Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19-9-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.20792 of 2007andMP Nos.1 and 2 of 2007P.A.Doss.. Petitioner vs1.The District Welfare Officer Kanchipuram District, Kanchipuram2.The Special Tahsildar Adi-Dravidar Welfare Maduranthagam3.The Principal Accountant GeneralAccounts & Entitlements Tamilnadu, Chennai 600 010... RespondentsWrit petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus callingfor the records of the 2nd respondent in his proceedingsNa.Ka.No.164/2004 dated 15.7.2006 and quash the same andconsequently direct the respondents to sanction the pension andother retirement benefits to the petitioner proportionate tobasic scale (Rs.11025/-) on his date of retirement within astipulated period. For Petitioner: Mr.S.SountharFor Respondents: Mr.V.Arun Additional GovernmentPleader for RR1 & 2 Mr.T.Ravikumar ACGSC for R3ORDERThe petitioner seeks a writ of certiorarified mandamus toquash the proceedings of the second respondent made inNa.Ka.No.164/2004 dated 15.7.2006, and also to direct therespondents to sanction the pension and other retirementbenefits. 2. The Court heard the learned Counsel on either side. Theaffidavit in support of the petition along with the grounds andthe counter affidavit by the State are perused. https://hcservices.ecourts.gov.in/hcservices/

The case of the petitioner in short is that he joined dutyas Higher Grade Assistant under the first respondent in the year1967; that he was promoted as Secondary Grade Assistant in thevery same year; that subsequently, he was promoted as SecondaryGrade Headmaster on 1.5.1968; that while he was working so, hewas transferred as Wardan of Welfare Boys Hostel, Kadapakkam, on14.11.1984; that subsequently, he was again re-transferred andposted as Headmaster on 7.7.1988; and that he worked as Headmaster, Welfare Primary School, Murunthagiri, and retired on31.5.2004. It is the further case of the petitioner that he waseligible for pension and also other benefits in view of G.O.(Ms)No.185 Education Department, dated 16.12.2002; that originally, proposals were submitted through the School where he worked, tothe second respondent, which was also placed before the thirdrespondent, the Principal Accountant General, Accounts and Entitlements, Madras; that the same was actually returned withthe query that the petitioner was not entitled to have thepensionary benefits on the strength of the G.O.No.185, since thepetitioner should have been an Headmaster on the crucial datei.e., 1.6.1988; but, he was not so; that the papers were againplaced by the second respondent before the third respondent; thatdespite the same, it has been returned; that following the same, recovery has been ordered, and under the circumstances, this writpetition has been brought forth before this Court.

Advancing his arguments on behalf of the petitioner, thelearned Counsel inter alia would submit that it is not incontroversy that while he was working as Headmaster in the Primary School, he was transferred as Warden, Welfare BoysHostel, Kadapakkam, on 14.11.1984; that therefrom, he was re-transferred and posted as Headmaster, Welfare Primary School, Murunthagiri, on 7.7.1988; that thereafter, he served as Headmaster of the Welfare Primary School and retired on31.5.2004; and that as per the G.O.No.185, Education Department, relied on by the department, the crucial date was 1.6.1988, andhe should be the Headmaster on the very day.

Added further the learned Counsel that he was promoted andworking as Secondary Grade Headmaster from 1.5.1968; that he wastransferred as Warden, Welfare Boys Hostel, Kadapakkam, on14.11.1984; that the said post was equal to that of the Headmaster; that he was again re-transferred to the post of the Headmaster, Welfare Primary School, Murunthagiri, in the year1988; that he was actually not functioning as Headmaster on1.6.1988 as mentioned in the G.O.No.185; but, he was in the equalpost with equal pay on that day; that even the counter filed bythe State, would clearly speak to the fact that they are allequal posts; that apart from that, when the first proposal wasplaced before the second respondent and returned by the thirdrespondent, a clarification was made by the second respondent tothe effect that the petitioner was transferred from the post ofthe Headmaster to that of Warden, since both the posts are equal; that under the circumstances, there cannot be any impediment for https://hcservices.ecourts.gov.in/hcservices/ granting the benefits under the G.O.No.185, and hence, the writhas got to be ordered.

