S.

Sathik Rahman vs The District Judge on 10 April, 2015

Madras High Court

S.Sathik Rahman vs The District Judge on 10 April, 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATE: 10.04.2015

CORAM
THE HON'BLE MR. JUSTICE S.MANIKUMAR
AND
THE HON'BLE MS. JUSTICE V.M.VELUMANI

W.P.(MD)No.18787 of 2014
M.P.(MD)No.1 of 2014

S.Sathik Rahman ... Petitioner

vs.

1.The District Judge,

Ramanathapuram,
Ramanathapuram District.

2.The Subordinate Judge,

Paramakudi,
Ramanathapuram District. ... Respondents

PRAYER: Writ Petition is filed under Article 226 of the Constitution of

India, praying for a Writ of Certiorari, to call for the records, connected
with the impugned order, passed by the 2nd respondent in D.No.1496, dated
27.10.2014 and quash the same.

!For Appellant : Mr.S.Govindan

^For Respondents : Mr.T.S.Mohamed Mohideen,
Special Government Pleader (CS)

:ORDER

Challenge in this writ petition, is to the order made in D.No.1496, dated 27.10.2014, of the learned
Subordinate Judge, Paramakudi, Ramanathapuram District, by which, the petitioner's scale of pay
has been re- fixed in the post of Junior Assistant and ordered recovery. The order impugned in this
writ petition, is reproduced hereunder: Proceedings of the Subordinate Judge, Paramakudi Present :
Thiru.M.Chandran, M.Sc., B.Ed., B.L., Sub-Judge(FAC), Paramakudi Dated the 16th day of October,
2014.

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

Sub: Public Services ? TNJMS ? Stoppage and recovery of Higher start of pay of Thiru.S.Sathik
Rahman, B.Sc., Junior Assistant of this Court, w.e.f.

07.02.2013 ? Pay refixed and orders issued ? Reg. Ref: 1. G.O.Ms.No.321, Finance, Dt. 02.07.98

2. Govt. Lr. No.34124/PC/2009-1, Dt. 26.06.09

3. G.O.Ms.No.123, Finance (PC) Department, Dt. 10.04.2012

4. Application of the individual, Dt. 18 & 25.6.14

5. Office Note of this Court, dated 09.07.2014

6. G.O.Ms.No.241, Finance (PC) Department, Dt. 22.07.2013.

-----

As per Office order, dated 09.07.2014, in No.9/14, Thiru.S.Sathik Rahman, Junior Assistant of this
Court has obtained 2 increments for higher start of pay in the basic stage acquiring B.Sc., Degree in
the time scale of pay of Rs.5,200 ? 20,200 + 2,400 G.P., at Rs.7,600/- w.e.f. 07.02.13 and his pay
was increased as Rs.230 + 230 = 460 and his pay is fixed as Rs.5,660 + 2,400 G.P., i.e., Rs.8,060/-.
But as per the reference 6th cited above he has not entitled higher start of pay for his graduation
since he has given application after issuance of G.O. ie., on 22.07.2013 and hence, his pay is ordered
to refix and to recover as follows:

Pay as on 07.02.2013 @ : Rs.7,600/-

(Rs.5,200 + 2,400 G.P.) Passed Account test for subordinate officer Part-I on 31.12.2013. Hence, he
is entitled to get an increment w.e.f. 31.12.2013 : Rs. 230/-

---------------

: Rs.7,830/-

He has joined duty on 07.02.2013

and an increment advanced as on
01.04.2014 : Rs. 240/-
---------------
: Rs.8,070/-
---------------

His pay is fixed as on 01.01.2014 at Rs.5,670 + 2,400 G.P. Month & Pay Pay Pay D.A. D.A. D.A. HRA
HRA HRA Total Year Drawn Due Diff. Drawn Due Diff. Drawn Due Diff. 7.2.13 6333 5971 362 5066
4777 289 -- -- -- 651 to 28.2.13 03/13 8060 7600 460 6448 6080 368 -- -- -- 828 04/13 8060 7600
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 S.Sathik Rahman vs The District Judge on 10 April, 2015

