IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23-04-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.16488 of 2004 V.Saminathan .. Petitioner. Versus 1.The Director of Town Panchayat and Country Planning, Kuralagam, Chennai-600 108. 2.The Executive Officer, Annur Town Panchayat, Annur, Coimbatore District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the records of the second respondent in relation to the proceedings issued in Na.Ka.No.805/2003/A, dated 28.7.2003 and quash the same and issue a consequential direction to the respondents to restore the petitioner on time scale of pay of Rs.2550-55-2660-60-3200, with effect from 28.7.2003, in the post of Malaria Mazdoor (Sanitary Worker), Annur Town Panchayat, Coimbatore District. For Petitioner : Mr.R.Saseetharan For Respondents : Mr.V.Viswanathan (AGP) (R1) Mr.P.S.Jayakumar (R2) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. This writ petition has been filed praying for a writ of certiorarified mandamus, to call for the records relating to the proceedings of the second respondent, dated 28.7.2003, and to quash the same and for a direction to the respondents to restore the petitioner on the time scale of pay, with effect from 28.7.2003, in the post of Malaria Mazdoor (Sanitary Worker) in Annur Town Panchayat, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ 3. It has been stated that the petitioner's father V.Vaikunthan was working as a Sanitary worker in Annur Town Panchayat, Coimbatore District. He had died, on 10.2.1986, while in service. Therefore, the petitioner had been appointed as Malaria Mazdoor, on compassionate grounds, in the existing vacancy, by an order, dated 5.1.2001, issued by the second respondent, as per the resolution passed by the Council of the Town Panchayat in the scale of pay of Rs.2550-55-2660-60-3200. The petitioner has been paid the salary in the said scale of pay since the date of his appointment. While so, the second respondent, by the impugned order, dated 28.7.2003, had fixed the pay of the petitioner as Rs.900/- per month, as consolidated pay, instead of paying him in the time scale of pay. The refixation of the pay of the petitioner has been done by the second respondent as per the audit objection raised by the audit department. By the said impugned order, dated 28.7.2003, the second respondent had also directed the petitioner to repay the amount of Rs.35,537/- stating that the amount of Rs.38,000/- had been paid to him, as excess amount from April, 2002 to June, 2003. It was also stated that the scale of pay would be fixed after the necessary approval was obtained from the Government. 4. The main contention of the learned counsel appearing on behalf of the petitioner is that the impugned order of the second respondent, dated 28.7.2003, had been passed without issuing any notice to the petitioner and without giving him an opportunity to put forth his case. Even though G.O.Ms.No.84, dated 21.5.1998, directs that no appointment shall be made after 1.5.1998 in the category of sanitary worker, in the time scale of pay, the said Government Order provides for an exception. According to the exception clause, the appointment on compassionate grounds in a vacancy, which was existing prior to 12.8.1997, could be made in the time scale of pay. The vacancy in which the petitioner had been appointed as Malaria Masdoor (Sanitary worker), on 5.1.2001, was in the vacancy existing prior to 12.8.97. Therefore, the appointment of the petitioner in the time scale of pay, on 5.1.2001, is in accordance with the said Government Order. Since the petitioner is doing the same work as that of the other Malaria Mazdoors he is entitled for the same scale of pay of Rs.2550-3200. Since the petitioner had been appointed in a regular vacancy he should be paid the time scale of pay and not the consolidated pay, as stated in the impugned order of the second respondent, dated 28.7.2003. Further, the amounts paid to the petitioner in the time scale of pay cannot be recovered unless the said amounts had been paid to the petitioner due to his misrepresentation or fraud. Therefore, the impugned order of the second respondent, dated 28.7.2003, is arbitrary and devoid of merits and therefore, it is liable to be set aside. 5. In the counter affidavit filed on behalf of the second respondent, it has been stated that in G.O.Ms.No.84, dated 21.5.1998, it has been mentioned that the appointments made in the existing vacancies before the release of the Government Order No.199 (Per), https://hcservices.ecourts.gov.in/hcservices/ dated 12.8.1997, can be made in the existing time scale of pay, as in the appointments made on compassionate grounds. Since the petitioner has been appointed on compassionate grounds in the existing vacancy due to the retirement of a Special Grade Sanitary Worker he was paid the time scale of pay. However, based on the audit report of the year 2001-2002, the petitioner's pay had been reduced and refixed on a consolidated pay of Rs.900/- per month and the excess amount of Rs.35,537/- paid to him had been ordered to be recovered. Further, it has been submitted that no prior notice had been given to the petitioner before the impugned order had been passed by the second respondent. Since the petitioner had been appointed in a substantive post, on a regular time scale of pay, in accordance with the Government Order in G.O.Ms.No.84, dated 21.5.1998, the impugned order of the second respondent, dated 28.7.2003, had been passed only on the basis of the audit objection and that the plea of the petitioner to be continued in the time scale of pay would be considered, in accordance with the existing Government Orders and the law applicable to his case. 6. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available, this Court is of the considered view that the impugned order of the second respondent, dated 28.7.2003, cannot be sustained in the eye of law, as it has been issued without prior notice having been issued to the petitioner and without giving him an opportunity to put forth his case. However, it is seen that the petitioner had been appointed on compassionate grounds in the existing post of Malaria Mazdoor (Sanitary Worker), which is said to be a substantive post. Similarly placed persons as that of the petitioner are being paid the time scale of pay. While so, the second respondent has not shown sufficient reasons to re-fix the salary of the petitioner on a consolidated pay of Rs.900/- per month, instead of the time scale of pay which was being paid to him. 7. From the counter affidavit filed on behalf of the second respondent, it is clear that the petitioner had been appointed on a regular basis, on compassionate grounds, in an existing vacancy and his pay was fixed in the time scale of pay, in accordance with G.O.Ms.No.84, dated 21.5.98. Further, in view of the Government Order in G.O.Ms.No.199 (Per), dated 12.8.1997, the time scale of pay had been rightly fixed, as the appointment of the petitioner had been made on compassionate grounds. Further, it is not the case of the respondents that the salary of the petitioner had been paid in the time scale of pay due to his misrepresentation or fraud. 8. In such circumstances, in view of the order passed by this Court, in W.P.No.3268 of 2001, in similar facts and circumstances, this Court is of the view that the impugned order of the third respondent, dated 28.7.2003, in so far as it relates to the recovery of amounts already paid to him, as salary, in the time scale of pay, https://hcservices.ecourts.gov.in/hcservices/ cannot be sustained and accordingly, it is set aside. However, it is open to the respondents to refix the salary of the petitioner, if it is found necessary, in accordance with law, including the Government Order and the rules applicable to his case, after giving him prior notice and by giving him an opportunity to put forth his case. Accordingly, the writ petition stands allowed, as stated above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Director of Town Panchayat and Country Planning, Kuralagam, Chennai-600 108. 2.The Executive Officer, Annur Town Panchayat, Annur, Coimbatore District. 1 cc To The Government Pleader, SR.17930 1 cc To M/s.P.Jayakumar, Advocate, SR.17091 Writ Petition No.16488 of 2004 SP(CO) SRA(14/5/2009) https://hcservices.ecourts.gov.in/hcservices/