Madras High Court
D.Michael Raj vs The Accountant General Of on 6 October, 2016
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 06.10.2016
CORAM
THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN
W.P.(MD).Nos.3936 of 2008 and 3955 of 2008
and
WMP(MD)Nos.5413 and 5418 of 2016
WP(MD)No.3936 of 2008
D.Michael Raj .. Petitioner
.Vs.
1.The Accountant General of
Tamil Nadu and Pondycherry,
Anna Salai, Chennai.
2.Director of Collegiate Education,
College Road, Nungambakkam,
Chennai-6.
3.Joint Director of Collegiate Education,
Tirunelveli Region,
Tirunelveli.
4.St.Xavier's College,
Rep. by its Secretary,
Palayamkottai,
Tirunelveli District. ... 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
pertaining to the impugned order passed by the 2nd respondent in
Mu.Mu.No.36066-B1-2005, dated 26.10.2005 and the consequential order passed
by the 3rd respondent in O.Mu.No.12554/E3/06, dated 17.11.2006, quash the
same and direct the respondents to sanction 5% special pay and advance
increment for passing of Accounts Test-Part I to the petitioner.
(Prayer amended vide Court Order dated 01.04.2016
in WMP(MD)No.5417 of 2016 in WP(MD)No.3936 of 2008.)
!For Petitioners : Mr.R.Subramanian
^For Respondents :Mr.P.Gunasekaran (for R1)
Mr.K.Guru (for R2 and R3)
Additional Government Pleader
WP(MD)No.3955 of 2008
S.Gopalakrishnan .. Petitioner
.Vs.
1.Director of Collegiate Education,
College Road, Nungambakkam,
Chennai-6.
2.Joint Director of Collegiate Education,
Madurai Region,
Madurai.
3.Arulmigu Palaniandavar College of
Arts and Culture,
Rep. by its Secretary,
Palani,
Dindigul District. ... 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
pertaining to the impugned order passed by the 1st respondent in
Mu.Mu.No.36066-B1-2005, dated 26.10.2005 and the consequential order passed
by the 2nd respondent in O.Mu.No.1899/C4/2008, dated 25.03.2008, quash the
same and direct the respondents to continue to pay the 5% personal pay and
advance increment for passing the Accounts Test - Part I to the petitioner.
(Prayer amended vide Court Order dated 01.04.2016
in WMP(MD)No.5412 of 2016 in WP(MD)No.3955 of 2008.)
For Petitioners : Mr.R.Subramanian
For Respondents :Mr.K.Guru (for R1 and R2)
Additional Government Pleader
:ORDER
The case of the petitioner in the writ petition in W.P.(MD)No.3936 of 2008 is that he has joined as a lab attender in the 4th respondent aided college and was conferred with selection grade in the year 2005. Thereafter the petitioner came to be promoted as a Junior Assistant and he have also passed Account Test ? Part I in May 2006. Wherefore the petitioner having passed is entitled for an advance increment and another benefit of 5% special pay, the said 5 % of special pay was ordered to be paid to the non-teaching staff by the Government on taking into account the huge difference of the pay between the teaching and non-teaching staff.
2.Therefore the 4th respondent sent a proposal dated 13.09.2006 to the 3rd respondent to accord sanction to the above said advance increment to this petitioner. However, the said proposal was rejected vide the impugned proceedings of the 2nd respondent and confirmed by the consequential order passed by the 3rd respondent in O.Mu.No.12554/E3/06, dated 17.11.2006.
3.The said orders of the respondents 2nd and 3rd respectively are impugned in this writ petition.
4.The case of the petitioner in the writ petition in W.P.(MD)No.3955 of 2008 is that the petitioner was appointed as Attender / Lab Assistant in the 3rd respondent college on 19.07.1977 and thereafter the petitioner was conferred with selection grade on 19.07.1987 and with special grade on 19.07.1997, having completed 20 years of service. Later the petitioner came to be promoted as a Junior Assistant on 17.07.1998. Thereafter the petitioner was promoted as Assistant on 11.06.2003 and as a Superintendent on 20.01.2006 in the 3rd respondent college.