460 6448 6080 368 -- -- -- 828 to 30.12.13 31.12.13 268 253 15 241 228 13 14 12 02 30 1/14 8560
8070 490 8560 8070 490 440 360 80 1060 2/14 8560 8070 490 8560 8070 490 440 360 80 1060
3/14 8560 8070 490 8560 8070 490 440 360 80 1060 4/14 8560 8070 490 8560 8070 490 440
360 80 1060 5/14 8560 8070 490 8560 8070 490 440 360 80 1060 6/14 8560 8070 490 8560
8070 490 440 360 80 1060 7/14 8560 8070 490 8560 8070 490 440 360 80 1060 8/14 8560 8070
490 8560 8070 490 440 360 80 1060 9/14 8560 8070 490 8560 8070 490 440 360 80 1060
163981 154609 9372 151429 142774 8655 3974 3252 722 18749 Therefore, the higher start of pay
has been granted on 09.07.2014 to the individual from 07.02.2013 to 30.09.2014, is Rs.18,749/- and
the same is ordered to be recovered from the month of October, 2014 at Rs.749/- as 1st installment
and at Rs.1,000/- as 2nd to 19th installments.

2. Grounds of challenge to re-fixation and recovery are that the persons similarly placed, ie.,
recruited prior to G.O.Ms.No.241, Finance (Pay Cell) Department, dated 22.07.2013, were extended
the benefit of higher start of pay and hence, the petitioner alone cannot be discriminated. According
to him, higher start of pay has been sanctioned, as per the orders of the Government in
G.O.Ms.No.915, Finance (Pay Commission) Department, dated 17.08.1989 and G.O.Ms.No.321,
Finance (Pay Cell) Department, dated 02.07.1998 and that it cannot be taken away by executive
instructions of the learned Subordinate Judge, Paramakudi, Ramanathapuram District.

3. The petitioner has further contended that no notice was given before the order of recovery.
Benefit of the higher start of pay has been given, not on his misrepresentation or fraud. In support
of the contention, reliance has been placed on a decision reported in Shyam Baha Verma v. Union of
India reported in 1994 (11) LLN 465, wherein, it has been held that, ?the petitioner having received
higher scale of pay, due to fault of the Department, it shall not be just and proper not to recover any
excess amount which has already paid to them.?

4. Material on record discloses that interim stay of the impugned order has been granted on
20.11.2014, insofar as recovery alone is concerned, and it has been periodically extended.

5. Inviting the attention of this Court to the typed set of papers, filed by the petitioner,
Mr.T.S.Mohamed Mohideen, learned Special Government Pleader, appearing for the respondents
submitted that the writ petition, filed by the petitioner, Junior Assistant, working in the Subordinate
Court, Paramakudi, has to be dismissed in limini, for the reason that the petitioner has
misrepresented of facts before the authority for gaining higher start of pay at the basic stage.
According to him, the petitioner, in his letter, dated 25.06.2014, addressed to the learned
Subordinate Judge has relied on a Government Lr.No.34124/PC/2009-1, dated 26.06.2009, for
higher fixation of pay and based on the said representation, pay was fixed in PB1-5200-
20200+2400 @ Rs.7,600/-, with effect from 07.02.2013 and increments were also added. Learned
Special Government Pleader submitted that as per G.O.Ms.No.241, Finance (Pay Cell) Department,
dated 22.07.2013, the petitioner is not entitled to higher start of pay for graduation. Since he had
given a representation, after the issuance of G.O., he was given higher scale of pay. Thus, according
to him, there is misrepresentation.

