IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2010 CORAM THE HONOURABLE MR. JUSTICE T.RAJA W.P.No. 45238 of 2006 N.Siddayian ... Petitioner -vs- 1.The Additional Director of Survey and Land Records, Chepauk, Chennai-5. 2.The Assistant Director of Survey and Land Records, Salem-7. 3.The Principal Accountant General (A. & E.), Tamil Nadu, Chennai-18. 4.The Commissioner and Director of Survey and Settlement, Chepauk, Chennai-5. ... Respondents PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.3180 of 2000 from the file of Tamil Nadu Administrative Tribunal, to call for the records of the respondents relating to Mu.Mu.3793/98, dated 19.02.1999 and to quash the same. For Petitioner : Mr.M.Ravi For Respondents : Mr.S.Gopinathan, Additional Government Pleader for R1, R2 and R4 Mr.V.Vijay Shankar for R3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R On abolition of the Tribunal, the Original Application in O.A.No.3180 of 2000 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court and re-numbered as W.P.No. 45238 of 2006. 2.This petition has been filed by the petitioner to quash the order passed by the respondents relating to Mu.Mu.3793/98, dated 19.02.1999. 3.The petitioner is challenging the impugned order of recovery passed without issuing any notice to the petitioner by violating the principles of natural justice and seeking to recover personal pay @5% of the basic pay computed as on 01.06.1982. 4. The petitioner, while serving as Draftsman was temporarily promoted as Senior Draftsman with effect from 01.10.1978 under the Flexible Complementary Scheme and he was also granted scale of pay applicable to the post of Senior Draftsman. Subsequently, as per the recommendation of IV Pay Commission, the scale of pay to the post of Senior Draftsman was Rs.780-1385, which was revised as Rs.1400-2600 with effect from 01.06.1988. While so, as per G.O.Ms.No.375, P&AR, dated 22.10.1993, the period from which Senior Draftsman served under Flexible Complementary Scheme from 01.10.1978, was allowed to be taken into account for awarding selection grade in the post of Senior Draftsman. On that basis, the Senior Draftsman were permitted to advance to selection grade from 01.10.1998 and they were placed in selection grade scale of pay of Rs.1600-2600. The petitioner was also permitted to advance to selection grade for the post of Senior draftsman from 01.06.1988. As per G.O.Ms.664, Finance (PC) Department, dated 24.08.1992, the petitioner has drawn pre-revised scale of pay of Rs.905-1545 and having moved over to Rs.1600-2660, he was also granted personal pay @ 5% of basic pay computed as on 01.08.1992 and since then he has been drawing the personal pay till the date of his retirement. At this juncture, the second respondent by his proceedings dated 04.08.1995 informed the petitioner and certain other similarly placed employees that they are not eligible for 5% personal pay and therefore, the amount already paid to them would be recovered. Subsequently by way of clarifications, the Commissioner and Director of Survey and Settlements by order dated 21.06.1996 informed all the Subordinate Officers that persons who worked as selection grade Senior Draftsman prior to 27.06.1989, are eligible for 5% personal pay. Subsequently, the Commissioner and Director of Survey and settlement, Chennai by order dated 12.12.1998 cancelled the instructions issued on 21.06.1996. Subsequently the second respondent issued a common order dated 19.02.1999, directing https://hcservices.ecourts.gov.in/hcservices/ the recovery of the amounts paid to the certain selection grade draftsman including the petitioner claiming 5% of personal pay from 01.08.1992 till his retirement which is coming to Rs.8389/-. The said order was under challenge by the petitioner. 5.On the other hand, the learned Additional Government Pleader submits that the petitioner was already informed by the respondent by his proceedings A2/12829/95, dated 04.08.1995 that he was not eligible for 5% similar pay and therefore, the amount already paid @5% personal pay, would be recovered. Subsequently, the impugned order came to be passed. Therefore, the petitioner cannot say that he was issued with impugned order without prior notice. On appointment to a post, a Government servant is placed in the ordinary grade scale as stated. But, after 10 years of service, selection grade is awarded and for another 10 years of service special grade is awarded. The Petitioner on 01.08.1992 was holding the post of selection grade in Senior draftsman in the scale of pay of Rs.905-1545 and the relevant ordinary grade is Rs.780-1385. Therefore, only in case where the ordinary grade of scale is Rs.905-1545/- and moving over to Rs.1600- 2660, the 5% personal pay is granted. But, the petitioner was drawing the pay in the selection grade scale and his claim was based on the impression that, irrespective of the grade just by drawing pay in a particular scale of pay, he is entitled to the 5% personal pay cannot be the intention of the Government as spelt-out in the G.O.Ms.664, Finance (PC) Department, dated 24.08.1992. It was further contended that the respondent has issued the impugned order only on the basis of G.O.Ms.No.664. Unless the said Government order is challenged, the impugned order cannot be assailed and on that basis prayed for dismissal of the writ petition. 