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Article 14 in The Constitution Of India 1949
Article 311(2) in The Constitution Of India 1949
Article 309 in The Constitution Of India 1949
Delhi Transport Corporation vs D.T.C. Mazdoor Congress on 4 September, 1990
The Payment Of Gratuity Act, 1972

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Madras High Court
P.Subramanian vs The Government Of Tamilnadu on 5 January, 2010

DATED: 5.1.2010

CORAM:

THE HONOURABLE MR.JUSTICE P.JYOTHIMANI

W.P.No.503 of 2008

P.Subramanian .. Petitioner

Vs.

1. The Government of Tamilnadu

rep. by the Secretary to the Government

Adi Dravidar & Tribal Welfare Department

Fort St.George, Chennai  600 009.

2. The Director of Adi Dravidar and Tribal Welfare

Chepauk, Chennai  600 005.

3. The District Adi Dravidar Welfare Officer

Cuddalore District, Cuddalore.

4. The Special Tahsildar

Adi Dravidar Welfare

Vridhachalam Taluk

Cuddalore District.

5. The Accountant General

Tamilnadu, Teynampet

Chennai  600 018. .. Respondents

PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records of respondents 4 and 5 issued in Na.Ka.No.477/04, dated 24.11.2004 by the fourth respondent and in No.AG(A&E)/PEN PO9/1/8260-1770/RTD/2004-2005/ 208, dated 12.4.2005 and Pen.9/I dated 22.8.2005 issued by the fifth respondent and quash the same and to issue a consequential direction to the respondents to release the amount of Rs.3,39,929/- with 18% interest per annum and to restore the pay of petitioner at Rs.1760/- in the scale of pay of Rs.1640-2900/- in the selection grade scale of pay of primary school Headmaster with effect from 1.6.1988 and Rs.7100/- as on 1.1.1996 in the scale of Rs.6500-10,500/- and grant the consequential monetary benefits and fix last drawn pay and grant arrears of pensionary benefits. For Petitioner : Mr.R.Saseetharan

For Respondents : Mr.T.Seenivasan

Addl. Government Pleader

for respondents 1 to 4

Mr.V.Vijayshankar

for 5th respondent

ORDER

The writ petitioner was appointed as Secondary Grade Teacher on 18.7.1972 in the Department of Adi Dravidar and Tribal Welfare and thereafter promoted as Primary School Headmaster. In the said post he was working from 1.1.1988 to 30.11.1989 at Adi Dravidar Welfare Primary School, Nallur, Vridhachalam Taluk, Cuddalore District. He was reverted to the post of Secondary Grade Teacher in November, 1989 and again promoted as Primary School Headmaster on 12.6.1999 and he retired from service on 31.8.2004 on attainment of age of superannuation.

2. Before 1.6.1988, the posts of Primary School Headmaster and Secondary Grade Teacher were treated as transferable and interchangeable, since both carried the same scale of pay. The persons who were Secondary Grade Teachers posted in exigencies as Primary School Headmasters before 1.6.1988 were granted special allowance. It was by G.O.Ms.No.666, dated 26.7.1989, as per the V Pay Commission recommendation, the post of Primary School Headmaster was separated with higher scale of pay than the Secondary Grade Teacher with effect from 1.6.1988.

3. By a proceeding of the Director of Elementary Education dated 17.2.1990, the persons who were holding the post of Primary School Headmaster as on 1.6.1988 were allowed to continue by deeming them to have been appointed in the said post and the posts of Primary School Headmaster which fell vacant after 1.6.1988 were directed to be filled up as per the seniority in the post of Secondary Grade Teachers, since the post of Primary School Headmaster has become a promotional post with higher scale of pay with effect from 1.6.1988. It is stated that the Department of Adi Dravidar and Tribal Welfare has also followed the said procedure and persons who were working as Primary School Headmasters as on 1.6.1988 were allowed to continue in the said post .

4. In G.O.Ms.No.1381, School Education Department, dated 5.10.1990, the Government has directed that the teachers who were holding the post of Primary School Headmasters as on 1.6.1988 are eligible to count the service rendered both as Secondary Grade Teacher as well as Primary School Headmaster for the award of selection grade and special grade pay. It is the case of the petitioner that since he was holding the post of Primary School Headmaster on 1.6.1988, he was allowed to continue in the said post and his pay was fixed in the selection grade scale of pay of Primary School Headmaster of Rs.1640-2900/- by taking into account the services rendered in the post of Primary School Headmaster and Secondary Grade Teacher as per the above said government order dated 5.10.1990.