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

6. Mr.T.S.Mohamed Mohideen, learned Special Government Pleader, for the respondents further
submitted that subsequently, when re-fixation and recovery of excess payment was sought to be
made, from four individuals, including the petitioner, Junior Assistant, he had made an
endorsement in the Office Note, dated 16.10.2014, that excess amount of Rs.18,749/- paid, can be
recovered from his salary, from the month of October, 2014 at Rs.749/- as 1st installment and at
Rs.1,000/- for the remaining 2nd to 19th installments. Thus, after the consent of the four
individuals, including the petitioner, for recovery of the excess amount, from their salary, impugned
proceedings were issued on 27.10.2014, by the learned Subordinate Judge, Paramakudi,
Ramanathapuram District, for re-fixation and recovery. According to learned Special Government
Pleader, having made an endorsement in the Office Memo, dated 16.10.2014, agreeing for recovery
of the excess payment, the petitioner, has now filed an affidavit, dated 10.11.2014, ie., within 25
days, and filed the present writ petition, without disclosing the consent given by him for recovery of
the excess amount. In the abovesaid circumstances, he submitted that there is a suppression of facts.

7. Learned Special Government Pleader for the respondents further submitted that when the
petitioner himself has consented for recovery, no notice is required and therefore, there is no
violation of principles of natural justice. Lastly, placing reliance on a decision in Chandi Prasad
Uniyal v. State of Uttarakhand reported in 2012 (8) SCC 417, he submitted that even if there is an
irregularity or wrong fixation of pay, the same can be recovered. Attention of this Court was also
invited to Paragraphs 13 to 15 of the said judgment. For the reasons, stated supra, he prayed for
dismissal of the writ petition.

8. On the aspect of suppression of facts, Mr.S.Govindan, learned counsel for the petitioner
submitted that when the Office Note, dated 16.10.2014, was shown to the petitioner, he had no
alternative, except to make an endorsement, agreeing for recovery. He further submitted that the
representation, dated 25.06.2014, was based on the earlier Government Orders and Government
letter, dated 26.06.2009 and that there was no intentional misrepresentation. Considering the
plight of the Junior Assistant, working in the 2nd respondent-Department, he prayed for
appropriate orders.

Heard the learned counsel for the parties and perused the materials available on record.

9. The petitioner has been appointed as Junior Assistant, vide proceedings of the learned Principal
District Judge, Ramanathapuram District, dated 04.02.2013 and he has joined duty, in the
Subordinate Court, Paramakudi on 07.02.2013. At the time of joining, his pay was shown as
PB1-5200- 20200+2400 @ Rs.7,600/-, with effect from 07.02.2013. On the basis of the
Government Lr.No.34124/PC/2009-1, dated 26.06.2009, he has sought for revison and increment.
Vide proceedings, dated 09.07.2014, the learned Subordinate Judge, Paramakudi, has fixed the pay
of the petitioner, as follows: Pay already fixed in PB1-5200-20200+2400 @ Rs.7,600/-, with effect
from 07.02.2013.

Add: 2 increments for his graduation.

Rs.230+230=460/- Rs. 460/-

------------

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

Total Rs.8060/-

Hence pay fixed w.e.f 07.02.2013 @ Rs.8060/- in PB1-5200-20200+2400 Pay fixed with effect from
07.02.2013 @ Rs.8060/-

Subsequently, he was passed Account Test for subordinate Officers Part- I in 1st Class on
30.12.2013. His Register Number is 021060 and the result published in Tamil Nadu Public Service
Commission Bulletin in the issuance of March 16, 2014 and hence, the individual is entitled to get an
increment for passing of Account Test as follows:-

Pay fixed with effect from 07.02.2013 @ Rs.8060/-

Add: On 31.12.2013 an increment given for passing of Account Test. Hence, he is entitled to get an
increment w.e.f. 31.12.2013.

Rs. 250/-

------------

Rs.8310/-

Add: Annual increment advanced as on 01.01.2014.

