IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.08.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No.45688 of 2006 (T) O.A.No.2630 of 2000 V.Vasimalai ... Petitioner Vs. 1.The Director, Tamil Nadu State Health Transport Department, Chennai – 600 032. 2.The Workshop Superintendent, Regional Workshop (Health), Madurai, Madurai District. ... Respondents PRAYER: Writ Petition came to be numbered by transfer of O.A.No.2630 of 2000 on the file of the Tamil Nadu Administrative Tribunal praying to call for the records relating to the impugned order of the second respondent in R.No.241/A/2000, dated 30.03.2000 and the consequential order of the second respondent in R.No.241/A/2000-2, dated 30.03.2000 and quash the same. For Petitioner :Mr.P.Mohan Raj For Respondents :Mr.S.Gopinathan, AGP ORDER The petitioner, V.Vasimalai, was appointed as Welder Grade-II in the Regional Workshop (Health) Madurai on 31.10.1983 with a scale of pay of Rs.950-20-1150-25-1500. On completion of 10 years of service in the post of Welder Grade II, he was moved to the Selection Grade Welder Grade II with effect from his date of original appointment, namely, 31.10.1983, with a scale of pay of Rs.1200-30-1560-40-2040 as per the office proceedings No.3262/A2/94, dated 23.05.94. In the meanwhile, before the petitioner was moved to the Selection Grade Welder Grade II, Government issued G.O.Ms.No.304, Finance (PO), dated 20.03.90 and Government Letter Nos.49470/PC II/90-1, Finance, dated 14.09.90 and 10181/PC III/91-1, dated 20.02.1991, stating that whenever the https://hcservices.ecourts.gov.in/hcservices/ Selection Grade scale of pay of a lower post is higher than that of Ordinary Grade scale of pay of the promotional post, the Selection Grade scale of pay of the lower post shall be restricted to the Ordinary Grade scale of pay of the next promotional post. In that view of the matter, the 2nd respondent passed the impugned order dated 30.03.2000 fixing the scale of pay of the petitioner at Rs.1100-25-1150-30-1660 with effect from 31.10.1993. Aggrieved by the said order, the petitioner has filed the OA on the file of the Tamil Nadu Administrative Tribunal. 2. Learned counsel appearing for the petitioner submits that the said impugned order dated 30.03.2000, seeking to recover the money from the petitioner with effect from 31.10.1993 by fixing petitioner's pay as Rs.1100-1660, without issuing notice, is contrary to the principles of natural justice. Secondly, on completion of 10 years of service, when the petitioner moved to the Selection Grade Welder Grade II, he was given the benefit of Section Grade from 950-1500 to 1200-2040 and when the petitioner has been enjoying the said benefit from the date of his original appointment as Welder Grade II with effect from 31.10.1993, in the year 2000 i.e., after 7 years, the 2nd respondent passed the impugned order, seeking to recover the money what was received by the petitioner in the last 7 years, without issuing any notice, which is totally contrary to the principles of natural justice. On that basis, prayed for setting aside the impugned order. 3. On the other hand, learned counsel appearing for the respondents submits that the petitioner, after his appointment as Welder Grade II with a scale of pay of Rs.950-20-1150-25-1500, on completion of 10 years of service, he was granted the benefit of Selection Grade with effect from 31.10.1993 by revising the scale of pay of Rs.1200-30-1560-40-2040. The said revision is totally contrary to the para 4 of the G.O.Ms.No.304, Finance (PO), dated 20.03.90 and Government Letter Nos.49470/PC II/90-1, Finance, dated 14.09.90 and 10181/PC III/91-1, dated 20.02.1991. A mere reading of the said GO as well as two letters, says that whenever the Selection Grade scale of pay of a lower post is higher than that of Ordinary Grade scale of pay of the promotional post, the Selection Grade scale of pay of the lower post shall be restricted to the Ordinary Grade scale of pay of the next promotional post, i.e., the scale of pay to be allowed for the Selection Grade post of the lower post has to be restricted to the scale applicable to the promotional post, if it is less than the Selection Grade scale of the lower post. Since the scale of pay of Welder Grade II, while moving to the Selection Grade, had not been restricted to the scale of pay of the next promotional post, a revised order was passed to rectify the defect. Since the revised order has been passed, the question of issuance of notice to the individual does not arise. Therefore, he urged not to interfere with the impugned order. https://hcservices.ecourts.gov.in/hcservices/ 4. Heard the learned counsel appearing on either side and perused the materials available on record. 