated 06.07.1974. Later, by virtue of the proceedings of the Second Respondent
dated 10.12.1977, it was cancelled. In view of the cancellation of his
regularisation, though he was serving as Junior Engineer, he continued to draw
his pay in the post of Draughtsman and till his retirement his services were not
regularised in the post of Junior Engineer and he was relieved on attaining the
age of superannuation on 31.01.1991 as temporary Junior Engineer.
5.The learned Counsel for the petitioner submits that the petitioner was
promoted as Draughtsman Grade -II on 23.11.1970 and the petitioner was promoted
as Draughtsman Grade-I, as per the order of Third Respondent dated 20.08.1973,
without prejudice to his holding the post of Supervisor(Junior Engineer). He
was entitled to Selection Grade in the category of Draughtsman Grade-I with
effect from 20.08.1973. In spite of several representations he was not given
the pay in Selection Grade as Draughtsman Grade-I but the Divisional Engineer
National Highways, Ramnad, sent proposals for his selection grade in the
category of Draughtsman Grade-I by means of his letter dated 30.08.1990.
However, no order was passed till his retirement. However, the pension
proposals were sent to the Accountant General based on his last drawn pay in the
post of Draughtsman Grade -I.
6.The learned Counsel for the petitioner takes a plea that his pay was
revised after nine years and that too after his retirement. To the shock of the
petitioner his pay was not fixed in the Draughtsman Grade-I post as prayed for.
However, the Second Respondent regularised his service and he was declared to
have satisfactorily completed his probation with effect from 15.11.1972, as per
order dated 19.10.2000. This was done after 28 years of his promotion as Junior
Engineer and 9 years after his retirement.
7.The learned Counsel for the petitioner contends that to deny the
legitimate claim of the petitioner his probation was declared nine years after
his retirement. The petitioner was awarded Selection Grade in the category of
Junior Engineer by the order of the Second Respondent dated 26.02.2001 with
effect from 15.11.1980 and Special Grade in the category of Junior Engineer was
awarded with effect from 15.11.1990, as per order dated 26.02.2001. As such his
Gratuity and other retirement benefits were recasted and resultantly a sum of
Rs.416/- was ordered to be recovered from his pension as per the order of the
Fourth Respondent dated 28.01.2004.
8.The core contention advanced on behalf of the petitioner is that his
legitimate claim for promoting him in substantive post as Selection Grade-I
Draughtsman with effect from 20.08.1983, on completion of ten years of service
was denied to him till his retirement despite several representations were made
in this regard. As a matter of fact, the scale of pay of Selection Grade
Draughtsman Grade-I is higher than that of the Selection Grade post Junior
Engineer in which even they ought to have reverted the petitioner’s post in the
category of Draughtsman. But instead of reversion, the petitioner was permitted
to serve as Junior Engineer temporarily with permission to continue to draw his
pay in the pay scale of Draughtsman.
9.The learned Counsel for the petitioner expatiating his submissions
projects at a plea that the F.R.22 in Ruling 25 is not applicable to the
petitioner inasmuch as he has been transitorily holding the post of Junior
Engineer though substantive pay in the category of Draughtsman Grade-I is higher
than the post of Junior Engineer. Also, his regular promotion was cancelled by
the Second Respondent by order dated 10.02.1977, since it was made contrary to
the rules. Indeed, the learned Counsel for the petitioner contends that the
petitioner is contends to draw his pay in the substantive post in the category
of Draughtsman Grade-I.
10.Apart from the above, the learned Counsel for the petitioner contents
that in his representation as early as 21.01.1991, he is specifically mentioned
that his juniors in the category of Draughtsman namely T.K.Raman and R.Gopalan
were getting more pay than him and was granted Selection Grade in the category
of Grade-I Draughtsman. In short, the said individuals who were working as
Junior Engineer from 02.02.1972 and from 17.10.1994 were granted Special Grade
pay in the category of Draughtsman Grade-I category but the same benefit was
denied to him in an arbitrary manner.
11.The pith and substance of the submission of the learned Counsel for the
petitioner is that the F.R.22 ruling No.25 is not applicable to the petitioner
since his pay was not fixed in the category of Junior Engineer from the date of
his promotion on 15.11.1970, to the date of his retirement on 31.01.1991 and all
promotions from Grade-III Draughtsman to Grade- II and Grade-I were made without
prejudice to the holding post of Junior Engineer. Moreover, he was drawing his
pay in the category of Draughtsman during his tenure of service of thirty years
in the category of temporary Junior Engineer and therefore the impugned order
passed by the Second Respondent in his Letter No.Nir 5(1)/91364/2004 dated
23.08.2007, is an illegal one and is liable to be set aside in the interest of
justice.
12.In response, Mr.D.Sasikumar, Learned Government Advocate, appearing for
the Respondents submit that the petitioner was appointed as Road Inspector
initially and he joined duty on 04.04.1952. He was promoted as Draughtsman
Grade-III and joined duty on 07.11.1957 and then he was promoted as Supervisor
on Other Duty as Union Engineer and joined duty on 15.11.1970 in Nagapattinam
Block.
