Madras High Court
Union Of India vs K.P. Rathinam on 28 February, 2007
Author: N. Paul Vasanthakumar
Bench: P.Sathasivam, N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28/02/2007 Coram The Honourable Mr.Justice P.SATHASIVAM and The Honourable Mr.Justice N.PAUL VASANTHAKUMAR Writ Petition Nos.30275 of 2005 and 32373 & 13024 of 2006, W.P.M.P. No.33185 of 2005 in W.P. No.30275 of 2005 AND M.P. Nos.1 and 2 of 2006 in W.P. No.32373 of 2006 W.P. No.32373 of 2006: ~~~~~~~~~~~~~~~~~~~~~ 1. Union of India rep.by Comptroller and Auditor General of India No.10, Bahadur Shah Zafar Marg New Delhi 110 002. 2. The Accountant General (Accounts & Entitlement) Teynampet Chennai 600 018. ..Petitioners Vs 1. K.P. Rathinam 2. The Central Administrative Tribunal, rep.by its Registrar, High Court Campus, Chennai. ..Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records of the Tribunal in O.A.No.673 of 2005 and quash the order dated 19.4.2006. W.P. No.13024 of 2006: ~~~~~~~~~~~~~~~~~~~~~ 1. Union of India rep.by Comptroller and Auditor General of India New Delhi 110 002. 2. The Accountant General (Accounts & Entitlement) Teynampet Chennai 600 018. ..Petitioners Vs 1. The Registrar, Central Administrative Tribunal Chennai. 2. R. Elangovan ..Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records of the Tribunal in O.A.No.974 of 2003 and quash the order dated 29.9.2004. W.P. No.30275 of 2005: ~~~~~~~~~~~~~~~~~~~~~ 1. Union of India rep.by Comptroller and Auditor General of India New Delhi 110 002. 2. The Principal Accountant General (Accounts & Entitlement) Tamil Nadu Circle, Teynampet Chennai 600 018. ..Petitioners Vs 1. The Registrar, Central Administrative Tribunal, Chennai 600 104. 2. J. Alexander 3. V. Soosai 4. M. Selvaraj 5. C. Shanmugasundaram 6. T. S.Vasantha 7. P. Appukutti 8. S. Sankaranarayanan 9. S. Michael 10. A. Hydar Ali 11. T.S. Natarajan 12. N. Balasubramanian 13. N. Selvaraj 14. N. Velusamy 15. A. Kasi 16. R. Renganathan ..Respondents Prayer: Writ petition filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari calling for the records of the Tribunal in O.A.No.1083 of 2003 and quash the order dated 15.9.2004. For Petitioners in W.P. No.32373/2006 : Mr.V.Vijayashankar For Petitioners in W.P. Nos.30725/2005 & 13024/2006 : Mr.T.Ravikumar, ACGSC For R1 in W.P.32373/2006 & R2 to R16 in WP.30275/2005 : M/s.Paul & Paul For 2nd Respondent in W.P. No.13024/2006 : Mr.L.Chandrakumar COMMON ORDER
N. PAUL VASANTHAKUMAR, J.
W.P.No.32373 of 2006This writ petition is filed challenging the order of the Central Administrative Tribunal made in O.A.No.673 of 2005 dated 19.4.2006 allowing the application filed by the first respondent herein.
2. The brief facts necessary for disposal of this writ petition are as follows.
(a) The first respondent by name K.P.Rathinam, entered into the service as Junior Assistant in the Public Works Department in the Government of Tamil Nadu, who appered for the competitive examinations for the post of Divisional Accountant, Central services. He was selected and appointed as Divisional Accountant on 1.3.1974 in the Accountant General's Office, Chennai-18. The first respondent was promoted as Senior Divisional Accountant and he retired from service in the said cadre on 31.7.2000.
(b) The first respondent submitted a representation to the Comptroller and Auditor General of India on 7.6.2000 and prayed for stepping up of his pay on par with his junior one Sankaranarayanan on the basis that the said Sankaranarayanan got appointment as Divisional Accountant in the Central service on 3.11.1982, whereas the first respondent was appointed in the same cadre on 1.3.1974 and therefore he is entitled to get his pay fixed on par with the said Sankaranarayanan with effect from 3.11.1982.