6. Heard the learned counsel on either side. 7. The Government of Tamil Nadu by G.O.Ms.664, Finance (PC) Department, dated 24.08.1992, decided to grant the personal pay @5% of the basic pay to all the categories of staff in the following scale of pay as on 01.08.1992. "i)All categories of staff in the pre revised scales of pay of Rs.475-775 moving over to the revised scale of pay of Rs.775-1030. ii)All categories of staff in the pre revised scale of pay of Rs.610-1075 moving over to the revised scale of pay of Rs.950-1500 of Rs.975-1660. iii)All categories of staff in the pre revised scale of pay of Rs.705-1230 moving over to the revised scale of pay of Rs.1200-2040. https://hcservices.ecourts.gov.in/hcservices/ iv)All categories of staff in the pre revised scale of pay of Rs.905-1545 moving over to the revised scale of pay of Rs.1600-2660." 8.Paragraph 5 of the said Government Order is as follows. "5.The personal pay is sanctioned under exceptional circumstances as an one time transitional measure for all the categories in the specified scales. It will apply also to the employees in the revised selection Grade and Special Grade of these categories. The personal pay will be computed as on 01.08.1992 and will be continued as such in the event of promotion within these categories." 9. The Government Order clearly states that the personal pay is sanctioned under exceptional circumstances as an one time transitional measures for all the categories in the specified scales. It will also apply to the employees in the revised selection grade and special grade of these categories. Even if any promotion occurred in these categories, the said Government Order further states that the personal pay should be computed as on 01.08.1992. 10. The petitioner falls in Class II of G.O.Ms.No.664, since the petitioner has not mentioned anywhere in the evidence that he is covered by any of the Clauses mentioned in the G.O.Ms.No.664 so as to claim the benefit of the Government Order. The petitioner in his evidence clearly mentioned that he was drawing pre-revised scale of Rs.905-1545 and further moved over to Rs.1600-2660 which is covered by Clause 4 of the Government Order. Therefore, he was granted the personal pay @5% of basic pay computed as on 01.08.1992 on the basis of G.O.Ms.664, Finance (PC) Department, dated 24.08.1992. As the petitioner was already paid with 5% of personal pay and basic pay computed as on 01.08.1992, it is not open to the respondents to pass the impugned order seeking to recover on the ground that he is not entitled to have the benefit of G.O.Ms.No.664. Therefore issuing notice calling upon him to explain as to why he should not be recovered the excess amount is expecie untenable. Admittedly, this is a case where the impugned order came to be passed without notice. Further the G.O.Ms.No.664 also states that the personal pay under exceptional circumstances as an one time transitional measure is sanctioned for all the categories in the specified scales. Not only that, the personal pay was to be computed even in the event of promotion within these categories. 11. Besides the petitioner was allowed to draw the personal pay till the date of his retirement only on the basis of the G.O.Ms.No.664. When the respondent themselves fixed the revised scale of pay on the basis of G.O.Ms.No.664 and allowed the petitioner https://hcservices.ecourts.gov.in/hcservices/ to enjoy the benefit, thereafter he is estopped from recovering the same, without issuing prior notice. Particularly, when there is no allegation that the petitioner had made misrepresentation and received the personal pay wrongfully, the impugned order seeking to recover @5% of the personal pay is liable to be set aside. 12. In a similar circumstance, the Honourable Apex Court also in the case of Sahib Ram v. 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. 13. In view of this, this Court, having seen the impugned order which came to be passed without notice, holds the same as a clear violation of principles of natural justice. Accordingly, this Court, while setting aside the impugned order directs the second respondent to issue fresh notice to the petitioner in respect of re-fixation of the salary in accordance with law. With these above observations, this writ petition is disposed of. No costs. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar mps To 1.The Additional Director of Survey and Land Records, Chepauk, Chennai-5. 2.The Assistant Director of Survey and Land Records, Salem-7. 3.The Principal Accountant General (A. & E.), Tamil Nadu, Chennai-18. https://hcservices.ecourts.gov.in/hcservices/ 4.The Commissioner and Director of Survey and Settlement, Chepauk, Chennai-5. 1 cc to Government Pleader, Sr.No.63542 1 cc to Mr.V.Vijay Shankar, Advocate, Sr.No.63585 1 cc to Mr.M.Ravi, Advocate, Sr.No.63596 W.P.No. 45238 of 2006 BVR {CO} TP/15.12.2010. https://hcservices.ecourts.gov.in/hcservices/