Mobile View
Main Search Advanced Search Disclaimer
Cites 4 docs
Article 226 in The Constitution Of India 1949
Divisional Superintendent, ... vs Shri L.N. Keshri And Ors. on 6 August, 1974
Sahib Ram vs State Of Haryana on 19 September, 1994
M.Andy vs The State Of Tamil Nadu Through Its on 22 June, 2006

User Queries
View the actual judgment from court
Madras High Court
P.Thulukkanam : vs State Of Tamil Nadu on 28 August, 2008
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:       28.08.2008
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
W.P.Nos.6344, 7346 & 8961/1999
W.P.No.6344/1999:-

P.Thulukkanam						: Petitioner 
						Vs.
1.State of Tamil Nadu,
rep. by Secretary to Government,
Dept. of Higher Education,
Fort St.George, Chennai-9.

2.The Director of Collegiate Education
Chennai-6.

3.The Regional Joint Director of
Collegiate Education,
(Chennai Region),
807, Anna Salai, Chennai-2.

4.The Secretary & Correspondent,
DG Vishnava College,
Arumbakkam, Chennai 106.				: Respondents

	Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus calling for the records of the respondents 1 and 3 in letter No.18885/G2/98-3 dated 08.01.1999 of the first Respondent read with R.C.No.2569/A4/99 dated 26.03.1999 of the third Respondent and quash the said orders dated 08.01.1999 and 26.03.1999 and consequently direct the respondents to forbear from reducing the scales of pay applicable to Selection Grade and Special Grades to the petitioner.


W.P.No.7346/1999:-

Tamil Nadu Association of 
Non-teaching Staff of Aided Colleges
rep. by its President				: petitioner 
						Vs.
1.State of Tamil Nadu,
rep. by Secretary to Government,
Dept. of Higher Education,
Fort St.George, Chennai-9.

2.The Director of Collegiate Education
Chennai-6.

3.The Regional Joint Director of
Collegiate Education,
(Chennai Region),
807, Anna Salai, Chennai-2.

4.The Regional Joint Director of
Collegiate Education,
First Main Road, Gandhinagar,
Vellore 632 006.

5.The Regional Joint Director of
Collegiate Education,
Tiruchendur Road,
Palayamkottai,
Tirunelvei 627 002.

6.The Regional Joint Director of
Collegiate Education,
Coimbatore Region,
LLA Building, Big Bazar Road,
Coimbatore 641 001.

7.The Regional Joint Director of
Collegiate Education, Rock Fort,
Trichy, 620 002.					: Respondents

	Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus calling for the records of the respondents 1 and 2 in letter No.18885/G2/98-3 dated 08.01.1999 of the first respondent read with R.C.No.48912/B4/98 dated 11.03.1999 of the second Respondent and quash the said orders dated 08.01.1999 and 11.03.1999 and consequently direct the respondents to forbear from reducing the scales of pay applicable to selection grade and special grades to the members of the petitioner whose names are given in the annexure.


W.P.No.8961/1999:-

Tamil Nadu Govt. College Laboratory
Assistant Association,
Govt. Recog.No.99,
rep. by its President				: petitioner 
						Vs.
1.State of Tamil Nadu,
rep. by Secretary to Government,
Education (G2) Department,
Secretariat, Chennai-9.

2.The Director of Collegiate Education
College Road, DPI Complex,
Nungambakkam, Chennai-6.				: respondents 

	Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus calling for the records of the respondents 1 and 2 in letter No.18885/G2/98-3 dated 08.01.1999 in Na.Ka.No.48912/B4/99 dated 11.03.1999 respectively and quash the same and direct the respondents to grant the scale of pay of Rs.4000-100-6000 towards Selection Grade and Rs.4300-100-6000 towards the Special Grade without reducing down the same to the pay of the post of Junior Assistant cum typist with 18% interest p.a.