13.The Learned Government Advocate appearing for the Respondents contends
that the qualification for the post of Draughtsman Grade-III initially was
possessing I.T.I Group Certificate in Civil Engineering or SSLC Bifurcated
Engineering and later it was fixed as Licensed Course in Civil Engineering and
Diploma in Civil Engineering. He was temporarily appointed to the post of
Draughtsman Grade-III and therefore certain rules were relaxed as per
G.O.Ms.No.381/PWD/dated 08.02.1963 vide Chief Engineer(H), Chennai
Endt.No.91610/F3/61-35/dated 02.03.1963. After obtaining the relaxation, his
services in the post of Draughtsman Grade -III was regularised during July 1965
with effect from 07.11.1957.
14.The Learned Government Advocate appearing for the Respondents takes a
stand that as per the Chief Engineer’s Proceedings No.63956/F5-70-11/dated
06.11.1970, it was mentioned that those who are not willing to work as Union
Engineer and send his unwillingness report within a weeks time from the date of
receipt of this order. But the petitioner has not expressed his unwillingness
and he has joined duty as Union Engineer on 15.11.1970 in Nagapattinam Block
(Panchayat Union) on receipt of above orders from the Chief Engineer(H)Chennai.
Therefore, it is cleared that the petitioner was willing to work as Union
Engineer and joined as Union Engineer at his own option and not to force.
15.The Learned Government Advocate appearing for the Respondents contends
that the Engineers, Road Inspectors and Gangs have been deputed to Panchayat
Union Office from Highways and Rural Works Wing in the past days and therefore
the petitioner was promoted as Supervisor and posted as Union Engineer,
Panchayat Union, Nagapatinnam. Also, the formation of National Highways Wing
and Rural Roads Wings have been done in the year 1972 and not during the year
1970’s. The petitioner passed the required department examination during May
1972. His services were regularised with effect from 15.11.1970, by the Third
Respondent and orders were satisfactory completion of probation with effect from
28.12.1972 afternoon were issued by the Third Respondent as per proceeding
No.15630/74/A2 dated 06.07.1974 of Superintending Engineer(H), Trichy in the
category of Supervisor.
16.According to the Learned Government Advocate appearing for the Second
Respondent/Chief Engineer, Highways Department, Chennai-5, as per his letter
dated 10.12.1970 in paragraph ‘2’ issued orders of promotion as per Rule 36(b)
instead of 39(a) of Tamil Nadu State and Subordinate Services Rules with effect
from the date of joining as (temporary) Supervisors. Also, it was stated that
“Pending fixation of pay in the post of Supervisor they were allowed to draw the
existing pay and allowances which was drawn in the post of Draughtsman”.
Later, the said order was cancelled by the Second Respondent(Chief Engineer)(H),
Chennai, as per the proceedings dated 10.02.1977, mentioning that the provisions
in the statutory Rules were not been taken into account before issuing the
orders dated 10.12.1970. As per Rule 39(a)(i) of Tamil Nadu State and
Subordinate Services, the persons already promoted were deemed to be temporary
promotees in the category of “Supervisor”. Their pay in the post of temporary
Supervisors were to be regulated with reference to the provisions in General
Rule 39(g) and pay drawn by them in excess, if any should be recovered from the
concerned immediately. Therefore, the orders already issued by the Chief
Engineer as per Proceedings dated 10.12.1970 was cancelled.
17.At this stage, this Court points out that the Fourth Respondent in its
counter as stated the following:
“Under rule (25) of F.R.22, the pay of Draughtsman promoted as Supervisors
in Public Works and Highways Department should be fixed in the scale of pay
applicable to supervisors at the stages next above the pay they are actually
drawing the time of promotion subject to the conditions.
i)Once the pay of promotees is fixed in the category of supervisor, they
will not be entitled to the higher rate of pay to which they would become
eligible from time to time, consequent on the promotion to higher grades in the
category of Draughtsman; and
ii)he should be allowed to draw as Supervisor, the minimum of the scale of
pay of Supervisor or his pay as Draughtsman, whichever is higher.
In ruling (25) of F.R.22 the words “Draughtsman” and “Supervisor”
occurring above has been changed as “Senior Draughting Officer” and “Junior
Engineer” respectively during 1985.”
18.Besides, the above in paragraph ‘7’ of the counter, the Fourth
Respondent as stated hereunder:
“that under Rule 39(g) of Tamil Nadu State and Subordinate Services, the
pay shall be paid to the persons promoted under rule (a)(b)or (d) the highest of
the following rates of pay:
i)his substantive pay ; or
ii)the minimum of time scale of pay of the post to which he has been
promoted; to
iii)the officiating pay which he would have drawn from time to time
immediately prior to promotion under sub rule(a)(b) or (d) provided a
certificate to the effect that but for such temporary appointment, the incumbent
would have continued to be officiated in the post held by them immediately prior
to the temporary appointment shall be issued by the appointing authority for the
officiating post.