5. Even though the petitioner was reverted as Secondary Grade Teacher on 13.11.1989, he was allowed to draw the pay in the post of Primary School Headmaster till 24.11.2004. It is stated that as on 1.1.1996 his pay was fixed at Rs.7,100/- in the scale of pay of Rs.6,500-10,500/- and on the date of his retirement it was fixed at Rs.8,300/- in the scale of pay of Rs.6,500-10,500/-. As stated above, after reversion the petitioner was again promoted as Primary School Headmaster on 12.6.1999.

6. After the retirement of the petitioner, the fourth respondent in the proceeding dated 24.11.2004 has refixed the pay of the petitioner as Primary School Headmaster on the ground that after 1.6.1988 he has not continuously worked as Primary School Headmaster and therefore, the pay was reduced from Rs.1,760/- to Rs.1,500/- with effect from 1.6.1988 and recovery of Rs.3,39,929/- came to be ordered from the gratuity. In sequence to the said order, the fifth respondent has recovered Rs.2,11,152/- from gratuity on 12.4.2005 and Rs.1,28,777/- from commuted value pension amount on 22.8.2005.

7. The case of the petitioner is that since he was holding the post of Primary School Headmaster on 1.6.1988, his pay was fixed as per G.O.Ms.No.1381, School Education Department, dated 5.10.1990 and that came to be revised after 16 years. It is the case of the petitioner that even the reversion of the petitioner from the post of Primary School Headmaster to the post of Secondary Grade Teacher on 13.11.1989 is illegal and the said recovery which has been made under the impugned order of the fourth respondent dated 24.11.2004, which has been made in the form of an endorsement in the service register of the petitioner and the consequential order of the fifth respondent dated 12.4.2005 and 22.8.2005 in making recovery of Rs.2,11,152/- from gratuity and Rs.1,28,777/- from commuted value pension as illegal and for a direction to repay the said amount by restoring the pay of the petitioner as Rs.1,760/- in the pay scale of Rs.1,640-2,900/- in the selection grade scale of pay of Primary School Headmaster with effect from 1.6.1988 and Rs.7,100/- as on 1.1.1996 in the scale of Rs.6,500-10,500/- and to grant all monetary benefits.

8. In the counter affidavit of the fifth respondent, it is stated that the fourth respondent, who is the employer, has informed that the petitioner was granted special grade in Primary School Headmaster post as per G.O.Ms.No.1382, School Education Department, dated 5.10.1990 and that when the said government order was challenged by the Teachers Association, the Government has issued G.O.Ms.No.185, School Education Department, dated 16.12.2002 and G.O.Ms.No.38, School Education Department, dated 5.3.2001 and in accordance with the said government orders, revisions were made and excess amounts were recovered.

9. It is stated that the petitioner has served as Secondary Grade Teacher between 19.7.1972 and 31.12.1987, as Primary School Headmaster (Incharge) between 1.1.1988 and 30.11.1989, was reverted as Secondary Grade Teacher and worked between 1.12.1989 and 11.6.1999 and was again posted as Primary School Headmaster from 12.6.1999 to 31.8.2004. It is the case of the respondents that as per G.O.Ms.No.207, School Education Department, dated 30.9.2008, the entire case of the petitioner was reviewed and he was found to be entitled to the reduced pay as per the said government order and on the date of retirement, i.e., on 31.8.2004, his salary was Rs.9,375/- and he was entitled to all pensionary benefits with reference to the pay at the said rate.

10. It is the case of the learned counsel for the petitioner that the revision of pay after 16 years and reducing the same after the retirement of the petitioner is illegal. He would rely upon the judgments in D.Palavesamuthu v. Tamil Nadu Administrative Tribunal, Chennai and others, [2006] 1 MLJ 143 and Syed Abdul Qadir and others v. State of Bihar and others, [2009] 3 SCC 475. He would also rely upon the judgment in S.Pappa v. Government of Tamil Nadu and others, 2000-2-LW-460.

