1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.03.2011 CORAM: THE HONOURABLE MS.JUSTICE K.SUGUNA AND THE HONOURABLE MR.JUSTICE A.ARUMUGHASWAMY W.P.(MD).No.2819 of 2011 and M.P.Nos.1 and 2 of 2011 V.Sakthivel : Petitioner Vs. 1.The Principal District Judge, Principal District Court, Pudukkottai. 2.The Chief Accounts Officer, High Court, Madras 104. 3.The Joint Secretary to Government, Home (Courts-V) Department, Secretariat, Chennai. 4.The Principal Accountant General (Civil Audit), Lekha Pariksha Bhavan, A.G's Avenue, Press Colony, Opp.Mattuthavani Bus stand, Madurai. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari calling for the records relating to the order of the first respondent in his proceedings in official memorandum dated 03.02.2011 which is the consequential order of respondents 2 and 3 in their proceedings in ROC.No.3175/2004/BUD IIA dated 27.01.2011 and letter No.23129/Cts, V/2009-8, dated 03.12.2010 respectively and quash the same as arbitrary and illegal. For Petitioner : Mr.K.Baalasundaram O R D E R [Order of the Court was made BY K.SUGUNA, J] This Writ Petition is filed challenging the orders dated 03.12.2010, 27.01.2011 and 03.02.2011. 2. The case of the petitioner is that he was appointed as Amin with effect from 20.02.1984 and he was promoted as Junior Assistant with effect from 18.08.1984. In the post of Junior Assistant, with effect from 01.07.1987, his pay was fixed in the scale of Rs.610-20- 730-955-30-1075. With effect from 01.06.1988, V Pay Commission came into effect in the State of Tamil Nadu. In pursuance of the same, his pay was re-fixed in the scale of Rs.975-25-1150-30-1600. https://hcservices.ecourts.gov.in/hcservices/ 2 Subsequently, under Rule 4(3) of the Tamil Nadu Revised Scale of Pay Rules, 1989, [hereinafter referred to as "the Rules"] with effect from 01.06.1988, his pay was re-fixed at Rs.1025/-. Since his pay was stepped up, under Rule 4(3) of the Rules, as per G.O.Ms.No.57, Finance (Pay Commission) Department, dated 28.01.1991, the next increment, after completion of qualifying service from the date of stepping up of pay, was due on 01.04.1989. However, the petitioner was sanctioned with increment with effect from 01.07.1988, and therefore, audit objections have been raised, consequently, the impugned order have been passed. 3. According to the learned counsel for the petitioner, as per Clause 8(v) of G.O.Ms.No.666, Finance (Pay Commission) Department, dated 27.06.1989, which reads as follows:- "v).The next increment in the new scale of pay shall be due on the date normally due in the existing scale. The Government had sanctioned interim relief of Rs.70 per month which was ordered to be adjusted from out of arrears accruing from the pay revision. An illustration given in Appendix – V explains the procedure to be followed in this regard." the petitioner is entitled for yearly increment. Apart from this, as per G.O.Ms.No.57 Finance (Pay Commission) Department, dated 28.01.1991, the recovery orders passed by the respondents are prima facie illegal. Yet another argument advanced by the learned counsel for the petitioner is that the petitioner had not got the re-fixation by any misrepresentation, consequently, relying on the Judgments of the Hon'ble Supreme Court in Sahib Ram vs. State of Haryana and others reported in 1995 Supp (1) SCC 18 at ParagraphNo.5, which reads as follows:- "5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." in Kerala State Road Transport Corporation v. K.O.Varghese reported in 2003 (1) SCC 293 at Paragraph No.36, which reads as follows:- "36. In addition to the general questions raised in other appeals, one other aspect which needs to be noted is that some amount was sought to be recovered from the https://hcservices.ecourts.gov.in/hcservices/ 3 respondents on the ground that they were paid amounts in excess of their legal entitlements. The attempt to recover the amount was resisted by the respondent employees who filed writ petitions before the High Court which at the first instance directed disposal of the representations filed by them. On fresh consideration, orders were passed for recovery. The ground taken for directing recovery was that there was wrong fixation of pay. That was again challenged before the High Court. Taking note of the fact that pay was fixed in 1974 and the writ petitioners were not responsible for any wrong fixation of pay, the recovery of the amount was held to be inequitable by the learned Single Judge of the High Court. The writ appeal was also dismissed. In addition to the questions raised in other appeals, the Corporation has assailed the directions of the High Court not to recover. On hearing learned counsel for the parties and taking note of the peculiar circumstances noticed by the High Court, we do not find any scope for interference with that part of the High Court’s directions which related to recovery of the amounts allegedly paid extra to the employees. So far as other issues are concerned, this shall be examined by the High Court afresh as directed." and In Babulal Jain vs. State of M.P and others reported in 2007 (6) SCC 180 at Paragraph No.15, which reads as follows:- "15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000 has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal.", the learned counsel for the petitioner has sought for setting aside of the impugned orders. 