In the circumstances explained above the petitioner Thiru T.S.Raghavan is
eligible to fix his pay in the post of Supervisor only based on the pay last
drawn in the post of Draughtsman III Grade has been taken into account and the
stage next above in the lower post or the minimum of the time scale of pay
eligible for the post of Supervisor. Hence, the fixation made under the
Proceeding of this office is found correct and the statement of the petitioner
is a false one.”
19.It is to be noted that the post of “Supervisor” as per
G.O.Ms.No.294/PWD/dated 22.02.1977, were to be redesignated as Junior Engineer
on the existing Scale of pay and with the existing powers and functions.
Furthermore, the post of Draughtsman has been redesignated as follows:
D’man Grade III :As Junior Draughting Officer
D’man Grade II :As Draughting Officer
D’man Grade I :As Senior Draughting Officer
20.The learned Government Advocate appearing for the Respondents
strenuously contents that as per F.R.22(25) the Draughtsman(now as Senior
Draughting Officer) promoted as Supervisor(now designated as Junior Engineer)
was eligible to fix his pay as the next stage of pay in the substantive post or
minimum of time scale of the supervisor post.
21.At the time of promotion, the petitioner drew a salary of Rs.250/- as
his pay in the post of Draughtsman Grade III in the scale of pay at Rs.250-10-
400 as per the provisions contained in the Second Pay Commission with effect
from 02.10.1970. He joined as Supervisor in Nagapattinam Panchayat Union on his
own willingness. The pay of Supervisor was fixed at Rs.325/-(i.e) minimum of
the time scale eligible for the post of Supervisor i.e. Rs.325-15-475-20-575-25-
650 as per Second Pay Commission with effect from 15.11.1970. As per
G.O.Ms.No.106/PWD/ dated 22.01.77, the scale of pay of Supervisor was revised as
Rs.350-15-425-20-525-25-700. Therefore, the pay of the petitioner was revised
accordingly and the pay was fixed at Rs.350-/ from the date of joining in the
post of Supervisor as per the proceedings dated 09.01.2004.
22.The Learned Government Advocate for the Respondents puts forward a plea
that though the petitioner joined as temporary Supervisor, the acting post was
treated as officiating post and the lower post namely Draughtsman III Grade
(i.e) before promoting as Supervisor was treated as Substantive post to avoid
the hardship to the petitioner in getting the pay in the officiating post, he
was allowed to draw the pay of Draughtsman (i.e) Substantive Post as Substantive
pay. Since the petitioner continued in the post of Supervisor, the promotions
due under the category of Draughtsman were ordered if he was to be reverted in
due course from the post of Supervisor. The order order of promotions in the
category of Draftsmen Grade-III, Grade-II and Grade-I were seems to be as “Paper
Postings”. He was not reverted from the post of Supervisor and continued in the
same category till the date of his retirement on 31.01.1991 afternoon(The post
of Supervisor was redesignated as Junior Engineer from 22.02.1977).
23.The principal contention advanced on behalf of the Respondents is that
the orders issued under Rule 36(b) dated 10.12.1970, due to administrative
reasons were cancelled subsequently by the Chief Engineer(H) on 10.02.1977
(i.e., the Second Respondent) as certain provisions under Service Rules were not
considered while issuing orders dated 10.12.1970 and therefore the orders issued
dated 10.12.1970, becomes null and void.
24.In this connection, it is worthwhile for this Court to make a
significant mentioned that the Third Respondent/the Superintending Engineer (H)
Trichy issued orders of promotion to the petitioner from the post of Draughtsman
Grade-III to Draughtsman Grade-II and then Draughtsman Grade-I respectively on
23.11.1970 and 20.08.1973 without prejudice to the holding the post of
Supervisor (Junior Engineer) and in the orders of promotion it was mentioned
that the same was issued without prejudice to the petitioner holding the post of
Supervisor so as to draw his pay without any lapse and in short the promotion
orders were only paper postings so as to draw the pay.
25.The Learned Government Advocate appearing for the Respondents submits
that as per Rules no person is eligible to the Selection Grade for the post in
which he has not acted and since the petitioner is not joined duty in the post
of Draughtsman Grade-II and Grade-I he claimed the Selection Grade-I Draughtsman
post as if he drawn the pay eligible in the post of Grade-I Draughtsman(Senior
Draughting Officer) and all the more the petitioner was informed orally in the
year 1990 when he claimed the Selection Grade in the Grade-I Draughtsman
category when he approached the Fourth Respondent office through the Divisional
Engineer(National Highways), Ramanathapuram.
26.The other limb of submission made by the learned Government Advocate
appearing for the Respondents is that while receiving the orders of promotion as
Draughtsman Grade-I on 20.08.1983, the petitioner in spite of claim of the post
of Draughtsman Grade-I by exercising his option to that post, he had opted to
hold the post of Supervisor with higher powers and higher responsibilities than
that of Draughtsman Grade-I and continued the post of Supervisor(now Junior
Engineer) till the date of his retirement.
