Madras High Court
V.Balasubramanian vs The Government Of Tamil Nadu on 11 March, 2022
W.P.No.23585 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.03.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.23585 of 2010
V.Balasubramanian,
B.T.Assistant (Retired),
Government Nandanar Boys Higher,
Secondary School, Chidambaram,
Cuddalore District. .. Petitioner
Versus
1. The Government of Tamil Nadu,
Represented by the Secretary to the Government,
Adhi Dravidar & Tribal Welfare Department,
Fort St.George, Chennai-9.
2. The Director of Adhi Dravidar and Tribal Welfare,
Chepauk, Chennai-5.
3. The District Adhi Dravidar Welfare Officer,
Cuddalore District, Cuddalore.
4. The Headmaster,
Govt. Nandanar Boys Higher Secondary School,
Chidambaram, Cuddalore District.
5. The Treasury Officer,
Cuddalore District, Cuddalore.
6. The Principal Accountant General,
Teynampet, Chennai-600 018. .. Respondents
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W.P.No.23585 of 2010
Prayer : Writ Petition filed under Article 226 of the Constitution of India
to issue a Writ of Certiorarified Mandamus calling for the records of the 4th
respondent issued in Na.Ka.No.A1/1213/2000, dated 16.02.2009 and quash
the same and issue a consequential direction to the 5th respondent to release
the amount of Rs.1,97,604/- towards the amount of gratuity to the petitioner
as per the direction of the Accountant General, (Accounts & Entitlements)
Tamil Nadu, issued in Pen9/3/B2-137/Retd/01-02/08-09, dated 18.02.2009
and consequential direction to the respondents 1 to 4 to restore the pay of
the petitioner at Rs.2120/- in the scale of pay of Rs.2000-3200 with effect
from 01.06.1988 and to grant consequential pay fixation and fix the pension
and to release the amount of gratuity of Rs.1,97,604/- and to grant arrears of
pension.
For Petitioner : Mr.R.Saseetharan
For RR1 to 3 & 5 : Mrs.E.Ranganayaki,
Additional Government Pleader
For R4 : No Appearance
For R6 : Mr.Vijayshankar
ORDER
The petitioner has filed this Writ Petition challenging the order of the
fourth respondent, dated 16.02.2009 and to issue a consequential direction
to the fifth respondent to release the amount of Rs.1,97,604/- towards
gratuity to the petitioner and to restore the pay of the petitioner at Rs.2120/-
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W.P.No.23585 of 2010
in the scale of pay of Rs.2000-3200 with effect from 01.06.1988 and to
grant the consequential pay fixation and pension.
2. The case of the petitioner is that the petitioner joined as Secondary
Grade Teacher on 06.10.1964 and he also worked as Primary School
Headmaster between 06.10.1964 to 07.06.1966. However, thereafter, he
was posted as Secondary Grade Teacher in the Adhi Dravidar Middle
School and upon his acquiring of higher qualification he was thereafter
promoted as B.T. Assistant. This being so, his junior, P.Subramanian, who
joined service only on 26.09.1966, who was also subsequently promoted as
Tamil Pandit and absorbed in the High School, was given higher pay only
because he happened to be in the Primary School as on 10.10.1988, on
which date, the Government had increased the pay for the post of Primary
School Headmaster.