5.Since, there was a huge difference between the salaries of teaching staff and non-teaching staff, the government awards 5% personal pay to the Ministerial staffs. The petitioner has also passed Account Test ? Part I and thereby entitled for an advance increment. Therefore the petitioner was being paid with the 5% of personal pay and advance increment by passing in the Account Test ? Part I. However, the said proposal was rejected vide the impugned proceedings of the 1st respondent in Mu.Mu.No.36066-B1-2005, dated 26.10.2005 and the consequential order passed by the 2nd respondent in O.Mu.No.1899/C4/2008, dated 25.03.2008.
6.The said orders of the respondents 1 and 2 respectively are impugned in this writ petition.
7.The learned counsel for the respondents 1 and 2 in W.P.No.3955 of 2008 filed counter stating that the petitioner is not entitled for the relief claimed, since even after getting promoted as Junior Assistant, the petitioner had opted to remain and draw his pay in the Special Grade Scale of Lab-Assistant itself, which is higher than the scale of the post of Junior Assistant. Therefore the 2nd respondent has passed the impugned order and thereby cancelled the 5 % of pay as personal pay and the advance increment allowed to the petitioner. Further the order of granting 5 % personal pay for the Ministerial staff is not because of the pay different between the teaching staff and non teaching staff, but the same was ordered to be paid with effect from 01.08.1992 only as a compensation measure. The petitioner opted to remain in the pay scale of Special Grade Lab-Assistant remain and has received the salary in the pay scale of the lower post.
8.I heard Mr.R.Subramanian, learned counsel appearing for the petitioners in both the writ petitions and Mr.P.Gunasekaran, learned counsel for the 1st respondent in WP(MD)No.3936 of 2008 and Mr.K.Guru, learned Additional Government Pleader for the respondents 2 and 3 in WP(MD)No.3936 of 2008 and respondents 1 and 2 in WP(MD)No.3955 of 2008 and perused all the records.
9.At the very outset, the counsel for the petitioner has drawn the attention of this court, to the final orders passed by this court in an earlier occasion dealing with the identical issue involving similar set of facts in a batch of writ petitions in W.P.Nos.2108, 2118, 2119 and 2126 of 2008 and W.P.No.9118 and 9119 of 2008. The prayer in the said batch of writ petitions and the order of this court is extracted here under:
Prayer in W.P (MD).No.2118 of 2008:- Writ petition filed under Article 226 of the constitution of India, praying for the issuance of a writ of Certiorarified Mandamus calling for the records of the first respondent in Na.Ka.No.12871/B3/2005 dated 18.04.2005, quash the same and direct the respondents to continue to pay the 5% personal pay to the petitioner. Prayer in W.P (MD).No.2108, 2119 and 2126 of 2008:- Writ petition filed under Article 226 of the constitution of India, praying for the issuance of a writ of Certiorarified Mandamus to call for the records of the second respondent in Na.Ka.No.Oo/2007 dated 28.08.2007, quash the same and direct the respondents to continue to pay the advance increment to the petitioners.
10.This Court in the above batch of writ petitions while dealing with an identical issue involving similar set of facts, besides with similar objection raised by the respondent, that the petitioners therein was not entitled to 5% benefits as they had already opted for lower grade of scale, vide its order dated 24.1.2010 has held as follows:
?The 5% personal pay was awarded by the Tamil Nadu Government and it was given to them not on the mis-representation or suppression materials facts by the petitioners. In that event, the impugned order directing the third respondent to recover the personal pay granted to the petitioners cannot be sustained as held by the Hon?ble Supreme Court in Sahib Brawn ?Vs- State of Hariyana reported in 1995 AIR SC9W 1780 wherein the Hon?ble Supreme Court held that if the higher pay scale was given not because of the mis- representation or suppression of materials facts, the said amount cannot be recovered from the staff. Taking into note of the above and relying upon the said Judgment, this Court by order dated 13.02.2009 allowed the writ petition Nos.3379 and 3382 of 2008.
The impugned order is not only bad, but also is bad for violation of principles of natural justice as no notice was given before passing the impugned order. Therefore, the impugned order is liable to be set aside and accordingly, these writ petitions are allowed?.
11.Therefore, this Court taking note of the above said Judgment and having reliance upon the same hereby set aside the impugned order. Accordingly both the writ petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
To
1.The Accountant General of Tamil Nadu and Pondycherry, Anna Salai, Chennai.
2.Director of Collegiate Education, College Road, Nungambakkam, Chennai-6.
3.Joint Director of Collegiate Education, Tirunelveli Region, Tirunelveli..