27.Furthermore, the learned Government Advocate appearing for the
Respondents submits that the name of the post and the Scale of pay in each post
in the Second Pay Commission at the time of joining in the post of Supervisor
are as follows:
POST SCALE OF PAY
Draughtsman III Grade 250-10-400
Draughtsman II Grade 325-15-550
Draughtsman I Grade 400-15-475-20-575-25-650
Supervisor 325-15-475-20-575-25-650 and than
350-15-425-20-525-25-700
28.The learned Government Advocate appearing for the Respondents brings to
the notice of this Court that during 1970-1979 no Selection Grade was awarded to
the category 3(a) and (b) Civil Draughtsman Grade-I, II,III Category (2) Head
Draughtsman in the office of the Chief Engineer(Highways) and category
(1)Supervisor as per Madras Highways Engineering Subordinate Service Rules. In
the year 1978, the Selection Grade post were created, but the Selection Grade
Post and promotive post seems to be identical thus:-
POST ORDINARY SCALE SELECTION GRADE
Draughtsman III Grade 400-15-490-20-650-25-700 450-20-590-25-740-30-800
Draughtsman II Grade 450-20-590-25-740-30-800 525-25-675-30-855-35-925
Draughtsman I Grade 600-30-750-35-890-40-1050 675-35-885-45-1200
HEAD Draughtsman 675-35-885-45-1200 No Selection Grade
Special Grade
Draughtsman
Chief Head 750-50-1350 No Selection Grade
Draughtsman
Supervisor 525-25-675-30-855-35-925 600-30-750-35-890-40-1050
Therefore, the Selection Grade in the Draughtsman Grade-I was not awarded to the
petitioner the pay in the substantive post i.e. up to Draughtsman I Grade (i.e.
Senior Draughting) Officer has been allowed as substantive pay with increments
due.
29.The next submission of the Learned Government Advocate appearing for
the Respondents is that there is no loss in the pay last drawn by the petitioner
and his basic pay already calculated is Rs.2,240/- and now it has been revised
as Rs.2,300/- for which he has received additional amount of Rs.1,122/-
(Rs.42,884-41,762) and because of change of increment date from First July to
First October there is a difference of Rs.(2,511- (-) 2,507) Rs.4/- less than
the average pay calculated, which results Rs.2/- less than may be ignored,
because the said sum is a trivial in nature. Inasmuch as the petitioner till
his retirement has held the post of Supervisor is eligible to get the pay for
the post of Supervisor only and not to the post of Draughtsman Grade-I and
viewed in the perspective the writ petition is liable to be dismissed by this
Court.
30.At this stage, it is useful to refer the proceedings of the Second
Respondent/Chief Engineer, (Highways and Rural Works)Chepauk,Chennai-5, in his
proceedings No.63956-F5/70-17 dated 10.02.1970, wherein 28 individuals(including
the writ petitioner) who figures in Serial No.6) have been promoted as
Supervisor temporarily from the post of Draughtsman as per Rule 39(a) of the
Tamil Nadu State and Subordinate Services Rules and further the aforesaid
persons have been promoted regularly as Supervisors as per rules 36(b) of the
Tamil Nadu State and Subordinate Services Rules with effect from the dates of
their joined duty as Supervisors and their seniority in the category of
Supervisors is indicated therein. Also, pending fixation of pay in the post of
Supervisor, the individuals have allowed to draw the existing pay and allowances
which have drawn in the post of Draftsmen. Moreover, they have been informed
Special Rules for Madras Highways Engineering Subordinate Service, that they
ought to pass the Account test for Highways and Rural Works Department Officers
Subordinate Services within a period of two years on duty within a continuous
period of three years in order to earn their increments without any penalty and
to be become eligible for declaration of completion of probation.
31.The Chief Engineer’s(Highways and Rural Works) as per the proceedings
No.9242/Con/71-29 dated 10.02.1977 as stated that when the petitioner and others
were regularised of service as Draughtsman promotes Supervisors, on regular
basis as per Rule 36(b) of the General Rules for the Tamil Nadu State and
Subordinate Services, in the category of Supervisors etc. On a review of this
order, that he has found that:-
i)Proviso (3) under entry (4) in column (2) against item (1) Supervisor’s
in the Table under Rule 3(a) of the Special Rules for the Tamil Nadu Highways
Engineering Subordinate Services.
ii)Rule 3(d) of the Special Rules for the Tamil Nadu Highways
Engineering Subordinate Services;
iii)Rule 6 of the Special Rules for the Tamil Nadu Highways Engineering
Subordinate Services; and
iv)General Rule 35(a) of the Tamil Nadu State and Subordinate Services.
They have not been taken into consideration for issuing the proceedings dated
10.02.1977 and therefore the same is liable to be set aside as illegal and hence
he has cancelled the orders regularising the temporary services in the category
of Supervisor and fixing the rank in the seniority list of Supervisors of the
personnel referred to in paragraph 1 and subsequently it has been made clear
that the orders issued, if any, by the S.Es(H & RW) for declaration of
completion of promotion of these 28 Supervisors have also been to be cancelled
and the concerned S.Es are requested to issue cancellation of promotion of the
declaration of probation in individual cases, immediately and to report the fact
to the Chief Engineer(H & RW) etc.
