Madras High Court
V.Ramasubbu vs The Government Of Tamil Nadu on 12 March, 2020
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
W.P(MD)No.10514 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :12.03.2020
CORAM:
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
W.P(MD)No.10514 of 2009
V.Ramasubbu ... Petitioner
vs.
1.The Government of Tamil Nadu,
Represented through the
Chief Secretary to Government,
Chennai.
2.The Superintendent,
Central Prisons, Palayamkottai,
3.The Additional Director,
The Directorate of Prisons, Chennai.
4.The Accountant General,
Account General Office, Chennai. ... Respondents
PRAYER:- Writ Petition is filed under Article 226 of the Constitution of
India praying for the issuance of a Writ of Certiorarified Mandamus
calling for the pay and pension records relating to the petitioner and
quash the fixation of pension passed by the third respondent dated
04.05.2005 and the impugned communications sent by the 2nd and 3rd
respondents on 29.10.2008 and 17.10.2008 respectively and direct the
respondents to do a revised work out of petitioner's pay and pension.
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W.P(MD)No.10514 of 2009
For Petitioner : Mr.Ramesh alias Ramiah
For Respondents : Mr.C.Ramar,
Additional Government Pleader
ORDER
This Writ Petition has been filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the pay and pension records relating to the petitioner and quash the fixation of pension passed by the third respondent dated 04.05.2005 and the impugned communications sent by the 2nd and 3rd respondents on 29.10.2008 and 17.10.2008 respectively and direct the respondents to do a revised work out of petitioner's pay and pension.
2. The brief facts of the case of the petitioner are as follows:
(i) The petitioner was originally appointed in the Prisons Department of the Tamil Nadu Government on 10.12.1973 in the Post of Grade II Warden. On 10.101983, the petitioner was temporarily promoted as Chief Head Warden of prisons and on 18.10.1983, the petitioner was promoted as Assistant Jailor on temporary basis and later, based on the vacancies, the petitioner was shuttled to officiate in the Post http://www.judis.nic.in 2/12 W.P(MD)No.10514 of 2009 of Chief Head Warden and as Assistant Jailor and thereafter, he was promoted to the Regular Cadre of Chief Head Warden on 09.06.1990 and on 16.05.1994, he was promoted to the Regular Cadre of Assistant Jailor and after ten years of service in that Post, the petitioner opted to go on Voluntary Retirement in October, 2004 and he was relieved from service on 31.01.2005.
(ii) According to the petitioner, ever since from his appointment in the regular cadre of Assistant Jailor, he was paid the salary only at the scale payable to the Assistant Jailor at the entry level and he was not granted any increment during his entire service and he has been repeatedly asking for the same during his service and even before fixing the pension, the petitioner sent a representation to the second respondent on 04.03.2005 enclosing a copy of the G.O.Ms.No.276, Personnel and Administrative Reforms Department dated 07.08.1992. But, the said representation was not considered and the petitioner's pension was wrongly fixed by the third respondent without taking the increments that were due to the petitioner and hence, pension fixation needs to be revised.
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(iii) According to the petitioner, the pay scale paid to the petitioner works out lower than the pay scale with increments paid at the next lower Grade of Chief Head Warden and hence, the petitioner modified the petitioner's request and sent a representation to the fourth respondent praying to work out the pay and pension of the petitioner at such Lower Grade Post on 25.07.2005 and also cited a similar instance at Thiruppur and sent repeated representations in that regard.
(iv) Subsequently, the fourth respondent sent a reply on 27.01.2006 directing the petitioner to contact the second respondent. Subsequently, the second respondent sent a communication to the petitioner in this regard stating that the petitioner's request has been sent to the first respondent for consideration. However, on 17.10.2008, the second respondent sent a reply rejecting the petitioner's modified request for revised pension at the Chief Head Warden Scale relying on a letter of the first respondent. Subsequently, the third respondent in turn issued a letter rejecting the request of the petitioner on 27.10.2008. However, the petitioner was kept in dark relating to the above letter of the first respondent. The respondents 2 and 3 failed to provide any opportunity to the petitioner before rejecting his request. Therefore, the petitioner was http://www.judis.nic.in 4/12 W.P(MD)No.10514 of 2009 constrained to file this writ petition.
3. The first respondent filed a counter affidavit, where it has been stated as follows:
(i)It is the fact that the petitioner was not granted increments during his service held in the post of Assistant Jailor due to non-passing of the prescribed test such as Account Test for Subordinate Officers Part-I and Jail Test Part-I, which are mandatory and pre-conditions for the Post of Assistant Jailor to be passed within the probation period of one year from the date of appointment to the said post.
(ii)It is further stated that G.O.Ms.No.276 Personnel and Administrative Reforms Department, dated 07.08.1992, relates to advance selection Grade/Special Grade Post, which is not at all relevant to the prayer of the petitioner. As per Rule 9(c) of the Special Rules for the Tamil Nadu Jail Subordinate Services, the Assistant Jailors on their promotion shall pass the Account Test for Subordinate Officers – Part I and Jail Test Part I, within a period of one year, failing which their increments will be stopped. Based on the above Rule position, the http://www.judis.nic.in 5/12 W.P(MD)No.10514 of 2009 petitioner was not granted annual increments for not passing of the test.
(iii) It is also stated that as per Rule 2 under 26(A) of the Fundamental Rules, if an employee becomes eligible for increment for passing of an obligatory test, such increment shall be sanctioned from the day following the last day of the examination (or) test, which he has passed. But, as far as the petitioner is concerned, he has not passed the test prescribed for the post of Assistant Jailor as prescribed in the Special Rules for the Tamil Nadu Jail Subordinate Services.