3. However, even though the pay was increased, no rule of seniority
whatsoever was followed in the matter of posting the Secondary Grade
Teachers as Primary School Headmasters and it is only by chance the
petitioner continued to work as Secondary Grade Teacher in the Middle
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W.P.No.23585 of 2010
School, while the juniors, whoever were there in the Primary School,
working as Headmasters, were given the higher pay. This resulted in the
juniors drawing higher pay than that of the seniors. Therefore, following
the principles of FR 27(2), the Head of the Department, namely Adhi
Dravidar Welfare Officer, Cuddalore, by an order, dated 23.03.1997, passed
an order, stepping up of the pay of the petitioner on par with his junior
P.Subramanian. As a matter of fact, a detailed perusing has been made by
the said officer, which is extracted below:-
Cjpa Kuz;ghL epfH;t[ gpdtUkhW
gzpK:g;gpy; K:j;jtu; gzpK:g;gpy;
tP/ghyRg;ukzpad; ,isatu;
jpU/gp/Rg;ukzpad;
1 Kjd; Kjypy; ,ilepiy 100664 26/09/66 gp/g
Mrphpau; gzpapy; nru;ej
;
ehs;
2 gzptud;Kiw bra;j ehs; 100664 092766
3 nju;t[epiy bgw;w ehs; 100674 27/09/76
4 rpwg;g[ epyiy bgw;w ehs; ,y;iy 27/09/86
5 gjtp cau;t[ ehs; 09/10/78 gl;ljhupahf 10/10/91
jkpHhrpupauhf
(gl;ljhup
epiyapy;)
6 jiyikahrpupauhf 06/10/64 Kjy; 26/09/66 Kjy;
gzpg[upe;j fhyk; 07/06/66 Koa 25/06/73 Koa
01/11/89 Kjy;
09/10/91 Koa
7 cau;fy;tp jFjpfs; bgw;w gp/l;/ 12/04/77 gp/vl; 09/06/91
ehs; vk;/V/ 11/04/91
8 murhiz 822 epjpj;Jiw U:/220 U:/215
ehs; 8/2/71d; go 2/0/70y; 210?5?245?10?325 210?5?245?10?325
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W.P.No.23585 of 2010
Cjpak;/
9 murhiz 1050 U:/490-? :U:/430-?
epjpj;Jiw ehs; 5/10/78d; 400?15?490?20? 400?15?490?20?
go 1/4/78y; Cjpak;/ 650?25?700 650?25?700
10 murhiz 555 epjp(C/br) U:/1145-? U:/950-?
Jiw ehs; 10/6/85d; go 780?35?1025?40?1385 705?20?745?25?845?
1/10/84y; Cjpak;/ 35?1230
11 murhiz 666 epjp(C/F) U:/1700-? U:/1700-?
Jiw ehs; 27/6/89d; go 1400?40?1600?50? 1640?60?2600?75?29
12 murhiz 1381 fy;tpj; ,y;iy U:/2120-?
Jiw ehs; 5/10/90d; go 2000?60?2300?75?32
Cjpak; gzg;gad;
1/11/89y;
13 cau;gjtpapy; nju;t[epiy U:/1820-? 10/10/88 nju;t[epiy
ehs; kw;Wk; Cjpak;/ 1640?60?2600?75?2900 bgwtpy;iy
14 Cjpa Kuz;ghL Vw;gl;l 060188 060188
ehs;
15 mLj;j Cjpa cau;t[ ehs; 100188 100188
4. This being so, after the petitioner attained superannuation by the
impugned order dated 28.03.2001, based on the objections by the sixth
respondent, namely the Principal Account General, Teynampet, Chennai-
600 018, the stepping up of the pay of the applicant, with effect from
10.10.1988, was withdrawn and the excess amount of Rs.2,30,353/- was
ordered to be recovered and from the D.C.R.G of the petitioner, a sum of
Rs.1,97,604/- was withheld. It is under these circumstances, the petitioner
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W.P.No.23585 of 2010
has approached this Court challenging the orders of the downward revision
of his pay as well as the pension and recovery of the excess amount.
5. The Writ Petition is resisted by the respondents. The fourth
respondent has filed a detailed counter affidavit, whereunder, it is contended
that they have every right to correct any mistake in the matter of fixation to
pay. As a matter of fact, the then Head of the Department had erred in
stepping up the pay of the petitioner because the petitioner had compared to
one P.Subramanian. The said P.Subramanian was granted higher pay
because he was actually working as Primary School Headmaster as on
10.10.1988 and therefore, was entitled to higher pay. However, thereafter,
he was not on the same cadre as that of the petitioner as he was promoted as
Tamil Pandit and absorbed in the High School. Therefore, on the date when
the stepping up of pay was passed by the then Head of the Department, there
was no such necessity at all and when the junior gets higher pay on account
of his promotion, it cannot be treated as an anomaly so that the pay of the
senior to be stepped up.
