IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.09.2010 CORAM: THE HON'BLE MR.JUSTICE D. HARIPARANTHAMAN W.P.NO.40797 OF 2006 (O.A.NO.5203 OF 2000) Josephine Glory ... Petitioner Versus 1. The Medical Officer Primary Health Centre Inamkulathur, Trichy District – 621 303. 2. The Deputy Director of Health Services, Trichy. ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.5203 of 2000 from the file of the Tamil Nadu Administrative Tribunal with a prayer to set aside the order of the 1st respondent in Na.Ka.No.288 of 2000, dated 16.05.2000 and direct the 1st and 2nd respondent not to reduce the Pay Scale of the petitioner. For Petitioner : Mr.B.Divakaran For Respondents : Ms.C.Devi Government Advocate O R D E R The petitioner was appointed as Health Visitor on 12.08.1981. Subsequently, the post of Health Visitor has been redesignated as Sector Health Nurse with effect from 04.11.1988. She was granted Selection Grade in the post of Sector Health Nurse with effect from 12.08.1991, after completion of 10 years of service. She was awarded the scale of pay in the ordinary grade of Sector Health Nurse at Rs.1400 – 2600 /-. She was granted Selection Grade pay of Rs.1640 – 2900 /- in the year 1991. Later, there was an audit objection to the effect that the petitioner should have been https://hcservices.ecourts.gov.in/hcservices/ fixed at the scale of pay of Rs.1600- 3200/- instead of Rs.1640 – 2900 /-, since higher post to Sector Health Nurse viz., Community Health Nurse carried lower pay than the selection grade Sector Health Nurse, i.e. the pay of Community Health Nurse was Rs.1600 - 3200/- while the pay of selection grade Sector Health Nurse was Rs.1640 – 2900 /-. This resulted in passing the impugned order, dated 16.05.2000, refixing the pay and ordering of recovery. 2.Heard the learned counsel appearing for the petitioner as well as the learned Government Advocate appearing for the respondents. 3.The learned counsel for the petitioner submits that without providing the audit report to the petitioner, the impugned order was passed, ordering recovery and refixation. The petitioner has challenged the impugned order on the ground that the impugned order was passed in blatant violation of principles of natural justice. 4.In my considered view, the impugned order was passed without hearing the petitioner and in blatant violation of principles of natural justice. It is well settled that no order resulting civil consequences could be passed without hearing the person concerned. Furthermore, the selection Grade was granted to the petitioner during 1991 and she was fixed the scale of pay of Rs.1640– 2900/-. It was not based on any misrepresentation on the part of the petitioner. If there is any mistake on fixation of pay, the respondents should have done at the earliest point of time. They could not do so after a lapse of long time. The Audit party deducted the arrears after 10 years. The petitioner filed the Original Application and also obtained interim stay for recovery. In the meantime, the petitioner also retired from service. 5.As rightly contended by the learned counsel for the petitioner, the matter is squarely covered by a decision of a Division Bench of this Court in D.PALAVESAMUTHU VS. TAMIL NADU ADMINISTRATIVE TRIBUNAL reported in 2006 (1) MLJ 143, wherein this Court held that if the Department erroneously granted certain benefits on its own and not on any misrepresentation by the petitioner and the Department thought of rectifying the same after a lapse of number of years, that too after retirement of the employee, the Department cannot be permitted to do the same. The following passage found in paragraph No.6 of the said judgment is extracted here-under: "6.In addition to the above factual details, it is also brought to our notice that the very same Tribunal in a series of applications, accepted the case of Headmasters similarly placed and rejected https://hcservices.ecourts.gov.in/hcservices/ the stand taken by the Department vide order dated 2.2.1996 made in O.A.No.449 of 1991 etc., batch. Another order dated 20.3.2002 was made in O.A.No.587 of 1997 etc. The perusal of the above orders make it clear that in respect of identical claim raised by other similarly placed persons, the Tribunal has accepted the similar stand of the applicants and rejected the stand taken by the Department. As rightly pointed out, the very same Tribunal has not accepted the claim of the applicant/petitioner herein. We are of the view that the course and method adopted by the Tribunal cannot be appreciated in the case of the petitioner. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lap-se of number of years that too after retirement of the petitioner". 6.Taking into account the aforesaid facts and more particularly, the aforesaid decision of this Court, the impugned order is quashed and the writ petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ogy To 1. The Medical Officer, Primary Health Centre, Inamkulathur, Trichy District – 621 303. 2. The Deputy Director of Health Services, Trichy. +1cc to Mr.B.Divakaran, Advocate Sr 71408 +1cc to Govt. Pleader Sr 71459 NSM(CO) km/26.10. W.P.NO.40797 OF 2006 (O.A.NO.5203 OF 2000) https://hcservices.ecourts.gov.in/hcservices/