C. Sadasivam v. The District Collector, Kanyakumari District & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 03.08.2009CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARW.P. NOs. 16804 and 22017 of 2004. . . . . . . WP No.16804/2004:-C. Sadasivam... Petitionervs1.The District Collector, Kanyakumari District.2.The Panchayat Union Commissioner, Killiyur, Kanyakumari District. .. RespondentsWP No. 22017 of 2004:-1.Mohandoss2.Madhavanpillai3.Poomanyraj4.K.Kumarasamy5.T. Paul Pandian6.S. Swarnappan7.A.Charles Thangaraj8.V. Jebagnanadass9.R. Ponnappan10.S. Paulraj11.A. Subramania Pillai12.Tmt. K. Sujatha13.V. Eswaran Pillai14. A. Michael Flowrance15. I. Kumresan16. P. Thaniyal17. V. Nagamani18. M. Nesaian19.C. Suyambulingam20.R. Selvamany21. C. Sadasivam(petitioners 3,15,17 & 20 withdrawn theWP as per order dt. 29.8.2007 inWPM.P.No.1912/2007 in WP.22017/04).. Petitioners https://hcservices.ecourts.gov.in/hcservices/ Vs.1.The State of Tamil Nadu, rep. By the Secretary to Govt., Rural Development (E5) Dept., Secretariat, Chennai.9.2.The Director of Rural Development,Panagal Building,Chennai.15.3. The District Collector, Kanyakumari District, Nagercoil. ...RespondentsPrayer: Petition in WP No. 16804 of 2004 is filed under Article226 of the Constitution of India to issue a Writ of Certiorari tocall for the records on the file of the 2nd respondent in connectionwith the orders passed by him in Proc.A1.515/2003, dated 20.2.2003and quash the same .Petition in WP No. 22017 of 2004 is filed under Article 226 of theConstitution of India to issue a Writ of Certiorarified Mandamusto call for the records on the file of the first respondent inconnection with the order passed by him in G.O.(IID) No.97, RuralDevelopment (E5) Dept., dated 1.10.2003 and quash the same anddirect the respondents to pay continuously the pay of BillCollectors of Town Panchayats as per G.O.Ms.No.117, RuralDevelopment (E5) Dept., dated 10.5.2005. For Petitioner: Mr. R. SingaravelanFor Respondent: Mr. T. Seenivasan Addl. Govt. Pleader .........COMMON ORDERW.P.No. 16804 of 2004 is filed by the petitionerchallenging the order of recovery of excess pay dated 20.2.2003. 2. The petitioner in WP No. 16804 of 2004 joined theservices of the second respondent – panchayat union as group clerk-cum-bill collector on 31.12.1984. He filed an application beforethe State Administrative Tribunal for a direction to grant him thebenefit of G.O.Ms.NO. 117, Rural Development Department (E5), dated10.5.2000 and prayed for grant of regular time scale of pay interms of paragraph 2(c) of the Government Order. However, based on https://hcservices.ecourts.gov.in/hcservices/ audit objection, the recovery order was passed by refixing the paywithout taking into consideration the recommendation of the paycommission and the G.O.No. 117, dated 10.5.2000. 3. It is the case of the petitioner that till the pay isproperly fixed by the Government pursuant to the order of Tribunaland G.O.Ms.No.(2D) No. 97, dated 1.10.2003, there can be no orderfor recovery. He pointed out that in paragraph 5 of G.O.(2D)No.97, Rural Development (E5) Department, dated 1.10.2003, it isstated that the Tribunal has specifically ordered that no recoveryorder should be passed and the Government has accepted the same andstated in Paragraphs 6 and 7 of G.O.(2D) No.97, Rural Development(E5) Department, dated 1.10.2003 as follows:-" In view of the above judgment and after detailedexamination, the Government decided,(i)to release the excess amount recovered from thevillage Panchayat Group Clerks-cum-Bill Collectorsin Kanyakumari District: and(iv) to call for separate proposals from the Directorof Rural Development/ Collector of KanniyakumariDistrict for fixation of the pay of VillagePanchayat Group Clerks-cum-Bill Collectors inKanniyakumari District based on the pay Commissionrecommendation, with date of effect to be given. 7. Accordingly, the Government now order for therelease of the amount recovered from the Death-cum-Retirement Gratuity from the Village Panchayat GroupClerk-cum-Bill collectors of the Kanniyakumari District. 