IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.08.2009 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.13985 of 2008 R.Rajasekar ..Petitioner vs. 1. The Secretary to Government, School Education Department, Secretariat, Chennai 600 009. 2. The Joint Director (Higher Secondary Education), Office of the Director of School Education, DPI Complex, College Road, Chennai 600 006. ...Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the first respondent in Letter No.22261/V.E./07-4 dated 28.12.2007, quash the same and consequently direct the respondents to restore the pay scale of the petitioner to Rs.8550/- from 01.01.1996 on the scale of Rs.8000-275-13500/- and to refund the recovered amount of Rs.21,978/- within such time with interest from the date of remittance till refund with all consequential monetary benefits. For Petitioner : Mr.P.Srinivas For Respondents : Mr.Manibharathi, Government Advocate (Education) O R D E R By consent of the learned counsel on either side, the writ petition itself is taken up for final disposal. 2. The petitioner has filed this writ petition challenging the proceedings of the first respondent in Letter No.22261/V.E./07-4 dated 28.12.2007 and for a consequential direction to the respondents to restore his pay scale to Rs.8550/- from 01.01.1996 on the scale of Rs.8000-275-13500/- and to refund the recovered amount of Rs.21,978/- https://hcservices.ecourts.gov.in/hcservices/ within such time with interest from the date of remittance till refund with all consequential monetary benefits. 3. The brief facts leading to this case are set out as under : (i) The petitioner was initially selected for appointment to the post of P.G. Assistant and he joined service on 21.08.1981 and his service was regularized with effect from 28.12.1982. He was drawing basic pay of Rs.2,600/- (2575+25 pp) in the pre-revised scale of pay of Rs.2200-75-2800-100-4000 as on 01.01.1996. Based on the 6th pay commission recommendations, his pay was revised and fixed as Rs.8,550/- in the revised scale of pay of Rs.8,550/-. In the year 2001, Audit was conducted in the petitioner's school and in the Audit Report, it was pointed out that his pay was wrongly fixed by the School at Rs.8,550/- instead of Rs.8,275/- and therefore, the excess amount of Rs.275/- per month paid to him from 01.01.1996 was ordered to be recovered and credited to the Government Account. (ii) It is the case of the petitioner that as per the Government Order in G.O.Ms.No.162, Finance (Pay Cell) Department dated 13.04.1998 and Rule 4(1)(b)(iii)(b) of Tamil Nadu Revised Scales of Pay Rules, 1998 r/w Table 17 of Appendix II, his pay should be fixed at Rs.8,550/- and the school authorities have rightly fixed his pay as Rs.8,550/-, but the Auditing Officials have misconstrued the Government Order and directed reduction of pay and recovery of excess payment. Immediately, the petitioner preferred an appeal on 26.10.2001 to the Authority concerned to cancel the Auditing Report insofar as he is concerned and re-fix the pay as Rs.8,550/-; but, the School Education Department as well as the appellate authority have rejected his appeal without any valid reasons. (iii) After preferring the appeal, the petitioner made written representations to the respondents on 19.03.2002 and 29.09.2004 and requested them to consider his genuine case of re- fixation of pay in view of the Government Order and relevant Rules; but the said appeal and written representations were rejected. Pursuant thereto, the petitioner made further representation on 26.04.2007 to the 1st respondent and requested him to consider his case in accordance with Rule. (iv) Finding no disposal even on his further representation, the petitioner moved this court in W.P.No.22865 of 2007 for a direction to consider his request as per the relevant Rules and this court, by an order dated 06.07.2007 directed the first respondent to consider the petitioner's representation and pass orders on the same within a period of six weeks from the date of receipt of a copy of the said order. Thereafter, the first respondent passed orders on 28.12.2007, rejecting the request of the petitioner. The said order is under challenge in this petition on the ground that the first respondent https://hcservices.ecourts.gov.in/hcservices/ has passed the order without application of mind, without reckoning the scale of pay along with the personal pay as shown in all cases. 