11. It is his further contention that while reducing the pay scale after retirement, no notice was given and therefore, it is violation of principles of natural justice, by relying upon the judgments in Delhi Transport Corporation v. D.T.C.Mazdoor Congress & Others, 1991(1) All India Services Law Journal 56 and Ramachandra Shankar Deodhar v. State of Maharashtra, [1974] 1 SCC 317. He would also rely upon the judgment in Union of India v. Tarsem Singh, [2008] 8 SCC 648 to show that in respect of payment of allowance it is a continuous cause of action and there is no time limit.

12. On the other hand, it is the contention of the learned counsel for the respondents that the petitioner who has retired on 31.8.2004 has accepted for the deduction by way of a consent letter and after 2= years the present writ petition has been filed in the year 2008. It is his submission that the petitioner having received the amount after deduction cannot challenge the same after lapse of many years. It is also his case that the benefit given to the persons who functioned as Primary School Headmaster on 1.6.1988 is available only if in the said post the incumbent continues and the reversion of the petitioner which was effected in the year 1989 has not been questioned by him and from 1989 to 1999 he was in the reverted post of Secondary Grade Teacher and once again promoted as Primary School Headmaster and this has never been questioned by the petitioner and therefore, the petitioner is now estopped from turning round questioning the previous conduct.

13. The factual aspect about the petitioner's service by placing him as Primary School Headmaster from 1.1.1988 to 30.11.1989 and thereafter reverting him on 1.12.1989 to the post of Secondary Grade Teacher for want of vacancy, in which post the petitioner was discharging his duties till 11.6.1999, and thereafter again promoting him as Primary School Headmaster on 12.6.1999 and his retirement as Primary School Headmaster on 31.8.2004 is not in dispute.

14. It is also not in dispute that as per G.O.Ms.No.1381, School Education Department, dated 5.10.1990, the persons holding the post of Primary School Headmaster as on 1.6.1988 are entitled to count the service rendered as Secondary Grade Teachers as well as Primary School Headmasters prior to 1.6.1988. The relevant portion of the said Government Order is as follows: 4. Accordingly, the Government direct that the Headmasters of Primary Schools under the Government, Local bodies and all kinds of Managements who were in position on 1.6.88 be awarded selection grade and special grade in the revised scales of pay after 1.6.88 counting the period of service rendered as Secondary Grade Teachers as well as Primary School Headmaster prior to 1.6.1988. As the post of Headmaster carries higher scale of pay about that of the Secondary Grade Teachers, those promoted as Headmasters after 1.6.88, shall be allowed fixation of pay in the post of Headmasters as provided under Fundamental Rules 22B.d.

15. As per the proceedings of the fourth respondent, who is the employer dated 22.7.1991, in respect of the petitioner based on the said G.O.Ms.No.1381, School Education Department, dated 5.10.1990, his pay was re-fixed as follows:

Rs.1760/- to Rs.1820/- w.e.f. 1.7.88

Rs.1820/- to Rs.1880/- w.e.f. 1.7.89

Rs.1880/- to Rs.1940/- w.e.f. 1.7.90

Rs.1940/- to Rs.2000/- w.e.f. 1.7.91

16. It is relevant to point out that the re-fixation of pay has continued even after the petitioner was reverted as Senior Grade Teacher on 1.12.1989. The said re-fixation continued as per G.O.Ms.No.1381, dated 5.10.1990 even after reversion, because the reversion was not by way of punishment, but for want of vacancy. Rule 15 of the Fundamental Rules, which is as follows, confers a right on an incumbent holding the post to retain the same by way of lien except of course in case of disciplinary proceedings and reversions made by way of punishment or at written request. 15.(a) Government may transfer a Government servant from one post to another provided that, except

(1) on account of inefficiency or misbehaviour; or

(2) on his written request

a Government servant shall not be transferred substantively to or appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended under Rule 14. (b) Nothing contained in clause (a) of this rule or in clause (13) of Rule 9 shall operate to prevent the re-transfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule 14.

17. By virtue of G.O.Ms.No.1381, School Education Department, dated 5.10.1990, the petitioner certainly gets a right to hold the post of Primary School Headmaster in which post he was in fact appointed on 1.1.1988 and therefore, even after the petitioner was reverted as Senior Grade Teacher on 1.12.1989 by the above said proceedings of the fourth respondent/employer, his pay as Primary School Headmaster was retained, which was only in accordance with Rule 15 of the above said Fundamental Rules.