In answer to the above, it is contended by the learnedAdditional Government Pleader that in order to give applicationof G.O.No.185 and have the benefits of the same, the petitionershould have been working as Headmaster on 1.6.1988; thatadmittedly, he was not so; but, he was only working as a Wardenon that date; that he was again re-transferred on 7.7.1988 as Headmaster; that so long as the petitioner is unable to show thathe was working as Headmaster on 1.6.1988, he cannot have thebenefit under the said G.O.; that when the proposals were placedbefore the third respondent, they have been rightly queried andreturned; that under the circumstances, the petitioner is notentitled for the relief asked for, and hence, the petition hasgot to be dismissed.

The Court paid its anxious consideration on thesubmissions made and is of the considered opinion that thepetitioner is entitled for the relief asked for. It is not incontroversy that the petitioner who was appointed in 1967, onpromotion, became a Secondary Grade Assistant in the very sameyear, and he was also promoted as Secondary Grade Headmaster on1.5.1968. He was also transferred as Warden, Welfare BoysHostel, Kadapakkam, on 14.11.1984, and again, he was re-transferred as Headmaster on 7.7.1988. At the outset, it has gotto be stated that if the post of Headmaster of the Primary Schooland the Warden of the Welfare Boys Hostel, Kadapakkam, were notof the equal cadre, there was no question of transferring himthat would arise. Further, the petitioner who was working as Warden, Welfare Boys School, was again re-transferred as Headmaster, Welfare Primary School, Murunthagiri, on 7.7.1988.If the posts are not of the same cadre, then he would not havebeen re-transferred.

After his retirement proposals for the pensionary benefitswere placed by the second respondent before the third respondent, the third respondent has made a query that on 1.6.1988, he wasnot working as Headmaster, and hence, he could not have thebenefits under G.O.No.185, and how he was eligible for the same. For such a query, the second respondent Special Tahsildar hasgiven a reply on 8.3.2005, wherein it has been clearly statedthat the petitioner who was working as Headmaster in the PrimarySchool, was transferred as Warden, Welfare Boys Hostel, Kadapakkam, in November 1984 and re-transferred to the post of Headmaster, Welfare Primary School, Murunthagiri, because theyare all equal posts. The fact that the proposal which wasoriginally placed and returned and subsequently, it was clarifiedwould suffice for the acceptance of the same. Instead, the thirdrespondent has returned the proposals pursuant to which now, therecovery has been ordered as if excess payment has been made. The contention put forth by the learned Additional GovernmentPleader for the respondents 1 and 2 that the petitioner was notworking as Headmaster on 1.6.1988; but, he was only a Warden, and https://hcservices.ecourts.gov.in/hcservices/ hence, he cannot have the benefit of the G.O.No.185, cannot becountenanced for the simple reason that it has been categoricallyadmitted not in one place, but more than one place in the counterthat the petitioner has officiated in the combined cadre of Secondary Grade Headmaster, Secondary Grade Assistant, PrimarySchool Headmaster and Warden.

Apart from the above, when he was working as Headmaster, there was no question of transferring him as Warden, if it wasnot equal post, and again, he was re-transferred from the post of Warden to the Headmaster. This would be indicative of the factthat the posts are equal, and that has been clearly clarified bythe second respondent, Special Tahsildar. Under thecircumstances, this Court is of the considered opinion that thereturn of the proposals originally placed by the secondrespondent before the third respondent, was not correct, and now, it has got to be again placed before the third respondent for thepurpose of acceptance. Following the return, the recoveryordered by the second respondent, in the opinion of this Court, is illegal, since the petitioner is entitled to have the benefitunder G.O.No.185 referred to above. According to the learnedCounsel for the petitioner, no recovery was done. Hence, thesecond respondent is directed to place the proposals before thethird respondent for the pensionary benefits of the petitioner asearly as practicable, preferably within a period of twelve weeksfrom the date of receipt of a copy of this order or placing thecopy of the order by the petitioner. The third respondent isalso directed to pass suitable orders thereon within a period offour weeks therefrom.