Madras High Court
The Commissioner vs C.Alexandar on 6 September, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HONOURABLE MR. JUSTICE PARESH UPADHYAY
and
THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY
W.A.Nos.2030 to 2045 of 2022
and C.M.P. Nos. 15331 to 15358 and 15360 to 15362 of 2022
W.A.No.2030 of 2022
1.The Commissioner,
Greater Chennai Corporation,
Ripon Building, Chennai – 3.
2.The Executive Engineer,
Greater Chennai Corporation,
Mechanical Engineering Department,
South Chennai Lorry Station,
Ripon Buildings, Chennai – 3.
3.The Asst. Executive Engineer,
Greater Chennai Corporation,
Mechanical Engineering Department,
South Chennai Depot,
No.18, Pudupet, Chennai – 2. .. Appellants
Vs
C.Alexandar .. Respondent
Prayer in W.A.No.2030 of 2022: Appeal filed under Clause 15 of
Letters Patent against the order dated 23.12.2021 in W.P.
No.7296 of 2020.
https://www.mhc.tn.gov.in/judis
For Appellants : Mr.S.Silambanan,
Addl. Advocate General
assisted by
Mr.R.Gopinath in all the W.As
For Respondent : Mr.T.Mohan
for Mr.S.R.Sankareshwaran
in W.A.2030 to 2037,
2041,2042,2044 & 2045 of 2022
Mr.Balanharidass
in W.A.No.2038 of 2022
COMMON JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
1. Challenge in this group of appeals is made to the order
dated 25.12.2021 recorded on group of writ petitions being
W.P.No.7307 of 2020 and cognate petitions. The respondents in
the writ petitions are in appeal.
2. Learned Additional Advocate General has submitted
that, the learned single Judge was in error while arriving at the
conclusion that, the order of revision of pay and also the
consequential recovery was unsustainable. It is submitted that,
according to appellant authorities, the writ petitioners were
granted higher scale erroneously - against the policy of the State
and having realised the same, as pointed out by the audit
authorities, corrective steps were taken and no exception ought to
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have been made therein. It is noted that, the learned Additional
Advocate General has taken this Court extensively through the
G.Os on record so also the reasoning recorded by learned single
Judge and the final conclusion arrived at in para 96 of the order
under challenge. It is submitted that, the revision of pay, in the
facts of the case, was not as such revision of pay but correction of
mistake committed by the authorities, and though, the writ
petitioners can not be blamed for any misrepresentation on their
part and therefore - for the purpose of recovery, some lenient
view can be taken, however for the purpose of prospective
payment of wages per month, the action of the authorities ought
not to have been interfered with. It is submitted that these
appeals be entertained.
3. On the other hand, learned advocate for the writ
petitioners has submitted that, the grant of pay scale to the writ
petitioners was strictly on the basis of policy of the State as
contained in G.Os issued from time to time and the action of the
authorities of not granting due pay scale even prospectively was
also illegal. It is submitted that, not only that the action of the
appellant authorities of ordering recovery is in any case
unsustainable. It is submitted that, even on merits, it is the case
of the writ petitioners that, the pay scale was rightly granted to
them.
https://www.mhc.tn.gov.in/judis It is submitted that, the directions given by learned single
Judge be not interfered with. It is further submitted that, some of
the employees have retired and some have died also. It is
submitted that, the person who was not granted the pay scale at
the relevant time, for the reason other than his non-entitlement,
who was otherwise similarly situated to the other writ petitioners,
was required to be treated at par and therefore positive direction
given by learned single Judge qua him also can not be said to be
an error and therefore that part be also not interfered with. It is
submitted that these appeals be dismissed.
4. Having heard learned advocates for the respective
parties and having considered the material on record this Court
finds as under:-
4.1 The writ petitioners were initially appointed as Motor
Mechanics with the appellant Corporation. The said post is treated
to be the technical post like the post of Wireman. Though
comparison is attempted to be made of the case of Motor Mechanic
with that of Wireman, in the facts of the case, it may not be
required to be gone that far, and that is how that aspect is not
stretched further.
4.2 This Court has taken into consideration the G.Os issued
by the Government in Finance Department from time to time,
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mainly which pertains to general revision of pay effective from
01.01.1996 and 01.01.2006. In this regard, we have taken into
consideration G.O.162 dated 13.04.1998 (page 6) which mainly
pertains to the policy of the State with regard to revision of pay
effective from 01.01.1996 and which is not qua these writ
petitioners but all the employees of the State on the whole.
Schedules 1 and 2 annexed therewith is also taken into
consideration. The next revision of pay was from 01.01.2007
(notionally from 01.01.2006). The G.O in that regard - being
G.O.234 dated 01.06.2009 (page 16), along with schedule
annexed therewith, more particularly Entry 5 thereof is taken into
consideration by us. The policy of the State with regard to dealing
with the cadres having no promotion avenues was further taken
note of / care of by the State vide order dated 26.08.2010 (G.O.
