R. Palanimani vs The District Revenue Officer, (Formerly designated as Special Deputy Collector)

M. Venugopal, J.—The Petitioner has filed the present writ petition seeking the relief of a Writ of Certiorarified Mandamus in calling for the

records relating to the Order dated 22.04.2005 in Na. Ka. No. H1/36606/2002 of the Respondent Special Deputy Collector, Kallar

Reclamation, Madurai-20, and to quash the same. Further the Petitioner has sought a relief of issuance of direction to the Respondent to refix his

scale of pay as per the order of the Respondent in Na. Ka. No. H1/119573/2001 dated 23.03.2001 within a reasonable time to be determined by

this Court.

The Petitioner was employed as the Headmistress of Government Kallar Higher Secondary School, Pappapatti, Kallar Reclamation

Department, Madurai. She retired as superannuation on 30.05.2002.

The Petitioner''s first appointment was Matron in Government Girls Hostel, Chinnamanur, Theni District and she joined duty on 25.12.1968.

She worked as Matron of this Hostel from 25.12.1968 to 26.07.1973. On the administrative ground she was transferred as Headmistress of

Government Kallar Middle School Uthamapuram, Theni District and joined duty on 27.07.1973. The scale of pay of B.T. Assistant and Middle

School B.T. Headmaster are one and the same and the same namely Rs. 1300-300-15-420-20-500.

The Petitioner worked in the Government Kallar Middle School Uthamapuram, Theni District, from 27.07.1973 to 20.07.1975. Later, she was

transferred to Government Hostel Chinnamanur as B.T. Matron. The B.T. Assistant and B.T. Headmaster of the Middle School and B.T. Matron

post are transferable post in Kallar Reclamation Department and the scale of pay for these posts are identical. She worked in the Hostel from

24.07.1975 to 09.07.1978.

According to the Petitioner, she was transferred from Chinnamanur Girls'' Hostel to Markayankottai, Kallar Middle School, as Headmistress

and she was awarded with the Selection Grade on 26.12.1978 and the time scale was fixed at Rs. 690/-in the time scale of Rs. 600-30-750-35-

890-40-1050. She worked as an Headmistress in the Middle School, she was transferred as Headmistress of Government Kallar Middle School

Vagurani and joined duty on 17.07.1980. She was rendered her duty as Headmistress of Middle School from to 17.07.1980 to 31.10.1981.

The Petitioner was transferred to Vellayammalpuram High School as B.T. Assistant Teacher from the post of Middle School Headmistress of

Vagurani, on the administrative ground she obeyed the order and joined as B.T. Assistant post and joined duty during June 1987.

The Petitioner on the administrative ground She was transferred as Headmistress of Government Kallar Middle School/Bommayan

Goundampatti, where she served as Headmistress from September 1987 to April 1989 she was awarded with a Special Grade on 26.12.1988

and when she was served as Headmistress of Middle School at Bommayan Goundampatti and her pay was fixed at Rs. 1600-50-2300-60-2660.

The Petitioner was transferred from Bommayan Goundampatti Middle School transferred to Markayankottai Kallar Middle School as

Headmistress and served and joined duty on 05.05.1989 to till 26.01.1992.

The Petitioner during the duty of Headmistress of Government Kallar Middle School, Bommayan Goundampatti while in serving on 12.09.1987

to 30.04.1989 she was eligible for fixation of pay as Headmistress of Middle School as per Fifth Pay Commission report.

The Petitioner when she was working as Headmistress of Middle School at Markayankottai on the administrative ground she was transferred to

Government Higher School at Karunakkathampatti as B.T. Assistant and joined duty on 06.07.1990. She worked in the said School till

26.01.1992, she was promoted as Headmistress of Government Kallar High School, Karunakkathampatti and joined duty on 27.01.1992 and

served till 01.12.1998. The Petitioner was promoted as Headmistress of Government Kallar Higher Secondary School, Pappapatti and retired on

31.05.2002.

The learned Counsel for the Petitioner submits that the Petitioner and other appointees got the promotion as Headmistress of High Schools and

Higher Secondary Schools and Post Graduate Assistant of High Secondary Schools depending upon their educational qualifications and seniority.

Also, the time scale of pay for B.T. Assistant and Middle School B.T. Headmaster like the Petitioner were one and the same prior to the Fifth Pay

Commission.

After the Fifth Pay Commission, the time scale of pay for B.T. Assistant was Rs. 1400-40-1600-50-2300-60-2600. The time scale of pay for

Middle School B.T. Headmaster in the Ordinary Grade Scale of pay was fixed as Rs. 1640-60-2600-75-2900.

