Madras High Court

C. Ramakrishnan vs Rafiq Masih (White Washer) Etc. In on 20 September, 2023

                                                                W.P. Nos.24413, 24417, 24419 & 24421 of 2023


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 20.09.2023

                                                  CORAM:
                                  THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
                                                     and
                                    THE HONOURABLE MR. JUSTICE K.RAJASEKAR

                            W.P.No.24413 of 2023 & W.M.P. Nos.23844 and 23846 of 2023
                            W.P.No.24417 of 2023 & W.M.P. Nos.23848 and 23849 of 2023
                            W.P.No.24419 of 2023 & W.M.P. Nos.23852 and 23853 of 2023
                            W.P.No.24421 of 2023 & W.M.P. Nos.23858 and 23859 of 2023

                  C. Ramakrishnan                               Petitioner in W.P. No.24413/2023
                  B. Shivaji                                    Petitioner in W.P. No.24417/2023
                  P. Valarmathi                                 Petitioner in W.P. No.24419/2023
                  T. Senbagavalli                               Petitioner in W.P. No.24421/2023
                                                            v
                  1         The Registrar General
                            High Court of Madras
                            High Court campus
                            Chennai 600 104

                  2         The Principal Secretary to Government
                            Home (Courts V) Department
                            Fort St. George
                            Chennai 600 009

                  3         The Principal District Judge
                            Dharmapuri

                  4         The Principal Accountant General (A & E)
                            AG's Office (Audit) Complex
                            Anna Salai
                            Roast Revor Garden
                            Teynampet
                            Chennai 600 018

                  5         The District Treasury Officer
https://www.mhc.tn.gov.in/judis
                            Dharmapuri
                  1/10
                                                                    W.P. Nos.24413, 24417, 24419 & 24421 of 2023


                  6         The Subordinate Judge
                            Harur
                            Dharmapuri District                             Respondents in all WPs.




                            Writ Petitions filed under Article 226 of the Constitution of India
                  seeking a writ of certiorarified mandamus calling for the records relating to the
                  order dated 02.12.2022 vide ROC Nos.614/2022, 613/2022, 616/2022 and
                  615/2022 respectively, passed by the 6th respondent and quash the same as
                  illegal and consequently, direct the respondents to continue to pay at the
                  existing fixation of pay and not to recover the alleged excess amount paid to
                  the petitioners.

                                         For petitioners in         Mr. A. Sakthivel
                                         all WPs.

                                         For RR 1 3, & 6 in         Mr. V. Ayyadurai, Sr. Counsel
                                         all WPs                    assisted by Mr.Durai Eswar

                                         For RR 2 & 5 in            Mr. S. Silambanan
                                         all WPs                    Addl. Adv. Gen. - II
                                                                    assisted by
                                                                    Mrs. V. Yamuna Devi
                                                                    Special Govt. Pleader
                                         For R4 in
                                         all WPs                    Mrs. Hema Muralikrishnan
                                                           ------

COMMON ORDER

(made by S. VAIDYANATHAN, J.)

In view of commonality of the issue involved, these writ petitions are

considered and decided by this common order. https://www.mhc.tn.gov.in/judis

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

2 A resume of the facts leading to the filing of these writ petitions is

as under:

2.1 Though all these four petitioners are now working as Junior

Bailiff in the Subordinate Court, Harur, the post in which they joined the

service is not the same.

2.2 While the petitioners in W.P. No.24417 and 24421 of 2023 were

appointed as Masalchi (Class IV post), the petitioners in W.P. Nos.24413 and

24419 of 2023 were appointed as Night Watchman (Class IV post) and Full

Time Masalchi (Class IV post) respectively.

2.3 While so, all of them were designated as Office Assistant (Class

III post). To be specific, the petitioners in W.P. No.24413, 24417, 24419 and

24421 of 2023 became Office Assistants in 2008, 2008, 1999 and 1999,

respectively and they were also given promotional increment therefor. Be it

noted, the scale of pay for Class IV post in which they were appointed and

Class III post, is one and the same.

2.4 According to the petitioners, though they were designated as https://www.mhc.tn.gov.in/judis Office Assistant, which post carried the same scale of pay of the post in which

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

they were appointed, they are eligible to get one increment as per

G.O.Ms.No.145, P. & A.R. Department dated 19.04.1991.

2.5 However, citing Government Letter No.17507/5/85-4, P. & A.R.

Department dated 24.07.1985, as per which, Class IV employees can be

appointed to Class III posts only by way of transfer and not by way of

promotion and based on the objections raised by the Internal Audit Wing of

the Madras High Court and following the judgment of the Supreme Court in

State of Punjab v Rafiq Masih1, popularly known as White Washer's case,

the incorrect higher fixation of pay was ordered to be recovered in 12 monthly

instalments vide proceedings dated 02.12.2002 of the sixth respondent. In the

said proceedings, it has been inter alia stated that the Government Order in

G.O.Ms.No.145, supra, is not applicable to the petitioners.