Hence, he is entitled to get his annual increment w.e.f. 01.01.2014 @ 3% Rs.250/- Rs. 250/-

------------ Rs.8560/-

------------

As stated above, the pay of the individual is ordered to refix w.e.f. 07.02.2013 and he is permitted to
draw the due arrears from 07.02.2013 to 30.06.2014 less already drawn by him as per rules.?

10. Subsequently, Office of the Subordinate Judge, Paramakudi, has noticed that after the
Government Letter, dated 26.06.2009, Government have issued G.O.Ms.No.241, Finance (Pay Cell)
Department, dated 22.07.2013, wherein, it is stated that higher start of pay should not be granted
for graduation. The said Government Order, reads as follows: GOVERNMENT OF TAMIL NADU
ABSTRACT Tamil Nadu Revised Scales of Pay Rules, 2009 ? Recommendations of the Pay
Grievance Redressal Cell ? Dispensation of Higher Start of Pay for the posts of Junior Assistants /
Typists and Record Clerks and protection of emoluments to the directly recruited Assistants /
Accountants ? Orders ? Issued.

FINANCE (Pay Cell) DEPARTMENT G.O.Ms.No.241 Dated: 22.7.2013.

Aadi, 06.
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 S.Sathik Rahman vs The District Judge on 10 April, 2015

Thiruvalluvar Aandu, 2044.

READ:

1.G.O.Ms.No.321, Finance (Pay Cell) Department, dated: 2-7-1998.

2.G.O.Ms.No.234, Finance (Pay Cell) Department, dated: 1-6-2009.

3.Government Letter No.34124 / PC /09-1, Finance Department, dated: 26-6- 2009.

4.G.O.Ms.No.123, Finance (Pay Cell) Department, dated: 10-4-2012.

-----

ORDER:

In the reference first read above, orders have been issued granting higher start of pay at two stages
above the minimum of scale of pay of Rs.3200?4900 to the Graduate Junior Assistants / Typists
and in the case of Record Clerks with S.S.L.C. qualification they were granted higher start of pay at
two stages above the minimum of the scale of pay of Rs.2610?3540. Consequently on the adoption of
the Tamil Nadu Revised Scales of Pay Rules, 2009 the above benefit of higher start of pay was
continued in the revised pay structure based on the clarification issued in the reference third read
above.

2) The Pay Grievance Redressal Cell constituted in the Government Order fourth read above has
examined the scope of continuing the higher start of pay to the Graduate Junior Assistants / Typists
and the Record Clerks with S.S.L.C. qualification in the light of the anomalies pointed out by the
various service associations and the individual petitioners that the directly recruited Assistants /
Accountants in the Tamil Nadu Ministerial Service happens to draw lesser emoluments when
compared to the Junior Assistants with graduate qualification. For example, an Assistant on entry
into service gets his pay fixed at the minimum of the time scale of pay of Rs.5200?20200 + Grade
pay Rs.2800 at Rs.8000/- (Rs.5200 + 2800), whereas a Junior Assistant with graduate
qualification gets his pay fixed in the scale of pay of Rs.5200?20200 + Grade pay Rs.2400 at
Rs.7600/- (Rs.5200 + 2400) and consequent on sanction of higher start of pay at two increments
(3% + 3% Rs.230 + Rs.230 = Rs.460) gets fixed at Rs.8060/- (Rs.7600 + 460) and there is a loss of
Rs.60/- in emoluments to the directly recruited Assistants.

3) The Committee has recommended to compensate this difference of pay as ??Personal Pay?? for
directly recruited Assistants in service at present. However, the Committee observed that the
concession of higher start of pay for acquiring graduate qualification was introduced many years ago
with the aim of incentivizing Junior Assistants / Typists to acquire higher qualification when most
of them were appointed with the Minimum General Educational Qualification of S.S.L.C. In the
present scenario where most of the recruits are Degree holders and even have Post Graduation /
Professional qualification. In such a situation the higher start of pay granted to the Junior Assistants

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

/ Typists with a degree qualification is no longer warranted and the Committee therefore
recommended for dispensation of the grant of higher start of pay to the Junior Assistants / Typists
to be recruited in future for possession of degree qualification and also it will avoid unnecessary pay
anomaly of the directly recruited Assistants. Likewise, the Committee also recommended to
dispense the higher start of pay to the Record Clerks for possession of S.S.L.C. qualification.