4. We have considered the above submission made by the learned counsel for the petitioner. 5. It is not in dispute that under Rule 4(3) of the Rules, the pay of the petitioner was stepped up with effect from 01.06.1988. The wordings used under rule 4(3) of the Rules read as follows:- "3. If the pay as fixed in the officiating post under sub-rule (1) is lower than the pay fixed in the substantive post, it shall be fixed at the stage next above the substantive pay. Where the pay of a Government Servant who https://hcservices.ecourts.gov.in/hcservices/ 4 has moved from a lower post to a higher post or from an Ordinary grade to a Selection grade is fixed at a stage lower than that would have been admissible in the lower post or the Ordinary grade (if he is in the Selection grade post) his pay shall be stepped up to the stage equal to the pay in the lower post or grade, or if there is no such stage to the next higher stage." 6. Admittedly, basing on the above Rule, the pay of the petitioner was re-fixed at Rs.1,025/-. The stepping up of pay was done as per G.O.Ms.No.57 Finance (Pay Commission) Department, dated 28.01.1991. Paragraph No.4 of the said Government Order, which deals with stepping up of pay, reads as follows:- "4. Government also direct that in case, on re- fixation of pay under Rule 4(3) of the Tamil Nadu Revised Scale of Pay Rules, 1989, junior happens to draw more pay than senior, then the pay of the senior shall be stepped up on par with that of the junior in that case, the next increment for the senior shall be granted, after completion of the requisite one year period of service from the date of re-fixation of pay. Such re-fixation of pay of the seniors on par with their juniors shall be done by the appointing authorities concerned." 7. From a reading of the above Government Order, it is clear that the concerned individual is entitled for next increment only after completion of the requisite one year period of service from the date of re-fixation of pay. But, admittedly, in the case on hand, the stepping up of pay was done with effect from 01.06.1988 and the petitioner was given the next increment with effect from 01.07.1988. Having utilized the benefit of Rule 4(3) of the Rules and got the stepping up of pay as per G.O.Ms.No.57 Finance (Pay Commission) Department, dated 28.01.1991, the petitioner, in our considered view, is not entitled for the next increment for the same year. 8. As per clause 8(v) of G.O.Ms.No.666, Finance (Pay Commission) Department, dated 27.06.1989, when the pay of an individual is normally fixed, certainly, one is eligible for next increment for the next year and every year, one is eligible for one increment, unless the same is stopped by way of punishment. But, here is a case, where the benefit of stepping of pay invoking Rule 4(3) was given and re- fixation was done, and therefore, we are of the considered view that the orders under challenge, are in accordance with law. 9. As far as the Judgment reported in 1995 Supp (1) SCC 18 at ParagraphNo.5, is concerned, it is a case, where promotion was given wrongly and subsequently the same was cancelled, consequently, the Hon'ble Supreme Court came to the conclusion that the promotion was not given based on any misrepresentation on the part of the appellant therein and set aside the order of recovery. https://hcservices.ecourts.gov.in/hcservices/ 5 10. As far as the Judgment reported in 2003 (1) SCC 293 at Paragraph No.36 is concerned, it relates to pension. 11. As far as the Judgment reported in 2007 (6) SCC 180 at Paragraph No.15 is concerned, the appellant therein had discharged higher responsibilities and he had not obtained higher salary by committing any fraud or misrepresentation, consequently, by setting aside the order of recovery, the Hon'ble Supreme Court had directed that the excess amount paid to the appellant therein need not be recovered. 12. Here is a case, where the wrong fixation was done and basing on the same, re-fixation orders were passed, consequently, the orders of recovery have been passed, and therefore, relying on the Judgments, referred to above, the petitioner is not entitled for the relief sought for. 13. In the result, the Writ Petition is dismissed. However, considering the age of the petitioner, the respondents are directed to implement the order of recovery in easy installments. No costs. Consequently, connected Miscellaneous Petitions are also dismissed. Sd/ Assistant Registrar(P&A) /True Copy/ Sub Assistant Registrar To 1.The Principal District Judge, Principal District Court, Pudukkottai. 2.The Chief Accounts Officer, High Court, Madras 104. 3.The Joint Secretary to Government, Home (Courts-V) Department, Secretariat, Chennai. 4.The Principal Accountant General (Civil Audit), Lekha Pariksha Bhavan, A.G's Avenue, Press Colony, Opp.Mattuthavani Bus stand, Madurai. +1cc to Mr.K.Baalasundaram, Advocate, Sr.No.8124 +1cc to Mr.D.Venkatesh, Advocate, Sr.No.7986 +one cc to Special Government Pleader, Sr.No. 8002 ORDER MADE IN W.P.(MD).No.2819 of 2011 NB/sma/10.6.2011/8c/5p 23.03.2011 https://hcservices.ecourts.gov.in/hcservices/