(c) The first petitioner herein by his order dated 25.9.2001 granted an order in favour of the first respondent for stepping up of the pay at Rs.640/- per month on par with the said Sankaranarayanan. It was also ordered that the pay will be notionally stepped up and the stepped up pay for the last ten months of service calculated and taken into account for the purpose of pension and other retirement benefits. According to the petitioners, the said stepping up of pay to the first respondent was made without realising certain material particulars and the first petitioner communicated letter to the second petitioner on 24.5.2004 and again on 2.6.2005 by stating that the stepping up of pay to the first respondent was ordered erroneously as he was not entitled to such stepping up of pay and thereafter a show cause notice was issued on 17.6.2005 by the second respondent and after getting reply of the first respondent, by order dated 18.8.2005, the second petitioner cancelled the stepping up of pay made earlier by the first petitioner and directed recovery of the amounts erroneously paid to the first respondent.
(d) The said order dated 18.8.2005 passed by the second respondent was challenged by the first respondent before the Central Administrative Tribunal, Chennai (second respondent in the writ petition). The petitioners herein filed a reply in the said original application and stated that the said Sankaranarayanan, though junior in the central service to that of the first respondent, was senior to the first respondent in the state service as he entered into state service in the year 1956, whereas the first respondent entered into state service only in the year 1959. Pay of the said Sankaranarayanan was fixed under FR.22 and the Government of India's instructions, which enabled fixation of pay of Divisional Accountant by taking into account their last drawn pay in the state cadre. The said Sankaranarayanan having been appointed as Divisional Accountant with effect from 3.11.1982, his pay was fixed at Rs.640/- per month.
(e) The first respondent entered into the service of the Divisional Accountant's cadre on 1.7.1974 and on that date his pay in the State Government was only Rs.345/- per month, whereas the said Sankaranarayanan was drawing a pay of Rs.390/- per month. Consequent to the appointment of the said Sankaranarayanan as Divisional Accountant with effect from 3.11.1982, his pay was fixed at Rs.640/- and the first respondent's pay as on the said date was Rs.545/-. Hence it was contended that Sankaranarayanan was not really a junior to the first respnodent considering his entry into the state service.
(f) It is also contended in the counter affidavit that the first respondent earlier moved O.A.No.1499 of 1992 seeking to step up his pay which was dismissed by the second respondent herein on 28.7.1994 and the first respondent while submitting his representation in June, 2000, suppressed the fact of dismissal of earlier original application and therefore the first petitioenr passed the stepping up of pay to that of Sankaranarayanan by mistake and the same having been found erroneous, the same was subsequently withdrawn after affording opportunity to the first respondent by the second petitioner.
(g) The Central Administrative Tribunal without considering the said facts, particularly when the said Sankaranarayanan is senior to the first respondent in state service, allowed the original application on the ground that the internal communication made between the first and second petitioners was not placed before the Tribunal and the dismissal of the earlier original application filed by the first respondent and the earlier order of stepping up of first respondent's pay by mistake which was found erroneous by the first petitioner, who in turn directed the second petitioner to cancel and therefore the order of cancelling stepping up of pay passed by the second petitioner is valid and the order of the Central Administrative Tribunal allowing the original application is unsustainable.
