IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 01-08-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.20091 of 2006 O.A.No.7684 of 1995 K.Palaniappan .. Petitioner. Versus 1.The Accounts Officer (A & E), Office of the Accountant General, Tamilnadu, Anna Salai, Madras-18. 2.The Additional Assistant Educational Officer, Tiruchengode, Salem District. 3.The Commissioner, Tiruchengode Municipality, Tiruchengode, Salem District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to set aside the three orders of the 1st respondent herein all, dated 19.10.1995, and made in proceedings No.AG(A&E)/Pen.12/III/P29-350/95, ordering reduced payment of pension and gratuity to the applicant, and the 1st and 2nd respondents may be directed to comply with the orders contained in proceedings No.AG(A&E)/PENSION 12/2/P49-764/94-95/AR/1519, dated 23.1.95, on the file of the first respondent and pay the pension and gratuity accordingly; direct respondents 2 and 3 herein to pay the eligible and accumulated provident fund with all interest accrued thereon; and direct the respondents herein to pay interest at 12% p.a. as per the orders of the Government of Tamilnadu for the delayed payment of gratuity. For Petitioner : Mr.S.Wilson For Respondents : Mr.V.Vijayshankar (R1) Mr.B.K.Girish Neelakantan Additional Government Pleader (R2 & R3) O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner has stated that he is a retired Headmaster. He had retired while he was serving as a Headmaster at Aringar Anna Municipal Middle School, Kuttapalli Colony, Tiruchengode, Salem District. Initially, the petitioner was appointed as a Higher Grade Teacher in the District Board, Salem, on 1.10.59. On 15.7.60, he was appointed as a Secondary Grade Elementary School Headmaster. On 1.6.84, he was appointed as a Middle School Secondary Grade Headmaster. He had obtained the qualification of Tamil Pandit, in the year 1967. He had passed his Bachelor of Arts Degree in Literature in the year 1979 and B.Ed., Degree in the year 1983. He had worked in various schools under the control of the third respondent. From 1.6.84, till his retirement, on 31.5.95, he had worked as the Headmaster of Arignar Anna Middle School, Kuttapalli Colony, Tiruchengode. Though his date of retirement was 31.1.95, it was extended till 31.5.95, as per the policy of the Tamilnadu Government. The petitioner had put in 35 years of service and he has obtained Selection Grade and Special Grade in the post of Secondary Grade Headmaster, on his completing 20 years of service. 3. It has been further stated that, pursuant to the constitution of the Fifth Pay Commission, the pay of the Headmasters of Middle Schools were fixed. A new entrant to the post of Headmaster would be fixed in the pay of scale of Rs.1640/-. A Selection Grade headmaster would be fixed in the scale of pay of Rs.2,000/- and a Special Grade Headmaster in the scale of pay of Rs.2200/-. The petitioner's pay was fixed in the scale of pay of Rs.2200/-, on 1.6.88, after the implementation of the recommendations of the Fifth Pay Commission report. Accordingly, his pay was fixed at Rs.2240/-, on 28.12.89, by the third respondent. The petitioner had further stated that on 20.10.92, the second respondent had fixed the pay of the petitioner at Rs.2425/- to Rs.2725/- and his last basic pay was fixed at Rs.2900/-, on 7.12.94, after granting him his annual increment. On attaining superannuation, on 31.1.95, the pension papers were sent to the first respondent for the sanctioning of pension and other pensionary benefits. The pension of the petitioner was fixed at Rs.1605/- and after commutation of pension, the pension was Rs.1070/- by paying him a sum of Rs.67154/-. The gratuity payable is Rs.57,420/-. The third respondent has to pay pension for 33 years and the second respondent is to pay the pension for two years. Based on the recommendations of the second respondent and the other recommendations and clarifications, the first respondent had fixed the pension of the petitioner at Rs.1605/- and on commuting a sum of Rs.535/-, it was Rs.1070/- and the commutation amount was Rs.67,154 and the Death-cum-Retirement Gratuity was Rs.57,420/-, by an order, dated 23.1.95. However, based on an anonymous petition, the first respondent had passed an order, on 28.2.95, directing the second respondent not to sanction the pension and the gratuity to the petitioner. Thereafter, after obtaining the necessary clarification, the first respondent had passed the impugned order, dated 19.10.95, fixing the pension of the petitioner at Rs.1444/- and after commuting Rs.481/-, the pension payable is Rs.963/- and the commuted value is Rs.60,376/- and the gratuity is Rs.51,480/-. Aggrieved by https://hcservices.ecourts.gov.in/hcservices/ the order passed by the first respondent, the petitioner had filed an original application before the Tamilnadu Administrative Tribunal in O.A.No.7684 of 1995, which has been transferred to this Court and re-numbered as W.P.No.20091 of 2006. 4. In the counter affidavit filed on behalf of the first respondent, it has been stated that the petitioner had retired from service as Headmaster, Panchayat Union Middle School, Koothapalli, Thiruchengode, on 31.1.95. On receipt of pension proposals, the service details of the petitioner were scrutinised and it was noticed by the first respondent that the Special Grade in Headmaster Middle School in the Scale of pay of Rs.905-1545 was granted to him, with effect from 1.10.84. Further, his pay was fixed, with effect from 1.6.88, in the corresponding scale of Rs.2200-4000, contrary to the relevant Government Orders issued by the Government. It has been further stated that the petitioner was promoted as a Headmaster Middle School, with effect from 1.10.84 only, but was awarded Special Grade in that post, with effect from 1.10.84 itself. The employee is entitled to Selection Grade on completion of 10 years of service in a post and for Special Grade on his completing another 10 years of service in Selection Grade or a total of twenty years in a post. Therefore, the irregular fixation of pay was communicated to the second respondent and the District Educational Officer, Sankari, had stated that Special Grade was wrongly awarded to the petitioner and that it would be rectified. As no further action was taken by the Department, the first respondent herein, in order to avoid hardship to the petitioner, had authorised pensionary benefits with reference to the pay of Rs.2600/-, pending further communication from the Department. 