	For Petitioner	  : Mr.R.Yashod Varadhan, Sr.Counsel
					(in W.P.Nos.6344 & 7346/1999)

				    Mr.R.Singaravelan		
					(in W.P.No.8961/1999)

	For Respondents  : Mr.P.Subramaniam, Govt. Advocate 
					(for respondents 1 to 3 
					in W.P.No.6344/1999 and for 
					respondent in W.P.No.7346/1999)

				    Mr.K.Shakespeare, for R-4.
					(for R-4 in W.P.No.6344/1999)

O R D E R

These three Writ Petitions are directed against the order dated 08.01.1999 on the file of the first respondent as well as the order dated 26.03.1999 on the file of the third respondent  Regional Joint Director of Collegiate Education, to quash the same and consequently to direct the respondents to forbear them from reducing the scale of pay applicable to the petitioner in W.P.No.6344/1999 and members of the petitioner Association in W.P.No.7346/1999 and W.P.No.8961/1999.

2.The petitioner in W.P.No.6344/1999 was working as a Lab Assistant and he joined the service in the year 1978. Since he did not pass SSLC, he was not eligible to be considered for promotion to the post of Junior Assistant and he was not having any other avenue of promotion. The first Respondent had a scheme for grant of selection grade and special grade for persons who have completed 10 years and 20 years respectively in a post. Based on the recommendation of the V Tamil Nadu Pay Commission, orders were issued dispensing with the Special and Senior grade. However, on the basis of the representation submitted to the Government, the Government as per G.O.Ms.No.304 Finance (Pay Commission) Department, dated 28.03.1990 decided to continue the scheme of Selection/Special grade and to improve the levels. The Government have also extended selection grade and special grade to all categories of post in the scale of pay of Rs.750-945 and above and upto the scale of pay of Rs.2500-4200 and accordingly, employees in these scale of pay were entitled to move on to the Selection Grade after completion of 10 years service in the ordinary grade and to Special Grade after completion of 20 years service in a post, irrespective of the service in the Selection Grade. These orders were made applicable to the aided educational institutions.

3.In pursuance of the recommendations of the V Tamil Nadu Pay Commission, the Tamil Nadu Revised Scales of Pay Rules, 1989 was issued. As per the said rule, for the post of Laboratory Assistant, the scale of pay was fixed at Rs.825-1200. Subsequently, an Official Committee was constituted to go into the issue of revision of scales of pay for certain categories in the Collegiate Education Department and the recommendations were examined by the Government and by G.O.Ms.No.527 Finance (Pay Cell) dated 01.08.1992, scale of pay for Laboratory Assistant was revised from Rs.825-1200 to Rs.950-1500. In terms of the Government Order dated 28.03.1999, for the scale of pay of Rs.950-1500, the selection grade carried a scale of pay of Rs.1200-2040 and the special grade at Rs.1320-2040. Since the petitioner had completed 20 years of service in the post of Laboratory Assistant, he was granted the Special Grade of pay with effect from 27.06.1989 and revised pay was given from 11.04.1992.

4.In the Writ Petition preferred by the petitioner in W.P.No.6344/1999 as well as the Writ Petition preferred by the Tamil Nadu Association of Non-teaching Staff of Aided Colleges in W.P.No.7346/1999 and the Writ Petition preferred by the Tamil Nadu Government College Laboratory Assistant Association, in W.P.No.8961/1999, the main challenge was to the subsequent Government Orders dated 08.01.1999 and 26.03.1999, and those Government Orders were issued on the basis of the order passed by the Tamil Nadu Administrative Tribunal in O.A.No.1625/1991, wherein the Tribunal took the view that the post of Record Clerk has no avenue of promotion since only persons with the prescribed qualifications were appointed by transfer to the post of record clerk.

5.The Government by G.O.Ms.No.216 Finance (Pay Cell) Department dated 22.03.1993 directed that the post of record clerk is a not regular promotion post for the Office Assistants and allowed selection/special grades to these posts. Similarly, in respect of secondary teachers, the Government in the same order directed that they would be eligible for selection/special grade although there was no promotion post in the High Schools but there was promotion post available in primary schools. The Government as per letter dated 12.04.1993 clarified that the Laboratory Assistant in the scale of pay Rs.950-1500 may be allowed the Selection/Special grade scale as indicated in the Annexure to G.O.Ms.No.304 Finance (Pay Commission) dated 28.03.1990.

