Anthony Muthu vs The Accountant General, The Regional Joint Director, Treasury Accounts Department and The Sub Treasury Officer

M. Jaichandren, J.—This writ petition has been filed praying for a writ of certiorarified Mandamus, to call for the records relating to the proceedings of the third respondent, dated 28.1.2004, and to quash the same and to direct the respondents to restore the petitioner''s pension, with usual allowances, as on 30.12.2002, and to grant the arrears of pension, with interest at 18% per annum.

It has been stated that the petitioner had been appointed as a Higher Grade Teacher, on 5.1.1948, at St. Thomas Roman Catholic Primary School, Thomaspuram, Avinashi, Coimbatore District. On 1.6.1950, he was upgraded as a Secondary Grade Teacher and he was posted as a Headmaster of the Middle School, after the said school was upgraded as a Middle School. Later, he was appointed as a Secondary Grade Teacher in Avinashi Panchayat Union and posted as a Primary School Headmaster, on 12.6.1960. On 1.7.1979, the petitioner had retired from service. The Panchayat Union Teachers had become government servants, with effect from 1.6.1981. Since the petitioner had served as a Clerk in the Indian Army for a period of two years, the said service had also been taken into account for calculating his pension on his retirement from service, on 1.7.1979.

It has been further stated that the petitioner''s pension which was fixed at R.150/-, as on 1.7.1979, had been revised, as per the orders of the Government issued from time to time. As on 30.12.2002, the petitioner''s pension, along with the other allowances, was Rs. 5,313/-. However, without any notice being issued to the petitioner and without a formal order being passed, the pension of the petitioner was reduced from Rs. 5313/- to Rs. 3316/- from 28.2.2003. In spite of a number of representations being made by the petitioner to the respondents no favourable orders have been passed by the respondents. However, by an order, dated 28.1.2004, the third respondent had reduced the pension of the petitioner from Rs. 2950/- to Rs. 2650/-. In the said order, it has been stated that the petitioner''s pension had been wrongly fixed in the scale of pay of Rs. 5900-9900, instead of Rs. 5300-8300.

It has been further stated that, in fact, the scale of pay of the petitioner had been rightly fixed, as he was eligible for the Special Grade Secondary Grade Teacher scale of pay of Rs. 5900-9900, as per the VI Pay Commission, with effect from 1.1.96. Therefore, the pension of the petitioner had been rightly fixed at Rs. 2950/-. Hence, the impugned order of the third respondent, dated 28.1.2004, is liable to be set aside. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India.

Further, it has been stated that the excess payment said to have been made to the petitioner would be recovered from his monthly pension. Since the said order, dated 28.1.2004, has been issued without any notice to the petitioner and without giving him an opportunity to put forth his case, it is arbitrary, illegal and void. It has also been stated that the fixation of the pay scale of the petitioner and the payment of pension has not been based on any misrepresentation or fraud alleged to have been committed by him.

No counter affidavit has been filed on behalf of the respondents. Further, no records have been produced before this Court on behalf of the respondents to sustain the impugned order of the third respondent, dated 28.1.2004.

From the contentions raised on behalf of the petitioner and on a perusal of the records available before this Court, it is clear that the third respondent had passed the impugned order without issuing any notice to the petitioner and without giving an opportunity to the petitioner to put forth his case. In such circumstances, in view of the order passed by this Court, in W.P. No. 3268 of 2001, in similar facts and circumstances, this Court is of the view that the impugned order of the third respondent, dated 28.1.2004, in so far as it relates to the recovery of the pension paid to the petitioner, cannot be sustained and accordingly, it is set aside. However, it is open to the respondents to refix the salary of the petitioner and to calculate his pension dues on the revised scale of pay, if it is found to have been wrongly fixed, after giving him a reasonable opportunity to put forth his case.

Accordingly, the writ petition stands allowed to the extent noted above. No costs.