Madras High Court
J.Chelliah vs The State Of Tamil Nadu on 21 January, 2008
Author: S.Manikumar
Bench: S.Manikumar
In the High Court of Judicature at Madras
Dated : 21.01.2008
Coram
The Honourable Mr. Justice S.MANIKUMAR
Writ Petition No.10104 of 2005
and W.P.M.P. No. 10968 of 2005
---
J.Chelliah .. Petitioner
v
1. The State of Tamil Nadu
through the Secretary
Education Department
Fort St.George, Chennai-9.
2. The District Treasury Officer
Erode, Erode District.
3. The Accountant General
O/o Accountant General
Anna Salai, Chennai.18. .. Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records relating to the order passed by the second respondent in Lr.No.3947/2005 L2, dated 2-3-2005 in pursuance of the audit of the third respondent and quash the same and consequently, forbearing the respondents from deducting the pension amount of the petitioner.
For petitioner : Mr. A.R.Nixon
For respondents : Mr. S.Gopinathan AGP (For R1 & R2)
Mr. S.Udayakumar, SCGSC (For R3)
O R D E R
The petitioner has sought for a writ of Certiorarified Mandamus to call for the records relating to the order passed by the second respondent in Lr.No.3947/2005 L2, dated 2-3-2005 in pursuance of the audit of the third respondent and quash the same and consequently, forbearing the respondents from deducting the pension amount of the petitioner.
2. The brief case of the petitioner is as follows:
The petitioner was working as a Primary School Grade Teacher in C.S.I.Primary School Surampatti, Erode District and retired on 31.05.1987. After his retirement, his pension was computed by the Accountant General and is drawing pension from 01.06.1987. He was drawing a sum of Rs.4000/- apart from Dearness Allowance from 01.04.1999. While so, suddenly, without notice to the petitioner, the third respondent has reduced the pension from Rs.4000/- to Rs.2950/- with effect from 01.01.1996, on the audit objection. The petitioner is put into dark and has given so many objections to the respondents about their illegal act. But no reasons have been assigned and the copy of the audit objection said to have been made by the Audit has not been furnished to the petitioner. The non-furnishing of the audit report to the petitioner amounts to violation of principles of natural justice. The petitioner, sent letters to the respondents on 12.02.2004 not to deduct any amount from pension and directed them to refund the amount already deducted by them.
3. It is the further case of the petitioner that the petitioner has not received any reply from the respondents and the petitioner understands that as per Government Letter No.60024/CMPC/Finance Department/99-2 dated 18.09.2000, the respondents have fixed the scale of pension with effect from 01.01.1996, reducing the pension from Rs.4000/- to Rs.2950/- without prior permission. The second respondent has decided to recover a sum of Rs.49,350/- from the pension and Rs.20,704/- from dearness allowance, totalling a sum of Rs.70,054/-, which is the excess payment from 01.04.1999 to 28.02.2003. They have started to recover a sum of Rs.1950/- from the pension on and from 01.03.2003. The petitioner is receiving a sum of Rs.2600/- by way of pension,including the dearness allowance per month. With this meagre income, the petitioner has to maintain his family.
4. The petitioner has sent a notice dated 21.02.2005 through his counsel to the second respondent. The second respondent in turn has sent the impugned order without any particulars to the counsel for the petitioner. In the said order, the second respondent has stated that he has enclosed the audit objection. But the audit objection is not enclosed in the impugned order. The second respondent has no legal right to withhold the pension amount without giving opportunity to the petitioner. Hence, the petitioner has filed the present writ petition for the relief as stated supra.
5. The third respondent in his counter-affidavit has submitted that as per G.O.No.200 Finance (Pay Cell) Department dated 18.05.1999, the pension/family pension of pre (1.1.1996) pensioners are revised with effect from 01.04.1999 at 50% of the minimum of the revised time scale of pay applicable to the post last held by the employee which was introduced with effect from 01.01.1996. The Government in Finance (CMPC) Department letter No.60024/CMPC/2000-1 dated 18.09.2000 have clarified to the Director of Pension that as there was no separate pay scale for Headmasters Elementary School before 01.06.1988 (date of implementation of V Pay Commission), Secondary Grade Teachers served as Headmasters Elementary School receiving duty allowance. Therefore, the revision of pension as per G.O.No.200 dated 18.05.1999, to these secondary Grade Teachers who have retired before 01.06.1988 cannot be granted in the revised scale of pay applicable to Headmaster of Elementary School. Therefore, as per clarification of the Government, Secondary Grade Teachers who have functioned as Headmasters and were in receipt of special pay and retired before 01.06.1988 are entitled to have their pension revised in Secondary Grade Teacher Scale of pay Rs.4500-125-7000 (ordinary), 5300-150-8300 (Selection Grade) and 5900-200-9900 (Special Grade) only as the case may be and not in the scale of pay relevant to Headmaster Elementary School.
6. The third respondent has further submitted that while inspecting the accounts of the second respondent in the year 2002-2003, it was noticed by the officials that pension of the petitioner was revised as per the G.O.200 at an enhanced rate at Rs.4000/- per month, with effect from 01.04.1999 by wrongly considering the relevant scale of pay as Rs.8000-275-13,500 ie., the scale of pay of Special Grade Headmaster Elementary School. The petitioner had retired on 31.05.1987 and though his designation has been mentioned in the pension proposals as Headmaster, as he had retired before 01.06.1988, ie., on 31.05.1987, the revised pension of the petitioner should have been fixed by the departmental officer at Rs.2950/- in the scale of pay of Special Grade Secondary Grade Teacher, ie. 5900-200-9000, in terms of Government clarification in letter No.60024 dated 18.09.2000. The third respondent objected to the incorrect revision of pension from 01.04.1999 and ordered recovery of excess paid pension of Rs.70,054/- upto the period of 28.02.2003. The second respondent by impugned order dated 02.03.2005 had ordered recovery of the same and re-fixed the pension at Rs.2950/-. This Court had ordered interim stay for recovery alone by order dated 28.03.2005 and the same has been complied with by the third respondent by instructing the second respondent not to resort to recover the excess paid pension by letter dated 08.04.2005. The impugned order is passed on the basis of the audit objection and also in accordance with the Government's considered decision. Hence, the writ petition is liable to be dismissed.