5. It has been further stated that the petitioner who was not a Middle School Headmaster, on 2.10.70, is not eligible to count his Elementary School Headmaster and Selection Grade Secondary Grade Teacher service for the purpose of Selection Grade/Special Grade in Headmaster Middle School cadre. As the petitioner was promoted as Headmaster only in the year 1984, the grant of Special Grade counting the lower post service is contrary to the Government orders and the instructions issued by the Government. The benefit allowed to those who were Headmasters of Middle School, as on 2.10.70, has been erroneously granted to the petitioner, who had never officiated, as such, before 1984. Therefore, the petitioner is not entitled to Special Grade in the post of Headmaster Middle School by virtue of his service as a Headmaster Elementary School for more than 20 years. By virtue of his service as Headmaster Elementary School, he is entitled to Special Grade in the Elementary School Head Master post, with effect from 1.6.88. Therefore, his pay has been accordingly refixed on 1.6.88 at Rs.2120 in the scale of Special Grade Headmaster Elementary School i.e. 2000-3200. Regulating the pay as such, pensionary benefits were also authorised with reference to the correct pay of Rs.2600/- and no recovery of excess amount paid had been ordered by the first respondent as it has been erroneously fixed by the Department. 6. At this stage of the hearing of the writ petition, the https://hcservices.ecourts.gov.in/hcservices/ learned counsel appearing on behalf of the petitioner had placed before this Court, an order of this Court, dated 27.6.2008, made in W.P.Nos.25067 and 26103 of 2006. Paragraph 4 of the order reads as follows: "4. In view of the stated position, the respondents shall consider the case of the petitioners for pensionary benefits by counting their service in the secondary grade category as well as the Primary School Headmaster category along with Middle School Headmaster post for the purpose of pensionary benefits. The respondents are directed to consider the same within a period of eight weeks from the date of receipt of a copy of this order." 7. Similarly, a Division Bench of this court, by its order, dated 28.2.2008, made in W.P.Nos.37855 and 37997 of 2003, had ordered as follows: "Heard the learned counsel appearing for the parties. 2. The present contesting respondents filed O.A.Nos.2927 and 2944 of 1998, claiming that they should be granted the scale available for special grade and the said original applications were allowed by the Tribunal. Subsequently, because of the non-implementation of the order passed by the Tribunal, contempt application Nos.337 and 339 of 2002 were filed, wherein the following order was passed:- "The applicants have succeeded in getting an order from this Tribunal directing respondents to grant them all special grade. Learned Additional Standing Counsel undertakes that the order will be implemented within two weeks and arrears will all be paid within four weeks thereafter. In view of the submission made by the counsel for the respondents, both the Contempt Applications are ordered to be closed." 3. Instead of complying with such direction and in spite of undertaking given, the petitioners have filed the present writ petitions after lapse of about more than one year. It is also brought to our notice that many such similar matters have been implemented by the Government and many of the writ petitions have been dismissed. 4. Having regard to all these aspects, we do not find any scope to interfere with the order passed by the Tribunal and the writ petitions are accordingly dismissed. Consequently, the connected W.P.M.Ps. are also dismissed. No costs." 8. Relying on the above decisions, the learned counsel for the petitioner had submitted that it would suffice if this Court may be pleased to pass a similar order in the present writ petition. 9. The learned counsel appearing on behalf of the respondents has no objection for this Court passing such an order. 10. In view of the submissions made by the learned counsels https://hcservices.ecourts.gov.in/hcservices/ appearing on either side, the respondents are directed to consider the case of the petitioner, for the purpose of granting of pensionary benefits, by counting his service in the Secondary Grade category, as well as the Primary School Headmaster category, along with the service rendered in the post of Middle School Headmaster. The respondents are directed to consider the claims of the petitioner and pass appropriate orders thereon, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petitions are ordered accordingly. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Accounts Officer (A & E), Office of the Accountant General, Tamilnadu, Anna Salai, Madras-18. 2.The Additional Assistant Educational Officer, Tiruchengode, Salem District. 3.The Commissioner, Tiruchengode Municipality, Tiruchengode, Salem District. +1cc to Mr.D.Peter Francis,Advocate Sr 41906 +1cc to Mr.V.Vijay Shankar,Advocate Sr 42140 RS (CO) km/19.8. Writ Petition No.20091 of 2006 https://hcservices.ecourts.gov.in/hcservices/