6.In pursuance of the recommendation of the V Central Pay Commission and the Official Committee constituted to examine the question of revision of scales of pay and allowances, the Government by G.O.Ms.No.162 Finance (Pay Cell) Department dated 13.04.1998 issued orders notifying the revised scales of pay. Accordingly, the Selection grade was revised to Rs.4000-6000 and the special grade to Rs.4300-6000 and consequently the revision of scale applicable to Laboratory Assistant was revised from Rs.950-1500 to Rs.3050-4590. In view of the Government Order dated 12.04.1993, the Laboratory Assistants were given Selection/ Special grade scale. The petitioner in W.P.No.6344/1999 was given fitment at Rs.4600/- with effect from 01.01.1996 and portion of the arrears were also paid to him.

7.In the meantime, Tamil Nadu Govt. College Laboratory Assistant Association (petitioner in W.P.No.8961/1999) preferred an application in O.A.No.6087/1998 before the Tamil Nadu Administrative Tribunal to grant higher grade in selection/special grade and as per the direction given in the said O.A.No.6087/1998, to examine the issue by order dated 08.01.1999, the Government was pleased to consider the same and ultimately rejected the request of the said association. Even though the said order was passed at the instance of the Tamil Nadu Govt. College Laboratory Assistant Association, the third respondent after proceedings dated 26.03.1999 have directed the reduction in the scale of pay to selection/special grade working in private colleges. The proceedings dated 08.01.1999 and proceedings dated 26.03.1999 are the subject matter of Writ Petition in W.P.Nos.6344/1999 and 7346/1999.

8.The grievance in W.P.No.8961/1999 pertains to rejection of their claim for grant of selection grade as well as special grade. The said Government Order has been challenged by the Tamil Nadu Govt. College Laboratory Assistant Association on the ground that the refixation of pay scale was done without any prior notice and there was no basis for rejection of the grant of selection grade as well as special grade.

9.Respondents have filed counter affidavit in W.P.No.7346/1999. It was the contention of the respondents that as per G.O.Ms.No.304 Finance dated 28.03.1990, the Government have allowed the scheme of Selection Grade and Special Grade to all the employees eligible for movement to Selection Grade and Special Grade, to avoid stagnation and to get higher scale of pay for the welfare of the Government employees. However, as per G.O.Ms.No.527 Finance dated 01.08.1992, the Government ordered that the scale of pay for the selection grade should be restricted to the level of the promotion posts only. It was the further case of the respondents that scale of pay for the post of selection grade Laboratory Assistant and Special grade laboratory Assistants has been allowed at Rs.1200-2040 and 1320-2040 respectively. The selection grade scale of pay of Rs.1200-2040 was higher scale of pay to the cadre of Laboratory Assistants than the scale of pay which was admissible to the promotional post of Junior Assistants/Typists viz., Rs.975-1660. The Government have also allowed Selection Grade to the staff who have completed 10/20 years of services in their post. As per Rule 4 of the Tamil Nadu Revised Scale of Pay Rules, 1998 issued in G.O.Ms.No.162 Finance dated 13.04.1998, it has been specifically ordered that the Selection Grade Scale of Pay should be limited to the pay scale of the first level promotion posts. It was also contended that there was no disparity in the cadre of Laboratory Assistant in Government Colleges and in Aided colleges and as such, the respondents have prayed for rejection of all the Writ Petitions, as according to them, the Government was justified in issuing the impugned Order.

10.Thiru R.Yashod Vardhan, learned Senior Counsel appearing for the petitioners in W.P.Nos.7346/1999 as well as in W.P.No.6344/1999, contended that the Government of Tamil Nadu as early as on 12.04.1993 clarified the position that Laboratory Assistants were entitled to Selection/ Special Grade Scale as indicated in the Annexure to G.O.Ms. No.304 Finance (Pay Commission) dated 28.03.1990 and as such, the pay scales have also been fixed accordingly. In such circumstances, the respondents were not justified in interfering with such pay fixation, contrary to the earlier Government Order. It was his further contention that when the Government have extended Selection/Special Grade to Office Assistant and Secondary Grade Teachers, there was no justification to treat Laboratory Assistants differently and such direction is per-se violative of Art.14 of the Constitution of India.

11.The learned Senior Counsel also contended that the revised pay was sought to be made arbitrarily and without giving opportunity to the concerned employees and as such, the same is violative of the Principles of Natural Justice.

