R.Rajasekar v. The Secretary to Government, School Education Department, Secretariat, Chennai 600 009 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 04.08.2009CORAM:THE HONOURABLE MR.JUSTICE V.DHANAPALANW.P.No.13985 of 2008R.Rajasekar..Petitionervs.1. The Secretary to Government, School Education Department, Secretariat, Chennai 600 009.2. The Joint Director (Higher Secondary Education), Office of the Director of School Education, DPI Complex, College Road, Chennai 600 006....RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records of the first respondent in LetterNo.22261/V.E./07-4 dated 28.12.2007, quash the same and consequentlydirect the respondents to restore the pay scale of the petitioner toRs.8550/- from 01.01.1996 on the scale of Rs.8000-275-13500/- and torefund the recovered amount of Rs.21,978/- within such time withinterest from the date of remittance till refund with allconsequential monetary benefits. For Petitioner :Mr.P.Srinivas For Respondents :Mr.Manibharathi, Government Advocate (Education)O R D E RBy consent of the learned counsel on either side, the writpetition itself is taken up for final disposal.2.The petitioner has filed this writ petition challenging theproceedings of the first respondent in Letter No.22261/V.E./07-4dated 28.12.2007 and for a consequential direction to the respondentsto restore his pay scale to Rs.8550/- from 01.01.1996 on the scale ofRs.8000-275-13500/- and to refund the recovered amount of Rs.21,978/- https://hcservices.ecourts.gov.in/hcservices/ within such time with interest from the date of remittance tillrefund with all consequential monetary benefits.3.The brief facts leading to this case are set out as under :(i)The petitioner was initially selected for appointment tothe post of P.G. Assistant and he joined service on 21.08.1981 andhis service was regularized with effect from 28.12.1982. He wasdrawing basic pay of Rs.2,600/- (2575+25 pp) in the pre-revised scaleof pay of Rs.2200-75-2800-100-4000 as on 01.01.1996. Based on the 6thpay commission recommendations, his pay was revised and fixed asRs.8,550/- in the revised scale of pay of Rs.8,550/-. In the year2001, Audit was conducted in the petitioner's school and in the AuditReport, it was pointed out that his pay was wrongly fixed by theSchool at Rs.8,550/- instead of Rs.8,275/- and therefore, the excessamount of Rs.275/- per month paid to him from 01.01.1996 was orderedto be recovered and credited to the Government Account.(ii)It is the case of the petitioner that as per the GovernmentOrder in G.O.Ms.No.162, Finance (Pay Cell) Department dated13.04.1998 and Rule 4(1)(b)(iii)(b) of Tamil Nadu Revised Scales ofPay Rules, 1998 r/w Table 17 of Appendix II, his pay should be fixedat Rs.8,550/- and the school authorities have rightly fixed his payas Rs.8,550/-, but the Auditing Officials have misconstrued theGovernment Order and directed reduction of pay and recovery of excesspayment. Immediately, the petitioner preferred an appeal on26.10.2001 to the Authority concerned to cancel the Auditing Reportinsofar as he is concerned and re-fix the pay as Rs.8,550/-; but, theSchool Education Department as well as the appellate authority haverejected his appeal without any valid reasons.(iii)After preferring the appeal, the petitioner madewritten representations to the respondents on 19.03.2002 and29.09.2004 and requested them to consider his genuine case of re-fixation of pay in view of the Government Order and relevant Rules;but the said appeal and written representations were rejected.Pursuant thereto, the petitioner made further representation on26.04.2007 to the 1st respondent and requested him to consider hiscase in accordance with Rule.(iv)Finding no disposal even on his further representation, thepetitioner moved this court in W.P.No.22865 of 2007 for a directionto consider his request as per the relevant Rules and this court, byan order dated 06.07.2007 directed the first respondent to considerthe petitioner's representation and pass orders on the same within aperiod of six weeks from the date of receipt of a copy of the saidorder. Thereafter, the first respondent passed orders on 28.12.2007,rejecting the request of the petitioner. The said order is underchallenge in this petition on the ground that the first respondent https://hcservices.ecourts.gov.in/hcservices/ has passed the order without application of mind, without reckoningthe scale of pay along with the personal pay as shown in all cases.4.The respondents have filed counter stating that in Rule4(b)(1) III (b), there is no mention of Personal Pay and stages aloneare to be taken into account and that the petitioner has