IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-06-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION No.30695 OF 2006 and M.P.NO.1 OF 2006 P. Lingan .. Petitioner Vs. 1. The Union of India, Rep. by the Secretary, Ministry of Defence Production & Supply, DHQ (PO), New Delhi 110 011. 2. The Chairman, Ordinance Factory Board, 10-A, S K Bose Road, Kolkatta 700 001. 3. The General Manager, Cordite Factory, Aruvankadu, Nilgris 643 202. 4. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorari to call for the records of the fourth respondent pertaining to the order made in O.A.No.516 of 2005 dated 5.5.2006 and quash the same and allow the original application No.516/2005. For Petitioner : Mr.N. Chandra Raj For Respondent-1 : Mr.P. Wilson, Asst. Solicitor General For Respondent-3 : Mr.K. Sridhar, SCCG - - - https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T P.K. MISRA, J The facts in brief are as follows :- The petitioner was appointed as Laboratory Assistant in the scale of pay of Rs.1200-30-1500-EB-40-2040 in Cordite Factory Higher Secondary School. Previously the post of Lab Assistant in such organization was treated at par with the teachers of primary school and the pay scale was also same under the 3rd and 4th Central Pay Commission. 5th Central Pay Commission fixed the salary of the primary school teachers in the scale of Rs.4500-125-7000, which was accepted by the Central Government. On the basis of the above, the scale of pay of Lab Assistant in the Office of the third respondent was revised with effect from 1.1.1996 in the scale of Rs.4500-125- 7000. Subsequently, however, a communication was received that Lab Assistant in Ordnance Factory Schools were eligible only for the replacement pay scale of Rs.4000-100-6000. Consequently, there has been downward revision of pay as well as recovery of excess amount paid. The petitioner filed O.A.No.516 of 2005. In such O.A., the Department took the stand that in 5th Central Pay Commission there was no recommendation for fixing the salary of Lab Assistant in the scale of pay of Rs.4500-125-7000 and as a matter of fact the scale of pay of Lab Assistant in Kendra Vidayalaya Schools has been fixed at Rs.4000-100-6000 and, therefore, the salary of such Lab Assistant in the primary schools of Ordnance Factories has to be fixed in the scale of pay of Rs.4000-100-6000 and since there was excess payment, there was a direction for recovery. 2. The Tribunal has concurred with the contention of the Department that Lab Assistants were not entitled to get the same scale of pay as primary school teachers and fixation of their scale of pay at Rs.4500-125-7000 cannot be justified. The Tribunal further held that excess payment was required to be recovered. Such decision of the Tribunal dismissing the O.A. is in question, in the present writ petition. 3. Learned counsel for the petitioner has first contended that since Lab Assistants in Ordnance Factories were all along treated at par with primary school teachers, their scale should be fixed at par after 5th Central Pay Commission. This aspect has been analysed and rejected by the Tribunal. 4. The Supreme Court in a recent decision reported in (2007) 8 SCC 279 (S.C. CHANDRA AND OTHERS v. STATE OF JHARKAND AND OTHERS), has dealt with the question relating to scope of judicial review in the matters relating to fixation of scale of pay. In the said decision it was observed as follows :- https://hcservices.ecourts.gov.in/hcservices/ "35. In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay)." 5. Having regard to the limited scope of interference in such matters and having considered the reasonings given by the Tribunal, we do not find any scope to interfere with such aspect. The main contention of the petitioner is therefore liable to be rejected. 6. The other contention is relating to recovery of the amount already paid stands on a better footing. It is not the case of the Department that the petitioner himself has managed to obtain higher salary by making any false representation. The salary in the scale of pay applicable to primary teachers was paid by the authorities concerned not on the basis of any representation, far less any misrepresentation, made by the petitioner. In such a scenario, the ratio of several decisions of the Supreme Court such as (1994) 2 SCC 521 (SHYAM BABU VERMA AND OTHERS v. UNION OF INDIA AND OTHERS), 1995 Supp (1) SCC 18 (SAHIB RAM v. STATE OF HARYANA AND OTHERS) and (2006) 11 SCC 492 (PURSHOTTAM LAL DAS AND OTHERS v. STATE OF BIHAR AND OTHERS), which have been followed in several decisions of the Madras High Court, would be applicable. Since such amount had been paid not on the basis of any representation, far less misrepresentation made by the petitioner, it would be unjust to direct recovery of such amount. 7. Therefore, while upholding the conclusion of the Tribunal regarding inapplicability of the pay scale of primary school teachers to the Lab Assistants in the Ordnance Factories, we modify the order of the Tribunal to the extent that there shall not be any further recovery of any amount already paid to the petitioner. 8. The writ petition is accordingly allowed in part to the extent indicated. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ dpk To 1. The Secretary Union of India, Ministry of Defence Production & Supply, DHQ (PO), New Delhi 110 011. 2. The Chairman, Ordnance Factory Board, 10-A, S K Bose Road, Kolkatta 700 001. 3. The General Manager, Cordite Factory, Aruvankadu, Nilgris 643 202. 4. The Registrar, Central Administrative Tribunal, Chennai Bench, Chennai 104. + 1 CC To Mr.Mr.N.Chandra Raj, Advocate SR NO.27700 + 1 CC To Mr.K.Sridhar, Advocate SR NO.27879 JUDGMENT IN WP.30695/2006 SS(CO) SRA(17/06/2008) https://hcservices.ecourts.gov.in/hcservices/