3. First respondent filed counter affidavit wherein it is stated that in the Central service the first respondent is senior as he was selected by direct recruitment in the year 1974 and at that time his pay was fixed at Rs.425 - 750/-, whereas his juniors joined in the central service by direct recruitment in the year 1982 their salary came to be fixed at Rs.640/- per month as against the first respondent's pay fixed at Rs.540/- per month at that time. It is also stated in the counter affidavit that after the first respondent was appointed in the central service, there were pay commission revision in the state service and therefore the state service personnel were receiving higher pay, which the first respondent could not get as he was appointed in central service, prior to pay commission revision. Had the first respondent served in the state service and appointed in the central service in the year 1982 along with others, his pay should have been fixed at the rate of Rs.640/- per month in the year 1982. It is also stated in the counter that number of Divisional Accountants seniors to the first respondent approached the Central Adminstrative Tribunal by filing T.A.No.247 of 1986 and O.A.Nos.564 of 1988 etc., for stepping up of their pay and the said applications were allowed and their pay had been stepped up. The first respondent being similarly placed, submitted a representation even though his application filed earlier was rejected by the second respondent. First petitioner herein considered the representation and taking note of the earlier orders passed by the Central Administrative Tribunal in T.A.No.247 of 1986 and O.A.No.564 of 1988, granted the relief in favour of the first respondent by order dated 25.9.2001 which was withdrawn by the second respondent through his order dated 18.8.2005.
4. Heard the learned counsel for the petitioners, who reiterated the contentions raised in the affidavit filed in support of the writ petition and also stated that the Tribunal having negatived the claim of the first respondent on an earlier occasion, the first respondent cannot submit application for refixing to step up his pay and the first respondent also not disclosed the earlier order rejecting the claim by the Tribunal and therefore the first respondent is guilty of suppression of facts. The order passed by the first petitioner, without knowing the rejection of first respondent's claim, is an erroneous order and it can be withdrawn at any time and that order will not confer the first respondent any right and therfore the order of the second respondent in allowing the application is unsustainable.
5. The learned counsel for the first respondent heavily relied upon rule 70 of the Central Civil Services Pension Rules, and submitted that the first respondent has not suppressed anything and he came to know about the order of the Tribunal allowing the claim of similarly placed persons and based on which he submitted a representation to the first petitioner, which was rightly considered and consequently his pay was stepped up. There is no illegality in the first respondent's order, which was erroneously cancelled by the second petitioner, who has no jurisdiction to cancel the same as per rule 70, above referred. He also denied the allegation of suppression of fact as contended by the learned counsel for the petitioners.
6. In view of the submission made by the learned counsel for the first respondent that the second respondent has no jurisdiction to pass the impugned order as per rule 70 of the rules, we are not proposing to consider the merits of the claim of the first respondent in this writ petition. Even though, the said jurisdictional issue is not considered by the second respondent, the same having been a legal plea we propose to consider the same.
7. Rule 70 of the Central Civil Services Pension Rules, reads thus, "Rule 70. Revision of pension after authorization (1) Subject to the provisions of rules 8 and 9, pension once authorized after final assessment shall not be revised to the disadvantage of the Government servant, unless such revision becomes necessary on account of detection of a clerical error subsequently:
Provided that no revision of pension to the disadvantage of the pensioner shall be ordered by the Head of Office without the concurrence of the Department of Personnel and Administrative Reforms if the clerical error is detected after a period of two years from the date of authorization of pension.
(2) For the purpose of sub-rule (1), the retired Government Servant concerned shall be served with a notice by the Head of Office requiring him to refund the excess payment of pension within a period of two months from the date of receipt of notice by him.
(3) In case the Government servant fails to comply with the notice, the Head of Office shall, by order in writing, direct that such excess payment, shall be adjusted in instalments by short payments of pension in future, in one or more instalments, as the Head of Office may direct."
From the perusal of the above rule, it is clear that revision of pension to the disadvantage of the pensioner shall be ordered by the head office without the concurrence of the department of P&AR, if the error is detected within a period of two years from the date of authorisation of pension. If the revision is required to be made after two years, concurrence of P&AR department is essential.
8. Here in this case, the first petitioner granted an order in his favour ordering revision of pension in the year 2001 i.e, on 25.9.2001 and cancellation of the same is ordered by the second petitioner, who is not the Head office, on 18.8.2005, after about four years. Since the matter relates to reduction in pension, the said rule is attracted and the competent authority being the head office and the period of two years also having been elapsed, concurrence of the department of P&AR is necessarily to be obtained. The impugned order dated 18.8.2005 nowhere discloses the concurrence of the department of P&AR. Hence we are of the view that it is a statutory violation committed by the petitioners while passing the impugned order passed on 18.8.2005.
