M. Ubaidur Rehman vs Chief Educational Officer and Headmaster, Municipal Higher Secondary School

K. Suguna, J.—Petitioner herein filed O.A. No. 6623 of 1997 on the file of the Tamilnadu Administrative Tribunal challenging the order of

the first respondent dated 9.7.1997 wherein recovery has been ordered. The said original application has been transferred to the file of this Court

and renumbered as WP. No. 32171 of 2005.

The facts leading to filing of this writ petition are as follows:

The petitioner was originally appointed as an Elementary School Headmaster with effect from 23.7.1966. He was promoted as B.T. Assistant on

11.8.1983. He was further promoted as P.G. Assistant on 16.8.1985. In the year 1989, in G.O. Ms. No. 666 Finance (Pay Commission)

Department dated 27.6.1989, Government of Tamilnadu has issued revised pay scales. As per Rule 4(3) of the Tamilnadu Revised Scales of Pay

Rules, 1989, as far as the Government servants are concerned, if the pay of any Government servant in the officiating post is lower than what

would have been received in the substantive post, the pay has to be refixed giving the benefit of Rule 4(3) of the said Rules for the officiating post.

Applying this rule, in the year 1995, the petitioner''s pay has been fixed in the scale of Rs. 2000/-. To say in other words, the petitioner''s pay has

been fixed to giving special grade pay by applying the said Rule. Subsequently, by the impugned order of the first respondent dated 9.7.1997, the

same has been cancelled. Challenging the same, the original application has been filed, which is transferred, renumbered and posted before this

Court.

Learned Senior Counsel for the petitioner contended that since the petitioner was originally holding the post of Elementary School Headmaster

in the year 1966 and promoted as P.G. Assistant in the year 1985, if he had been allowed to continue as Elementary School Headmaster by

applying Rule 4(3) of the said Rules, he would have got special grade in the post of Elementary School Headmaster and his pay should have been

fixed in the scale of 2000 at Rs. 2000/- whereas in the post of P.G. Assistant, his pay has been fixed in the lower scale.

Learned Senior Counsel further submitted that without providing any opportunity to the petitioner, the impugned order cancelling the pay fixation

done by applying Rule 4(3) of the said Rules has been passed and recovery has also been ordered. That apart, learned Senior Counsel contended

that since the petitioner has already reached the age of superannuation, if the recovery ordered in the impugned order is not set aside, certainly that

will have a consequence in the retirement benefits.

I have considered the above submissions of the learned Senior Counsel for the petitioner.

Even as per the contentions of the learned Senior Counsel, the petitioner was appointed as an Elementary School Headmaster with effect from

23.7.1966. Subsequently, in the year 1983, he was promoted as B.T. Assistant and in the year 1985, he was further promoted as P.G. Assistant.

Rule 4(3) of the said Rules came into effect in the year 1989 in the Fifth Pay Commission in G.O. Ms. No. 666 Finance (Pay Commission)

Department dated 27.6.1989.

As per the contention of the learned Senior Counsel, for the benefit of Rule 4(3) of the said Rules, the petitioner submitted an application dated

10.3.1995. Basing on the application made by the petitioner, the authorities, without going into the Rules, passed an order fixing his pay in the

special grade of Elementary School Headmaster. Prima facie, this is an irregularity, because at the time of making the application, he was working

as a P.G. Assistant. If at all the P.G. Assistant post can be considered as an officiating post or higher post, prior to that he was working as the B.T.

Assistant from1983 onwards. As such, if at all the petitioner is entitled for the benefit of Rule 4(3) of the said Rules, that can be only with reference

to the post of B.T. Assistant and not with reference to Elementary School Headmaster which he was holding prior to the post of P.G. Assistant.

As such, the recovery ordered by the first respondent is well within the Rules.

With regard to the second contention made by the learned Senior Counsel for the petitioner that the petitioner was not given any notice, even

before this Court also, learned Senior Counsel is not able to make out any submission justifying the pay fixation done in the year 1995 under Rule

4(3) of the said Rules. As such, giving the notice before passing the impugned order will not be helpful.

With regard to the third contention that the recovery ordered has to be set aside, in view of the retirement of the petitioner, my view is that

basing on the application made by the petitioner alone, the pay fixation under Rule 4(3) of the said Rules was done. To say in other words, basing

on the application made by the petitioner alone, this wrong fixation has been done and as such, he cannot take advantage of his wrong and now

ask for setting aside the recovery ordered. That apart, even as per the judgment of the Supreme Court, if any fixation has been done not basing on

the misrepresentation of the concerned individual alone, recovery has to be set aside. In this case, the facts are otherwise. Hence, the impugned

orders are in order.

Since the learned Senior Counsel for the petitioner has made a further submission that the petitioner is eligible for the benefit of Rule 4(3) of the

said Rules with reference to the post of B.T. Assistant, the petitioner is at liberty to make a representation in this regard to the Director of School

Education (Personnel) and he has to pass orders within twelve weeks from the date of receipt of such a representation.

For the reasons stated above, the writ petition is dismissed. No costs.

Learned Senior Counsel further brought to the notice of this Court that though the petitioner attained the age of superannuation in 2004, basing

on the pendency of the original application, the terminal benefits and the annual increments are not paid.

In this regard, I direct the respondents herein to release the terminal benefits, after adjusting the amount to be recovered basing on the

impugned orders, including the annual increments within two weeks from the date of receipt of a copy of this order.