18. In fact, in respect of Panchayat Union School Teachers regarding the promotion of Senior Grade Teachers as Headmasters of Primary Schools and Middle Schools, the Government in G.O.Ms.No.784, Rural Development and Local Administration Department, dated 14.5.1979 has categorically held that when once the incumbent was regulated to the post of Head Master of Middle School, the pay fixed shall continue after reappointment at the lapse of the period of reversion. The relevant portion of the said Government Order is as follows: c) A Secondary grade teacher promoted as Headmaster Middle School after 1.10.1970 by virtue of seniority but subsequently reversed with reference to Government orders second and third read above may again be promoted on 1.6.1979. However his pay may be regulated as Headmaster Middle School from the date of his first promotion as if he continued as Headmaster Middle School according to the G.O. seventh read above without any claim for arrears during the period he actually worked as secondary grade assistant (statement 1(c) in the Annexure)

19. Therefore, the said Rules are only the symptoms of healthy practice in the service jurisprudence that in cases where by virtue of a right accrued either by a statutory rule or by a governmental order which has legal basis, if a person was promoted to a higher post and entitled to retain the same, however due to exigency like want of vacancy he had to be reverted to a lower post and thereafter, again promoted to the original higher post, the pay protection during the period of reversion is a celebrated concept of keeping the morale of the government servants in high tone. It is only in accordance with the said concept, the re-fixation of pay in respect of the petitioner as Primary School Headmaster was made and the same was continued. It is relevant to point out that such re-fixation has accrued as a matter of right to the petitioner as per the Government Order and not acquired at the instance of the petitioner either by misrepresentation or misleading the authorities.

20. Again it is seen that the Headmaster of the School in which the petitioner has worked, in the entry made in the service register of the petitioner on 18.2.1998 stated that the pay fixation has continued with periodical revision which is as follows: Increment 1.7.1996 Rs.7100/- to Rs.7300/-

Increment 1.7.1997 Rs.7300/- to Rs.7500/-

and subsequent pay fixation has been made by way of revision after the V Pay Commission recommendation.

21. It is also relevant to point out that when a batch of writ petitions were filed seeking to frame a scheme and to fix the scale of pay for the post of Primary School Headmasters by taking into account the service rendered in the post of Secondary Grade Teacher, by a common order dated 18.4.2001, this Court in W.P.Nos.8896 of 2001, etc. batch, taking note of the fact that the Government has by G.O.Ms.No.300, dated 7.4.1994 ordered reduction of pay scale, remitted the matter to the Government for passing fresh orders. After considering the issue afresh, the Government has issued G.O.Ms.No.185, School Education Department, dated 16.12.2002 with the following operative portion, which shows that the monetary benefit conferred should be retained: "5/ nkw;fz;l ePjpkd;wj; jPh;g;gpd; mog;gilapy;. ghh;itapy; gof;fg;gl;l murhizfs; kw;Wk; mJ bjhlh;ghd jkpH;ehL eph;thfj; jPh;g;gha Mizfs; Mfpatw;iw bjhlf;ff; fy;tp ,af;Feiuf; fye;J muR bjhlf;fj;jpypUe;J g[jpjhf Ma;t[ bra;J fPH;fz;;lthW MizapLfpwJ /;? (i) 1/6/88y; bjhlf;fg; gs;sp jiyik Mrphpah;fshf cs;sth;fspy;. mth;fs; 1/6/88?f;F Kd;dh; bjhlf;fg;gs;sp jiyik Mrphpah;fshf gzpg[hpe;jpUg;gpd;. mg;gjtpf;fhd TLjy; bghWg;g[ cs;s epiyapYk;. mg;nghJ mth;fSf;F rpwg;g{jpak; (Special Allowance) mDkjpf;fg;gl;Ls;s epiyapYk;. mf;fhyj;ij bjhlf;fg; gs;sp jiyik Mrphpah; gjtpapy; njh;t[epiy/rpwg;g[epiy mDkjpg;gjw;F fzf;fpy; vLj;Jf; bfhs;syhk;/ (ii) 1/6/88?f;Fg; gpwF bjhlf;fg; gs;sp jiyikahrphpah;fshf epakdk; bra;ag;gl;lth;fisg; bghWj;jtiu murhiz epiy vz;/212. gs;spf;fy;tp. ehs; 7/8/2000 ehspl;l Mizapd; mog;gilapy; bjhlf;fg; gs;sp jiyik Mrphpah; gjtpapy; njh;t[epiy/rpwg;g[epiy tH';fp Cjpak; eph;zak; bra;ag;gl ntz;Lk;/ (iii)ghh;it 2y; gof;fg;gl;l murhizapd;go Vw;fdnt 1/6/88y; bjhlf;fg; gs;sp jiyikahrphpauhfg; gzpg[hpe;J. bjhlf;fg; gs;sp jiyikahrphpah; gzpf;fhyj;ija[k; fzf;fpy; bfhz;L njh;t[epiy/ rpwg;g[ epiy tH';fg;gl;lth;fisg; bghUj;jtiu. mth; bgw;W te;j Cjpaj;jpy; ,Hg;g[ Vw;glhtz;zk; (without monetary loss) ,izg;gpYs;s khjphp Cjpa eph;zaj;jpd;go md;dhuJ Cjpak; kWeph;zak; bra;ag;gl ntz;Lk;/" However, the fourth respondent, after the retirement of the petitioner, has chosen to make an endorsement in the service register of the petitioner on 24.11.2004 by reducing the pay from 1.6.1988 without even giving any notice to the petitioner and arrived at a conclusion that an amount of Rs.3,39,929/- is to be recovered from the pensionary benefits and consequently, the fifth respondent recovered the same from the death-cum-retirement gratuity and the commuted value pension as stated above.

