Madras High Court
T.S.Ragavan vs The Secretary To Government on 4 March, 2011
Author: M.Venugopal
Bench: M.Venugopal
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 12x10.46= 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.