Madras High Court
L.Magilan vs The Additional Principal Chief ... on 18 October, 2024
W.P.No.15898 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.P.No. 15898 of 2015
L.Magilan,
S/o.Lakshmanan,
T15, 'B' Block, Ashok Manor,
(Ruby Builders), Krishna Nagar 6th Street,
Mudichur Road, West Tambaram,
Chennai - 600 045. ... Petitioner
Vs.
1.The Additional Principal Chief Conservator
of Forest (Admn),
Office of Principal Chief Conservator of Forests,
Panagal Building, Saidapet,
Chennai - 600 015.
2.The Conservator of Forest,
Office of State Forest Research Institute,
Kolapakkam, Chennai - 600 127. ... 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
relating to the impugned proceedings issued by the 1st respondent in
Proc.No.A2/5884/2015 dated 25.02.2015 and the subsequent proceedings
issued by the 2nd respondent in Proc.No.2845/2014/Pa1 dated 15.05.2015
1/17
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W.P.No.15898 of 2015
and to quash the same and consequently directing the respondents to restore
the Selection Grade scale of pay in favour of the petitioner granted in the
post of Assistant Conservator of Forest as per the proceedings of the 1st
respondent in Proc.No.A2/22911/10 dated 26.04.2010.
For Petitioner : Mr.J.jayamalan for Mr.S.Nedunchezhiyan
For Respondents : Mr.R.Murthi, Government Advocate
*******
ORDER
This Writ Petition has been filed challenging the order of the 1st
respondent dated 25.02.2015 and the subsequent proceedings issued by the
2nd respondent dated 15.05.2015 and for consequential direction to restore
the selection grade scale of pay to the petitioner in the post of Assistant
Conservator of Forest granted as per the proceedings dated 26.04.2010.
2. Heard the learned counsel appearing for the petitioner and the
learned counsel appearing for the respondents.
3. The petitioner was appointed as Forest Range Officer in the year
1984 and was awarded with the selection grade on 02.01.1994 and the
Special Grade on 02.01.2004 in the post of Forest Range Officer, prior to his
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promotion to the post of Assistant Conservator of Forest on 05.10.2009.
The Government has issued G.O.Ms.No.210 (P & R) Department dated
11.03.1987 by allowing the service stating that the selection grade of the
lower post shall be counted for awarding selection grade in the promoted
post provided that the selection grade of the lower post is identical to the
ordinary grade of the higher post. Thereafter, a clarification has been issued
by the Government on 26.07.1987 that the services rendered in the selection
grade / special grade of the lower post shall be counted for awarding
selection grade in the higher post provided that the scale of pay of selection
grade / special grade of the lower post are identical / higher than the ordinary
grade of the higher post.
4. The petitioner had reached the selection grade and special grade in
the post of Forest Ranger Officer on 02.01.1994 and 02.01.2004
respectively. By providing the benefits under G.O.Ms.No.210 P & AR
Department dated 11.03.1987, the petitioner was granted the selection grade
in the post of Assistant Conservator of Forest immediately on his promotion
to the said post on 07.10.2009. Further, the 1st respondent vide impugned
proceedings dated 25.02.2015 canceled the selection grade awarded in the
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post of Assistant Conservator of Forest with a further direction to the 2nd
respondent to re-fix the scale of pay in the post of Assistant Conservator of
Forest and also to recover the payments already made. Consequent to the
order of the 1st respondent, the 2nd respondent in the impugned
proceedings dated 01.06.2015 revised the scale of pay by cancelling the
selection grade and also sought to recover the payments made. Assailing the
impugned orders, the petitioner had preferred the above Writ Petition.
5. The learned counsel appearing for the petitioner contended that the
petitioner who was appointed in the year 1984 was granted with the
selection grade on 02.01.1994 and the special grade on 02.01.2004 and he
obtained his first promotion to the post of Assistant Conservator of Forest on
07.10.2009. Only since the petitioner was eligible to the benefits granted
under G.O.Ms.No.210 P & AR Department dated 11.03.1987, the selection
grade was awarded to the petitioner in the promoted post on the date of
promotion itself. It is his further contention that the impugned order has
been passed by merely relying on a circular which cannot take away the
benefits to the petitioner by G.O.Ms.No.210 dated 11.03.1987.
