Madras High Court
R.Velusamy vs The Secretary To Government on 27 September, 2024
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P.(MD).No.12698 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.09.2024
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD)No.12698 of 2023
and
W.M.P.(MD)No.10712 of 2023
R.Velusamy ... Petitioner
-vs-
1.The Secretary to Government,
Finance (Pay Cell Department),
Fort St.George,
Chennai-600 009.
2.The Director General of Police,
Kamarajar Salai,
Mylapore,
Chennai-600 004.
3.The Superintendent of Police,
Tenkasi District,
Tenkasi.
4.The Principal Accountant General (A and E),
No. 361, Anna Salai,
Chennai 600 018. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus to call for the records on the file of
the 4th and 3rd respondents in connection with the impugned order passed by
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1/8
W.P.(MD).No.12698 of 2023
them vide their proceedings in No. P04/1/10430841/ADK/65 dated
20.09.2022 and in C.No. B1/460/34479/2022 dated 14.12.2022 respectively
and quash the both as illegal, arbitrary and consequently direct the
respondents to re-fix the petitioner pay and pension on par with the
petitioner's batchmates and juniors and thereby direct them reimburse the
recovered amount of Rs.1,74,363/- in the light of the order passed by the
Honble Supreme Court in State of Punjab & Others vs. Rafiq Masih (White
Washer) and Others reported in 2015 (4) Supreme Court Cases 334 and pay
enhanced pension within the time limit that may be stipulated by this Court.
For Petitioner : Mr.G.Thalaimutharasu
For Respondents : Mr.S.Shanmugavel (R1 to R3)
Additional Government Pleader
Ms.S.Mahalakshmi (R4)
ORDER
The instant writ petition has been filed by a retired Special Sub-
Inspector of Police, challenging the order passed by the fourth respondent
herein and the consequential order of recovery passed by the third respondent.
2. The writ petitioner herein was originally appointed as Grade II
Police Constable and he was upgraded to Grade I Police Constable on
25.05.1998 and later, upgradation was granted as Head Constable on
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25.05.2003. These two upgradations were treated as promotions and
increments were granted by the concerned Superintendent of Police. When
the pension proposals were forwarded by the concerned department to the
fourth respondent, the fourth respondent found out that upgradations will not
carry any monetary benefits, have been conferred increments upon the writ
petitioner. Therefore, the fourth respondent has passed the impugned order
dated 20.09.2022 pointing out Government Letter (MS) No.737, Home
(Police V) Department, dated 18.08.2010 to the effect that advancement of
upgradation to the posts of Grade I Police Constable and Head Constable are
only for consideration of next upgradation and the individual should not
claim any financial benefits.
3. Following the order of the fourth respondent, consequential order of
recovery was passed by the third respondent on 14.12.2022 seeking for
recovery of a sum of Rs.1,74,373/-, which is alleged to be excess payments
made to the writ petitioner, in view of the increments conferred upon him at
the time of upgradation to the posts of Grade I Police Constable and Head
Constable, and these two orders are challenged in this writ petition.
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4. According to the learned counsel appearing for the writ petitioner,
the writ petitioner is receiving the said benefits from September, 2010
onwards. However, when he was about to retire in October, 2022, the
impugned order has been passed by the fourth respondent on 20.09.2022 and
the consequential order of recovery has been passed by the third respondent
after his retirement. This would cause great prejudice to him. Hence, he has
challenged the impugned orders.
5. Per contra, the learned counsel appearing for the fourth respondent,
relying upon Government Letter (MS) No.737, Home (Police V) Department,
dated 18.08.2010 and the proceedings of the Director General of Police, dated
26.03.2015, contended that the upgradation to the posts of Grade I Police
Constable and Head Constable are only for the purpose of advancing
upgradation to the next level post, which would not carry any monetary
benefits. Therefore, the writ petitioner has been granted monetary benefits by
way of increments erroneously by the concerned authorities. This erroneous
conferment of increments have been found, when the pension proposals were
forwarded by the concerned department to the fourth respondent. Hence, the
order dated 20.09.2022 impugned in this writ petition has been passed and he
prayed for sustaining the orders impugned in this writ petition.
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6. The learned Additional Government Pleader appearing for the
respondents 1 to 3, by relying upon paragraph No.3 of the counter affidavit,
contended that the writ petitioner’s pay was erroneously fixed without
properly considering the Government Letter (MS) No.737, Home (Police V)
Department, dated 18.08.2010 and therefore, the pay scale of the writ
petitioner has to be revised and the excess payment for a sum of Rs.1,74,363/-
has to be recovered from him. When the pay scale of the writ petitioner has
been erroneously fixed, the contention of the writ petitioner that his
batchmates and his juniors are receiving the said pay scales are not legally
sustainable. He further contended that the judgment of the Hon’ble Supreme
Court in the case of State of Punjab & Others vs. Rafiq Masih (White
Washer) and Others reported in 2015 (4) Supreme Court Cases 334 is not
applicable to the case of the writ petitioner.
7. I have carefully considered the rival submissions made on either
side and perused the materials placed before this Court.
8. It could be seen from the Government Letter (MS) No.737, Home
(Police V) Department, dated 18.08.2010 that the police personnel, who were
recruited during the year 1987-1988 were upgraded to the post of Grade I
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Police Constable with effect from their actual date of completion of ten years
of service in the rank of Grade II Police Constable. They were also upgraded
to the post of Head Constable with effect from the actual date of completion
of five years of service in the rank of Grade I Police Constable. It is further
pointed out that these benefits are conferred only for consideration of next
upgradation and the individual should not claim any financial benefits.
9. Therefore, it is clear that despite upgradation, the writ petitioner
would not be eligible for any monetary benefits. However, erroneously,
without any misrepresentation or fraud on the part of the writ petitioner, the
said benefits have been conferred upon the writ petitioner. The benefits have
been conferred upon him for more than 12 years. When the writ petitioner
was about to retire, and after his retirement, the orders impugned in this writ
petition have been passed.
10. The Hon’ble Supreme Court, in the case of State of Punjab &
Others vs. Rafiq Masih (White Washer) and Others reported in 2015 (4)
Supreme Court Cases 334 has categorically held that when a benefit has
been conferred upon an individual for more than five years, the same should
not be recovered and that too, when the individual is about to retire or he has
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already retired. In the present case, the writ petitioner is enjoying the benefits
for more than twelve years and just before his retirement, the order impugned
in this writ petition dated 20.09.2022 has been passed and the consequential
impugned order dated 14.12.2022 seeking for recovery of a sum of
Rs.1,74,363/- has been passed after his retirement.
11. In view of the above said deliberations, the orders impugned in this
writ petition are set aside with regard to the recovery alone and this writ
petition is partly allowed accordingly. However, the authorities are at liberty
to refix the pay scale of the writ petitioner, as per the Government Letter
(MS) No.737, Home (Police V) Department, dated 18.08.2010 and release the
pensionary benefits and other terminal benefits in accordance with the said
Government Letter. The refixation orders and the disbursement of the
benefits, based upon the refixation shall be passed within a period of twelve
weeks from the date of receipt of a copy of this order. No costs.
Consequently, connected miscellaneous petition is closed.
27.09.2024
NCC : Yes/No
Index : Yes / No
sm
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R.VIJAYAKUMAR, J.
sm
To
1.The Secretary to Government,
Finance (Pay Cell Department),
Fort St.George,
Chennai-600 009.
2.The Director General of Police,
Kamarajar Salai,
Mylapore,
Chennai-600 004.
3.The Superintendent of Police,
Tenkasi District,
Tenkasi.
Order made in
Dated:
27.09.2024
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