IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 5-2-2010 Coram The Honourable Mr.Justice ELIPE DHARMA RAO and The Honourable Mr.Justice N. PAUL VASANTHAKUMAR W.A.Nos.710 & 1109 of 2007 W.A.No.710 of 2007 1. A. Bakthavatchalam 2. K. Rathina Kumar 3. C.A.M.A. Rahman 4. V. Sitharaman 5. P. Parthasarathy 6. R. Rajamohan 7. M. Jayakumar 8. R. Damodaran 9. A. Misayel 10. A. Shiela Franchina 11. N. Rathnakumari 12. R. Mayileruperumal 13. M.P. Raghuraman 14. K. Hariramakrishnan 15. G. Arockiaraj 16. M.M. Maiyappan 17. V.M. Pugalenthy 18. R.J. Prabhu 19. R. Balasubramanian 20. N. Kutty Nadar 21. G. Jeyakumar 22. K. Mohanasundaram 23. L. Getcy Prabhavathy 24. K. Padmanabhan ... Appellants Vs. 1. The State of Tamil Nadu rep.by its Secretary to Government, School Education Department, Secretariat, Chennai – 600 009. 2. The Ex-Officio Chairman/Secretary to Government, School Education Department, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. https://hcservices.ecourts.gov.in/hcservices/ 3. The Managing Director, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. ... Respondents W.A.No.1109 of 2007 1. P.R. Lingappa 2. P. Elumalai 3. C.P. Kumarasamy 4. C.R. Kirupakaran 5. T. Ramakrishnan 6. D. Ratnamony 7. R. Raghunathan 8. Jannet William 9. G. Jothi Bai 10. P. Thankakan 11. S.P. Murugappan 12. N. Balaraman 13. T. Kasinatha Rao ... Appellants Vs. 1. The State of Tamil Nadu rep.by its Secretary to Government, School Education Department, Secretariat, Chennai – 600 009. 2. The Ex-Officio Chairman/Secretary to Government, School Education Department, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. 3. The Managing Director, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. ... Respondents These writ appeals are preferred under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.6307 of 1997 dated 7.9.2006 Petition filed under Article 226 of Constitution of India to issue a writ of certiorarified mandamus to call of the entire records relating to the impugned resolution dated 21.6.1996 communicated to the petitioners on 2.7.96 under Board Resolution No.6/Gm/96 and quash the said impugned directions directing the respondents to continue to pay the scales of pay prior to the issuance of the Government order in G.O.Ms.No.318 Education Department dated 12.3.86 together with attendant service benefits under the various pay commissions and also to pay the interest for non payment on due dates. https://hcservices.ecourts.gov.in/hcservices/ For Appellants in W.A.No.710/2007 : Mr.M.Venkatachalapathy Senior Counsel for Mr.M.Sriram For Appellants in W.A.No.1109/2007 : Ms.Meenalochni for Mr.P.Chandrasekaran For Respondents 1 & 2 in both writ appeals : Mr.Naganathan, Government Advocate For 3rd Respondent : Mr.P.Wilson, Additional Advocate General assisted by Mr.K.R.A.Muthukrishnan COMMON JUDGMENT N. PAUL VASANTHAKUMAR, J. These writ appeals are directed against the order of the learned single Judge made in W.P.No.6307 of 1997 dated 7.9.2006, wherein the writ petition filed by 58 employees of the Tamil Nadu Text Book Society was dismissed. W.A.No.710 of 2007 is filed by 24 employees and W.A.No.1109 of 2007 is filed by 13 other employees in the writ petition. 2. The brief facts necessary for disposal of these writ appeals are as follows: (a) The Government of Tamil Nadu took a policy decision to nationalise the printing, publishing, selling and supplying or otherwise dealing in text and other books in all languages for the use in all educational institutions in the State, pursuant to which the Tamil Nadu Text Book Society was formed and registered under the Societies Registration Act, 1860, in the year 1970, and it is a Government of Tamil Nadu Undertaking as all in the management of the Society are the Government officials. (b) The Board of management is entrusted with the administration in the affairs of the Corporation. The Executive Committee shall be the authority competent to regulate the terms and conditions of the services of the officers and servants of the Corporation, subject to such policy decisions as may be laid down by the Board. The following regulations were issued in the year 1970 with effect from 4.3.1970, (1) The Tamil Nadu Text Book Corporation Service Regulations (2) The Tamil Nadu Text Book Employees Conduct Regulations (3) Regulations relating to special pay, allowances, casual leave, compensation leave, advance, amenities, etc., (4) Pension Regulations. Part-IV of the Service Regulations contain the regulations https://hcservices.ecourts.gov.in/hcservices/ governing pay and increments and the appendix thereto, containing the scales of pay applicable to various categories of posts. (c) Insofar as the post of Superintendent is concerned, the pay scale as on 4.3.1970 was Rs.250-25-500 and for Assistants, the pay scale was Rs.180-5-200-10-300. The said pay scale was revised as on 2.10.1970 at Rs.425-25-500-30-750 and Rs.275-10-375-15-450 for Superintendents and Assistants respectively. According to the appellants, the above scale were revised as per the recommendations of One-Man Committee, which fixed the scales of pay for the Superintendents and Store Keepers in the cadre of