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6. The learned counsel further contended that in fact, the petitioner in
the Writ Petition is 58 years therefore, the order passed at the verge of the
retirement and therefore, in view of the decision rendered by the Hon'ble
Supreme Court in the case of State of State of Punjab and Others Vs. Rafiq
Masih (White Washer) and Others reported in (2015) 4 SCC 334.
Recovery from the employees who have retired or due to retire within a
period of one year is impermissible and therefore, the impugned order of the
2nd respondent in seeking to recover the benefits granted cannot be
sustained. The learned counsel further submitted that the issue in the Writ
Petition has already been dealt with in W.P.No.12290 & 12292 of 2021 and
this Court, by order dated 21.02.2024 has allowed the Writ Petition by
setting aside the orders of re-fixation and also the consequential orders of
recovery and therefore, submit that the impugned orders liable to be
interfered with.
7. Mrs.R.Murthi, learned Government Advocate appearing for the
respondents also agreed to the decision that the issue in the writ petition is
covered by the order that has already been passed by this Court dated
21.02.2024 referred earlier and submitted that the orders in the present Writ
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Petition also can be passed in the similar lines.
8. The petitioner, who was appointed as Forest Range Officer in the
year 1984 was awarded with the selection grade on 02.01.1994 and his
special grade on 02.01.2004 in the post of Forest Range Officer. Since he
has completed nearly 20 years before his first promotion to the post of
Assistant Conservator of Forest on 07.10.2009, the respondents having
found that the petitioner is entitled to the benefits of the G.O.Ms.No.210
( P& R ) dated 11.03.1987 extended the benefits covered under the GO and
had awarded the selection grade to the petitioner in the promoted post of
Assistant Conservator of Forest on the date of promotion itself.
Subsequently, only by relying on the circulars issued thereafter, the
impugned order came to be passed whereby, the pay was sought to be re-
fixed by cancelling the selection grade awarded to the petitioner in the
promoted post and also further the recovery was also sought to be made for
the payments effected, in view of the earlier selection grade awarded to the
petitioner.
9. As contended by the learned counsel appearing on both sides, the
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identical issue in respect of the award of selection grade in the promoted
post by giving the benefits of G.O.Ms.No.210 (P& R ) Department dated
11.03.1987 and subsequent cancellation and refixation of the pay scale with
consequential recovery was the subject matter of issue in W.P.No.12290 &
12292 of 2001 and this Court, by order dated 21.02.2024 allowed the Writ
Petitions, quashing the cancellation of the selection grade awarded and also
the consequential recovery. Relevant paragraph of the said order is extracted
here under:-
"3.The petitioners were originally appointed as Forest
Rangers in Tamil Nadu Forest Subordinate Service through
Tamil Nadu Public Service Commission. Both the petitioners
have been promoted on 05.11.2009 and 07.10.2009
respectively. Since the petitioners have completed 10 years of
service even in their lower post, they were getting identical
pay to the ordinary grade of higher post. Their services in
selection grade of lower post was allowed to be counted for
the selection grade in the promoted post in view of
G.O.Ms.No.210 Personal and Administrative Reforms (PER-
S) Department, dated 11.03.1987.
4. The above G.O. is extracted hereunder for a better
appreciation:
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"Copy
GOVERNMENT OF TAMIL NADU
ABSTRACT
PUBLIC SERVICES – Advancement to Selection
Grade/Special Grade in various services- Recommendation of
the one Man Committee- Accepted- Issued.
--------------------------------------------------------------------------
--PERSONNEL AND ADMINISTRATIVE REFORMS (PRM.S)
DEPARTMENT
G.O.Ms. No.. 210 Dated: 11-3-1987
Read:-
G.O.Ma. No. 68, Personnel and Administrative Reforms
(Per.M) Department, dated 23-1-1986.
ORDER:
The Government in their orders read above have inpued
guidelines for advancement to Selection Grade/Special Grade
in various categories, based on the recommendations of the
Fourth Tamil Nadu Pay Commission. The One Man
Committee hap now recommended as follows:-
"Services in the Selection Grade of the lover. post may also
be counted for the Selection Grade in the promoted post
provided the the Selection Grade scale of the lover post
identical to the Ordinary Grade of the higher post, and that
this concession may be allowed only at the first promotion
level. This will mainly result in some pensionary benefits to
these categories.