5. Prima facie, the petitioner, after his appointment, he joined as Welder Grade II, in the Regional Workshop (Health), Madurai. He was moved to the Selection Grade on completion of 10 years of service in the post of Welder Grade II with effect from 31.10.1993. At the time of reaching the Selection Grade, the petitioner was drawing pay in the Ordinary Grade Scale of Welder Grade II, namely, Rs.950-20-1150-25-1500, whereas the Selection Grade Scale for the said Ordinary Grade Scale was Rs.1200-30-1560- 40-2040 as per the orders of the Government in G.O.Ms.No.304, Finance (PC) Department, dated 28.03.1990. After enjoying the Selection Grade scale of pay from 1993 onwards, the petitioner was also allowed to receive periodical annual increments on 01.10.94, 01.10.95, 01.10.96, 01.10.97, 01.10.98 and 01.10.99. Whileso, by applying praragraph 4 of the G.O.Ms.No.304, dated 28.03.1990, the 2nd respondent passed the impugned order seeking to recover the excess money, without any prior notice. The petitioner, when he acquired 10 years of service in the post of Welder Grade II, naturally, he has to be given the benefit of Selection Grade. Accordingly, he was also granted Selection Grade from 950-1500 to 1200-2040. Whileso, para 4 of the G.O.Ms.No.304, dated 20.03.90, states that the Selection Grade scale of pay of a lower post is higher than that of Ordinary Grade scale of the promotional post, which cannot be granted. In fact, para 6 of the very same G.O.Ms.No.304, dated 20.03.90, clearly goes to rescue the petitioner, which is extracted as under:- 6. Government direct that while fixing pay in the revised selection grade/special grade scales of pay indicated in Annexure-I to this order, the pay of an employee happens to get fixed lesser than that already fixed as per the selection grade/special grade scales of pay ordered in the G.O. first read above, the pay of such employee shall be stepped up to the next higher stage, as a special case, so as to avoid monetary loss. Fitment tables and illustrations are given in Annexure-II and III respectively to this order. These fitment tables are in addition to those given in the GO second read above. Wherever appropriate fitment tables are not available, pay shall be fixed as per the Tamil Nadu Revised Scales of pay Rules, 1989. A mere reading of the above clearly goes to show that while fixing the pay in the revised selection grade/special grade scales of pay, if the pay of an employee happens to get fixed lesser than that already fixed as per the selection grade/special grade scales of pay ordered in the GO first read above, the pay of such employee shall be stepped up to the next higher stage. https://hcservices.ecourts.gov.in/hcservices/ 6. Admittedly, the petitioner moved the scale of pay of Rs.1200-30-1560-40-2040 on completion of his 10 years service on 31.10.1993. Subsequently, in the promotional post, namely, the Work Clerk, the scale of pay has been fixed at Rs.1100-25-1150-30- 1660. Since the petitioner was already paid the Selection Grade pay of Rs.1200-2040 with effect from 31.10.1993, the impugned order seeking to recover the money with effect from 31.10.1993 without issuing any prior notice, is liable to be set aside. 7. In a similar circumstances, the Hon'ble Apex Court also in the case of Sahib Ram Vs. State of Haryana reported in 1995 Supp(1) SCC 18, has held that when the petitioners are not responsible for making misrepresentation and if the respondent department allowed the petitioners to draw right or wrong excess amount, such excess amount already paid cannot be recovered without issuing any prior notice. In the present case, admittedly, the recovery order has been issued without issuing any prior notice. In that view of the matter, this Court sets aside the impugned order. Accordingly, the present writ petition is allowed. No Costs. rkm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Director, Tamil Nadu State Health Transport Department, Chennai – 600 032. 2.The Workshop Superintendent, Regional Workshop (Health), Madurai, Madurai District. + 1 cc to Government Pleader, SR No.60428 AKR(CO) SR/7.9.2010 W.P.No.45688/2006 https://hcservices.ecourts.gov.in/hcservices/