Superintendent and for the Assistants and Assistant Store Keepers in the cadre of Assistants. According to the appellants, the scale was fixed as per the resolution of the Finance Committee meeting held on 19.10.1972 and the appellants were paid the revised scales of pay. (d) The Chief Auditor, State Trading Scheme, raised audit objections for the grant of revised scales of pay to the posts of Superintendent and Assistants and forwarded the same to the Government as well as to the Text Book Corporation, the third respondent herein. The Text Book Corporation sent a reply explaining its position and admitted that the text and corrections made were due to the modifications made by the members of the Finance Committee during discussions and the Finance Committee as well as Board of Governors approved the corrections. (e) However, the Government based on the Chief Auditors objection, issued G.O.Ms.No.318 Education Department, dated 12.3.1986 and held that the revision of scales of pay was made unauthorisedly and directed the Managing Director to take steps to re-determine the same with retrospective effect. The third respondent passed a consequential order on 7.4.1986. No opportunity was given to the appellants/petitioners about the reduction either by the Government or by the third respondent. (f) The said order of the Government was challenged by the appellants in W.P.No.3685 of 1986 before this Court and by order dated 12.12.1995, this Court quashed the Government Order and the consequential order of the third respondent and granted liberty to the third respondent to rectify the defect, if any, in the matter of pay scales. The third respondent thereafter passed the resolution on 2.7.1996, which was challenged by the appellants in W.P.No.6307 of 2007 and the learned single Judge having dismissed the writ petition, these writ appeals are preferred. (g) The contentions raised by the appellants are that in view of the earlier order of this Court made in W.P.No.3685 of 1986 dated 12.12.1995 setting aside the Government Order and the consequential proceedings, the third respondent is not empowered to re-fix the scale of pay of the Superintendents and Assistants and in any event this Court having not granted any liberty to order recovery of the salary already paid, the recovery ordered from the amount already paid is unsustainable. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned Senior Counsel appearing for the appellants submitted that no correction is made by the appellants and the Board Chairman affixed his seal on the resolution passed by the Executive Committee and the same was implemented for more than 25 years and even now except the pay scales, all other resolutions are implemented. The learned Senior Counsel further added that attestation in the correction, if any, even admitted is an administrative lapse and the said defect can be rectified after getting approval from the Board, for which appellants cannot be punished by bringing the scale of pay to the lower post from which they were already given promotion. It is also contended that the resolution of the Board meeting dated 21.6.1996 is contrary to the earlier stand taken by the third respondent in the earlier writ petition. The learned senior Counsel further submitted that even though their pay scales are subsequently increased there is no much difference at the time of appellants dates of retirement, the recovery order passed by the second respondent is unsustainable as the second respondent failed to prove that the appellants received the benefits of revised pay scales by any suppression of facts or misrepresentation and the amount already paid cannot be recovered. The learned Senior Counsel further argued that the learned Single Judge was not justified in dismissing the writ petition by imposing heavy cost to be paid by each of the appellant, that too after their retirement. 4. The learned Additional Advocate General, on the other hand submitted that the Chief Auditor, State Trading Schemes, having noticed the wrong fixation of pay of the Superintendents and Assistants of Tamil Nadu Text Book Society by fixing the pay scale applicable to the Section officers and Assistants of Secretariat and the Board resolved to re-fix the pay scales and recover the excess amount paid and there was correction in respect of the Superintendents and Assistants in the original E.C.No.49/1973, which were not attested by any of the officials or by the members of the Executive Committee. The bona fides of the corrections having been doubted by the Chief Auditor, the salary was refixed in terms of the liberty granted by this Court and consequential recovery was ordered pursuant to which recovery was also effected. The learned Additional Advocate General further submitted that from 5th Pay Commission onwards the appellants are given the revised pay scale and therefore there is no much monetary loss to the appellants. It is also contended that the learned single Judge has given a finding with regard to the wrongful gain made by the appellants and upheld the order of the second respondent, which requires no interference. 