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.



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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 and 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 in the said post from 18.01.2004 and he was conferred

with Special Grade. According to the petitioner, he is entitled to the

benefits of G.O.Ms.No.162, Finance (PC) Department, dated 13.04.1998

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and he is eligible to claim Selection Grade, as per the revision scale of

pay of Rs.5,000-8,000 in the aforesaid G.O. In similar circumstances, the

very same issue came up for consideration before the Division Bench of

this Court in W.A.Nos.383 to 391 of 2009 etc., Batch, wherein, the

Division Bench has granted the benefits. 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 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, ie.,

at Rs.3,200-4,900, Rs.4,000-6,000 and Rs.4,300-6,000 respectively, and

set aside the another 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

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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 a recovery order and refix the pay. In compliance, the

petitioner has been awarded with Selection Grade and Special Grade

scales of pay in terms of the order of the Hon'ble Apex Court and

thereafter, the authority by way of the impugned order, cancelled the pay

fixation and passed an order of recovery vide impugned order, dated

13.03.2012. Challenging the same, the present writ petition is filed.

3.The learned counsel appearing for the petitioner would submit

that the 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 AND OTHERS ETC, VS. RAFIQ MASIH

(WHITE WASHER) ETC., in Civil Appeal No.11527 of 2014, Wherein,

in Paragraph No.12, it is stated as follows:

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“12.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 dur 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

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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.

13.We are informed by the learned counsel representing the appellant-State of Punjab, that all the cases in this bunch of appeals, would undisputedly fall within the first four categories delineated hereinabove. In the appeals referred to above, therefore, the impugned orders passed by the High Court of Punjab and Haryana (quashing the order of recovery) shall be deemed to have been upheld, for the reasons recorded above.”

4.Per contra, the learned Special Government Pleader appearing

for the respondents submitted that the Selection Grade and the Special

Grade was awarded based on the order of the Division Bench of this

Court. Against which, the State preferred Special Leave Petition in

S.L.P.No.359699 of 2009 and the Hon'ble Apex Court set aside the

another portion of the order passed in writ appeal in W.A.Nos.383 to 391

of 2009 etc., batch. Hence, he prays for dismissal of the present wirt

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petition.

5.Heard the learned counsel appearing for the petitioner and the

learned 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.No.8611 of 2010 granting

enhanced Selection / Special Grade, in the light of the Division Bench

judgment in W.A.Nos.383 to 391 of 2009, wherein, it has been clearly

stated that the enhanced Selection / Special Grade scale of pay is

applicable to the petitioner. It is also admitted that as against the

judgment of the Division Bench of this Court, the State had preferred an

SLP before the Hon'ble Apex Court and the said Civil Appeal was

allowed in favour of the State and set aside the portion of the order in

fixing Selection Grade and Special Grade scales of pay of Rs.

5,000-8,000 and Rs.5,500-9,000 respectively, however, the petitioner is

entitled to only Rs.4,000-6,000 and 4300-6000 for Selection Grade and

Special Grade. The judgment of the Hon'ble Apex Court in Civil Appeal

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Nos.9533 to 9537 of 2019,etc., batch, [P.SINGARAVELAN AND ORS.

V. THE DISTRICT COLLECTOR, TIRUPPUR AND ORS.], wherein,

in paragraph No.30, it is stated as follows:

“30.As discussed supra, it has not been disputed before us that the drivers concerned were not entitled to any promotional avenues. Thus, it is evident that the High Court rightly concluded that the drivers were entitled to the full benefits of the appropriate pay scale under Schedule II of the 1998 Rules. However, in light of our foregoing finding that persons employed in the post of drivers in various departments in the Government of Tamil Nadu are only entitled to Ordinary, Selection and Special Grade pay scales in terms of Serial No.6 of Schedule II of the 1998 Rules, ie., at Rs.3,200-4,900, Rs.4,000-6,000 and Rs.4,300-6,000 respectively, we have no hesitation to hold that the High Court erred in directing fixation of such pay scales to drivers employed at the High Court in terms of Serial No.8 of the Schedule II, fixing Selection Grade and Special Grade scale of pay of Rs.5,000-8,000 and Rs.

5,500-9,000 respectively.”

6.On a perusal of the entire records it would reveal that there is no

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wilful suppression on the part of the petitioner in getting the Special

Grade and Selection Grade and only based on the order of this Court,

Selection Grade and Special Grade was granted and also applying the

ratio laid down in the judgment of the Hon'ble Apex Court.

Accordingly, the order of recovery passed against the petitioner is

quashed and this Court is not inclined to refix the scale of pay. The

amount already recovered from the petitioner, need not be given to him.

However, this Court is not inclined to recover the amount paid to the

petitioner, if any.