4. The respondents have filed counter stating that in Rule 4(b)(1) III (b), there is no mention of Personal Pay and stages alone are to be taken into account and that the petitioner has not reached the 7th stage. He is receiving the pay at the 6th stage only with personal pay of Rs.25/-. The person who reaches the 7th stage alone is eligible for the benefit of two increments bunching benefit and as such, the petitioner is not entitled for the benefit of two increments in bunching benefit. According to the respondents, there is a separate rule for inclusion of Personal Pay (Note 2 under Rule 2 (ii)(a)) and personal pay should not be taken in to account in bunching benefit Rule 4(b) III a, b, c. 4a. In the case of the petitioner, when the rule Note 2 under Rule 2 (ii) a is given effect as he is drawing emoluments of Rs.7,846/-, he is eligible for fixation of pay at Rs.8000/- minimum of the time scale only and he is drawing a basic pay of Rs.2,575 at sixth stage in the existing scale, he is eligible for the benefit of one increment and as such, he is eligible for fixation of Rs.8275/- (8000-275-13500). In the clarification issued in Government Letter No.75785/PC/99-1 dated 28.10.1999, it is stated that the pay should be fixed at Rs.8275/- only. It is also stated therein that if the pay is fixed at Rs.8550/-, such fixation should be revised and the excess pay allowed to the employees concerned has to be recovered forthwith. 4b. It is further stated in the counter affidavit that an audit objection has been raised based on the Tamil Nadu Revised Scale of Pay Rule, 1998 and a subsequent clarification was issued in Government Letter dated 28.10.1999; hence, the petitioner is not eligible for fixation of pay at Rs.8,550/- (8000-275-13500). 5. On the above background of pleadings, I have heard the learned counsel on either side. 6. Learned counsel for the petitioner would contend that the order impugned in the writ petition is passed without even affording an opportunity of hearing to the petitioner and without even serving a notice on him. In support of his contention, learned counsel for the petitioner has relied on a decision of the Supreme Court reported in (2007) 6 SCC 180 (Babulal Jain vs. State of M.P. and others). Relevant portion of the said decision is extracted hereunder : "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 https://hcservices.ecourts.gov.in/hcservices/ 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." 7. On the other hand, learned counsel for the respondents has submitted that the impugned order has been passed in the light of the clarification letter dated 28.10.1999 passed by the Government as per Rule Rule 4(b)(1) III (b) and there is no infirmity with the same. 8. A perusal of the impugned order dated 28.12.2007 passed by the first respondent would reveal that it is passed based on the audit objection and the proceedings initiated to recover the excess amount paid to the petitioner is without notice to the petitioner and without even affording an opportunity of hearing to him. Had the respondents relied on the audit objection and passed the impugned order, then they would have given an opportunity of hearing to the petitioner by issuing proper notice to him, calling for explanation as to why his pay should not be reduced or excess amount be recovered. But, the respondents have not done so with regard to the petitioner. 9. Therefore, in the absence of any notice being issued to the petitioner and as the petitioner was not even afforded an opportunity of hearing, the impugned proceedings dated 28.12.2007 passed by the first respondent is set aside. However, this order will not prevent the respondents from proceeding further by issuing a notice to the petitioner and affording an opportunity of hearing to him. The writ petition is allowed. No costs. Consequently, connected M.P.No.1 of 2008 is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar Abe To 1. The Secretary to Government, School Education Department, Secretariat, Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Joint Director (Higher Secondary Education), Office of the Director of School Education, DPI Complex, College Road, Chennai 600 006. + 1 c.c. to Mr. P. Srinivas, Advocate. S.R.No.35234. + 1 c.c. to The Government Pleader. S.R.No.25468. Order in W.P.No.13985 of 2008 NSM (CO) GSK 18.08.2009. https://hcservices.ecourts.gov.in/hcservices/