32.Moreover, the proceedings of the Second Respondent dated 10.02.1977,
goes to state that the petitioner and two others have been deemed to be
temporary promotes in the category of “Supervisor” under General Rule 39(a)(i)
of the Tamil Nadu State and Subordinate Services and their pay in the post of
temporary supervisor have been directed to be regularised by the concerned
Superintending Engineers under whom they are working at present with reference
to the ingredients of General Rule 39(g) and the pay drawn by them if any
excess have been recovered from the concerned individuals immediately.
33.The petitioner in his representation dated 21.01.1991, addressed to the
Second Respondent/Chief Engineer(Highways & Rural Works),Chepuak, Chennai-5, as
stated that interse seniority list of Draughtsman in Grade-III, Grade-II and
Grade-I as on 01.08.1978 of the petitioner, T.K.Raman and R.Gopalan as
communicated by the Second Respondent/Chief Engineer(H & RW)Madras, in the
statement is enclosed for kind perusal and further it is made mentioned of that
T.K.Raman and R.Gopalan who are Juniors in Draughtsman Grade -III are now
getting a basic pay of Rs.2,425/- as on 01.07.1990 and Rs.2,650/- as on
01.10.1989 respectively etc and also that the Draughtsman Grade-I as on
20.08.1973 and other Juniors are receiving more pay than his basic pay of
Rs.2,240/- and since, he has not been given Selection Grade in Draughtsman
Grade-I and Selection Grade in Junior Engineers cadres(Completed 20 years of
Junior Engineers Service as on 15.11.1990) and that he has now retiring from
service. Therefore, he prayed for re-fixation of pay on par with the pay of
Juniors.
34.In the interse seniority list of Draughtsman as on 01.08.1978 the name
of the petitioner is shown in Serial No.1 and his date of birth as 22.01.1933.
His Serial number in the seniority list of Draughtsman in the Grade-III is ’13’
and the date of regularisation is 07.11.1957. The seniority list of Draughtsman
in Grade-II, the petitioner in Serial No.61. The date of Regularisation is on
23.11.1970. The petitioner seniority list in Draughtsman in Grade-I is at 45
in Serial Number the date of Regularisation is 20.08.1973 and his present pay
of Rs.2,240/- as on 01.07.1990. In the remarks column it is mentioned that the
petitioner has been on other duty as Junior Engineer from 15.11.1970 as approved
probationer in Overseers, Draughtsman promoted as Junior Engineer in Serial
No.3.
35.The petitioner as Junior Engineer as per the proceedings dated
19.10.2000 of the Second Respondent has completed the probation in the post of
Junior Engineer on 15.11.1972 afternoon.
36.The petitioner as Junior Engineer has been awarded the Special Grade in
the post of Junior Engineer on 26.02.2001 as per the proceedings of the Second
Respondent and the salary has been increased as Rs.2200-75-2800-100-4000 in the
said time scale. On 26.02.2001, the Second Respondent/Chief Engineer has
proposed to recover the additional salary paid to the petitioner. The Fourth
Respondent/Superintending Engineer, National Highways, Madurai-20, has issued a
memo to the petitioner requiring him to express his willingness in regard to the
recovery of excess amount from and out of the fixation of salary and monetary
benefits within fifteen days from the date of receipt of the same. The
petitioner on 15.04.2001 has submitted a petition and has also prayed for to
grant of Selection Grade in the cadre of Draughtsman Grade-I to him.
