M. Kandasamy v. The Divisional Forest Officer Rural Fuelwood Division Krishnagiri - 635 001. Dharmapuri District & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.08.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.9321 OF 2007M. Kandasamy ... Petitioner Vs.1. The Divisional Forest Officer Rural Fuelwood Division Krishnagiri - 635 001. Dharmapuri District2.The District Forest OfficerHarur Forest DivisionHarur - 636 903.Dharmapuri District. 3.The Principal Accountant General(A. & E) Tamil NaduNo. 261, Anna Salai,Chennai – 600 018.4.The Conservator of Forests,Dharmapuri. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India by way of transfer of O.A.No.510 of 2002from the file of Tamil Nadu Administrative Tribunal with a prayer tocall for the records relating to Proc. No. 453/2000/Pa., dated12.02.2001 of the first respondent, Proc. No. 8578/99/Pa1., dated18.05.2000, of the second respondent and Audit Report No. 18 inrespect of Hosur Forest Division in the year 1998-1999 of the thirdrespondent and Pro. No. 2458/99/Pa., dated 25.10.1999 of the firstrespondent and Pro.No.453/2000/Pa., dated 16.12.2000 of the firstrespondent, quash the same and issue consequential directions to therespondents to fix the pay of the petitioner in the Selection Gradewith effect from 18.07.1988 and in the Special Grade with effect from18.07.1998 with consequential monetary benefits and to refund theamounts recovered from the Petitioner. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.M.RaviFor Respondents : Mr.A.N.Purushotham Government Advocate(Forests) O R D E RThe petitioner was appointed as a Forester in the ForestDepartment in the year 1978. On completion of ten years of service,he was granted Selection Grade in the year 1988 with effect from19.07.1988. On completion of 20 years of Service, he was grantedSpecial Grade. In 1999, he was promoted as a Forest Ranger.2.While so, the second respondent passed an order dated18.05.2000, stating that awarding Selection Grade to the petitionerfrom 19.07.1988 was erroneous and that the petitioner is entitled toSelection Grade only from 14.08.1994. In the said order, no reasonwas given as to how the granting of Selection Grade from 19.07.1988is erroneous.3.Thereafter, the first respondent passed an order, dated16.12.2000, modifying the earlier order dated 18.05.2000, statingthat the petitioner is entitled to Selection Grade from 07.08.1992and not from 14.08.1994 as fixed in the order dated 18.05.2000. 4.In the order dated 16.12.2000, refixation of pay was workedout, based on the grant of Selection Grade from 07.08.1992, insteadof 19.07.1988 . 5.The first respondent passed a separate consequential orderdated 12.2.2001 stating that Rs.34,850/- (Rupees thirty four thousandeight hundred and fifty only) would be recovered pursuant to re-fixing of salary by the order dated 16.12.2000.6.The petitioner filed O.A. No. 510 of 2002 to quash theaforesaid order dated 18.5.2000 of the second respondent, the orderdated 16.12.2000 and 12.2.2001 of the first respondent, and also theAudit Report No.18 of the Principal Accountant General, Chennai, forthe year 1998-1999.7.Though the order dated 25.10.1999 of the first respondent wasalso challenged, the same was cancelled in the order dated 12.2.2001by the first respondent and hence it does not survive forconsideration. Likewise, the correctness of the order dated18.05.2000 also need not be gone into, as the same was modified and afresh order dated 16.12.2000 was issued. https://hcservices.ecourts.gov.in/hcservices/

8.Heard Mr.Ravi, learned counsel for the petitioner andMr.A.N.Purushothaman, the learned Government Advocate (Forests).9.The learned counsel for petitioner contends that the award ofSelection Grade from 19.07.1988 was granted by the respondentsthemselves and the same was not due to any misrepresentation by thepetitioner and that therefore, no question of recovery would arise.In support of this submission, the learned counsel has relied on thedecision of the Honourable Apex Court in 2006 (11) SCC - 492Purshottam Lal Das Vs. State of Bihar, which in turn, relies onearlier decisions of the Apex Court in 1995 Supp (1) SCC 18: 1995 SCC(L &S) 248 Sahim Ram V. State of Haryana, 2000 (10) SCC 99: 2000 SCC(L&S) 394 Bihar SEB v. Bijay Bhadur, 2002 (3) SCC 302 State ofKarnataka v. Mangalore University Non – Teaching EmployeesAssociation and in all those cases, it is held that if any excesspayment was made by the Department to an employee, not by due to anymisrepresentation from him, the Department cannot seek to recover theexcess payment, later. 10.The learned counsel has drawn the attention of this Court topara - 5 of the said Judgment reported in 2006 (11) SCC 492. Para - 5of the said Judgment is extracted here-under:"5.Admittedly the Appellant does not possess therequired educational qualifications. Under thecircumstances the appellant would not be entitled tothe relaxation. The Principal erred in granting himthe relaxation. Since the date of relaxation theappellant had been paid his salary on the revisedscale. However, it is not on account of anymisrepresentation made by the appellant that thebenefit of the higher pay scale was given to him butby wrong construction made by the Principal for whichthe appellant cannot be held to be at fault. Underthe circumstances the amount paid till date may notbe recovered from the appellant. The principle ofequal pay for equal work would not apply to thescales prescribed by the University GrantsCommission. The appeal is allowed partly without anyorder as to costs."11.Thereafter, the issue that has to be resolved, is whether thepetitioner is entitled to Selection Grade from 19.07.1988 oncompletion of ten years of service, or from 07.08.1992, as fixed bythe impugned order dated 16.12.2000. https://hcservices.ecourts.gov.in/hcservices/

