Madras High Court
L.Pasupatham vs The Government Of Tamilnadu on 19 July, 2018
Author: M.Dhandapani
Bench: M.Dhandapani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.07.2018 CORAM THE HONOURABLE MR.JUSTICE M.DHANDAPANI W.P.No.22800 of 2007 And M.P.Nos.2 of 2007 and 1 of 2014 L.Pasupatham ... Petitioner Vs. 1.The Government of Tamilnadu Represented by the Secretary to Government Adhi Dravidar & Tribal Welfare Department Fort St.George, Chennai 9. 2.The Director of Adhi Dravidar Welfare Chepauk, Chennai 5. 3.The District Adhi Dravidar and Tribal Welfare Officer, Cuddalore District, Cuddalore. 4.The Accountant General, Teynampet, Chennai 18. 5.The Special Tahsildar Adi Dravidar Welfare, Chidambaram, Cuddalore District. ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the 4th respondent issued in AG(A&E)/PENSION9/IV/P130-1488/2000-2001/3520 dated 18.12.2000 and in AG(A&E)/PEN P09/P1130-1488/AR/2000-2001 dated 27.12.2000 and in Proceedings in Ne.Mu.Ka.W.7/3438/2000 dated 5.1.2001 and in Na.Ka.W7/3438/2000 dated 12.4.2001 issued by the third respondent and quash the same and issue a consequential direction to the respondents to restore the petitioner's pay in the special grade scale of pay of Primary School Headmaster and fix the petitioner's pay at Rs.2120 with effect from 1.6.88 in the scale of pay of Rs.2000 3200 and Rs.8825/- with effect from 1.6.96 in the scale of pay of Rs.8000 13500/- and fix the petitioner's last drawn pay as Rs.10,475/- and issue a consequential direction to the respondents to release the amount of Rs.2,16,071/- withheld by the respondent from the terminal benefits with an interest @ 18% per annum. For Petitioner : Mr.R.Saseetharan For Respondents : Mr.K.Ravi Kumar for R1 to R3 and R5 Additional Government Pleader Mr.V.Vijay Shankar for R4 O R D E R
The petitioner has filed this writ petition seeking issuance of Writ of Certiorarified Mandamus calling for the records of the fourth respondent in AG(A&E)/PENSION9/IV/P130-1488/2000-2001/3520 dated 18.12.2000; in AG(A&E)/PEN P09/P1130-1488/AR/2000-2001 dated 27.12.2000; in Proceedings in Ne.Mu.Ka.W.7/3438/2000 dated 05.01.2001 and in Na.Ka.W7/3438/ 2000 dated 12.04.2001 issued by the third respondent and to quash the same and to issue a consequential direction to the respondents to restore the petitioner's pay in the special grade scale of pay of Primary School Headmaster and fix the petitioner's pay at Rs.2,120/- with effect from 01.06.1988 in the scale of pay of Rs.2,000/- 3,200/- and Rs.8,825/- with effect from 01.06.1996 in the scale of pay of Rs.8,000/- 13,500/- and fix the petitioner's last drawn pay as Rs.10,475/- and issue a consequential direction to the respondents to release the amount of Rs.2,16,071/- withheld by the respondent from the terminal benefits with an interest @ 18% per annum.
2.The case of the petitioner is that the petitioner entered into service in the department of Adhi Dravidar and Tribal Welfare as Secondary Grade Teacher on 04.09.1963 and was posted as Headmaster at Harijan Welfare School, Olayanur, in the then South Arcot District. The post of Secondary Grade Teacher, Primary School Headmaster and Middle School Headmaster were treated as one and the same and inter changeable on the ground that all the above said three posts carried same scale of pay.
3.It is the further case of the petitioner that the department of Adhi Dravidar and Tribal Welfare as well as the post of Secondary Grade Teacher, Primary School Headmaster and Middle School Headmaster were treated as one and the same and inter changeable on the ground that all the above said three posts carried same scale of pay. Thereafter, the post of Middle School Headmaster alone became a promotional post with effect from 01.10.1970. In the department of Adhi Dravidar and Tribal Welfare, the Government provides hostel for welfare of students and the post of Secondary Grade Warden is also treated as inter changeable post along with the post of Secondary Grade Teacher and Primary School Headmaster.