37.The petitioner(Retd) in his representation dated 12.08.1999, addressed
to the Second Respondent has among other things stated that he is eligible for
Selection Grade in the post of Draughtsman Grade-I as on 20.08.1983, eventhough
he worked as Junior Engineer on temporary basis till retirement which carries
lesser time scale of pay as per General Rules also and therefore he prayed for
issuance of favourable orders in granting him the Selection Grade as on
20.08.1983 and fixation of pay on par with four juniors as mentioned in the
representation. According to him, one unit system of Seniority in Draftsman I
Grade as on 01.08.1973 etc. The Fourth Respondent by means of order dated
28.01.2004 has issued a proceeding claim recovery of Rs.416/- which has to pay
to the Government and the petitioner further has been directed to pay the said
amount in the Treasury and to submit the challan to the Office and the
petitioner has been also directed to submit the fresh proposal in respect of
pension along with enclosure thereto. On 27.05.2004 the Fourth Respondent in
his letter addressed to the Accountant General, Chennai-18, as stated that the
pay of the petitioner has been refixed in the revised scale of pay as on
15.11.1970 in the cadre of Junior Engineer and the Revised pension calculation
sheet based on the revised pay fixation have been worked out as mentioned
therein and also prayed for the revised pensionary benefits to the petitioner to
be admitted and necessary payment orders will be issued to him early. As per
the calculation sheet the average pay of the petitioner has been worked out as
Rs.25,278 divided by 10 is Rs.2,528/- and 50% of pension has been worked out as
Rs.1,264/- and further it is mentioned as hereunder:
D.C.R.G.Eligible:PLD +DA 13% x 16.50 = Rs.2300 + 299 x 16.50 =
Rs.42,883.50 or Rs.42,884/-
Family Pension :PLD x 50%
For Ist 7 years :2599 x 50%
———
100 = Rs.1299.50
or Rs.1,300/-
After 7 years :2599 x 30
———
100 = Rs.779.70
or Rs.780/-
Commutation of Pension:50% of Average pay
Rs.1264 x 1/3 =Rs.421/-
Rs.421 x 12×10.46= Rs.52,843.90
or Rs.52,844/-
38.The Accountant General(A&E) Tamil Nadu has issued an Authorisation of
Revision of Pension in respect of the petitioner as follows:
Class of Pension :Superannuation
Original Pension :Rs.1256/-w.e.f 01.02.1991
(Rupees One Thousand Two
Hundreds and Fifty Six only)
Revised Pension :Rs.1254/-w.e.f 01.02.1991
(Rupees One Thousand Two
Hundreds and Fifty Four only)
Revised Family
Pension(Enhanced) :Rs.1254/-up to 21.01.1998
(Rupees One Thousand Two
Hundreds and Fifty Four only) Revised Family
Pension(Normal) :Rs.780/-thereafter
(Rupees Seven Hundred and
Eighty only)
39.The petitioner has submitted a representation dated 08.08.2005 to the
Second Respondent pertaining to the fixation of pay in Selection Grade as on
20.08.1983 and in Special Grade in par with Juniors as per Item Nos.56,60,61 and
62 of Seniority List of Draftsman Grade-I. In the typed set of papers the
petitioner has enclosed a copy of G.O.Ms.No.191, Highways(HM 1)Department dated
13.09.2005, pertaining to one S.Balasubramaniam in and by which the Government
has decided to create a supernumerary post of Special Grade Draughtsman with
effect from 03.10.1970 in the scale of pay of Rs.475-25-650-30-810 to
accommodate and to regulate the pay of S.Balasubramaniam in the post of Special
Grade Draughtsman with effect from 03.10.1970 etc. Further, it is ordered that
he is eligible to draw arrears of pay and allowances consequent on the creation
of the supernumerary post.
40.On 11.11.2006, the petitioner has addressed a petition to the
Honourable Chief Minister Grievance Cell, Chennai-9, wherein he has prayed for
passing of favourable orders as Selection Grade Draftsman as on 20.08.1983 and
then Head Drafting Officer comparing to his Juniors. In his representation, the
petitioner has stated among other things that he is eligible for Head Draftsman
as per similar promotion given to one T.Kailasam.
41.On 30.11.2006, the Fourth Respondent in his communication addressed to
the Second Respondent has stated among other things that he has been promoted as
Junior Engineer temporarily from the post of Draughtsman and since his
regularisation as Junior Engineer has held to be irregular as per order of Chief
Engineer dated 10.12.1977 and further he has stated that he is retired as
temporary Junior Engineer and his salary cannot be fixed in the post of
Draughtsman or equal to that of those Draughtsman in service etc.
42.Again, the petitioner send a communication dated 06.12.2006 to the
Second Respondent wherein he has prayed for passing of orders by the Second
Respondent by perusal of records noted in his Service Register on the basis of
his retention temporarily on other duty as a Junior Engineer till 31.01.1991
namely the date of retirement.
43.Finally, the Chief Engineer, in his letter dated 23.08.2007, addressed
to the Special Officer of the Chief Minister’s Cell, Secretariat, Chennai-9 has
among other things stated that since the petitioner has retired on 31.01.1991 in
the post of Junior Engineer and therefore in the post of Draughtsman his salary
cannot be determined and also that before preparing the list of Head
Draughtsman promotion post since the petitioner has retired in the post of
Junior Engineer his request for promotion cannot be granted and finally his
request has been rejected.
44.It is to be pointed out that a change of appointment may occur on
account of diverse factors like promotion appointment to a different cadre or
post, permanent transfer, deputation, merger of units re-deployment of process
etc. Whatever may be the reason for change of appointment the last pay drawn by
the employee is to be protected always. As a matter of fact, the protection of
last pay is so important a condition of service that were necessary protection
has to be given by grant of personal pay which could be adjusted with a few
increments. Also, there can be no distinction between the pay drawn in the
higher post in Adhoc manner or in a regular fashion as opined by this Court.
45.Promotion as its understood in service jurisprudence is nothing but
advancement in rank or care or both. Promotion is always a step forward
towards a higher position and power. A mere discharge of duties of a post with
a higher pay does not mean promotion. There is no right to promotion.
Promotion is a positive act of elevation in status conveyed by an employer by
means of written communication issued in favour to the person promoted and
communicated to him. It entails the duties of higher responsibilities. It must
be satisfy the post of selection in the manner prescribed either as per statute
or administrative instructions.