12.The grant of Selection Grade was governed by G.O.Ms.No.68,Personnel and Administrative Reforms (Personnel-S) Department, dated23.01.1986. As per this G.O, the employees, who have put in 10 / 20years of service, are not given Selection Grade / Special Gradeautomatically. As per this G.O, an employee who completes ten yearsof service, should satisfy all the qualifications prescribed underthe Rules for promotion to the higher post. That is, he should havepassed the departmental tests, if any, prescribed under the Rules forpromotion. Further, he should not suffer disqualification such aspendency of disciplinary proceedings. The guidelines prescribedunder G.O.Ms.No.68 for grant of Selection Grade / Special Grade isextracted here-under: "(i) For advancement to SelectionGrade/Special Grades, all employees, who have putin 10/20 years of satisfactory service and whosatisfy all the qualifications prescribed underthe Special Rules / Adhoc Rules for promotion tothe higher post shall be eligible.(ii) All other normal criteria for promotionto a higher post viz. seniority, good orsatisfactory record of service, the nature ofpunishments imposed on the employee and the lapsesfor which the punishments were imposed, thependency of charges of disciplinary proceedings orenquiry, by Director of Vigilance and Anti-Corruption, qualifications test prescribed underthe Special / Adhoc Rules for the higher post etc.should be followed while moving the employees tothe Selection / Special Grade".Thus, the above said impediments, such as passing of departmentaltest to qualify for promotion, were to be crossed to get SelectionGrade / Special Grade. 13.But the said guidelines, prescribed in G.O.Ms.No.68,were totally withdrawn in G.O.Ms.No.276, Personnel and AdministrativeReforms (Personnel-S) Department, dated 07.08.1992. The effect ofG.O.Ms.No.276 is that mere completion of 10/20 years of service isenough for an employee to get Selection Grade / Special Grade. Therelevant portion of the said G.O.Ms.No.276 is extracted here-under:"In the Government order read above, guidelinesfor advancement of Selection Grade / Special Gradeposts were laid down. It has been ordered therein;that the criteria as for promotion should form thebasis for granting Selection Grade / Special Grade, oncompletion of 10/20 years of service. https://hcservices.ecourts.gov.in/hcservices/