In the case of posts with different grades, persons with 10
years or more of service may be advanced to Order-I and
those with 20 years or more may be advanced to Selection
Grade of Grade-I."
2. The Government after careful examination accept the
recommendation of the One Man Committee and direct that
the service in the Selection Grade of the lower post shall be
counted for the Selection Grade in the promoted post
provided that the Selection Grade scale of the lower post is
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identical to the Ordinary Grade of the higher post, and that
the concession be allowed only at the first promotion level.
Government also direct that in the case of posts with different
grades one who has put in 10 years of more of service in the
lower post (e.g. Grade-II) shall be advanced to the next
higher post (i.e. Grade-I) under the scheme of Flexible
Complementing and one with a service of 20 years or more be
advanced to Selection Grade of the higher post (i.e. Grade-I)
wherever it' has already been provided.
3. These orders shall take notional effect from 1-10-1984 for
the purpose of fixation of pay with monetary benefit from 1-4-
1986.
/(By Order of the Governor)”
5. At the time when the above Government Order was
issued, the above benefit was restricted to the first lower
promotion alone. However, the Government has later
clarified through a letter dated 28.09.1999 that such a benefit
can be extended to any level but limited to only once in
service period. However, the 4 th respondent has passed the
impugned orders on 10.12.2010 and 17.07.2015, 22.07.2015
and 16.03.2016 by stating that the selection grade awarded to
the petitioners in the post of Assistant Conservative of Forest
is cancelled and recovery order has also been issued vide the
proceedings of the 4 the respondent dated 16.03.2016.
Aggrieved over that, the petitioners have filed these writ
petitions.
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6. The learned counsel for the petitioners submitted
that the petitioners, who have joined services in the year 1984
have completed 20 years of service at the time when they were
given the first level promotion of Assistant Conservative of
Forest. So the petitioners will be entitled to get the selection
grade in their lower post on completion of 10 years of service.
Since the petitioners have completed 20 years of service at the
time when they got their first level promotion itself, they have
got surplus 10 years from the selection grade post in the
lower level. Since G.O.Ms.No.210 Personal and
Administrative Reforms (PER-S) Department, dated
11.03.1987 permits the years of services completed by the
employee in their selection grade of lower post to be included
for the selection grade in the higher post, they are entitled to
their surplus of 10 years.
7. In such case the petitioners are entitled to get their
selection grade in the higher post on the very day when they
got their promotion to the post of Assistant Conservative
Forest. But the respondents got themselves misguided and by
the impugned orders, the respondents cancelled the selection
grade awarded to the petitioners in their promoted post of
Assistant Conservative of Forest with effect from their date of
getting their promotion.
8. A reference was made in the clarification letter of the
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Government issued on 09.08.2011 wherein it is stated that the
earlier orders in G.O.Ms.210 and 168 cannot be made
applicable in the revised scale of pay implemented with effect
from 01.01.2006. By taking shelter under the said
clarification letter, the impugned order has been passed by
cancelling the selection grade awarded to the petitioners in
their higher post. However, the 4 th respondent had omitted
to take note of the fact that the petitioners have not availed
the benefit of G.O.Ms.No.210 Personal and Administrative
Reforms (PER-S) Department, dated 11.03.1987 any time
before the benefit was given to them. According to
G.O.Ms.No. 210 Personal and Administrative Reforms (PER-
S) Department, dated 11.03.1987, such a benefit can be
awarded only once. When a Government Order has been
issued granting certain entitlement, a government letter or
circular cannot be issued to withdraw the same, without any
rhyme or reason. Since the petitioner's entitlement itself falls
after 01.01.2006, it cannot be construed that the petitioners
had already enjoyed the benefit and hence the same benefit
cannot be extended to them once the pay revision is
implemented from 01.01.2006.
9. Even though the letter dated 09.08.2011 could have
been issued by rightly understanding the position and the
benefit conferred vide G.O.Ms.No.210, dated 11.03.1987, the
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authorities have interpreted it in a such a way that there can
be discrimination between two set of employees who have
availed benefit of G.O.Ms.210, dated 11.03.1987 before
01.06.2006 but not after 01.01.2006.
