Madras High Court
T.Jayakodi vs The District Forest Officer on 2 February, 2021
W.P.(MD)No.7165 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:02.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.7165 of 2012
and
M.P(MD).No.2 of 2012
T.Jayakodi ... Petitioner
Vs.
1.The District Forest Officer,
Ramnad-cum-Sivaganga Forest Division,
Sivaganga.
2.The Divisional Forest Officer,
Social Forestry Division,
Madurai. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, calling for the records of the
first respondent relating to the order in Pro.No.4027/2010/E dated
13.03.2012 (served on 08.05.2012), quash the same and to issue
consequential directions to the respondents to allow the petitioner to
continue to draw enhanced Selection/Special Grade as per order dated
22.07.2010 of the first respondent.
1/12
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W.P.(MD)No.7165 of 2012
For Petitioner : Mr.C.Deepak
for M/s.M.Ravi
For Respondents : Mr.M.Muthugeethayan
Special Government Pleader
ORDER
This writ petition is filed by the petitioner seeking for issuance of a
writ of Certiorarified Mandamus, calling for the records of the first
respondent relating to the order in Pro.No.4027/2010/E dated 13.03.2012
(served on 08.05.2012), quash the same and to issue consequential
directions to the respondents to allow the petitioner to continue to draw
enhanced Selection/Special Grade, scale of pay as per the order of the first
respondent, dated 22.07.2010.
2.In the affidavit filed in support of this petition, it has been averred
that the petitioner is a Driver working in the Forest Department on regular
basis from 18.01.1994 onwards and he was conferred with Selection
Grade/Special Grade scale of pay on completion of the requisite years of
service. According to the petitioner, he is entitled to the benefits of
G.O.Ms.No.162, Finance (PC) Department, dated 13.04.1998 and he is
eligible to claim Selection Grade scale of pay, as per the revised scale of pay
of Rs.5,000-8,000. In similar circumstances, the very same issue came up
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W.P.(MD)No.7165 of 2012
for consideration before the Division Bench of this Court in W.A.Nos.383 to
391 of 2009 etc., Batch, wherein, the Division Bench of this Court has
granted the benefits to the employees therein. Following the same, the
petitioner has filed a writ petition in W.P.(MD).No.8611 of 2010, which was
allowed in his favour and subsequently, the petitioner was given Selection
Grade and Special Grade, as per G.O.Ms.No.162, dated 13.04.1998 as per
the order of this Court. As against the order passed in the writ appeal, the
State preferred S.L.P before the Hon'ble Apex Court in S.L.P.No.
35969/2009. The said S.L.P was allowed in respect of awarding Selection
Grade and Special Grade and finally, the Hon'ble Apex Court concluded that
the persons, in the post of Driver in various departments, are only entitled to
get the ordinary Special Grade and Selection Grade in terms of Serial No.6
of Schedule-II of 1998 Rules, i.e., at Rs.3,200-4,900, Rs.4,000-6,000 and
Rs.4,300-6,000 respectively, and set aside the other portion of the order in
the writ appeal and further held that this Court erred in fixation of such pay
scales to the Drivers in terms of Serial No.8 of Schedule II, fixing Selection
Grade and Special Grade scales of pay of Rs.5,000- 8,000 and Rs.
5,500-9,000 respectively. Consequent upon the order passed by the Hon'ble
Apex Court, the respondent passed an order of recovery and also for
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W.P.(MD)No.7165 of 2012
refixation of pay. The pay of the petitioner has been refixed and he has
been awarded Selection Grade and Special Grade scale of pay in terms of
the order of the Hon'ble Apex Court and, thereafter, the authority vide the
impugned order dated 13.3.12, while cancelling the pay fixation, passed an
order of recovery of the amounts already paid. Challenging the same, the
present writ petition is filed.
3.The learned counsel appearing for the petitioner submits that
Selection Grade and Special Grade was awarded in favour of the petitioner,
based on the order of this Court and there is no wilful suppression on the
part of the petitioner. Hence, the order of recovery is bad in law, in view of
the decision of the Hon'ble Apex Court, in the case of State of Punjab &
Ors. - Vs – Rafiq Masih (White Washer), etc., (2015 (4) SCC 334) wherein
the Apex Court held thus :-
“13. First and foremost, it is pertinent to note, that this
Court in its judgment in Syed Abdul Qadir case [Syed Abdul
Qadir v. State of Bihar, (2009) 3 SCC 475 : (2009) 1 SCC
(L&S) 744] recognised, that the issue of recovery revolved
on the action being iniquitous. Dealing with the subject of
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W.P.(MD)No.7165 of 2012
the action being iniquitous, it was sought to be concluded,
that when the excess unauthorised payment is detected
within a short period of time, it would be open for the
employer to recover the same. Conversely, if the payment
had been made for a long duration of time, it would be
iniquitous to make any recovery. Interference because an
action is iniquitous, must really be perceived as, interference
because the action is arbitrary. All arbitrary actions are
truly, actions in violation of Article 14 of the Constitution of
India. The logic of the action in the instant situation, is
iniquitous, or arbitrary, or violative of Article 14 of the
Constitution of India, because it would be almost impossible
for an employee to bear the financial burden, of a refund of
payment received wrongfully for a long span of time. It is
apparent, that a government employee is primarily
dependent on his wages, and if a deduction is to be made
from his/her wages, it should not be a deduction which
would make it difficult for the employee to provide for the
needs of his family. Besides food, clothing and shelter, an
employee has to cater, not only to the education needs of
those dependent upon him, but also their medical
requirements, and a variety of sundry expenses. Based on
the above consideration, we are of the view, that if the
mistake of making a wrongful payment is detected within
five years, it would be open to the employer to recover the
same. However, if the payment is made for a period in
excess of five years, even though it would be open to the
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W.P.(MD)No.7165 of 2012
employer to correct the mistake, it would be extremely
iniquitous and arbitrary to seek a refund of the payments
mistakenly made to the employee.”