5. We have considered the rival submissions made by the learned Senior Counsel appearing for the appellants as well as the learned Additional Advocate General appearing for the respondents and also perused the order passed by this Court in W.P.No.3685 of 1986 dated 12.12.1995. 6. For the audit objection, the D.O.letter dated 13.2.1983 submitted by the then Managing Director of the third respondent is https://hcservices.ecourts.gov.in/hcservices/ filed in the additional typed set of papers. It is stated therein that the entire service regulation including the scales of pay of staff of all categories as amended by the Finance Committee which included the higher scales of pay for the posts of Superintendents and Assistants of the Society, were approved by the Finance Committee and Executive Committee and Honourable the Chief Minister, who is the Chairman of the Board of Governors of the Tamil Nadu Text Book Society. The scoring and corrections of figures in the pay scales appearing at page 98 and other parts of the service regulation and insertion of typed table showing pay scales at page Nos.99 to 102 contained in E.C. Note No.49/1973 were due to the modifications made by the members of the Committee during discussion. It is further stated that in view of the above. the question of keeping in abeyance the sanction of increments and drawal of arrears in the above scales does not arise. 7. From the above D.O. letter it is evident that the appellants have not manipulated the records to change the scales of pay and derived benefit out of the same. The specific case of the third respondent before this Court in the earlier writ petition in W.P.No.3685 of 1986 disposed of on 12.12.1995 is also extracted. In paragraph 7 of the said order it is stated as follows: "The Managing Director, Tamil Nadu Text Book Society has stated that the audit objection need not be given consideration and recommended that the scales of pay incorporating the service rules may be implemented." It is further stated that at the time of implementation of the second Pay Commission, the Text Book Society has no separate regulations and therefore the Society adopted the Government scales of pay and when separate rules were framed, they were approved by the Board. In the Finance Committee meeting dated 23.10.1973 it was decided that the scales of pay incorporated in the service regulations should be given effect to from 1.10.1973. Consequently arrears have been paid after approval of the Finance Committee. 8. The audit objection with regard to the interpretation that the Superintendents of Tamil Nadu Text Book Society should not be compared with the ministerial service cannot be accepted and the Board of Governors are the final authority to decide the service conditions of the Society. Thus, a specific stand is taken by the second respondent before this Court, based on which the earlier writ petition filed by the appellants was allowed by this Court and in paragraph 19 of the order it is held as follows: "19. The above provisions clearly go to show that it is a self-contained and there are different Committees which are exercising their powers well within their limitations. The service conditions are governed by these provisions. Hence, so far as the affairs of the society and its administration is concerned, the same has got to be carried out https://hcservices.ecourts.gov.in/hcservices/ strictly in accordance with the provisions mentioned above. The matter is well within the jurisdiction of the authorities mentioned under the above memorandum of Association as well the rules framed under the Act. That being so, the State Government have no power or jurisdiction to interfere with the internal matters of administration and direct them to act in a particular manner. Neither the rules governing the society, nor the Memorandum of Association under which the Society was constituted empowers the government to interfere in the administration of the Society. There are different Committee to look after the affairs in addition to the Board of Governors and the Managing Director, Service regulations, the method of recruitment, pay scales have been approved and passed by the Executive Committee and the Chairman of the Board. Even before such approval by the executive Committee, it had been passed by the Finance Committee. The Auditor ought to have accepted the reply admitted by the Society and dropped the proceedings. Instead of doing so, he has referred the matter to the government which in turn passed the impugned proceeding. The Managing Director and the Secretary of the Society has a permanent roll to play and the accounts officer is the Secretary of the Finance Committee. The payment of salary is a matter of recurring features every month. When subsequent posts have been created and appointments were made, the authorities were very much alive to the situation of the revised scales. All those authorities could not have failed to notice or find out the fact if it was the act of mischief regarding over writing without the knowledge of anybody." The said finding given by the learned Judge has become final. In paragraph 21 of the said order it is observed that it will be open to the Society to rectify the defects, if any in the matter of pay scales. No liberty was given to the respondents to order recovery of the amount already paid. When the subsequent order dated 21.6.1996 was challenged, the learned single Judge had taken a contrary stand, which is totally in contradiction with the earlier order passed between the parties and gave a finding as if the appellants took advantage of the increments wrongfully and thereby caused wrongful loss to the State. 