Judgment · High Court · 2005

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:15.11.2005CORAM:THE HON’BLE MR.JUSTICE P.SATHASIVAMandTHE HON’BLE MR.JUSTICE S.K.KRISHNANWrit Petition No.7968 of 2003and WPMP.No.10223 of 2003D. Palavesamuthu .. Petitionervs.1. The Tamil Nadu Administrative Tribunal, rep. by its Registrar Chennai 600 104.2. The Director Department of Adidravidar Welfare Chepauk, Chennai 600 005.3. The District Adi-Dravida and Tribal Welfare Officer, Kancheepuram.4. The Special Tahsildar Adi-Dravida Welfare Kancheepuram. .. Respondents Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of Certiorari as statedtherein. For petitioner : Mr. S. Silambannan for Mr. S. RaveendranFor respondents : Mr. E. Sampathkumar Government Advocate for R.2 to 4 https://hcservices.ecourts.gov.in/hcservices/ ORDER(ORDER of the Court was made by P.SATHASIVAM,J.)Aggrieved by the order of the Tamil Nadu AdministrativeTribunal, Chennai dated 10.01.2003 made in O.A.No.2662 of 2001, thepetitioner has filed the above writ petition to quash the same.2. According to the petitioner, he joined the service inAdi-Dravidar Welfare Department as Secondary Grade Teacher in theyear 1965 and continued as such till 1992. Since he was stagnatingin the post of Secondary Grade Teacher for 10 years and 20 years, hewas awarded Selection Grade and Special Grade respectively oncompletion of the said period of service. In the month of July,1992he was promoted as Headmaster of Elementary School run by the Adi-Dravidar Welfare Department. Thereafter, he was entitled to draw thescale of pay due to the Elementary School Headmaster. After01.06.1988, the post of Elementary School Headmaster had been madeas a promotional post. Prior to that date, the post of ElementarySchool Headmaster is equivalent to Secondary Grade Teacher. Thoughhe worked as Elementary School Headmaster prior to 1988, his statuswas only as a Secondary Grade Teacher. When he was actuallypromoted as Headmaster of the Elementary School in 1992, he wasentitled to the scale of pay for the Headmaster of ElementarySchool. He retired in the year 2002. It is the claim of theDepartment that in 1992, when he had been promoted as ElementarySchool Headmaster, he was entitled to draw the ordinary scale of paydue to Elementary School Headmaster, but, he was drawing the scaleof pay of Special Grade Headmaster from 1993. This was noticed bythe Accountant General when his pension papers were scrutinized. The Tribunal, after finding that the petitioner was not entitled tospecial pay, upheld the objection raised by the Accountant Generaland dismissed his application; hence, the present writ petition.3. Heard Mr. S. Silambannan, learned counsel for thepetitioner and Mr. E. Sampathkumar, learned Government Advocate forrespondents 2 to 4.4. It is not in dispute that prior to 01.06.1988, thescale of pay of Secondary Grade Teacher and that of Headmaster ofPrimary Schools were identical. In other words, the Secondary GradeTeachers appointed as Headmasters of Primary Schools were allowed todraw the scale of pay of ordinary grade, Selection Grade and SpecialGrade applicable to the Secondary Grade Teachers and in addition tothat, they were allowed to draw special pay. Based on therepresentation of the various Associations of Teaching staff, byG.O.Ms.No.1381 Education Department dated 05.10.1990, the Governmentconsidered it more appropriate that in respect of Headmasters ofPrimary Schools, who were in position on 01.06.1988, the services https://hcservices.ecourts.gov.in/hcservices/ rendered in the Secondary Grade Teachers and Headmasters of PrimarySchools should be taken into account for the purpose of awardingSelection Grade and Special Grade and accordingly, directed that theHeadmasters of Primary Schools under the Government, Local Bodiesand all kinds of Management, who were in position on 01.06.1988should be awarded Selection Grade and Special Grade in the revisedscales on or after 01.06.1988, computing the period of servicerendered as Secondary Grade Teacher as well as Primary SchoolHeadmaster prior to 01.06.1988. The said Government Order furtherprovides that as the post of Headmaster carries higher scale of payabove that of the Secondary Grade Teacher, the promotion after01.06.1988 shall be allowed fixation of pay in the post ofHeadmaster as provided under FR.22(b). It is true that thepetitioner herein was promoted as Headmaster of Elementary School inthe year 1992 and then onwards he is entitled to higher scale of paythan that of the Secondary Grade Teacher. However, it is not indispute that prior to 01.06.1988, the scale of pay of SecondaryGrade Teachers and Headmasters of Primary Schools were identical.In such circumstances, it is the claim of the petitioner that thoughhe was appointed as Headmaster in July, 1992, in view of the factthat scale of pay of Secondary Grade Teachers and Headmasters wereidentical, the Department is not justified in initiating recoveryproceedings based on the wrong assumption of the Accountant General.We have gone through all the materials. 