IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:29.10.2010 CORAM: THE HON’BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.20069 OF 2009 AND M.P.NOs.1 & 2 OF 2009 and M.P.No.1 of 2010 V.M.Muthusamy .. Petitioner Vs. 1.The Assistant Treasury Officer Sub-Treasury Office Perundurai, Erode District. 2.The District Treasury Officer District Treasury, Erode. 3.The Accountant General of Tamil Nadu Teynampet, Chennai 18. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr.S.M.Subramaniam For respondents : Mr.P.Gurunathan Government Advocate for R.1 to R3 ORDER The writ petition is directed against the orders of the first respondent dated 13.1.2009, 27.2.2009 and 27.5.2009 as well as the audit objection of the third respondent dated 4.9.2009 and consequently direct the respondents to restore the pay protection originally granted to the petitioner as per G.O.Ms.No.1178 Education dated 22.12.1993 and to repay the recovered amount and also to pay the arrears with revised pay so fixed with all consequential monetary benefits including interest. 2. The petitioner was retired on attaining the age of superannuation on 31.5.1992 and is receiving pension. At the time of retirement he was holding the post of Elementary School Headmaster. He was working as Middle School Headmaster from 12.6.1969 and selection grade was granted to him on 1.10.1980. The special grade https://hcservices.ecourts.gov.in/hcservices/ was also given to him on 1.12.1986 by the District Educational Officer, Erode in his proceedings dated 01.12.1994 and fixed the pay scale at the rate of Rs.2200-4000. a) The senior teachers who were holding the post of Secondary Grade Teachers approached the Court against the junior teachers holding the post of Middle School Headmasters and ultimately, the Supreme Court in the judgment dated 1.3.1989 held that the Government provided pay protection to all teachers who got pay admissible to the post of Headmaster of Middle School. b) Even after revision, the Government issued G.O.1178 Education Department dated 20.12.1993, stating that for the purpose of granting selection and special grades, service rendered in the post of Secondary Grade Teacher has to be taken into account and it was based on that, the petitioner was awarded selection grade and special grade in the post of Middle School Headmaster and the pension has been received by the petitioner in accordance with the Supreme Court judgment as well as the Government Order for many years. However, the first respondent, passed the impugned order on 27.2.2009 for recovery allegedly based on the objection raised by the third respondent and totally an amount of Rs.74,261/- came to be recovered from the pension of the petitioner from 1.4.1999 and the quantum of pension was also reduced. c) On the representation made by the petitioner, the first respondent passed the impugned order dated 27.5.2009, reiterating the same stand and by enclosing the audit objections raised by the third respondent dated 4.9.2009. The said impugned orders as well as the third respondent’s audit objection are challenged in this writ petition on the basis that the recovery from the pension as well as reduction of pension has been done without notice and that when selection grade and special grade were conferred as per the judgment of the Supreme Court and also as per Government Order in G.O.Ms.No.1178 Education Department dated 22.12.1993, there is no question of recovery of any amount since there is no fault on the part of the petitioner. 3. Even though the respondents have not filed any counter affidavit, the learned Government Advocate appearing for respondents 1 and 2 made his submissions. 4. It is the main contention of the learned counsel for the petitioner Mr.S.M.Subramaniam, that the conferment of selection grade and special grade was in accordance with law and fixation of pay was made based on the Government Order as stated above and therefore, the benefit of pension granted on the basis of the said fixation cannot be withdrawn without following the principles of natural justice and there is no right on the part of the respondents to reduce the pensionary benefits already granted. https://hcservices.ecourts.gov.in/hcservices/ 5. On the other hand, it is the contention of the respondents that when the benefits were given wrongly, the same cannot be continued and therefore, the recovery is only a rectification of mistake. 6. When a dispute arose between Middle School Headmasters and Senior Teachers who were holding the post of Secondary Grade Teacher in respect of pay parity, the Middle School Headmasters who were reverted as Elementary School Headmasters have approached the Court and ultimately, the Supreme Court in S.Kamalanathan vs. ATE of Tamil Nadu and another (1989 I SVLR(L) 52) has made the following observation: " 10. The preposition of law de-here the facts of this case is unexceptionable. There are no accrued or vested rights in any of the parties in this case. From 1970 until 1979 there has been continuous Lis between the Headmasters who were holding the posts on 1st October, 1970 though junior in seniority and the others who were claiming those posts on the basis of higher seniority. There were several rounds of litigation in the Madras High Court and as a consequence number of Government Orders were issued from time to time. The rights of the parties were never crystalised. Finally, as a result of the directions of the High Court Government Order No.784 dated 14th May, 1979 was issued which settled the controversy for ever. It is thus incorrect to say that any rights got vested in any of the parties prior to the date of the impugned Government Order. The Government Order has been upheld by the Madras High Court and we find no infirmity in the judgment of the Division Bench. Far from being arbitrary, the Government Order is fair and does justice to all the parties. The Government have provided pay protection to the junior teachers who have been reverted of are facing reversion by application of the rule of seniority. They would continue to got the pay admissible to the head masters of middle schools even after reversion to the post of teacher. There is thus no force in the argument advanced by the learned counsel. The appeal and the writ petition are dismissed. There will be no order is to costs." 