2.6 Challenging the aforesaid proceedings and for a direction seeking

payment of the existing pay and not to recover the so-called excess amount

paid to the petitioners, the instant writ petitions have been filed.

3 Heard the learned counsel for the petitioners and perused the

materials available on record.

https://www.mhc.tn.gov.in/judis

1 (2015) 4 SCC 334

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

4 Be it noted, even though the word used in the impugned

proceedings is “promotion”, the time scale applicable to the post of Office

Assistant and Night Watchman/Masalchi/Full Time Masalchi is one and the

same and as such, the petitioners are not entitled to 3% increase on the pretext

that they have been promoted. In other words, since the aforesaid posts carry

the same scale of pay and the post of Office Assistant is not a promotional

post, the petitioners are not entitled to 3% hike with one increment, as

demanded by them.

5 However, the sixth respondent has initiated recovery proceedings

after a lapse of 15 years in the case of the petitioners in W.P. Nos.24413 and

24417 of 2008 and 24 years in the case of the petitioners in W.P. Nos.24419

and 24421 of 2008 and as per the impugned order, such a recourse was taken

in view of the judgment of the Supreme Court in Rafiq Masih, supra.

6 But, it is worth mentioning that the Supreme Court, in the very

same judgment in Rafiq Masih, supra, has summarised certain situations,

wherein, recoveries would be impermissible in law and those situations set out

in paragraph 18 of the judgment in Rafiq Masih, supra, are extracted for ease

of reference.

https://www.mhc.tn.gov.in/judis

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

“i Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

ii Recovery from retired employees, or the employees who are due to retire within one year, of the order of recovery.

iii Recovery from the 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 in 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 against 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.” (emphasis supplied)

In view of the above, the recovery ordered at this distance of time cannot be

allowed to stand. It is also pertinent to notice that Rafiq Masih, supra, has

been reiterated by the Supreme Court recently in Thomas Daniel v State of

Kerala and Others2.

7 At this juncture, it will not be out of place to point out that this

very Bench had an occasion recently to deal with an identical issue in

Narayanasamy v The Registrar, Madras High Court and 5 others 3, the

relevant portion of which is extracted below for ready reference:

“9 Further, it is pertinent to point out that the Government of https://www.mhc.tn.gov.in/judis 2 2002 LiveLaw (SC) 438

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

Tamil Nadu has also issued G.O.Ms.No.286, Finance (Pension) Department dated 28.08.2018 pursuant to the judgment of the Supreme Court in Rafiq Masih (supra) and the opening paragraph of the said Government Order is worth extracting:

“The Hon'ble Supreme Court in the case of State of Punjab & Others etc vs. Rafiq Masih (White Washer) etc. in CA No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012) wherein Hon'ble Court on 18.12.2014 decided a bunch of cases in which monetary benefits were given to employees in excess of their entitle due to unintentional mistakes committed by the concerned competent authorities, in determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information/misrepresentation/fraud, which had led the concerned competent authorities to commit the mistake of making the higher payment to the employees. The employees were as innocent as their employers in the wrongful determination of their inflated emoluments.....”

In the aforesaid Government Order, at paragraphs 9 and 10, there is a clear direction as to how recovery should be done in the light of the judgment of the Supreme Court in Rafiq Masih (supra) and that delay in processing of fixation of pay/pension/family pension fixation with due approvals shall be avoided so as to avoid hardship to the employees/pensioners/family pensioners concerned.

10 In the light of the judgment of the Supreme Court and the aforesaid Government Order, we hope and trust that at least in future, while passing recovery orders, necessary details are stated therein enabling the employees/pensioners/family pensioners to defend themselves and know where they stand actually and the reasons to be so assigned in recovery orders are not supplemented in affidavits filed before the Court, which practice is deprecatory. In the case on hand, since recovery has already been made, we are of the view that no further adjudication is required to be made in this case and accordingly, this writ petition stands closed. Connected W.M.P. stands closed.

While parting, we hasten to add that though this is a fit case to impose costs on the Government, we refrain from doing so and rather, reserve it for other appropriate cases which amount shall be recovered from the erring officials.” https://www.mhc.tn.gov.in/judis

W.P. Nos.24413, 24417, 24419 & 24421 of 2023

8 In view of the above discussion, that portion of the impugned

order insofar as it orders recovery from the petitioners, for no fault of theirs, is

quashed and as for entitlement of 3% of basic pay, the petitioners cannot claim

the same as a matter of right and to that limited extent, the impugned order is

sustained. It is made clear that pursuant to the impugned order, if recovery has

been effected by the respondents, further recovery shall not be effected.

This writ petition stands disposed of in the above terms. Costs made

easy. Connected W.M.Ps. are closed.

(S.V.N., J.) (K.R.S., J.) 20.09.2023 cad

https://www.mhc.tn.gov.in/judis

W.P. Nos.24413, 24417, 24419 & 24421 of 2023