8. The Collector of Kanniyakumari District/ Directorof Rural Development are requested to send concreteproposals to Government for examination and fixation ofthe pay of the Group Clerks-cum-Panchayat Bill Collectorsof Kanniyakumar District based on the Pay Commissionrecommendation with date of effect to be given. "It is further stated that in view of the abovesaid Government Order, pending finalisation of the pay anda proposal to fix the pay, the order of recovery has to beset aside and any amount recovered has to be released. 4. W.P.No. 22107 of 2004 has been filed by the BillCollectors, who were serving with the third respondent. They havebeen appointed from the year 1964 onwards. They have been servingin the post of Group clerk-cum-Bill Collectors in the townpanchayat and receiving the salary applicable to Bill Collectorsserving in the town panchayat. Thereafter, due to formation ofvillage panchayat and town panchayat, surplus group clerks-cum-billcollectors were transferred to newly formed village panchayat.Pursuant to 4th Pay Commission, the pay of the bill collectors have https://hcservices.ecourts.gov.in/hcservices/ been re-fixed. According to the petitioners, on transfer andappointment to village panchayat, they will be entitled to the samescale of pay as they were receiving while they served in the townpanchayat. There can be no anomaly or discrimination to pay forthe same work. The grievance of the petitioners is that theDistrict Collector has refixed the pay without taking intoconsideration the services of the petitioners at the townpanchayat level, at the time of appointment. It is only on re-organisation and the petitioners have been transferred to Villagepanchayat. While re-fixing the pay, the authorities have nottaken into consideration G.O.Ms.No.117, dated 10.5.2000, inparticular paragraph 2(c) which reads as follows:-@ ,) Vw;wKiw Cjpak; Vw;fdnt bgw;WtUk; fd;dpahFkhpkhtl;lj;jpYs;s fpuhk Cuhl;rpf;FG vGj;jh; kw;Wk; thptNyh;fSk; ntWkhtl;l';fspYs;s rpy fpuhk Cuhl;rpfspy; Kd;gpUe;J Cuhl;rpfs; rl;lk; 1958gphpt[ 57(3) d;go mg;nghija khtl;l Ml;rpah;fs; Mizapl;lgo Vw;wKiwCjpa tpfpjk; Vw;fdnt bgw;WtUk; Kgneu vGj;jh;fSk; (rk;ge;jg;gl;l Cjpatpfpjk; Vw;fdnt bgw;WtUk; Kgneu vGj;jh;fSk; (rk;ge;jg;gl;l fpuhk Cuhl;rpepiy 1?Mf ,Ue;jhYk; my;yJ epiy?2 Mf ,Ue;jhYk;) mnj CjpaKiwapy; bjhlh;e;J bgw mDkjpf;fg;gLfpwJ/ mg;gzpapl';fs;fhypahFk;nghJ epiy?1 fpuhk Cuhl;rpahf ,Ue;jhy; gof;fg;gl;lit ehd;Fkw;Wk; vl;oy; Fwpg;gpl;Ls;s murhizfs; go bjhFg;g[jpa mog;gilapy; Kgneufpuhk Cuhl;rp vGj;jiu epakdk; bra;antz;Lk;/ epiy?2 fpuhk Cuhl;rpahf,Ue;jhy; nkny gj;jp 2(m) kw;Wk; 2(M) fPH; Mizapl;Ls;sgo bjhFg;g[jpamog;gilapy; gFjpneu vGj;jiu epakdk; bra;antz;Lk;/@5. It is further stated that based on the order of theTribunal, the Government has directed the Collector, Kanniyakumaridistrict to send a proposal as follows:- “The Collector of Kanniyakumari District/ Directorof Rural Development are requested to send concreteproposals to Government for examination and fixation ofthe pay of the Group Clerks-cum-Panchayat Bill Collectorsof Kanniyakumar District based on the Pay Commissionrecommendation with date of effect to be given. "6. The learned counsel for the petitioners states that,while the Collector proposes to refix the pay based on theGovernment Order G.O.Ms.No.117, dated 10.5.2000, the nature ofthe work done by the petitioners as group clerk-cum-bill collectorssimilar to that of their counter part at town panchayat and theoriginal appointment made in town panchayat should be taken intoconsideration. The petitioners are therefore entitled to therelief in terms of G.O.Ms.No.117, dated 10.5.2000 and the pay https://hcservices.ecourts.gov.in/hcservices/ should not be fixed purely on the basis of G.O.(2D) No.97, RuralDevelopment (E5) Department, dated 1.10.2003 . Since the saidG.O.(2D) No.97, Rural Development (E5) Department, dated 1.10.2003restricts the claim of the petitioners, the present writ petitionshave been filed. 