2.In the meeting convened by the Honourable ChiefMinister, with the Service Associations on 01.08.1992,it was represented that the criterion that one shouldpossess all the qualifications for promotion to nexthigher post for awarding Selection / Special Gradeshould be removed. The Honourable Chief Ministerannounced that this request will be considered. 3.The Government after careful consideration ofthe request of the Service Association and in partialmodification of the orders issued in the GovernmentOrder first read above and the clarifications issuedthereon from time to time, direct that the crieterionthat one should possess the qualifications and pass thetests, if any, prescribed for next higher posts neednot be insisted upon for movement to Selection /Special Grade". 14.The impugned order dated 16.12.2000 proceeds that thepetitioner is not entitled to get Selection Grade on completion often years of service, since he did not pass the departmental test toqualify for promotion to the post of Ranger from Forester, as perG.O.Ms.No.68. According to the impugned order dated 16.12.2000,though the said impediment was removed in G.O.Ms.No.276, thepetitioner will get the benefit of Selection Grade only from the dateof G.O.Ms.No.276 i.e. from 07.08.1992. In fact, in paragraph No.6 ofthe reply affidavit, it is stated as follows:"6. ..........However, in G.O. Rt. No. 276 P & A.R.Dept, dated 7.8.1992 and further clarificationissued in Govt. letter No. 75678/92-1 dated21.9.1992, it was ordered that those who havecompleted 10 years of service prior to 7.8.1992 andnot possessing the qualification prescribed for thepromotion can be moved to Selection Grade witheffect from 7.8.1992 only".That is, according to the respondents, G.O.Ms.No.276 is prospectivefrom the date of issuance of G.O.15.While the earlier order dated 18.05.2000 grantedSelection Grade from 14.08.1994 instead of 07.08.1992, the reasontherefor was that the petitioner suffered disqualification due to thecurrency of punishments. 16.However, the later order dated 16.12.2000 states thatthose punishments were set aside by the appellate authority and hence https://hcservices.ecourts.gov.in/hcservices/ those punishments are no more disqualification for grant of SelectionGrade under G.O.Ms.No.68. In those circumstances, it necessitated theissuance of the order dated 16.12.2000, modifying the date fixed forgrant of Selection Grade in the order dated 18.05.2000 from14.08.1994 to 07.08.1992. 17.Therefore, after the order dated 16.12.2000, the issueis whether the petitioner is entitled to Selection grade from07.08.1992 or 19.07.1988.18.The petitioner states that under the Special Rules,namely Tamil Nadu Forest Subordinate Service Rules, framed underArticle 309 of the Constitution, the Foresters need not passdepartmental tests, before promotion to the post of Rangers. On theother hand, as per the rules, it is sufficient, if they pass thedepartmental tests, before the completion of probation in thepromoted post of Rangers. Hence, when passing of tests is not acondition precedent for a person to become Ranger from Forester, thenon-passing of tests could not be cited to deny the Selection Grade,under the G.O.Ms.No.68. 19.In this connection, the learned counsel for thepetitioner brought to the notice of this Court, the order dated10.05.1993 passed in O.A.No.2110 of 1991 by the Tribunal, regardingthe grant of Selection Grade for a Forester. The Tribunal passed thefollowing order:"The Selection Grade for the applicant hasbeen denied on the ground that the benefit is availableonly when the concerned individual fulfills all theconditions for promotion by way of seniority based onthe departmental tests. According to the applicant, therequirement of passing the test is not prescribed forpromotion to the next post, according to the rules,which require that the test should be completed beforethe period of probation. ...........Accordingly, if the requirement of passing the testis not incorporated in the rules for promotion thatcannot be the basis for denial of Selection Grade also.The respondents are directed to take action accordingly,if the applicant possess the qualifications to beeligible for promotion as in the rules."20.According to the learned counsel for the petitioner,this case squarely covers the case of the petitioner also.Therefore, the petitioner is entitled to the grant of Selection Gradefrom 19.07.1988 itself. https://hcservices.ecourts.gov.in/hcservices/

21.In these circumstances, the impugned order dated16.12.2000 is not correct in denying Selection Grade to petitioner onthe ground that he did not pass the departmental tests to qualify forpromotion to the post of Ranger and that therefore, he is notentitled to Selection Grade, up to 07.08.1992, is not correct. Asstated above, the passing of departmental tests was not necessary forpromotion to become a Ranger from Forester as per the Tamil NaduForests Subordinate Service Rules framed under Article 309 of theConstitution, at the relevant time. 22.If the order dated 16.12.2000 is quashed, automaticallythe audit report No.18 of the Principal Accountant General, Chennaifor the year 1998-1999, will get quashed, since, the audit reportproceeds on the erroneous basis on the lines of the order dated16.12.2000.23.It is already found that the order dated 16.12.2000granting Selection Grade from 07.08.1992 on the premise that thepetitioner did not pass the department tests for promotion to thepost of Ranger from Forester is not correct. As per the thenexisting rules, the passing of test before promotion is not necessaryand also the order dated 10.05.1993 of the Tribunal in O.A.No.2110 of1991 also fortifies the view. 24.In these circumstances, the order dated 16.12.2000 and12.02.2001 of the first respondent and the audit report No.18 of thePrincipal Accountant General, the third respondent, are quashed andthe writ petition is allowed. No costs. Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar SES/TK To1. The Divisional Forest Officer Rural Fuelwood Division Krishnagiri - 635 001. Dharmapuri District https://hcservices.ecourts.gov.in/hcservices/

2. The District Forest Officer Harur Forest Division Harur - 636 903. Dharmapuri District. 3. The Principal Accountant General (A. & E) Tamil Nadu No. 261, Anna Salai, Chennai – 600 018.4. The Conservator of Forests, Dharmapuri. + 1 cc to the Spl. Govt. Pleader (Forests) SR 39917 W.P.No.9321 of 2007PA (CO)RH (15.9.09)