7. Assailing the impugned order of the second respondent in Lr.No.3947/205.L2 dated 02.03.2005, learned counsel appearing for the petitioner submitted that the impugned order, reducing the pension, is in violation of principles of natural justice as the petitioner was not given any opportunity prior to the passing of the order and he has not been furnished with the reasons for reduction.
8. Learned counsel further submitted that pension amount has been sanctioned to the petitioner for the services rendered by him and it is too late in the day, to order recovery of pension, taking into consideration that he has been receiving pension from 01.06.1987 onwards and that as on today, he is aged about 76 years.
9. He further submitted that even assuring that an enhanced amount was sanctioned and paid, the Government has no right to order for recovery, since there is no fault on the part of the petitioner and that he has not misrepresented to the authorities for revision of pension. Further, the Government Order in GO.Ms.No.200 Finance (Pay Cell) Department was passed only on 18.05.1999 and therefore, there is no justification on the part of the authorities in keeping quiet from 1999, to recover the amount after accumulation to the tune of Rs.70,054/-. He submitted that the petitioner cannot be made to suffer for the laches on the part of the Government officials. As there is a prima facie case and balance of convenience in favour of the petitioner, the impugned order has to be set aside.
10. Per contra, learned Additional Government Pleader appearing for respondents 1 and 2, reiterating the averments made in the counter-affidavit filed by the third respondent, submitted that the petitioner has retired from his services on 31.05.1987. As per the clarification dated 18.09.2000 issued, pursuant to G.O.Ms.No.200 Finance (Pay Cell) Department, dated 18.05.1999, there was no separate pay scale of pay for the Headmasters of Elementary Schools before 01.06.1988 (date of implementation of V Pay Commissioner); those Secondary Grade Teachers who served as Headmasters of Elementary School were receiving only duty allowance and therefore, revision of pension as per G.O.Ms.No.200 dated 18.05.1999, cannot be granted, in the revised sale of pay applicable to Headmasters of Elementary School, who have retired before 01.06.1988. Therefore he submitted that a portion of the amount which was paid to the petitioner, in excess, is liable to be recovered and there is no illegality in the impugned order.
11. Heard the learned counsel appearing for the parties and perused the materials on record.
12. By G.O.Ms.No.200, Finance (Pay Cell) department dated 18.05.1999 Government have issued orders revising the pension/family pension with effect from 01.04.1999, by which revised pension was calculated at 50% of the minimum of the revised time scale of pay introduced with effect from 01.01.1996, applicable to the post last held by the employee at the time of their retirement.
13. Lateron the Government have clarified by letter No.60024/CMPC/2000-1 dated 18.09.200 issued to the Director of Pension, that as there was no separate pay scale for Headmasters Elementary School before 01.06.1988, Secondary Grade Teachers served as Headmasters in Elementary School are receiving duty allowance. Hence, the revision of pension as per G.O.Ms.No.200, to the Secondary Grade Teachers who have retired before 01.06.1988, cannot be granted in the revised scale of pay applicable to the Headmasters Elementary School.
14. In D.Palavesamuthu v Tamil Nadu Administrative Tribunal and others reported in 2006 (1) MLJ 143, this court considered as to whether recovery from pay can be made after a long lapse of true, when the pay of the individual had been erroneously fixed by the Department/Government. The relevant portion of the judgement is extracted hereunder:
" Even if it is accepted for the argument sake that the salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the department and their officers,for which the petitioner should not be penalised after a lapse of number of years that too, after retirement of the petitioner."
15. In Shyam Babu Verma and others v Union of India and others reported in 1994 (2) Sec.521, the Supreme Court has held as follows:
"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 sale 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."
16. Considering the facts and circumstance of the case, and upon hearing the learned counsel for the parties, I am of the view that the judgements relied on by the learned counsel for the petitioner are applicable to the facts of this case. It is certainly not the fault of the petitioner in fixing the revised scale of pay. The respondents themselves have fixed the scale of pay applicable to the post of Headmasters, Elementary School and paid 50% of the pay as pension to the petitioner. He retired on 31-5-87. Reducing the pension after 12 years, for no fault of the petitioner, without furnishing the copy of the audit objection amounts to violation of the principles of natural justice.
17. For the foregoing reasons, the impugned order is liable to be set aside and the same is set aside.
18. In the result, the writ petition is allowed. Consequently, connected W.P.M.P.is closed. No costs.
Sd/-
Asst. Registrar.
/true copy/ Sub Asst. Registrar.
kvsg To
1. The Secretary Education Department Fort St.George, Chennai-9.
2. The District Treasury Officer Erode, Erode District.
3. The Accountant General O/o Accountant General Anna Salai, Chennai.18.
+ 1 CC To Mr.S.Udayakumar, SCGSC SR NO.2112 + 1 CC To Mr.A.R.Nixon, Advocate SR NO.2568 + 1 CC to the Government Pleader SR NO 2380 W.P.No.10104 of 2005 SSV(CO) SRA(13/06/2008)