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W.P.No.23585 of 2010
6. A counter affidavit has also been filed on behalf of the sixth
respondent, whereunder it is contended that on account of the stepping up of
the pay the petitioner has actually been given the scale admissible to the
Special Grade Middle School Headmaster, even though he was not holding
that post. Further justification, as on the same lines of the counter affidavit
of the fourth respondent, is also given stating that the stepping up of pay
was not in order,
7. Heard Mr.R.Saseetharan, learned Counsel for the petitioner,
Mrs.E.Ranganayaki, learned Assistant Government Pleader on behalf of the
respondents 1 to 3 and 5 and Mr.Vijayashankar, learned Counsel for the
sixth respondent.
8. The learned Counsel for the petitioner would submit that it would
be clear from the tabular column, which is extracted above, that as per the
original order granting stepping up of the pay there was an anomaly. The
respondents never followed the principles of seniority. Once the
respondents decided to grant higher pay to the post of Primary School
Headmaster than that of the Secondary Grade Teacher, the principles of
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W.P.No.23585 of 2010
seniority should have been followed. If the respondents had followed the
principles of seniority, the petitioner, being two years senior to said
Subramanian, would have been posted as Primary School Headmaster and
therefore, this is a clear case where anomaly has arisen on account of the
administrative default on the part of the respondents and therefore, if a
junior gets a higher pay on account of the anomaly, then it is the basic facet
of the service jurisprudence, that pay should be stepped up.
9. This apart, the learned Counsel would rely on Rule 27 of the
Fundamental Rules. More particularly, placing reliance on 27(2), the
learned Counsel would submit that the Head of the Department is entitled to
pass the orders stepping up the pay of the petitioner. Further, he would rely
upon the judgment of this Court, dated 22.01.2010 in W.P.No.13385 of
2009, under the same set of facts in respect of a Teacher, who was also
absorbed as B.T. Assistant as in the case of the petitioner belonging to the
same Adhi Dravidar Department, this Court has already held that the
stepping up of the pay was justified and the withdrawal of the enhanced pay
and recovery was held to be unjustified and Writ Petition was allowed.
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W.P.No.23585 of 2010
Therefore, the learned Counsel would submit that the matter is no longer res
integra and the petitioner is entitled for the relief.
10. This apart, he would rely upon the earlier communication of the
second respondent, dated 09.12.1994, whereby the second respondent
himself has requested that the reply given by the District Adhi Dravidar
Welfare Officer, Tirunelveli to be accepted under similar circumstances and
proceedings should be dropped. But, however, in the case of the petitioner
alone, almost seven years after the said communication, the impugned order
is passed after his retirement. Therefore, he would submit that the
respondents are totally not justified in passing the impugned order and prays
that this Court should grant him the relief.
11. Per Contra, Mrs.E.Ranganayaki, the learned Additional
Government Pleader would submit that the Head of the Department had
while stepping up of the pay, purported to pass the order under Decision
No.17 under FR 27, which is not applicable to the present case. This is not
the case where the higher pay of the petitioner is due to any anomally but
on account of working in a post carrying higher pay. Relying on paragraph
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W.P.No.23585 of 2010
Nos.4 and5 of the counter affidavit, she would submit that the case of the
P.Subramanian was not comparable to that of the petitioner, since, both did
not belong to the same cadre as on the date of revision. Therefore, the Head
of the Department ought not to have granted the stepping up of pay and
would pray that the orders have been correctly passed correcting the
mistake and therefore, the prayed for dismissal of the Writ Petition.
12. I have considered the rival submissions made on behalf of both
the sides. It is a trite proposition under service jurisprudence that whenever
a junior gets more pay than that of his senior by way of an anomaly, the
same has to be rectified by stepping up of the pay of the senior. The same is
also expressly provided under Fundamental Rule 27(2). In this case, a
perusal of the tabular column, extracted above, would clearly demonstrate
that the said P.Subramanian and the petitioner belonged to the same cadre,
namely Secondary Grade Teachers. When suddenly, with effect from
10.10.1988, the Government of Tamil Nadu increased the pay for the post of
Primary School Headmaster, admittedly no principle of seniority was
followed. Neither any selection was conducted by way of Departmental
Promotion Committee nor any criteria was followed while posting of the
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W.P.No.23585 of 2010
individuals as Secondary Grade Teachers or as Primary School Headmaster.