12.Thiru.R.Singaravelan, learned Counsel appearing for the petitioner in W.P.No.8961/1999 contended that the Selection Grade and Special Grade were given as per the Government Order dated 12.04.1993 and such fixation has been sought to be negatived on the basis of the impugned Government Order, that too without issuing notice to the petitioner Association or to the members of the said Association and as such, the same is liable to be quashed. The learned Counsel also contended that on account of the transfer of service given to certain candidates in the post of Laboratory Assistants and that too against their willingness, their selection grade was revised arbitrarily. The learned Counsel further contended that the order dated 08.01.1999 rejecting the claim of the petitioner association was not on the basis of any particular criteria, but made on baseless ground and as such, the same is liable to be quashed.

13.It is found from the impugned Government Order dated 08.01.1999 that the said order has been passed in pursuance of the direction of the Tamil Nadu Administrative Tribunal as per order in O.A.No.6087/1998 whereby, the representation given by the Tamil Nadu Government College Laboratory Assistant's Association was directed to be considered by the Government. While considering the representation, the Government found that Laboratory Assistants were granted scale of pay of Rs.555-970 in the Fourth Pay Commission and in respect of which, the revised pay scale of Rs.825-1200 was granted by the Fifth Pay Commission. Subsequently, as per the report of the Official Committee, revision of pay from Rs.825-1200 to Rs.950-1500 was given notionally with effect from 01.06.1988 with monetary benefit from 01.04.1992. Accordingly, orders were issued in G.O.Ms.No.527 Finance dated 01.08.1992. The Selection Grade and Special Grade scale of pay for the post of Laboratory Assistant in Pre-revised scale of pay was limited to Rs.975-1600 and Rs.1200-2040 respectively. It was only on the basis of the recommendation given by the Official Committee in the year 1998 that a corresponding revised scale of pay of Rs.3050-4590 for the pre-revised scale of pay of Rs.950-1500 was granted to the Lab Assistants. Accordingly, orders were issued in G.O.Ms.No.162 dated 13.04.1998 for grant of Selection Grade as well as Special Grade of pay for Lab Assistants.

14.Subsequently, the Government found that there was no justification to revise the Selection Grade/Special Grade scale of pay of Lab Assistant in the Collegiate Education Department as the procedure for sanctioning Selection Grade and Special Grade of pay in the revised scale was common to all categories of employees and as such, no deviation could be made to the post of Lab Assistant in the Collegiate Education Department alone and it was the said reason which weighed with the Government to reject the request made by the Association.

15.It is clear from the Government Order dated 08.01.1999 as well as from the counter affidavit filed on behalf of the respondents that the impugned Order was passed only on the basis of Rule 7(4) of the Tamil Nadu Revised Scale of Pay Rules, 1998 issued in G.O.Ms.No.152 dated 13.04.1998 which shows that scale of pay for the post of Selection Grade/Special Grade should be limited to the first level and second level promotional post. Even though the impugned Order has been passed in respect of the Government Collegiate Laboratory Assistants and the same was only in accordance with the earlier Government Order as well as Tamil Nadu Revised scale of pay rules and more particularly Rule 7(4) of the said Rules, it cannot be said that the said clarification is against the earlier Government Orders in question. The impugned Order dated 08.01.1999 was in fact, only a clarification with respect to the existing Government Orders and as such, it cannot be said that the Government Order has to be quashed. The reasons which weighed with the Government is also found mentioned in the impugned Order as according to them, the procedure for sanctioning Selection Grade and Special Grade of pay in the Revised Scale were common to all categories of employees and as such, no deviation can be made to the post of Lab Assistant in the Collegiate Education Department. Even though the impugned Order appears to be on the basis of the existing procedure for Selection Grade and Special Grade and it was common to all categories of employees, the fact remains that on the basis of the earlier Government Order dated 12.04.1993 issued on the basis of G.O.Ms.No.215 and 216 dated 22.03.1993, Laboratory Assistants were allowed Selection/ Special Grade as indicated in Annexure-I to the G.O.Ms.No.304 dated 28.03.1999.

16.Therefore, it was only on the basis of the Government Order that the scale of pay of Selection Grade/Special Grade was given to the Laboratory Assistants. It was not as if the Laboratory Assistants were given the scale in the Selection/Special Grade on their misrepresentation of facts. It was a voluntary act on the part of the Government and as such, the pay scale given to the Laboratory Assistants on the basis of the Government Order dated 12.04.1993 cannot be taken away after so many years on the basis of the subsequent clarification dated 08.01.1999.