22. It is also relevant to point out at this stage that the Government, after considering the order of this Court dated 28.4.2006 made in W.P.No.8079 of 2006 directing the respondents to settle the retirement benefits to the members of the petitioner Kootani by following G.O.Ms.No.185, School Education Department, dated 16.12.2002, etc., has passed the following order in G.O.Ms.No.207, School Education Department, dated 30.9.2008: "7/ ,jid muR ed;F Ma;t[ bra;J cah;ePjp kd;w jPh;g;gpd; mog;gilapy; nkny gj;jp 6?y; cs;s bjhlf;ff; fy;tp ,af;Fehpd; fUj;JUtpid Vw;W. mjd;go murhiz (epiy) vz;/38 gs;spf;fy;tp ehs;/ 05/03/2001y; cs;s Mizfis fzf;fpy; bfhs;shky; murhiz (epiy) vz;/185. gs;spf;fy;tp ehs; 16/12/2002 kw;Wk; murhiz (epiy) vz;/160 gs;spf;fy;tp ehs; 23/08/2005 Mfpa murhizfis gad;gLj;jp 01/06/88f;F gpd;g[ bjhlf;fg;gs;sp jiyik Mrphpah;fshf gjtp cah;t[ bgw;wth;fSf;F njh;t[ epiy/rpwg;g[epiy tH';fp Cjpa eph;zak; bra;J jpUj;jpa Xa;t{jpag; gyd;fs; bgw mDkjpj;J muR Miz btspapLfpwJ/"

23. In a similar circumstance, by referring to Rule 22(b) of the Fundamental Rules which relates to fixation of pay in respect of a person who has been promoted or appointed to a substantive post carrying not only more responsibility but also higher pay and also while dealing with the same G.O.Ms.No.1381, School Education Department, dated 5.10.1990, by which similar to the case of the petitioner pay was fixed and after eight years there was a re-fixation by reducing the pay, a Division Bench of this Court consisting of P.Sathasivam and S.K.Krishnan,JJ., as they then were, in D.Palavesamuthu v. Tamil Nadu Administrative Tribunal, rep. by its Registrar, Chennai and others, [2006] 1 MLJ 143 held that even if the fixation was made by mistake by the authorities and if the teacher concerned was not at fault, he should not be penalized, based on the principle enunciated by the Supreme Court in Sahib Ram v. State of Haryana, 1995 AIR SCW 1780 and Divisional Superintendent, Eastern Railway, Dinapur and others v. L.N.Kashri and others, AIR 1974 SC 1889. The Division Bench has held as follows: 6. .. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner.

24. The concept of principles of natural justice in the context of the service jurisprudence while dealing with Article 311(2) of the Constitution of India was highlighted by the Constitutional Bench of the Supreme Court in Delhi Transport Corporation v. D.T.C.Mazdoor Congress & Others, 1991(1) All India Services Law Journal 56 as follows: "175. The Menaka Gandhi's case is also an authority for the proposition that the principles of natural justice is an integral part of the guarantee of equality assured by Article 14 of the Constitution. In Union of India and Anr. v. Tulsiram Patel and Ors. [1985] Suppl. 2 SCR 131 at 233, this Court held that the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article, Shortly put, the syllogism runs thus: Violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of the State action, it is a violation of Article 14, therefore, a violation of a principle of natural justice by a State action is a violation of Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to the legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter. In. such a case, the principles of natural justice require that it must decide such a matter fairly and impartially.