4.It is the further case of the petitioner that the Director of Elementary Education vide proceedings dated 17.02.1990 has directed that all the persons who are holding the post of Primary School Headmaster on 01.06.1988 are deemed to have been appointed as Primary School Headmaster with effect from 01.06.1988. No seniority has been followed to promote the Senior Secondary Grade Teachers as Primary School Headmaster with effect from 01.06.1988 and the department of Adhi Dravidar and Tribal Welfare has allowed the Secondary Grade Teachers who were holding the post of Primary School Headmaster on 01.06.1988 to function as Primary School Headmaster irrespective of seniority.
5.It is the further case of the petitioner that the Government of Tamil Nadu has passed G.O.Ms.No.1381 dated 05.10.1990 which provides that Secondary Grade Teacher who are holding the post of Primary School Headmaster as on 01.06.1988 are entitled to count their service rendered as Secondary Grade Teacher as well as Primary School Headmaster for the purpose of pay fixation in selection grade and special grade scale of pay in the post of Primary School Headmaster and in the said Government Order it is also directed that the pay fixation in respect of Primary School Headmaster who are promoted subsequently as per the seniority after 01.06.1988 will be done as per FR 22B.
6.It is the further case of the petitioner that the department of Adhi Dravidar and Tribal Welfare has followed the seniority for promotion to the post of Primary School Headmaster only after 01.06.1988 and appropriate seniority list has been published from the year 1990. As such, the petitioner was promoted as Primary School Headmaster on 13.06.1994. Hence, counting of both the services rendered as Secondary Grade Teacher and Primary School Headmaster for the purpose of fixation of pay in the post of Primary School Headmaster has not been extended to the petitioner. On 01.06.1988, the petitioner's pay was fixed only in the post of Secondary Grade Teacher at Rs.1,760/- in the scale of pay of Rs.1,640 2,900 (Special Grade Pay Secondary Grade Pay) but the juniors in the cadre of Secondary Grade Teachers who were holding the post as on 01.06.1988 are allowed Special Grade scale of pay of Rs.2,000/- - Rs.3,200/- in the post of Primary School Headmaster by counting both the services rendered as Secondary Grade Teacher and Primary School Headmaster by applying G.O.Ms.No.1381.
7.It is the further case of the petitioner that he made number of representations to the Government as well as to the Director of Adhi Dravidar and Tribal Welfare to rectify the pay anomaly and to step up the pay of seniors to the level of juniors. The Director of Adhi Dravidar and Tribal Welfare vide proceedings dated 12.07.1989 directed to step up the pay of seniors to the level of juniors who got their pay fixed as on 01.06.1988 as per G.O.Ms.No.1381 dated 05.10.1990. Hence, the Adhi Dravidar and Tribal Welfare Officer vide proceedings dated 01.09.1997 stepped up the petitioner's pay to the level of his junior with effect from 01.06.1988 and fixed his pay at Rs.2,120/- in the scale of pay of Rs.2,000/- - Rs.3,200/-.
8.It is the further case of the petitioner that he retired from service on attaining the age of superannuation on 31.12.2000. The Accountant General vide order dated 18.12.2000 objected the petitioner's pensionary proposal and stated that the petitioner is not entitled for pay fixation as per G.O.Ms.No.1381 dated 05.10.1990. The Accountant General also withheld Rs.50,000/- and directed the District Adhi Dravidar and Tribal Welfare Officer to resubmit the proposal.
9.It is the further case of the petitioner that thereafter, the District Adhi Dravidar and Tribal Welfare Officer issued proceedings dated 05.01.2001 on the basis of the audit objections and stated that the petitioner's pay was fixed as on 01.06.1988 and the alleged excess sum paid to the petitioner should be recovered from the pensionary benefits. Thereafter, the District Adhi Dravidar and Tribal Welfare Officer issued a show cause notice to the petitioner calling for the petitioner to submit his explanation. Thereafter, recovery was also effected by the respondents. Aggrieved by the same, the petitioner has filed this writ petition.