It is the stand of the Petitioner as per Rule 4(3) of the Tamil Nadu Revised Scales of Pay Rule 1989, if the pay fixed in the officiating post is

lower than the pay fixed in the substantive post, it shall be fixed at the stage next above the substantive pay and where the pay of a Government

servant who has moved from a lower post to a higher post or from Ordinary Grade to Selection Grade is fixed at a stage lower than what would

have been admissible in the lower post or Ordinary Grade (if he is in the Selection Grade Post)his pay shall be stepped up to the stage equal to the

pay in the lower post or grade or if there is no such stage to the next higher stage.

The Petitioner contends that as per Rule 4(3) of the Tamil Nadu Revised Scale of Pay Rules, 1989 her scale of pay have been revised. The

Respondent now issued the impugned proceedings, referring to the objections raised by the Accountant General of Tamil Nadu who is issued the

impugned proceedings for recovery of Rs. 61,433/-and to be recovered from the salary payable from the month of January 2004.

The main contention of the learned Counsel for the Petitioner is that no opportunity of calling for explanation from her as to why such an

amount may not be recovered according to Audit Report and therefore she has filed the present writ petition.

In the grounds of writ petition it is averred that the impugned order dated 22.04.2005, does not disclosed as to how the calculation for excess

payment of salary has been arrived and hence the claim is an non-speaking, as a cryptic one. Also submit that the Government as per G.O. Ms.

No. 160, dated 23.08.2005 as stated that in paragraph 2(1) dated 01.06.2005, the Government has issued G.O. Ms. No. 160, School Education

Department, dated 23.08.2005. Whereas the Government Ordered that there will be no recovery of salary already paid to those Head mistress

for the period from 01.06.1998 to 01.08.2005 and the persons serving as on 01.08.2005, the difference of salary will be added at their personal

pay and recovery or re-fixation of order will not be given effect to.

The learned Counsel for the Petitioner submits that the Respondent failed to provide an opportunity to her to submit her reply to Accountant

General''s Audit Report by making her representations on her behalf before passing the impugned order. Inasmuch as no opportunity has been

provided before passing the impugned order is liable to be quashed. The contents of the learned Counsel for the Petitioner it is represented that

one A.C. Ramachandran who was the Headmaster of Government Kallar Higher Secondary School, Rajathani filed an O.A. No. 331 of 2004 in

the Tamil Nadu Administrative Tribunal against the impugned order passed by the Respondent in his proceedings dated 28.01.2004. The

Petitioner as well as A.C. Ramachandran''s scale of pay was reduced but without any notice to A.C. Ramachandran passed the recovery order by

re-fixing his pay and recovery was taken effect from his pay bills. The O.A. No. 331 of 2004 was transferred to Madras High Court and numbers

as W.P. No. 32514 of 2005. The Petitioner''s salary as Headmistress has been fixed as per the Fifth Pay Commission Report and the same is said

to have been wrongly determined by the impugned order dated 22.04.2005.

The learned Counsel for the Petitioner submits that this Court in W.P. No. 32514 of 2005 has refixed the pay scale of A.C. Ramachandran,

Headmistress as on 01.06.1998, cancelling the recovery order passed by him. The said A.C. Ramachandran and the Petitioner worked as

Headmasters of Higher Secondary Schools in Kallar Reclamation Department and the recovery order has been passed against only the Petitioner.

Per contra, the learned Government Advocate appearing for the Respondent submits that the order passed by the Madurai Bench of this

Court in W.P.(MD) No. 8930 of 2007 was challenged by the Respondent in W.A.(MD) No. 392 of 2010 and the same was dismissed by this

Court on 16.07.2010. In a similar cases, the Honourable High Court''s order were implemented by the Respondent and the individuals namely

A.C. Ramanchandran, Periakaruppanan and M. Sannasi who enjoyed the benefits of the High Court order. It is the contention of the Respondent

that the Accountant General, Chennai, in his inspection report dated 20.12.2001 has observed that the Petitioner appointed as Middle School

Teacher and her pay was refixed from 01.06.1988 onwards. With reference to the pay she would have drawn in the post of Middle School

Headmaster as per Rule 4(3) though she was not actually worked as Middle School Headmaster on 01.06.1988.

The Accountant General also pointed out that as per the clarification issued in Government letter No. 197/CMPC/93-1 dated 08-11-1993 the

B.T. Assistants and Tamil Pandits appointed for the post of Middle School Headmasters prior to 01.06.1988 cannot claim the pay of the Middle

School Headmasters.