7. In the counter affidavit filed by the respondents, itis stated in paragraph 11 as follows:-" With regard to the averments made in grounds 'e'and 'f' of the affidavit, it is submitted that inG.O.Ms.No.117, dated 10.5.2000, there is no specificationabout the Bill Collectors of Town Panchayats, who wereabsorbed as Group Clerk cum Bill Collectors in VillagePanchayat. So, according to G.O.(2D) No.97, RuralDevelopment (E5) Department, dated 1.10.2003 action hasbeen initiated."8. On a perusal of G.O.(2D) No.97, Rural Development(E5) Department, dated 1.10.2003, it is seen that in the firstparagraph of the order, it is clearly shows that surplus billcollectors (group clerks) were absorbed to the newly formedpanchayat and allowed to draw the same salary as of bill collectorsof town panchayat. It is further stated that 28 persons appointeddirectly in panchayat union after 2.8.1970 as bill collectors-cum-group clerks were allowed to draw salary as applicable to billcollectors in panchayat union. The differentiation appears to be onthe qualification viz., those, who have passed 10th standard havegiven Group-I and those who have not passed 10th standard arecategorised as group-II. In paragraph 3 of the G.O., it is furtherclarified the differentiation as follows:-" Further, the group clerks-cum-bill collectors(appointed prior to 2.8.1970) were drawn their pay asequivalent to that of "Bill Collectors" in TownPanchayats and subsequently brought under the control ofBlock Development Officer. However, this had beenobjected in Audit during 1985-86 and therefore, theirsalary had been reduced as equivalent to that of CategoryII and the excess amount paid were ordered to berecovered. Certain employees filed O.As. Before theTamil Nadu Administrative Tribunal for quashing reductionof pay and recovery of excess amount paid. Certain GroupClerks-cum-Bill Collectors appointed after 2.8.1970 hadalso filed O.As. Seeking to retain their pay asequivalent to that above category-I."9. Therefore, while fixing the pay, the category of thepetitioners i.e. Whether the petitioners fall under group-I orgroup-II shall also be considered. The very purpose of G.O.(2D)No.97, Rural Development (E5) Department, dated 1.10.2003, appearsto be for sending a proposal for fixing the pay of group clerks- https://hcservices.ecourts.gov.in/hcservices/ cum-bill collectors based on the pay commission recommendations.There is no bar for the collector in considering the plea of thepetitioners that they are entitled to the benefit ofG.O.Ms.No.117, dated 10.5.2000. 10. In such view of the matter, there is no necessityto set aside the G.O.(2D) No.97, Rural Development (E5) Department,dated 1.10.2003, except to direct the District Collector toconsider the plea of the petitioners that they are also entitledto the benefit of G.O.Ms.No.117, dated 10.5.2000 while consideringthe proposal for re-fixation of pay. The recovery order that hasbeen issued to any one of the petitioners has been ordered to bereleased in terms of paragraph 6 of the G.O.(2D) No.97, RuralDevelopment (E5) Department, dated 1.10.2003. Therefore, no furtherdirection is required as the Government itself has granted thebenefit. The Collector, competent authority shall take appropriateproceedings to send the proposal for fixing the pay of the groupclerks-cum-bill collectors taking into consideration therecommendation of the pay commission, G.O.Ms.No.117, dated10.5.2000 and other relevant materials as well. Such proposal isto be finalised within a reasonable period of time. These two writpetitions are ordered in the above terms. No costs. Consequently,WP.M.P.Nos. 19894, 26618 and 26619 of 2004 are closed. RaSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The District Collector, Kanyakumari District.2. The Panchayat Union Commissioner, Killiyur, Kanyakumari District3. The Secretary to Govt., Rural Development (E5) Dept., Secretariat, Chennai.9.4. The Director of Rural Development,Panagal Building,Chennai.15. https://hcservices.ecourts.gov.in/hcservices/ + 1 cc to Government Pleader, SR No.35324+ 1 cc to Mr. R. Singgaravelan, Advocate SR No.33901BK(CO)SR/26.8.2009WP Nos. 16804 & 22017/2004