9. It is well settled in law that when a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all and the other methods of performance are necessarily forbidden. The said proposition is well recognised as held by the Honourable Supreme Court in the decision reported in AIR 1964 SC 358 (State of Uttar Pradesh v. Singhara Singh). In paragraphs 7 and 8 of the Judgment, it is held thus, "7. In Nazir Ahmed's case, 63 Ind App 372: (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch.D 426 to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under S.164 and, therefore, held that the magistrate could not give oral evidence of the confession made to him which he had purported to record under S.164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Ss.164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."
8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S.164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him."
The said proposition is also reiterated in the decision reported in (1999) 3 SCC 422 (Babu Verghese v. Bar Council of Kerala). In paragraphs 31 and 32 of the Judgment, the Honourable Supreme Court held thus, "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor ((1875)1 Ch D 426) which was followed by Lord Roche in Nazir Ahmad v. King Emperor (AIR 1936 PC 253) who stated as under:
"(W)here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. (AIR 1954 SC 322) and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in Nazir Ahmed case (AIR 1936 PC 253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
10. Applying the above proposition of law, as laid down by the Honourable Supreme Court and the admitted position in this case that Rule 70 of the Central Civil Services Pension Rules having not been followed by the second petitioner while passing the impugned order dated 18.8.2005, without expressing anything on merits, the order of the second petitioner dated 18.8.2005 is set aside and the order of the Central Administrative Tribunal made in O.A.No.673 of 2005 dated 19.4.2006 stands modified. It is open to the Head of the Department to pass fresh orders, if it is warranted, by following Rule 70 of the Central Civil Services Pension Rules, on or before 31.5.2007. If no order is passed within the said period, the order passed by the first petitioner dated 25.9.2001 shall be implemented.
W.P.No.32373 of 2006 is ordered in the above terms. No costs. Connected miscellaneous petitions are closed.
W.P.No.13024 of 200611. This writ petition is filed challenging the order of the Tribunal made in O.A.No.974 of 2003 dated 29.9.2004 wherein a direction was issued to consider the claim of the first respondent for stepping up of pay on par with K.P.Rathinam, who is the first respondent in W.P.No.32373 of 2006.
12. In W.P.No.32373 of 2006, while setting aside the order of the second petitioner, we have modified the order of the Central Administrative Tribunal, granting liberty to the appropriate authority to pass fresh orders by following Rule 70 of the Central Civil Services Pension Rules, on or before 31.5.2007 and if no order is passed by then the said first respondent therein is entitled to retain the benefits given by the order of the first petitioner dated 25.9.2001.
13. The claim of the second respondent in W.P.No.13024 of 2006 shall also be considered for stepping up of pay that has to be fixed in the case of K.P.Rathinam. The said direction shall be complied with on or before 30.6.2007.
W.P.No.13024 of 2006 is ordered in the above terms. No costs.
W.P.No.30275 of 200514. This writ petition is filed against the order of the Central Administrative Tribunal made in O.A.No.1083 of 2003 dated 15.9.2004 wherein the Tribunal allowed the application filed by the respondents 2 to 16 with a direction to consider the claim of the respondents 2 to 16 for stepping up of pay on par with K.P.Rathinam, within a period of three months.
15. In W.P.No.32373 of 2006, while setting aside the order of the second petitioner, we have modified the order of the Central Administrative Tribunal, granting liberty to the appropriate authority to pass fresh orders by following Rule 70 of the Central Civil Services Pension Rules, on or before 31.5.2007 and if no order is passed by then the said first respondent therein is entitled to retain the benefits given by the order of the first petitioner dated 25.9.2001.
16. The claim of the respondents 2 to 16 in W.P.No.30275 of 2005 shall also be considered for stepping up of pay that has to be fixed in the case of K.P.Rathinam. The said direction shall be complied with on or before 30.6.2007.
W.P.No.30275 of 2005 is ordered in the above terms. No costs. Connected miscellaneous petition is closed.
vr To The Registrar, Central Administrative Tribunal Chennai 600 104.
[PRV/9703]