46.Wherein, an employee changes his cadre and takes an appointment to an
altogether different post which has no comparison with a previous post then loss
of pay cannot be help, in the considered opinion of this Court.
47.Section 36(b) of the Tamil Nadu State and Subordinate Services Rules
refers to promotions to Selection category or grade which reads as follows:
“36 b(i)Promotions in a service or class to a selection category or to a
selection grade shall be made on grounds of merit and ability, seniority, being
considered only where merit and ability are approximately equal. The inter-se-
seniority among the persons found suitable for such promotion shall be with
reference to the inter-se-seniority of such persons in the lower post.
*(ii)Promotion according to seniority-All other promotions shall, be made in
accordance with seniority unless-
(1)the promotion of a Member has been withheld as a penalty, or
(2)a Member is given special promotion for conspicuous merit and ability.
*Substituted in G.O.Ms.No.295,P & AR dated 12-5.1988, w.e.f. 11.6.87.
48.The Learned Counsel for the petitioner interalia refers to
G.O.Ms.No.215 Personnel and Administrative Reforms (Personnel-M) Department,
dated 01.03.1979 for appointment to Selection Grade/Special Grades, all
officers, who have put in ten years of satisfactory service may be considered
irrespective of whether they are qualified for promotion to a higher post or
not. Also, the said Government order speaks of persons who are on other duty
may also be appointed to Selection Grade/Special Grade with reference to the
guidelines.
49.In this connection the aforesaid G.O specifies that the seniors in one
unit list will also be appointed to the Selection Grade posts with effect from
the date on which their Juniors are appointed to the Selection Grade posts,
eventhough the seniors might not have actually put in the required ten years of
service etc.
50.Again, the Learned Counsel for the petitioner refers to Government
Memorandum No.17177/PC/-IA/79-2 Finance (Pay Commission) Department dated
28.06.1979, which directs that the pay of a Government servant appointed to the
Selection Grade post on the date of accrual of increment in the Ordinary Grade
post may be fixed without taking into account the increment that accrued in the
Ordinary Grade Scale of pay and he may be allowed to draw his increment on that
date in the Selection Grade scale of pay.
51.Further, he brings to his aid the G.O.Ms.No.68 Personnel and
Administrative Reforms (Per-M)Department dated 23.01.1986 which speaks of fresh
guidelines to be followed while moving the Government employees to the Selection
Grades/Special Grades.
52.Also, G.O.Ms.No.151 Personnel and Administrative Reforms (FR-II)
Department, dated 20.02.1982, speaks of rectification of anomaly as refers the
appointment from Ordinary Grade to Selection Grade posts junior drawing more pay
than senior.
53.It is seen from the proceedings of the Second Respondent/Chief Engineer
dated 10.12.1970 that the petitioner and the 27 others have been promoted
regularly as Supervisors with effect from the date of their joining duty as
Supervisor as per Rule 36(b) of the General Rules for the Tamil Nadu State and
Subordinate Services Rules etc. But as per the proceedings of the Second
Respondent dated 10.12.1977 the promotion of the petitioner and other 28
Supervisors are deemed to have been cancelled and the concerned Superintending
Engineers are requested to issue cancellation orders of the orders of the
declaration of probation in individual cases etc. It is not made clear as to
whether the Second Respondent has any power to issue the proceedings dated
10.02.1977 in issuing the cancellation orders after promoting the petitioner and
others as per the proceedings dated 10.02.1970, after a lapse of seven years and
if so under what Rules and Regulations etc. Admittedly, the petitioner is not
responsible for issuance of promotion proceeding dated 10.12.1970, by the Second
Respondent. Also, he cannot be found fault with for his temporary promotion as
per the proceedings dated 10.12.1970. Even though the Fourth Respondent has
stated that the provisions of statutory note are not taken into consideration
before issuing the orders dated 10.12.1970, even for the same the petitioner and
other 27 persons are not responsible for this. The respondents have taken a
specific stand that the petitioner is not eligible for Selection Grade in the
category of Draftsman Grade-I has not acted in that post. Also, further he has
not joined in the category of Draughtsman Grade-II and Draughtsman Grade I from
15.11.1970 namely the date of joining in the post of Supervisor till his
retirement. The Respondents have taken a plea that the proceedings of the
Second Respondent dated 10.12.1970, subsequently cancelled by the proceedings
dated 10.02.1977, certain provisions of the service rules have not considered
while issuing order dated 10.12.1970. Therefore, the moot query that arises for
one’s rumination is whether the Second Respondent/ Chief Engineer is competent
to issue the cancellation proceedings dated 10.02.1977, cancelling the earlier
orders and dated 10.12.1970 and if so under what provisions/relevant statutory
Service Rules if any. Equally, the petitioner is also supposed to explain his
position as to whether he has acted in the category of Draughtsman Grade-I and
if so whether he is eligible to claim Selection Grade. Furthermore, he is to
state that whether he has joined in the category of Draughtsman Grade-I and
Draughtsman Grade-I from 15.11.1970 namely the date of joining in the post of
Supervisor till his date of retirement. That apart a promotion is nothing but
step forward to a higher position and power when the petitioner and 27 others
have been promoted as per the proceedings of the Second Respondent dated
10.12.1970. It is strange to hear from the Respondents that the petitioner and
others have been given the promotion orders and they are only ‘paper postings
so as to draw the pay. If no Selection Grade is eligible for a person in
regard to a post in which he is not acted according to the rules then it is the
duty of the Respondents to intimate the petitioner in writing about his claim of
Selection Grade in the Grade-I Draughtsman even in the year 1990 when he is
purportedly approached the Office of the Fourth Respondent through the
Divisional Engineer, Highways, Ramnad. It is also to be clarified by the
Respondents as to whether the petitioner is entitled to give an option to hold
the post of Supervisor with higher power and responsibilities than that of
Draughtsman Grade-I etc. When he has not claimed the post of Draughtsman Grade-
I at the time of receiving the orders of promotion Draughtsman Grade-I on
20.08.1973. Therefore, this Court opines that the petitioner is to state in
writing to the Second Respondent (a)as to whether he has held the post of
Supervisor continuously from 15.11.1970, till the date of his retirement without
any break so as to found out his eligibility as to his entitlement for Selection
Grade in Draughtsman Grade-I, (b) to state whether he has acted in the post of
Draughtsman Grade-II and (c)Grade-I and whether he is entitled to get Selection
Grade in Draughtsman Grade-I as he held the post of Supervisor.