not reachedthe 7th stage. He is receiving the pay at the 6th stage only withpersonal pay of Rs.25/-. The person who reaches the 7th stage aloneis eligible for the benefit of two increments bunching benefit and assuch, the petitioner is not entitled for the benefit of twoincrements in bunching benefit. According to the respondents, thereis a separate rule for inclusion of Personal Pay (Note 2 under Rule 2(ii)(a)) and personal pay should not be taken in to account inbunching benefit Rule 4(b) III a, b, c.4a.In the case of the petitioner, when the rule Note 2 underRule 2 (ii) a is given effect as he is drawing emoluments ofRs.7,846/-, he is eligible for fixation of pay at Rs.8000/- minimumof the time scale only and he is drawing a basic pay of Rs.2,575 atsixth stage in the existing scale, he is eligible for the benefit ofone increment and as such, he is eligible for fixation of Rs.8275/-(8000-275-13500). In the clarification issued in Government LetterNo.75785/PC/99-1 dated 28.10.1999, it is stated that the pay shouldbe fixed at Rs.8275/- only. It is also stated therein that if thepay is fixed at Rs.8550/-, such fixation should be revised and theexcess pay allowed to the employees concerned has to be recoveredforthwith. 4b.It is further stated in the counter affidavit that an auditobjection has been raised based on the Tamil Nadu Revised Scale ofPay Rule, 1998 and a subsequent clarification was issued inGovernment Letter dated 28.10.1999; hence, the petitioner is noteligible for fixation of pay at Rs.8,550/- (8000-275-13500). 5.On the above background of pleadings, I have heard thelearned counsel on either side.6.Learned counsel for the petitioner would contend that theorder impugned in the writ petition is passed without even affordingan opportunity of hearing to the petitioner and without even servinga notice on him. In support of his contention, learned counsel forthe petitioner has relied on a decision of the Supreme Court reportedin (2007) 6 SCC 180 (Babulal Jain vs. State of M.P. and others).Relevant portion of the said decision is extracted hereunder :"15.We, however, are of the opinion that in a caseof this nature, no recovery should be directed to bemade. The appellant has discharged higherresponsibilities. It is not a case where he obtainedhigher salary on committing any fraud or https://hcservices.ecourts.gov.in/hcservices/ misrepresentation. The mistake, if any, took place on amisconception of law. He was at least entitled to someallowances. In refixing his pay, his claim to thateffect has not been considered. He has since retired. Asum of Rs.22,000/- has been recovered from him. Suchrecovery has been effected without issuing any show-causenotice. His case on merit in this behalf had not beenconsidered by the Government and even by the Tribunal."7.On the other hand, learned counsel for the respondents hassubmitted that the impugned order has been passed in the light of theclarification letter dated 28.10.1999 passed by the Government as perRule Rule 4(b)(1) III (b) and there is no infirmity with the same.8.A perusal of the impugned order dated 28.12.2007 passed bythe first respondent would reveal that it is passed based on theaudit objection and the proceedings initiated to recover the excessamount paid to the petitioner is without notice to the petitioner andwithout even affording an opportunity of hearing to him. Had therespondents relied on the audit objection and passed the impugnedorder, then they would have given an opportunity of hearing to thepetitioner by issuing proper notice to him, calling for explanationas to why his pay should not be reduced or excess amount berecovered. But, the respondents have not done so with regard to thepetitioner.9.Therefore, in the absence of any notice being issued to thepetitioner and as the petitioner was not even afforded an opportunityof hearing, the impugned proceedings dated 28.12.2007 passed by thefirst respondent is set aside. However, this order will not preventthe respondents from proceeding further by issuing a notice to thepetitioner and affording an opportunity of hearing to him.The writ petition is allowed. No costs. Consequently, connectedM.P.No.1 of 2008 is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarAbeTo 1. The Secretary to Government, School Education Department, Secretariat, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Joint Director (Higher Secondary Education), Office of the Director of School Education, DPI Complex, College Road, Chennai 600 006.+ 1 c.c. to Mr. P. Srinivas, Advocate. S.R.No.35234.+ 1 c.c. to The Government Pleader. S.R.No.25468.Order in W.P.No.13985 of 2008NSM (CO)GSK 18.08.2009.