17.So far as the individual case of the petitioner in W.P.No.6344/1999 is considered, he was given the Selection/ Special grade w.e.f. 01.01.1996 and he was given the fitment at Rs.4600/- and he was also paid the portion of arrears. Now, all of a sudden, on the basis of the order impugned in the Writ Petition, the said scale was sought to be revised and those who have already got selection/ special grade were directed to refund the excess paid to them.

18.It was not the fault of the Laboratory Assistants like the petitioner in W.P.No.6344/1999 that such a scale was granted, but it was only on the basis of the relevant Government Order that such scale was given to them and as such, there was no basis for the respondents to take back the said scale as well as to recover the excess paid for all these years. It was also the contention of the petitioners that before revising the scale, in pursuance of the impugned Order, they were not given an opportunity.

19.In Divisional Superintendent, Eastern Railway, & Ors. v. L.N.Kashri and ors. (AIR 1974 SC 1889), the Apex Court confirmed the order of the High Court of Patna, relating to the reduction of pay scale without hearing the affected party and observed that when the appellants having fixed the scale and confirmed the same, the employer was justified in reducing the scale without giving an opportunity to the employees.

20.The Apex Court in Sahib Ram v. State of Haryana and Ors. (JT 1995 (1) SC 24), while considering the issue regarding recovery of excess salary paid on account of wrong fixation, observed thus :-

"5. .... it is not on account of any misrepresentation made by the appellant that the benefit of 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."

21.In D.Palavesamuthu v.Tamil Nadu Administrative Tribunal, rep. by its Registrar (2006(1) MLJ 143), Division Bench of this Court interfered with the order in revising the pay after a period of eight years, and the Division Bench speaking through His Lordship Mr.Justice P.Sathasivam, (as His Lordship then was) observed thus :-

"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 penalized after a lapse of number of years, that too after retirement of the petitioner."

22.The said Judgment was followed by a learned Judge of this Court in M.Andy v. State of Tamil Nadu, through its Secretary, PWD, Chennai and ors., (2006(4) MLJ 1534) and the learned Judge quashed the order re-fixing the pay scale as well as the consequential recovery.

23.In the present case, the revision of pay scale were all made in the year 1996 immediately after the Government Order dated 12.04.1993 and in the case of the petitioner in W.P.No.6344/1999, the impugned Order has been passed nearly six years after such refixing of pay scale and grant of arrears. When such fixation was done only in accordance with Government Order dated 12.04.1993, such scale cannot be revised long after and that too on the basis of another Government Order. Therefore, I am of the view that while upholding the Government Order dated 08.01.1999 and the consequential order dated 26.03.1999, the said order is declared to be inapplicable to the pay scale of such of the employees whose scales were already fixed as per Government Order dated 12.04.1993.

24.Therefore, the Writ Petitions are disposed of with the following directions :-

(1)The impugned Order dated 08.01.1999 is declared to be valid;

(2)The consequential order dated 26.03.1999 revising the pay scale already granted to the Laboratory Assistant as per Government Order dated 12.04.1993 is quashed.

(3)The Government Order dated 08.01.1999 shall be made applicable only prospectively and the pay scale fixed by grant of Selection and Special Grade, in pursuance of the Government Order in G.O.Ms.No.383 dated 12.04.1993 will be valid and the same shall not be revised on the basis of the impugned Order dated 08.01.1999, and, (4)No recovery shall be made in respect of payment already made in pursuance of the fixation of pay as per G.O.Ms.No.383 dated 12.04.1993.

(5)There is no order as to costs.

tar To

1.The Secretary to Government, Dept. of Higher Education, Fort St.George, Chennai-9.

2.The Director of Collegiate Education, Chennai-6.

3.The Regional Joint Director of Collegiate Education, (Chennai Region), 807, Anna Salai, Chennai-2.

4.The Regional Joint Director of Collegiate Education, First Main Road, Gandhinagar, Vellore 632 006.

5.The Regional Joint Director of Collegiate Education, Tiruchendur Road, Palayamkottai, Tirunelvei 627 002.

6.The Regional Joint Director of Collegiate Education, Coimbatore Region, LLA Building, Big Bazar Road, Coimbatore 641 001.

7.The Regional Joint Director of Collegiate Education, Rock Fort, Trichy 620 002