Due to non-sanctioning of the increments for his failure to get through the departmental test prescribed for the Post of Assistant Jailor, the pay which he was last drawn in the post held by him was taken into account for calculating the pension as per the Rules in force.
(iv) The petitioner was promoted as regular Assistant Jailor as per Inspector General of Prisons. As per Rule 9(c) of the Special Rules for the Tamil Nadu Jail Subordinate Services, the Assistant Jailors on promotion shall pass the Account Test for Subordinate Service Part – I and jail test Part – I, within a period of one year, failing which, the annual increments will not be sanctioned. Based on the above rule http://www.judis.nic.in 6/12 W.P(MD)No.10514 of 2009 position, the petitioner was not granted annual increment. In respect of temporary appointment under Rule 10(a) (i) and temporary promotion under Rule 39(a) (i) of Tamil Nadu State and Subordinate Services, the persons in temporary appointment or promotion were allowed to fix their pay as per Rule 10(b) and 39(g) of Tamil Nadu State and Subordinate service, which is detailed below:
(i) his substantive pay(or)
(ii) the minimum of time scale of pay of the higher post (or)
(iii) officiating pay eligible to him in the lower post but for the promotion.
Therefore, allowing the lower post pay with increments is permissible in the case of temporary appointment and temporary promotion only. There is no such rule provision available to fix the regularly promoted Assistant Jailor's pay in the category of Chief Head Warden.
(v) It is also stated that the Assistant Jailors on their promotion shall pass the prescribed test for the Post of Assistant Jailor within one year on their promotion as per Rule 9(c) of the Special Rules for the Tamil Nadu Jail Subordinate Services. Only after passing the test, the increments will be sanctioned in the Post of Assistant Jailor to which http://www.judis.nic.in 7/12 W.P(MD)No.10514 of 2009 Post, the petitioner was promoted from the lower post of Chief Head Warden. As far as the petitioner is concerned, he was promoted as Assistant Jailor on regular basis and fixed his pay under F.R.22(b). Hence, the contention raised by the petitioner for sanctioning of increment to the individual in the lower post will not be applicable in the higher post to which he was regularly promoted. Hence, the prayer sought for by the petitioner cannot be granted and hence, the writ petition is liable to be dismissed.
4. The respondents 2 to 4 adopted the counter-affidavit filed by the first respondent and prayed for dismissal of the writ petition.
5. Heard the learned counsel appearing for the petitioner and the learned Additional Government appearing for the respondents and perused the materials available on record.
6. The petitioner was appointed as Grade II Warden through District Employment Exchange on 10.12.1973. He was temporarily promoted as Chief Head Warden of prisons on 01.10.1983 and subsequently as Assistant Jailor on 18.10.1983 and according to the http://www.judis.nic.in 8/12 W.P(MD)No.10514 of 2009 seniority, he was promoted to the regular cadre of Chief Head Warden on 09.06.1990. Again, was promoted to the Regular Cadre of Assistant Jailor on 16.05.1994. He was retired from service as per V.R.S., on 31.01.2005 and orders have been passed accepting the V.R.S., and he was relieved from service. The petitioner's prayer is that his pay and allowance in the Post of Assistant Jailor was paid by the Superintendent of Prisons in the time scale of pay attached with the post of Assistant Jailor. He was not granted increment during his service held in the Post of Assistant Jailor due to non passing of the prescribed test such as Account test for Subordinate Officers Part - I and Jail Test Part – I, which is mandatory and pre-condition for the Post of Assistant Jailor to be passed within the probation period of one year from the date of appointment to the said post.
7. As per Ruled 26(A) of the Fundamental Rules, if an employee becomes eligible for increment for passing of an obligatory test, such increment shall be sanctioned from the day following the last day of the examination (or) test, which he has passed. Since the petitioner has not passed the test for the post of Assistant Jailor as per Rules, the petitioner was not granted any increment and his pay which he was last drawn in http://www.judis.nic.in 9/12 W.P(MD)No.10514 of 2009 the post held by him was taken into account for the calculation of pension. The petitioner herein has filed this writ petition pointing out that in the case of one K.Shumuga Sundaram, who was placed in similar situation, his prayer has been considered even he has not passed the said Account test and the same was taken into account by the Accountant General's office, Coimbatore. All his incentives and other increments to be paid by him was awarded and accordingly, the said person's salary was calculated as Rs.4300-100-6000 and on 06.09.2003 his salary was fixed at Rs.5400 + PB 240 from 06.09.2003 to 29.02.2004 till he retired.
8. The learned counsel for the petitioner also points out this stating that pay was fixed for the said Shunmuga Sundaram as per the revised scale of pay, he being treated as Chief Head Warden and therefore, the same has to be awarded to the petitioner also. There cannot be any discrimination against two persons when they are similarly placed. Accordingly, this Court is of the view that the respondents have to consider the petitioner's pension papers as like the order passed in the similarly placed person by the Superintendent of Prisons, Coimbatore dated 20.05.2004 on the basis of an order passed by the Accountant General's Office office dated 06.01.2004, within a period of eight weeks. http://www.judis.nic.in 10/12 W.P(MD)No.10514 of 2009
9. With the above direction, the writ petition is disposed of. No Costs.
10. Post the writ petition, for compliance on 03.06.2020.
12.03.2020
Index : Yes/No
Internet : Yes/No
pm
To:
1.The Government of Tamil Nadu,
Represented through the
Chief Secretary to Government,
Chennai.
2.The Superintendent,
Central Prisons, Palayamkottai,
3.The Additional Director,
The Directorate of Prisons, Chennai.
4.The Accountant General,
Account General Office, Chennai.
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W.P(MD)No.10514 of 2009
V.BHAVANI SUBBAROYAN,J.
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W.P(MD)No.10514 of 2009
12.03.2020
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