Otherwise, it is a matter of chance/fortune that some people were actually
working as Primary School Headmasters and some people even though were
seniors were working as Secondary Grade Teachers, just because they were
posted in Middle School. Therefore, when there is no rationale in granting
higher pay to the Junior, I hold that it is an anomaly that the junior drawing
more pay than that of the senior. The said anomaly has been clearly
demonstrated in the table which is given in the original order stepping up of
the pay of the applicant.
13. This apart, as rightly pointed out by the learned Counsel for the
petitioner, it is the concerned department, namely Adhi Dravidar and Tribal
Welfare Department, which is the employer, which has to decide as to the
pay and allowances of the petitioner. After receipt of the information from
the sixth respondent, in a similar case, after considering the entire issue, the
Head of the Department, namely the Director of the Adhi Dravidar and
Tribal Welfare had, infact, by his communication, dated 09.12.1994,
requested that the explanation of the District Adhi Dravidar Welfare Officer
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W.P.No.23585 of 2010
in a similar matter be accepted and the matter be allowed to rest. However,
in respect of the petitioner alone the impugned orders are passed.
14. This apart, as rightly contended by the learned Counsel for the
petitioner, upon the same set of facts, in W.P.No.13385 of 2009, by a
judgment, dated 22.01.2010, a learned Judge has quahsed the downward
revision of pay as well as the consequent recovery as illegal. It is useful to
extract paragraph No.12 of the said judgment, which is as follows:
“12. Having considered the submission of the
learned counsel for the petitioner, it is clear that
prior to 01.08.1988, the posts of Secondary
Grade Teacher the Primary School Headmaster
were treated as one and the same and no
seniority was maintained for the post of Primary
School Headmaster and such seniority came to
be fixed for the first time during 1989. If that be
the case, the second respondent was justified in
issuing the proceedings dated 12.07.1989 for the
purpose of stepping up of pay of seniors on par
with Juniors and such refixation is also in
accordance with FR 27(2) when the petitioner
having been granted such benefit of higher pay
that is, by stepping up of pay on par with Juniors
with effect from 01.07.1988 the same cannot be
denied after a lapse of nearly 11 years on the
ground of audit objections.”
Therefore, I am of the view that the petitioner is entitled to succeed.
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W.P.No.23585 of 2010
15. The Writ Petition is therefore, allowed on the following terms:-
(i) the impugned order of the fourth respondent in
Na.Ka.No.A1/1213/2000, dated 16.02.2009 is quashed;
(ii) the respondents are directed to restore the pay of the petitioner at
Rs.2120/- in the scale of pay of Rs.2000-3200, with effect from 01.06.1988
and grant the consequential pay fixation and fix the pension and to release
all the arrears including the withheld amount of Rs.1,97,604/-, withheld
from the D.C.R.G of the petitioner, within three months from the date of
receipt of this order;
(iii) the petitioner is not entitled to any interest on the arrears to be
paid/released.
(iv) there will be no order as to costs;
Consequently, M.P.No.2 of 2010 is closed.
11.03.2022
Index : yes/no
Speaking/Non-speaking order
grs
To
1. The Secretary to the Government,
Adhi Dravidar & Tribal Welfare Department,
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W.P.No.23585 of 2010
Fort St.George, Chennai-9.
2. The Director of Adhi Dravidar and Tribal Welfare,
Chepauk, Chennai-5.
3. The District Adhi Dravidar Welfare Officer,
Cuddalore District, Cuddalore.
4. The Headmaster,
Govt. Nandanar Boys Higher Secondary School,
Chidambaram, Cuddalore District.
5. The Treasury Officer,
Cuddalore District, Cuddalore.
6. The Principal Accountant General,
Teynampet, Chennai-600 018.
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W.P.No.23585 of 2010
D.BHARATHA CHAKRAVARTHY, J
grs
W.P.No.23585 of 2010
11.03.2022
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