10. When a benefit is given by taking into consideration
of the long stagnation in one post without further promotion
to the next post, the same has to be given to all those who are
similarly placed and hence, the letter dated 09.08.2011
cannot be misconstrued by the 4 th respondent authority. And
further, in the letter dated 14.05.2012 by the government, it is
further clarified that those persons who are due to be
awarded selection grade and special grade in the higher
selection grade during the period between 01.01.2006 and
31.05.2009, the effect will be given from 01.06.2009 instead
of 01.01.2006.
11. Both the petitioners have been given effect of the
selection grade benefit in their first level promotion after
01.06.2009 only. But the impugned orders have been issued
due to oversight and without taking into consideration of the
entire proceedings and clarifications given in this regard.
Hence the order passed by cancelling the award of selection
grade / special grade to the petitioners in their promotional
post are liable to be set-aside. The 4 th respondent has also
issued an order for recovery of the above proceedings which
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are also liable to be set aside, because the basic order itself is
found to be illegal and is liable to be quashed.
12. Even for any extraneous reasons, it is presumed
that the recovery is not on a legally sustainable order, the
recovery cannot be made as against the petitioners who have
already retired from service.
13.The position of law on this point has already been
well settled by the judgment of the Hon'ble Supreme Court in
the case of State of Punjab and others Vs. Rafiq Masih (White
Washer) and others [reported in (2015) 4 Supreme Court
Cases 334], wherein it is held as under and the petitioners fit
in under 2nd category:
"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 Ty 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 in cases where an employee has
wrongfully been required to discharge duties of a
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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."
14. But in the instant case, the petitioners, even without
the aid of the preposition laid in the 'white washer case'.
Because the cancellation of awarding of selection grade in
their higher post itself is proved to be illegal. Subsequent to
the order of the Hon'ble Supreme Court made in 'White
Washer case, a Government Order has been issued in
G.O.Ms.No.286 dated 28.08.2018. The recovery order is
completely in violation of the above said government Order
also. Therefore the petitioners are entitled to get the refund of
the recovery so far made in connection with the alleged
excess payment of salary made to the petitioners. This clarity
in the relief is given in view of the fact that recovery appears
to have been made as against one of the petitioners on the
verge of his retirement.
15. In view of the above stated reasons, these Writ
Petitions are allowed. The impugned orders passed by the 4
th respondent in Che.Mu.No.3655/14/Pa dated 16.03.2016
and the impugned Proceedings issued by the 3 rd respondent
in Proc.No.AA1/19690/2015 dated 17.07.2015 and the
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consequential impugned order of 4 th respondent in
Che.Mu.No.8864/2014/Po2 dated 22.07.2015 are all quashed
and the respondents are directed to refund the sum of any
recovered so far and restore the original fixation of pay and
pass orders within a period of six weeks from the date of
receipt of copy of this order. No costs. Consequently,
connected miscellaneous petitions are closed."
10. Further as in the case referred earlier, the petitioner in the above
Writ Petition also is aged 58, who was at the verge of the retirement and
therefore, the White Washer's case referred earlier which was followed by
the learned Judge is squarely applicable to the present case.
11. In view of the above, this Writ Petition stands allowed, the
impugned orders in the Writ Petition are quashed. If at all any recovery has
been made pursuant to the impugned orders, the respondents are directed to
refund the same and restore the original fixation of pay and pass necessary
orders in this regard within a period of eight weeks from the date of receipt
of a copy of this order. No costs. Consequently, connected miscellaneous
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petitions, if any, are closed.
18.10.2024
kkn
Internet : Yes/No
Index : Yes/No
Speaking order:Yes/No
Neutral Citation:Yes/No
G.ARUL MURUGAN, J.
KKN
To
1.The Additional Principal Chief Conservator
of Forest (Admn),
Office of Principal Chief Conservator of Forests,
Panagal Building, Saidapet,
Chennai - 600 015.
2.The Conservator of Forest,
Office of State Forest Research Institute,
Kolapakkam, Chennai - 600 127.
https://www.mhc.tn.gov.in/judis
18.10.2024
https://www.mhc.tn.gov.in/judis