54.On a careful consideration of respective contentions and inasmuch as
the impugned order of the Second Respondent dated 23.08.2007, refers to the fact
of the petitioner as serving as Junior Engineer and retired in the same post on
31.01.1991 and therefore his salary cannot be determined in the post of
Draughtsman etc and on over all assessment of facts and circumstances of the
case this Court directs the petitioner to submit a detail, complete and a
comprehensive representation to the Second Respondent or the concerned
authorities (citing the relevant G.Os and Rules together with necessary
enclosures) as the case may be by stating whether he has acted in the post of
Draughtsman Grde-I and Grade -II etc and to specify the post held by him till
his retirement so as to make a legitimate and lawful claim. Also, he is to make
a mention in the representation whether he claimed the post of Draughtsman
Grade-I by giving an option to that post when he received the orders of
promotion of Draughtsman Grade-I on 20.08.1973 and further whether he acted to
hold the post of Supervisor with a particular reference to the power of higher
responsibilities than that of the Draughtsman Grade-I and continued in the post
of Supervisor (now Junior Engineer) till his retirement within a period of four
weeks from the date of receipt of copy of this order. On receipt of the
petitioner’s fresh representation, the Second Respondent is to consider the
same dispassionately on merits and to pass a speaking and a reasoned order with
qualitative and quantitative details by assigning reasons and making a specific
mention whether the statutory rules permits for cancellation of the issuance of
the proceedings dated 10.02.1977 and if so to quote the relevant rules and
moreover to indicate whether the rules provide for any time limit or limitation
or no limitation in regard to the issuance of cancellation of the proceedings
dated 10.02.1977 as the case may be because of the fact that these aspects will
have to be gone into necessarily by the authorities concerned and it is open to
the Second Respondent to pass a reasoned, speaking and dispassionate order on
merits untrammeled and uninfluenced with any of the observations made by this
Court within a period of six weeks thereafter. The Second Respondent is to
provide adequate opportunity to the petitioner by confirming to the principles
of natural justice before passing the said order in the subject matter in
issue. In case if the Second Respondent comes to the conclusion (as regards the
orders to be passed)that the petitioner is not entitled to claim the relief of
selection grade in the category of Draughtman Grade-I then in that event the
Second Respondent is directed not to recover a sum of Rs.416/-(Excess amount
paid) as ordered by the Fourth Respondent in the proceedings dated 28.01.2004.
If the said sum of Rs.416/- has already been recovered from the petitioner, then
the same is directed to be refunded to him by the Respondents 2 and 4 by means
of issuance of appropriate proceedings so as to enable him to receive the same
in the manner known to law. The reason for this Court passing an order of
equitable relief in this regard is because of the reason for an excess payment
made the petitioner is not anyway responsible for the mistake if any committed
by the authorities concerned. Further, a Government servant getting a monthly
salary will be spending his money for attending to his family needs besides
attending to his needs. Therefore, there will not be any sum left for his
savings taking into account the spiralling rise in prices of Essential
commodities, cost of inflation and value of the money etc (Although in common
Law one is to entitled to recover an excess payment made to a person, since no
one can enrich himself unlawfully as per Section 72 of the Indian Contract Act,
1872).
55.Accordingly, with these directions, the writ petition is disposed of
leaving the parties to bear their own costs.
gsr
TO
1.The Secretary to Government,
Highways Department,
Secretatiat,
Chennai-9.
2.The Chief Engineer,
Highways,
Chennai-5.
3.The Superintending Engineer,
National Highways,
Trichy.
4.The Superintendent Engineer,
National Highways,
Madurai-20.