9. The learned single Judge also gave a finding that the documents are tampered. The said finding given by the learned single Judge, which is the subject matter of challenge in these writ appeals are bound to be set aside in view of the specific stand of the second respondent made in his D.O.letter dated 13.3.1983 as well as in the counter affidavit filed before this https://hcservices.ecourts.gov.in/hcservices/ Court in W.P.No.3685 of 1986, which was disposed of on 12.12.1995. Even in the counter affidavit filed in the writ petition before the learned single Judge in W.P.No.6307 of 1997, it is averred that corrections are not attested and therefore the Auditor raised audit objection. It is not stated in the counter affidavit that the appellants have made corrections and took undue advantage or wrongful gain. However, the learned single Judge presumed that the appellants have taken wrongful advantage by virtue of the corrections made. 10. In the absence of any specific charge framed against any officer and no proceedings having been initiated for the alleged corrections made and no finding given by the third respondent against any person, it cannot be held that the appellants have gained wrongfully while getting revision of scales of pay. In the absence of any misrepresentation or suppression of fact or manipulation of records on the part of the appellants and the third respondent having sanctioned and paid the Pay Commission benefits, it is not open to the second respondent to pass the impugned resolution, particularly in respect of recovery is concerned. As already observed by us, in the earlier round of litigation this Court has not granted any liberty to effect recovery of the amount already paid and liberty was given only to re-fix the scales of pay. 11. Insofar as re-fixation is concerned, this Court earlier granted liberty and the third respondent in his counter affidavit in paragraph 10 stated that the appellants are not entitled to get the pay scales of Secretariat staff and they are entitled to get the 5th Pay Commission benefits like that of the Superintendents and Assistants working in Government Departments other than Secretariat and the pay revised be treated as personal pay by ordering status quo. Tamil version of the relevant regulation dated 13.3.1996 is extracted in the counter affidavit. Clause 3 and 4 of the resolution dated 2.7.1996 read as follows: "3) The pay has been fixed for Superintendent and Assistants on par with Government Servants (other than Secretariat) on the basis of V Pay Commission. 4) The existing pay scales of the Superintendent and Assistants on par with Government Servants other than Secretariat are allowed to continue and resolved to send a report to Government accordingly." Hence there is no loss to the appellants due to re-fixation. 12. As rightly contended by the appellants, even assuming that the amount is wrongfully paid, whether the same can be recovered after a lapse of long period was considered by the Honourable Supreme Court in the decision reported in (2009) 3 SCC 475 (Syed Abdul Qadir v. State of Bihar) and in paragraph 59 it is held thus, "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on https://hcservices.ecourts.gov.in/hcservices/ their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." 13. Applying the above judgment to the facts of this case and having regard to the order passed by this Court in W.P.No.3685 of 1986 dated 12.12.1995, the order passed by the third respondent insofar as ordering recovery against the appellants is set aside. The amount already recovered from the appellants is ordered to be paid back to the appellants by the third respondent within a period of four weeks from the date of receipt of copy of this order. On the basis of our findings, we are of the view that the learned single Judge is not justified in ordering costs while dismissing the writ petition. Hence the said portion of the order is also set aside. The writ appeals are partly allowed with the above direction. There will be no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vr To 1. The Secretary to Government, School Education Department, Secretariat, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Ex-Officio Chairman/Secretary to Government, School Education Department, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. 3. The Managing Director, Tamil Nadu Text Book Corporation, College Road, Chennai – 600 006. 1 cc to M/s. M. Sriram, Advocate, Sr. 7239 2 ccs to Mr.P.Chandrasekaran, Advocate, SR. 7071, 5461 1 cc to M/s. K.R.A. Muthukrishnan, Advocate, SR. 7260 W.A.Nos.710 & 1109 of 2007 AKR (CO) kk 12/2 https://hcservices.ecourts.gov.in/hcservices/