176. In Moti Ram Deka's case this Court already held that "the rule making authority contemplated by Article 309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants under Article 311(2). Article 311(2) is intended to afford a sense of scrutiny to public servants who are substantively appointed to a permanent post and one of the principle benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed under Article 309 so as to make the said right either ineffective or illusory. Once the scope of Article 311(1) and (2) is duly determined, it must be held that no rule framed under Article 309 can trespass on the rights guaranteed by Article 311. This position is of basic importance and must be borne in mind in dealing with the controversy in question.

177. In A.K. Kraipak and Ors. etc. v. Union of India and Others., [1970] 1 SCR 457, this Court held that Rules of natural justice aims at securing justice or to prevent injustice. They operate only in the areas not covered by any law validly made. In Union of India v. Col. J.N. Sinha and Anr. [1971] 1 SCR 79 lit was held that principles of natural justice do not supplant the law but supplement it. If a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision of the principles of natural justice. In that case this Court held that principles of natural justice cannot be read into Fundamental Rule and no opportunity need be given before compulsorily retiring an employee as that implication does not arise by reason of express statutory language.

25. Applying the said tests laid down in the above said judgment to the facts of the present case, admittedly when there is no fault on the part of the petitioner and fixation has, in fact, been done based on G.O.Ms.No.1381, School Education Department, dated 5.10.1990 and the Fundamental Rules, as elicited above, there is absolutely no reason for the respondents to revise the pay abruptly without notice to the petitioner, especially when the petitioner has retired long back.

26. In cases where the re-fixation of pay or pension after retirement was based on the continuing wrong, it was held that even after long delay the injury can be rectified since it is not a case where it involves revision of seniority and promotion which may unsettle the settled issues. That was the view of the Supreme Court in Union of India v. Tarsem Singh, [2008] 8 SCC 648, wherein it was held as follows: 5. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period, the principles relating to recurring/successive wrongs will apply. As a consequence, High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.

27. In Syed Abdul Qadir and others v. State of Bihar and others, [2009] 3 SCC 475, even though it was held that in a given case it is open to the Court to decide that the excess amount paid wrongly should be recovered if the error was deducted within a short span of time, on the facts of the said case, there was direction to refund the amount recovered. The following two paragraphs of the judgment of the Supreme Court would be relevant to enlighten on the issue: 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma v. Union of India, [1994] 2 SCC 521; Union of India v. M. Bhaskar, (1996) 4 SCC 416; V. Ganga Ram v. Regional Jt. Director, [1997] 6 SCC 139; Col. B.J. Akkara (Retd.) v. Government of India and Ors., [2006] 11 SCC 709; Purshottam Lal Das and Ors. v. State of Bihar, (2006) 11 SCC492; Punjab National Bank and Ors. v. Manjeet Singh and Anr., AIR 2007 SC 262 and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr., (2000) 10 SCC 99 . ***

61. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants - teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.