The Accountant General has requested to recover the excess payment on account of re-fixation under Rule 4(3). As such the pay of the

Petitioner was refixed in this office proceedings Roc. No. H1/36606/02 dated 10.02.2003 and 22.04.2005 which works out Rs. 61,433/-. This

sum has been ordered to be recovered from Death-cum-Gratuity(DCRG) benefits. The learned Government Advocate puts forward a plea that as

per G.O. Ms. No. 57 Finance(Pay Cell-II) Department dated 28.01.1991, the Government has clarified the re-fixation under Rule 4(3) can be

applied for re-fixation of pay at any point of time on or after 01.06.1988. Moreover, in Government letter No. 85197/CMPC/93-1 dated

08.11.1993 the Government has clarified that the post of primary School Headmaster is on Rs. 1400-2600 and the post of B.T. Assistant/Tamil

Pandits is on Rs. 1,400-2,600/-. However, the post of Middle School Headmaster is on Rs. 1,640-2900. Hence, the B.T. Assistant/ Tamil

Pandits appointed for the post of Middle School Headmaster prior to 01.06.1988 cannot claim the pay of the Middle School Headmaster.

The learned Government Advocate contends that the Petitioner was selected as B.T. Assistant and she was drawing the pay in the time scale

of pay admissible to the post of B.T. Assistant till 31.05.1988. The Government has issued a letter of clarification in Ref. No. 85197/CMPC/93-1

dated 08.11.1993, in and by which the Middle School Headmasters (Secondary Grade)who were promoted and appointed to the post of B.T.

Assistant/Tamil Pandits prior to 01.06.1988 from the post of Secondary Grade Teachers, cannot claim the pay of the Middle School

Headmasters. Hence, directly appointed B.T. Assistants and who continued as B.T. Assistants till 31.05.1988 or till the promotion of next cadre

also cannot claim the pay of the Middle School Headmaster as per Rule 4(3)of the Tamil Nadu Revised Scale of Pay Rules, 1989, since the

substantive post is B.T. Assistant admissible to the post of till 31.05.1988 or till their promotion to the next cadre. The clarification issued in

Government Lr. No. 85197/CMPC/93-1 dated 08.11.1993 is quiet applicable to the facts of the present case to the Petitioner and even as per

Rule 4(3)of Tamil Nadu Revised Scale of Pay Rules, 1989, the Petitioner is not eligible to claim the pay of Middle School Headmaster since the

substantive post is only to B.T. Assistant.

Apart from the above, the learned Government Advocate appearing for the Respondent contents that only on 01.06.1988 higher scale of pay

was awarded to the post of Middle School Headmaster and it become promotive post as B.T. Assistant. Therefore, the Government have clarified

generally that B.T. Assistant/Tamil Pandits appointed from post of Middle School Headmaster prior to 01.06.1988 cannot claim the pay of Middle

School Headmaster under Rule 4(3). This includes the Secondary Grade Middle School Headmaster to B.T. Assistants directly appointed prior to

01.06.1988.

In the counter filed by the Respondent it is lastly mentioned that the excess payment of salary due to wrong fixation was only due to the

misrepresentation of the Petitioner letter dated 12.12.2000 and the Petitioner being the Higher Secondary School Headmaster of correctly inform

in the Special Deputy Collector (K.R.)Madurai in regard to fixation of pay has misguided in resultantly the Petitioner has received as excess

payment to which she is not eligible at all and therefore the excess amount received by the Petitioner is liable to be recovered from her.

24.A perusal of the letter of the Petitioner dated 12.12.2000, addressed to the Respondent shows that the Petitioner as among other things

requested for setting aside the pay fixation order and to fix the Middle School Headmaster salary as per Rule 4(3) of the Tamil Nadu Revised

Scale of Pay Rules, 1989. As far as the present case is concerned the Petitioner has addressed a letter dated 12.12.2000, to the Respondent

requesting for fixation of Middle School Headmaster salary it is the duty of the Respondent to act on the said representation in a dispassionate

manner and to fix the proper salary of the Petitioner in the considered opinion of this Court.

The learned Counsel for the Petitioner cites the order passed by this Court in W.P. No. 32814 of 2005 dated 22.02.2006 between the A.C.

Ramachandran v. State of Tamil Nadu rep.by the Secretary to the Government Finance (CMPC) Department Fort. St. George, Chennai and three

others, wherein, in paragraphs 3 and 4 it is observed and held as follows:

Learned Counsel for the Petitioner also cited a judgment of the Honourable Supreme Court reported in (1995) 1 SCC 18 (Sahib Ram v. State

of Haryana) wherein, it is categorically held that the benefit of revision of pay scale having been granted by wrong construction made by the

Department and not on any misrepresentation of the Government servant, he cannot be found fault with and the excess amount paid, shall not be

recovered from him. The learned Counsel also argued that before passing the Impugned Order, no notice was issued to the Petitioner and that

action of the Respondent is against the principles of natural justice.