18. It is not possible to postulate all situations of
hardship, which would govern employees on the issue of
recovery, where payments have mistakenly been made by the
employer, in excess of their entitlement. Be that as it may,
based on the decisions referred to herein above, we may, as
a ready reference, summarise the following few situations,
wherein recoveries by the employers, would be
impermissible in law:
(i)Recovery from employees belonging to Class-III and
Class-IV service (or Group 'C' and Group 'D' service)
(ii)Recovery from retired employees, or employees who
are due to retire within one year, of the order of recovery.
(iii)Recovery from employees, when the excess payment
has been made for a period in excess of five years, before
the order of recovery is issued.
(iv)Recovery is cases where an employee has wrongfully
been required to discharge duties of a higher post, and has
been paid accordingly, even though he should have
rightfully been required to work again an inferior post.
(v)In any other case, where the Court arrives at the
conclusion, that recovery if made from the employee, would
be iniquitous or harsh or arbitrary to such an extent, as
would far outweigh the equitable balance of the employer's
right to recover.”
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W.P.(MD)No.7165 of 2012
4. Per contra, the learned Special Government Pleader appearing for
the respondents submitted that in view of the order passed by the Hon'ble
Apex Court by setting aside the order passed by the Division Bench
granting Selection Grade and Special Grade, the present petition is liable to
be dismissed and no interference is called for with the order impugned, as
the said order is in consonance with the directions issued by the Hon'ble
Supreme Court.
5.Heard the learned counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondents and
perused the materials available on record.
6. The facts in the present case are not in dispute. This Court, by its
order dated 22.07.2010 passed in W.P(MD)No.8611 of 2010 granted
enhanced Selection/Special Grade, in the light of the Division Bench
judgment in W.A.Nos.383 to 391 of 2009. However, on the Special Leave
Petition preferred by the State, the said decision was reversed by the
Hon'ble Apex Court and the portion of the order fixing Selection Grade and
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W.P.(MD)No.7165 of 2012
Special Grade scale of pay of Rs.5,000-8,000 and Rs.5,500-9,000
respectively were set aside and it was held therein that the employees, who
were similarly placed like that of the petitioners are entitled to only the scale
of pay of Rs.4,000-6,000 and Rs.4300-6000 towards Selection Grade and
Special Grade scale of pay.
7. It is evident from the decision of the Hon'ble Apex Court that the
petitioners are only entitled to ordinary Selection Grade and Special Grade
pay scale in terms of Serial No.6 of Schedule II of the 1998 Rules, i.e., at
Rs.3,200-4,900, Rs.4,000-6,000 and Rs.4,300-6,000 respectively.
Therefore, the impugned order was passed to the extent of refixing the scale
of pay of the petitioner in terms with the directions of the Hon'ble Apex
Court in the above scale of pay which was well founded and the same does
not require any interference.
8. Insofar as the recovery of amounts, which have already been paid
to the petitioner is concerned, it is even not the case of the respondents that
on account of suppression and fraud perpetrated by the petitioners, the
enhanced scale of pay was given to them. It is borne out by record that the
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W.P.(MD)No.7165 of 2012
enhanced scale of pay given to the petitioner was based on the order passed
by the Division Bench of this Court. Though the respondents went on
appeal to the Hon'ble Supreme Court and they refixed the scale of pay of the
petitioner as per the order of the Hon'ble Supreme Court and started to pay
the said scale, it was not on account of any suppression or misrepresentation
on the part of the petitioner, for the said higher scale granted to them.
Therefore, the petitioner having been granted higher scales of pay at the
behest of the respondents themselves in view of the order passed by the
Division Bench of this Court, and hence, the recovery sought to be made by
the respondents are squarely against the ratio laid down by the Hon'ble
Apex Court in Rafiq Masih's case (supra). In the light of the above
undisputed position, this Court is of the considered view that the recovery
of higher scale of pay, granted by the respondents on their own volition,
which is sought to be recovered from the respondents is wholly
impermissible and no recovery can be made in the light of the decision of
the Hon'ble Apex Court in Rafiq Masih's case.
9. For the reasons aforesaid, this writ petition is allowed in part by
confirming the refixation of pay as ordered in the impugned order, but
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W.P.(MD)No.7165 of 2012
setting aside the recovery of the amount already paid to the petitioners. No
costs. Consequently, connected miscellaneous petition is closed.
02.02.2021
Index:Yes/No
Internet:Yes/No
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W.P.(MD)No.7165 of 2012
To
1.The District Forest Officer,
Ramnad-cum-Sivaganga Forest Division,
Sivaganga.
2.The Divisional Forest Officer,
Social Forestry Division,
Madurai.
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W.P.(MD)No.7165 of 2012
M.DHANDAPANI,J.
Ns
W.P.(MD)No.7165 of 2012
02.02.2021
http://www.judis.nic.in