10.The learned counsel appearing for the petitioner would submit that even on merits of the case, the petitioner is entitled to step up his pay on par with his juniors. He further submitted that after retirement, in the absence of any mis-representation, even if the department pay the amount erroneously that cannot be recovered and no pensionary benefits can be withheld.
11.In support of his contentions, the learned counsel appearing for the petitioner relied upon the following decisions:
(i)The un-reported decision of this Court dated 15.12.2017 passed in W.P.No.20951 of 2007, the relevant portion of which reads as follows:
13.As rightly contended by the learned counsel for the petitioner that the Administration did not follow the seniority in the post of Secondary Grade Teacher as on 01.06.1988 while Secondary Grade Teacher was posted to act as Headmaster of Primary School and such posting was not objected to by the senior Secondary Grade Teacher for the simple reason that the posts were interchangeable and carried the same pay scale. However, as the situation changed with effect from 01.06.1988, the posting to act as Headmaster of Primary School, did create a hurt burn among the senior Secondary Grade Teachers, since they could not be posted to act as Headmaster of Primary School, though being seniors, for want of vacancies. Therefore, their case for equal pay as that of Headmasters of Primary Schools, who were acting as such with effect from 01.06.1988, cannot be denied under any circumstances and the same would be clearly discriminatory and violative of Article 14 of the Constitution of India.
14.Moreover, it has to be seen that the petitioner although acted as Headmaster for some time prior to 01.06.1988 was denied the higher pay scale, while the same was given to some of his juniors, who by virtue of being in the post of Primary School Headmaster on the crucial date on 01.06.1988. The anomaly and disparity of the pay scale is quite apparent much on the face of it and such anomaly was recognised and addressed by the authorities and therefore, the petitioner was rightly granted stepping-up of pay on par with his juniors originally. In such view of the matter, this Court does not find any valid justification for reversing the order of stepping up of pay and for recovery of the amount on the basis of so called excess payment made to the petitioner.
(ii)The decision of the Hon'ble Supreme Court reported in (1994) 2 SCC 521 (Shyam Babu Verma and others Vs. Union of India and others), the relevant portion of which reads as follows:
11.Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.
(iii)The decision of the Hon'ble Supreme Court reported in 1995 Supp (1) SCC 18 (Sahib Ram Vs. State of Haryana and others), the relevant portion of which reads as follows:
5.Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered form the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.
(iv)The decision of the Hon'ble Supreme Court reported in (2007) 6 SCC 180 (Babulal Jain Vs. State of M.P. and others), the relevant portion of which reads as follows:
15.We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000 has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal.
12.In view of the decisions cited supra, I am inclined to set aside the set aside the impugned orders. Accordingly, the impugned orders are set aside and the respondents are directed to refund the amount withheld from the petitioner's pensionary benefit to the petitioner within a period of six weeks from the date of receipt of a copy of this order. Since the consequential prayer had already been complied with by the respondents , there is no necessity for issuing consequential prayer.
13.The writ petition is accordingly disposed of. No costs. Consequently, the connected miscellaneous petitions are also closed.
19.07.2018 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No To
1.The Government of Tamilnadu Represented by the Secretary to Government Adhi Dravidar & Tribal Welfare Department Fort St.George, Chennai 9.
2.The Director of Adhi Dravidar Welfare Chepauk, Chennai 5.
3.The District Adhi Dravidar and Tribal Welfare Officer, Cuddalore District, Cuddalore.
4.The Accountant General, Teynampet, Chennai 18.
5.The Special Tahsildar Adi Dravidar Welfare, Chidambaram, Cuddalore District.
M.DHANDAPANI,J.
pri W.P.No.22800 of 2007 And M.P.Nos.2 of 2007 and 1 of 2014 19.07.2018