IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-06-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.28054 of 2006 (O.A.No.532 of 1996) 1.E.Ponnusamy 2.K.Yasodhamani 3.S.Muthusamy 4.R.selvaraj .. Petitioners. Versus 1.The State of Tamil Nadu rep. by the Secretary to Government, Finance (Pay Commission) Department, Fort St. George, Madras-9. 2.Inspector General of Registration, 120, Santhome High Road, Madras-28. 3.The District Registrar (Admn.) Trichy. 4.The Accountant General (Audit-I), Tamilnadu and Pondicherry, 151, Eldams Road, Teyampet, Madras-18. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to call for the records on the file of the third respondent in connection with the orders passed by him in his proceedings Na.Ka.No.4209/A1/94, dated 5.7.95 and Na.Ka.No.4209/A1/94, dated 5.7.95 and also the order passed by the fourth respondent in his proceedings AC(A)1/ISC II/IV/23-183/92- 93/260, dated 16.10.95 and quash the same and direct the respondents to return the amount if any recovered already. For Petitioners : Mr.R.Singaravelan For Respondents : Mr.T.Sreenivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the respondents. 2. It is stated by the petitioners that they have been working in the Office of the Sub Registrar in the post of Section Writer in various places at Trichy. They have been working for more than 20 years without any blemish. In the light of the Government Orders in G.O.Ms.No.864, Finance (Pay Commission) Department, dated 11.9.86 and G.O.Ms.No.208, Finance (Pay Commission) Department, dated 10.3.1987, the 3rd respondent had passed an order, dated 22.8.91, granting stagnation increment and fixed the scale of pay of Rs.565-10-595-15- 615-20-795-25-945 for the temporary Section Writers, who had put in 10 years of service. The stagnation increment was granted on the ground that there was no Selection Grade of pay for the temporary Section Writers. 3. It was further stated that by an order, dated 14.3.1991, passed by the second respondent, it was informed that there was no Selection Grade scale of pay for the temporary Section Writers and as per G.O.Ms.No.304, Finance (Pay Commission) Department, dated 28.3.1990, the scale of pay of Rs.950-20-1150-25-1500 can be fixed for the temporary Section Writers who have completed 10 years of service in the Department. While so, the third respondent had passed orders, dated 5.7.95, stating that certain amounts have to be recovered from the petitioners because of the pay re-fixation. Further, the fourth respondent had passed an order signed on 16.10.1995 stating that Selection Grade should have been granted to the petitioners only with effect from 26.11.1989 and not from 1.6.1988, in view of Paragraph 8 of G.O.Ms.No.304, Finance (Pay Commission) Department, dated 28.3.1990. 4. The petitioners have further stated that on a reading of G.O.Ms.No.304, Finance (Pay Commission) Department, dated 28.3.1990, it is clear that the Selection Grade is permissible with effect from 1.6.1988 for those who have completed 10 years of service before 27.6.1989. Since all the petitioners have completed 20 years of service as on the date of the filing of the present original application, they are entitled to Selection Grade scale of pay with effect from 1.6.88. However, the respondents 3 and 4 have passed the impugned orders contrary to law, without jurisdiction and without following the principles of natural justice. 5. In the reply affidavit filed on behalf of the respondents, it has been stated that in G.O.Ms.No.1050, Finance (Pay Commission) Department, dated 5.10.1978, wherein recommendations of the 3rd Pay Commission have been implemented, schemes of promotional opportunities by way of introduction of Selection Grade, Special https://hcservices.ecourts.gov.in/hcservices/ Grade, Special Temporary Post and Stagnation Increment have been introduced. The common name given to them is 'Flexible Complementing Scheme'. It has been further stated that an employee will be moved to Selection Grade scale, automatically, wherever it has been provided, if he has completed 10 years of service in the Ordinary Grade and satisfied certain other conditions. Similarly, a person will be allowed to move to Special Grade, wherever it has been provided, on completion of 10 years of satisfactory service in the Selection Grade. In case where it has not been possible to provide for advancement to Selection Grade, the scheme of Flexible Complementing provides for advancement to the next higher post pay scale on completion of 10 years of satisfactory service in the lower post, subject to certain conditions. In certain cases where it has not been possible to provide for advancement to Selection Grade or advancement to higher post, the scheme of stagnation increment had been granted on completion of ten years of satisfactory service in the ordinary grade post. 6. It has been further stated that the 3rd and 4th Pay Commissions have not recommended for the grant of Selection Grade/Special grade to the Category of temporary Section writers in the Registration Department. However, they are eligible for stagnation increment if they have completed 10 years of satisfactory service in the ordinary grade post. The 3rd Pay Commission and 4th Pay commission have recommended their revised scale of pay for the post of temporary Section Writers as Rs.280-450 and