28. In the present case, in a subsequent affidavit filed by the fifth respondent, it is stated that the petitioner has consented for recovery by letter dated 31.8.2005 both from the death-cum-retirement gratuity and commuted value pension. Admittedly, by the time such letter was given the petitioner has since long retired in the year 2004 and in his eagerness to get the pensionary amount he was certainly in a lower bargaining power as a weaker party and there was no chance except to give such consent in order to get at least the balance amount for his livelihood and that cannot be a ground to take away the right which has already accrued to him and the respondents cannot be expected to take advantage of such weaker position of the petitioner after retirement. That was also the view expressed by P.Sathasivam,J., as he then was, in S.Pappa v. Government of Tamil Nadu and others, 2000-2-LW-460, where His Lordship, while dealing with the provisions of the Tamil Nadu Recognised Private Schools Act, 1973, of course relating to the unemployed teachers who were downgraded for which consent was stated to have been given, made the following observations by referring to a judgment of the Supreme Court in Central Inland Water Transport Corporation v. Brojo Nath Ganguly, [1986] 3 SCC 156: 29. . . . . . I have already observed that at the time of passing of the impugned Government Order, even according to the Government, there were thousands of qualified trained Secondary Grade Teachers waiting for employment. In such a situation, they have no other option except to accept and abide by all conditions mentioned in the agreement. Even though the said agreement is to be executed by the School Management and the teacher, the terms and conditions have been drafted and formulated by the Education Department of the Government. Undoubtedly, the unemployed teachers are in a position of unequality of bargaining power which is the result of great disparity in the economic strength of the contracting parties. In other words, among the two, one of the parties namely, the Secondary Grade (Junior) Teacher is a weaker party and he has no choice but to give his assent to a contract and to sign the same in token of his acceptance, however, unfair unreasonable and unconscionable a clause in that contract or form or rules as observed in the Central Inland Water Transport Corporation case (cited supra). Asking the weaker party to execute an agreement which contains unconscionable clauses is void and not binding. In such a situation, this Court is competent to strike down the unfair and unreasonable terms in the agreement entered into between the parties who are not equal in bargaining power. This position has been enunciated by the Hon'ble Supreme Court in the following decisions: (i)Central Inland Water Transport Corpn. Ltd. v. Brojonath A.I.R. 1986 S.C. 1573.

(ii)Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101.

(iii)Uptron India Ltd. v. Shammi bhaki, AIR 1998 SC 1681.

Even though it is stated by the learned Additional Advocate General that the said agreement is only between the teacher and the school Management, for the reasons mentioned above, irrespective of the agreement, I am of the view that the teachers are entitled to challenge the impugned Government Orders as violative of Article 14 of the Constitution of India and Section 23 of the India Contract Act. Accordingly; the contentions raised by the learned Counsel for the petitioners on this aspect are well-founded. (emphasis supplied)

29. Moreover, the death-cum-retirement gratuity is an accrued right provided under the statute and that cannot be taken away without following the basic principles of natural justice. This view is fortified by the decision of the Supreme Court in Jaswant Singh Gill v. Bharat Coking Coal Limited and others, [2007] 1 SCC (L&S) 584, wherein it was held as under: "The Rules framed by the Coal India Limited are not statutory rules. They have been made by the holding company of Respondent 1. The Payment of Gratuity Act was enacted with a view to provide for a scheme for payment of gratuity to the employees engaged inter alia in mines. The Act provides for a close-knit scheme providing for payment of gratuity. It is a complete code containing detailed provisions covering the essential provisions of a scheme for a gratuity. It not only creates a right to payment of gratuity but also lays down the principles for quantification thereof as also the conditions on which he may be denied therefrom. A statutory right accrued, thus, cannot be impaired by reason of a rule which does not have the force of a statute. The provisions of the Act, therefore, must prevail over the Rules." In such view of the matter, looking from any angle, I do not see any justification on the part of respondents 4 and 5 in passing such order of recovery and effecting recovery of Rs.3,39,929/- from the pensionary benefits of the petitioner, especially death-cum-retirement gratuity and commuted value pension. Therefore, the writ petition is allowed and the impugned orders are set aside with a direction to the respondents to return the amount of Rs.3,39,929/- recovered from the petitioner with interest at the rate of 9% from the date of recovery till the date of repayment and the respondents are directed to restore the pay of the petitioner as it was originally fixed at Rs.1,760/- as per G.O.Ms.No.1381, School Education Department, dated 5.10.1990 and subsequently, re-fix the pay and pay all consequential monetary benefits and fix the pension of the petitioner accordingly. Such orders shall be passed by the respondents within a period of twelve weeks from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.2 of 2008 is closed. 5.1.2010

Index : Yes

Internet : Yes

sasi

To:

1. The Secretary to the Government

Government of Tamilnadu

Adi Dravidar & Tribal Welfare Department

Fort St.George, Chennai  600 009.

2. The Director of Adi Dravidar and Tribal Welfare

Chepauk, Chennai  600 005.

3. The District Adi Dravidar Welfare Officer

Cuddalore District, Cuddalore.

4. The Special Tahsildar

Adi Dravidar Welfare

Vridhachalam Taluk

Cuddalore District.

5. The Accountant General

Tamilnadu, Teynampet

Chennai  600 018.

P.JYOTHIMANI,J.

[sasi]

W.P.No.503 of 2008