338 page 23). Entry 4 thereof is relevant for the purpose of this
controversy, which we have taken into consideration. The
clarifications asked by so many departments was addressed by
highest authority of the Finance Department and the decision qua
that was conveyed to all vide letter dated 08.11.2020 (page 27).
Annexure to the said letter is also part of record with specific
reference to Entry 8 thereof, which we have taken note of. The
subsequent G.O.325 dated 22.07.2013 (page 31) is also on record
which has bearing on the issue which we have taken note of.
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4.3 The cause of action for the appellant authorities was a
communication from the local fund audit department in the year
2013 which is on record. The substance thereof is that, the audit
authorities had perceived that the decision of the Government in
Finance Department, as contained in letter dated 08.11.2020 ought
not to have been resorted to. It is this audit objection which was
permitted to be settled by the authorities by not replying as to
why that audit objection was unsustainable but by withdrawing
pay scale already granted to the writ petitioners. We find that, it is
this action by the appellate authority which created the so-called
confusion or the difficulty. We find that the objection by audit
authorities in this regard was improper reading of the G.Os and
the decision of the Government. The sustainability of the audit
objection can not be the subject matter of writ petitions and
therefore necessarily it is not the subject matter in these writ
appeals. However we find that, mechanically following the said
audit objection against the policy of the Sate as contained in G.Os
noted above, was unsustainable exercise which learned single
Judge, according to us, has rightly interfered with. We further note
that, learned single Judge, in para 96 of the order under challenge,
gave the following directions:-
“96. In the result, these Writ
Petitions are allowed with the following
directions:-
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i. There shall be no recovery of any
amounts paid to the petitioners;
ii. Any recovery made so far/withheld
pursuant to the impugned proceedings /
orders shall be repaid to the respective
petitioners within a period of 120 days
from the date of receipt of a copy of this
order.
iii. The petitioner in W.P.No.10277
of 2020 (D.Gurumurthy) is entitled for
step up of the pay scale conferred on the
other petitioners.
iv. The respondents shall calculate
the arrears and pay the same to the
petitioner in W.P.No.10277 of 2020
(D.Gurumurthy) within a period of 120 days
from the date of receipt of a copy of this
order.
v. There shall be no downward the re-
fixation of pay/pensions of the respective
petitioners.
vi. The respondents shall take steps
to get a Government Order ordered above to
be issued within a period of 180 days from
the date of receipt of a copy of this
order and to bring a closure to the issue
once for all.
vii.No costs. Consequently, connected
Miscellaneous Petitions are closed.”
4.4 We find that, before giving directions as noted above in
para 96 of the order under challenge, learned single Judge has
considered all the possible arguments on behalf of the authorities
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threadbare, and all the G.Os. which we have taken note of, as
referred above, and arrived at an inescapable conclusion that, the
benefit of pay scale granted to the writ petitioners from time to
time was strictly in accordance with law and policy of the State
and withdrawal thereof was unsustainable and therefore setting
aside that action by learned single Judge, according to us, can not
be said to be an error, much less any error apparent on the face of
record, which may call for any interference under Clause 15 of
Letters Patent. These appeals therefore need to be dismissed.
4.5 We further note that if the direction to refund the
amount which was already recovered, was to be examined
independent of what is noted above, then also that recovery in the
facts of the case could not be justified, however since we have
concurred with the view expressed by learned single Judge that
the pay scale granted to the writ petitioners was just and proper,
there is no question of considering whether recovery was
otherwise permissible or not.
4.6 There is an additional factor which needs to be taken
note of. The writ petitioners were appointed as Motor Mechanics.
The ground of withdrawal of pay scale, as perceived to be valid
ground by the appellant authorities is that, there was a post of
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Head Motor Mechanic, which was surrendered in the year 2012,
however it is a matter of record that, on and from the year 1998,
no promotion was given on the post of Head Motor Mechanic and
the matter was under correspondence between the appellant
authorities and the State Government. The formal approval by the
State for the said non-promotion from the year 1998 came in the
year 2012, which can not be a ground to perceive that the Motor
Mechanic did have the promotion avenue on the post of Head
Motor Mechanic till the year 2012.
5. For the reasons recorded above, these appeals are
dismissed. No costs. Connected miscellaneous petitions would not
survive.
(P.U., J) (D.B.C., J)
06.09.2022
Index:No
mmi/3
https://www.mhc.tn.gov.in/judis
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
mmi
W.A.Nos.2030 to 2045 of 2022
06.09.2022
https://www.mhc.tn.gov.in/judis