Rs.505-845, respectively. The 5th pay commission has recommended withdrawal of the scheme of Selection Grade/Special Grade for all categories. However, based on the recommendations of various employees' association, the scheme of Selection grade/Special grade was reintroduced. While reintroducing the said scheme, it was ordered in G.O.Ms.No.304, Finance (Pay Commission) Department, dated 28.3.1990, that for those categories for which Selection Grade/Special Grade was not provided earlier, the Selection Grade/Special Grade should be made applicable with effect from 27.6.1989, i.e., the date of issue of the 5th Pay Commission orders, although they have competed 10/20 years of service in a particular category prior to 27.6.1989. Accordingly, the temporary Section Writers in the Registration Department, who were not granted the Selection Grade/Special Grade prior to 5th Pay Commission, became eligible for Selection Grade/Special Grade only with effect from 27.6.1989. 7. It has been further stated that the fixation of pay was wrongly made by the pay fixing authorities and hence, recovery orders were issued based on the Government Orders. Generally, a concession given to a new category is given effect from the date of issuing of the orders. In the present case, the temporary Section Writers were not granted Selection Grade/Special Grade prior to 5th pay commission. Hence, they were eligible for stagnation increment only prior to 27.6.1989. Therefore, the Selection Grade to temporary https://hcservices.ecourts.gov.in/hcservices/ Section Writers was given with effect from 27.6.1989. There is no injustice caused to this category and the orders would apply to all categories of employees. Since the pay fixing authorities had wrongly granted Selection Grade with effect from 1.6.88, in stead of from 27.6.89, the mistake has been rectified and the excess pay and allowances already drawn by the petitioners have been ordered to be recovered, as per the orders in force and as per the provisions, namely, Articles 56 and 57 of the Tamil Nadu Financial Code, Volume- I. Hence, the original application filed by the petitioners is liable to be dismissed as devoid of merits. 8. The learned counsel appearing for the petitioners had specifically submitted that the impugned orders of recovery have been passed against the petitioners without notice having been issued to them and without following the principles of natural justice. Further, the impugned orders are contrary to the spirit of G.O.Ms.No.304, Finance (Pay Commission) Department, dated 28.3.1990, and without taking note of the principles underlying the grant of stagnation increments to the petitioners. Since all the petitioners had completed 20 years of service, they are entitled to Selection Grade scale of pay with effect from 1.6.1988. Further, the granting of stagnation increment and fixation of pay scales for the petitioners, who are temporary section writers is in accordance with the Government orders and the rules applicable to the present case. 9. It has also been submitted by the learned counsel for the petitioners that the increments granted to the petitioners and the fixation of their pay scales were not based on any misrepresentation made by them. In such circumstances, the petitioners cannot be made to suffer by implementing the impugned orders passed by the 3rd and 4th respondents. The impugned orders are in violation of the principles of natural justice, illegal and contrary to the law laid down by various decisions of the Courts of law. 10. The learned counsel appearing on behalf of the respondents has not been in a position to show that the impugned orders have been passed after issuing a show cause notice to the petitioners and by giving them an opportunity to represent their case. Further, the learned counsel has not been in a position to substantiate the claims made in the reply affidavit filed on behalf of the respondents by producing the relevant records. In such circumstances, it is clear that the impugned orders passed by the 3rd and 4th respondents are in violation of the principles of natural justice and the law laid down by the supreme Court in Sahib Ram Vs. State of Haryana and others (1995 Supp (1) SCC 18). Therefore, the impugned orders are set aside in so far as they relate to the recovery of the amounts already paid to the petitioners, either as increments or as pay and allowances. However, with regard to the prayer of the petitioners for re-fixation of their pay scales, it is made clear that the respondents could re- fix the pay scales of the petitioners, in accordance with the https://hcservices.ecourts.gov.in/hcservices/ Government Orders and the rules applicable to them, after giving notice to the petitioners regarding such re-fixation of pay scales. Accordingly, the writ petition is partly allowed to the extent noted above. No costs. Sd/- Assistant Registrar /true copy/ Sub Assistant Registrar csh To 1. The Secretary to Government, State of Tamil Nadu Finance (Pay Commission) Department, Fort St. George, Madras-9. 2.Inspector General of Registration, 120, Santhome High Road, Madras-28. 3.The District Registrar (Admn.) Trichy. 4.The Accountant General (Audit-I), Tamilnadu and Pondicherry, 151, Eldams Road, Teyampet, Madras-18. Writ Petition No.28054 of 2006 MS(CO) JJM(03.07.08) https://hcservices.ecourts.gov.in/hcservices/