7. It is, pursuant to the above said Supreme Court judgment, in respect of awarding of selection grade and special grade the Government issued a clarification in G.O.Ms.No.1178 Education Department dated 22.12.1993 and the relevant portion of the Government Order is as follows: " Accordingly in supersession of the instructions issued in Government Letter (Ms) No.523, Education dt.1.6.92, the Government direct that the Headmasters of Middle School is and the junior secondary Grade Teachers who acted as https://hcservices.ecourts.gov.in/hcservices/ Headmasters Middle School on 1.10.1970 and subsequently reverted as Headmasters, Primary School or as Secondary Grade Teacher and who were allowed to retain the pay scale of Headmaster, Middle Schools based on Supreme Court Order be allowed Selection Grade (720-1305/2000-3200) and Special Grade (905-1545/2200-4000). On completion of a minimum period of 10/20 years of service irrespective of whether 10 years of service in the Selection Grade is completed or not. Further, Headmasters, Middle School who were acting in the post of Headmaster, Middle School prior to and after 1.10.70 shall also be allowed above Selection Grade/Special Grade taking into account the total service in the post of Headmaster." 8. It was based on the said Government Order, the petitioner was awarded special grade and his salary was fixed at Rs.2200-4000 in accordance with G.O.Ms.No.1178 Education Department dated 22.12.1993. Therefore, such fixation made was protected by the order of the Government and when such protection was sought to be taken away by another Government Order in G.O.Ms.200, Finance (PC) Department, dated 18.5.1999, which is general in nature, based on which revision of pay and recovery were effected in respect of similarly situated persons, it was held by this Court in series of cases viz., W.P.No.47501 of 2006 and 21804 of 2007 dated 08.12.2008 (S.Rajalingam vs. The Treasury Officer, District Treasury, Erode and another and K.M.Chinnasamy (deceased) rep. By his LR. Geetha Rani vs. The Assistant Treasury Officer, Sub Treasury, Katpadi, Vellore District) that recovery is not permissible since there was pay protection as per the Government Order which was passed based on the judgment of the Supreme Court. 9. Even otherwise, on the face of it, it is not as if the conferment of selection and special grades on the petitioner was effected either at the instance of the petitioner or the petitioner was in collusion with the officials. The Division Bench of this Court in D.Palavesamuthu vs. Tamil Nadu Administrative Tribunal rep. By its Registrar, Chennai and others [2006 (1) MLJ 143] held that even if by mistake of the officials of the department there was fixation of pay, so long as such mistake was not due to the deliberate conduct of the individuals concerned, no party can be penalized for the fault committed by the department and its officials. In fact, the said judgment was rendered based on the judgment of the Supreme Court in Sahib Ram vs. State of Haryana and others [(1995) Suppl.1 SCC 18], wherein the Supreme Court held as follows: " 5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the https://hcservices.ecourts.gov.in/hcservices/ date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs. Even otherwise, it is seen that the civil right which got accrued to the petitioner as pensionary right has been taken away in a most arbitrary manner without even giving an opportunity to the petitioner. 10. In such view of the matter, there is absolutely no difficulty to conclude that the impugned orders by which the respondents have recovered the monetary benefits conferred on the petitioner based on the fixation of pay by way of selection grade and special grade are totally opposed to law. For all these reasons, the continuation of pension so fixed based on the selection grade and special grade awarded to the petitioner, is also permissible in law. Inasmuch as the fixation has been protected by the Government Order which was passed based on the Supreme Court judgment, the act of the respondents in passing the impugned orders are sheer harassment to the petitioner, who has rendered service in the education department for a fairly long period, i.e., nearly 25 years. In view of the same, the writ petition stands allowed and the respondents are directed to pay the amount so recovered from the petitioner and pay arrears based on the revised fixation of pay and other consequential monetary benefits with interest at the rate of 9% p.a. till the date of payment, within a period of eight weeks from the date of receipt of copy of the order and the respondents are also directed to continue to pay the pension as fixed originally to the petitioner. No costs. 11. In view of disposal of the main writ petition, connected miscellaneous petitions are closed. Sd/- Assistant Registrar /True Coy/ Sub Assistant Registrar Kh https://hcservices.ecourts.gov.in/hcservices/ To 1.The Assistant Treasury Officer Sub-Treasury Office Perundurai, Erode District. 2.The District Treasury Officer District Treasury, Erode. 3.The Accountant General of Tamil Nadu Teynampet, Chennai 18. +1 CC to Mrs.Subramaniam, Advocate (SR.78732) +1 CC to Government pleader (Sr.No.78540) ORDER IN W.P.NO.20069 OF 2009 VSV(CO) 15/11/2010 https://hcservices.ecourts.gov.in/hcservices/