In view of the above said Government Order as well as the above cited judgment and having regard to the non observance of the principles of

natural justice, the impugned order is quashed and the writ petition is allowed. No costs.

Pursuant to the order passed by this Court, by order dated 02.06.2007 the Respondent has implemented the order of this Court in W.P. No.

32814 of 2005 dated 22.02.2006 and the Petitioner''s pay has been re fixed and the amount recovered was repaid to him.

Likewise, G. Sannachi has filed the writ petition in W.P. No. 28617 of 2005 before this Court against the State of Tamil Nadu rep.by the

Secretary to the Government Finance (CMPC) Department Fort. St. George, Chennai and three others, wherein, in paragraphs 3 and 4 laid down

as follows:

Learned Counsel for the Petitioner also cited a judgment of the Honourable Supreme Court reported in (1995) 1 SCC 18 (Sahib Ram v. State

of Haryana) wherein, it is categorically held that the benefit of revision of pay scale having been granted by wrong construction made by the

Department and not on any misrepresentation of the Government servant, he cannot be found fault with and the excess amount paid, shall not be

recovered from him. The learned Counsel also argued that before passing the Impugned Order, no notice was issued to the Petitioner and that

action of the Respondent is against the principles of natural justice.

In view of the above said Government Order as well as the above cited judgment and having regard to the non observance of the principles of

natural justice, the impugned order is quashed and the writ petition is allowed. No costs.

The said order passed by this Court in W.P. No. 32816 of 2005 dated 22.02.2006 has been complied with by the Respondent.

Also, in W.P. No. 8930 of 2007 between K. Karmegam v. The District Revenue Officer(Formerly designated as Special Deputy Collector),

Kallar Reclamation, Madurai-20, on 13.11.2007 in paragraph ''3'' observed as follows:

In view of the said undisputed facts and having regard to the fact that the recovery order is passed without any notice and the salary having been

fixed without any suppression of the fact on the part of the Petitioner, the impugned order of recovery cannot be sustained and consequently the

impugned order is set aside and the writ petition is allowed in terms of order passed in W.P. No. 32814 of 2005 dated 22.02.2006. No costs.

Consequently, the connected miscellaneous petition is closed.

As against the order dated 13.11.2007 in W.P. No. 8930 of 2007, a Writ Appeal in W.A. No. 392 of 2010 has been filed by the

Respondent. The said writ appeal has been dismissed by a Division Bench of this Court on 16.07.2010.

The learned Counsel for the Petitioner seeks in aid of the aforesaid writ petition order and an order of W.A. No. 392 of 2010, to the effect

that in similar cases where the Petitioner is placed this Court has set aside the impugned order of recovery and hence applying the said principles

the present writ petition is also to be allowed by this Court in the interest of justice.

As far as the present case is concerned although the Petitioner has reportedly addressed to the communication to the Respondent dated

12.12.2000 in regard to the fixation of her salary it cannot be said by any stretch of imagination that the Petitioner has himself represented to the

Respondent as regards to the fixation of salary for the reason that it is for the appointing Authority/Employer to fix the proper pay scale of the

Petitioner in a particular post after looking into the relevant rules, Government Orders.

The original fixation of the Petitioner salary is as per the proceedings of the Respondent dated 23.03.2001. The impugned order dated

22.04.2005, passed by the Respondent in and by which a sum of Rs. 67,578/-has been said to be an excess payment made to the Petitioner

which has been deducted from its gratuity amount payable to her.

In view of the fact that the Petitioner has been given the benefit by means of wrong fixation and since no notice has been issued to the

Petitioner in regard to the recovery of a sum of Rs. 67,578/-this Court is of the considered view that an excess amount paid to the Petitioner shall

not be recovered from her by the Respondent inasmuch as it is the duty of the Respondent/employer/appointing authority to fix the correct salary

of the Petitioner in proper scale. Further the impugned order of recovery is in violation of principles of natural justice, in that, no notice has been

issued prior to the issuance of recovery order, this Court come to an inevitable conclusion that an excess amount of Rs. 67,578/ recovered from

the Petitioner from gratuity is to be repaid to the Petitioner by the Respondent within a period of two months from the date of receipt of a copy of

the order. Further, the Respondent is directed to fix the Petitioner''s salary in a proper scale of pay after providing necessary opportunity to the

Petitioner to make her representation if any in the manner known to law.

With the above directions, the writ petition is allowed, leaving the parties to bear their own costs.