5. As rightly pointed out, in view of the positionprevailing prior to 01.06.1988, the act of Department in refixingthe pay after a period of eight years cannot be accepted. It is notin dispute that even in the year 1984, the petitioner acted as aHeadmaster, Primary School and received Special Grade pay asHeadmaster, Primary School. 6. In addition to the above factual details, it is alsobrought to our notice that the very same Tribunal in a series ofapplications, accepted the case of the Headmasters similarly placedand rejected the stand taken by the Department vide order dated02.02.1996 made in O.A.No.449 of 1991 etc., batch. Another orderdated 20.03.2002 was made in O.A.No.587 of 1997 etc. The perusalof the above orders make it clear that in respect of identicalclaim raised by other similarly placed persons, the Tribunal hasaccepted the similar stand of the applicants and rejected thestand taken by the Department. As rightly pointed out, the verysame Tribunal has not accepted the claim of the applicant /petitioner herein. We are of the view that the course and methodadopted by the Tribunal cannot be appreciated in the case of thepetitioner. Even if it is accepted for the argument sake thatsalary of the petitioner is fixed in a wrong scale of pay, it is thefault committed by the Department and their Officers, for https://hcservices.ecourts.gov.in/hcservices/ which the petitioner should not be penalised after a lapse of numberof years that too after retirement of the petitioner. 7. It is worthwhile to refer the judgment of the SupremeCourt in the case of SAHIB RAM v. STATE OF HARYANA (1995 AIR SCW1780). In that case the Principal of College granted relaxationwhile fixing the revised pay scale of a Librarian. After findingthat the Principal erred in granting him the relaxation, theirlordships have concluded,"....it is not on account of any misrepresentation made bythe appellant that the benefit of higher pay-scale was given to himbut by wrong construction made by the Principal for which theappellant cannot be held to at fault. Under these circumstances, the amount paid till date may not be recovered from theappellant....." 8. The learned counsel appearing for the petitioner hasalso brought to our notice that the Department has not issued noticeor given opportunity before ordering recovery, but proceeded merelyon the basis of the report of the Accountant General. According tohim, reduction of pay and recovery of pay without hearing him areillegal. In support of the said argument, he relied on the judgmentof the Supreme Court in the case of DIVISIONAL SUPERINTENDENT,EASTERN RAILWAY, DINAPUR & OTHERS v. L.N.KASHRI & OTHERS (A.I.R.1974 SC 1889). In similar circumstances, their lordships have heldthat,"The appellants having fixed the scale and confirmed therespondents could not reduce the scale without giving anyopportunity to the respondents to be heard. Further more, therespondents on confirmation became entitled to rights to the postand to the scale of pay fixed by the Board". The said decision is applicable in all force to the caseon hand. The above principles and material aspects have not beenconsidered by the Tribunal and the Tribunal has committed an errorin dismissing the application of the petitioner. Under these circumstances, the impugned order of the TamilNadu Administrative Tribunal, dated 10.01.2003 made in O.A.No.2662of 2001 and the order dated 28.02.2001 of the District Adi-Dravidar https://hcservices.ecourts.gov.in/hcservices/ and Tribal Welfare Officer, Kancheepuram are quashed and the writpetition is allowed. No costs. Consequently, connected WPMP isclosed.KhSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Registrar, Tamilnadu Administrative Tribunal, Chennai – 600 104.2. The Director Department of Adidravidar Welfare Chepauk, Chennai 600 005.3. The District Adi-Dravida and Tribal Welfare Officer, Kancheepuram.4. The Special Tahsildar Adi-Dravida Welfare Kancheepuram.+1cc to Mr.S.Ravendran, Advocate(SR.45126)+1cc to Government Pleader, Advocate(SR.45052)BDB(CO)rvr/21.11 P.D. Order in W.P. No.7968 of 2003 and W.P.M.P.No.10223 of 2003