4) The Government accordingly examined the above recommendations of the Pay Grievance
Redressal Cell and decided to accept it. Accordingly, Government direct that the higher start of pay
granted to the Junior Assistants / Typists for degree qualification shall be dispensed to the
incumbents recruited in future with a view to avoid the pay anomaly between the Junior Assistants
and the directly recruited Assistants and also considering the fact that the persons now recruited are
Degree / Post Graduate /Professional Degree holders. Likewise, the higher start of pay granted to
the Record Clerks shall also be dispensed with. However, considering the loss in emoluments
between the Graduate Junior Assistants and the directly recruited Assistants, the Government
recommends to compensate the difference of pay as ??Personal Pay?? to the directly recruited
Assistants / Accountants in service and this concession shall not be applicable to future cases in
view of the dispensation of higher start of pay to the Graduate Junior Assistants.

5) The compensation of the difference in pay as ??Personal Pay?? to directly recruited Assistants /
Accountants shall take notional effect from 1-1-2006 with monetary benefit from 1-4-2013. Further,
the orders of dispensation of higher start of pay to the Junior Assistants / Typists and Record Clerks
shall also take effect from the same date. However, in cases where higher start of pay has already
been granted between 1?4?2013 and the date of issue of order, such cases need not be effected any
recovery.

(BY ORDER OF THE GOVERNOR) K.SHANMUGAM, PRINCIPAL SECRETARY TO

GOVERNMENT

11. Thus, it is clear from the above, that higher start of pay should not be granted, after issuance of
G.O.Ms.No.241 and for those, who have been granted higher start of pay, between 01.04.2013 and
the date of issuance of the said Government Order, recovery should not be ordered. In the case on
hand, the higher start of pay has been granted, after the issuance of the Government Order.

12. Further, the petitioner has not been granted higher start of pay, when he joined duty on
07.02.2013. Higher start of pay, ie., two increments in the basic stage, has been granted only on
09.04.2014, by the 2nd respondent. As on the said date, G.O.Ms.No.241, has come into existence
and therefore, the 2nd respondent ought not to have applied the Government letter, dated
26.06.2009.

13. It is well settled that orders of the Government, as on date of consideration of the
petition/representation, should be made applicable, where revision of pay scale is sought for. Thus,
when the 2nd respondent has realized that the higher start of pay, ought not to have been fixed,
based on the Government Lr.No.34124/PC/2009-1, dated 26.06.2009, Office Note has been
circulated, stating that an excess payment has been made from 23.07.2013 to 30.09.2014 and thus,

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

the individuals, including the petitioner, has been asked as to why, recovery should be effected, for
which, the petitioner has made an endorsement that the excess amount can be recovered from the
month of October, 2014 at Rs.749/- as 1st installment and at Rs.1,000/- as 2nd to 19th installments,
from his salary. Having made an endorsement on 16.10.2014, without disclosing the same in the
affidavit, the present writ petition has been filed by the petitioner.

14. Mr.S.Govindan, learned counsel for the petitioner submitted that the endorsement was made,
when the higher authority had issued the Office Note. Be that as it may, when the Government have
issued orders in G.O.Ms.No.241, Finance (Pay Cell) Department, dated 22.07.2013, stating that
higher start of pay ought not to have been given, the respondents have committed a mistake, in
refixing his pay and sanctioning two increments to the petitioner.

15. In Chandi Prasad Uniyal v. State of Uttarakhand reported in 2012 (8) SCC 417, the Supreme
Court, at Paragraphs 13 to 15, held as follows: ?15. We are not convinced that this Court in various
judgments referred to hereinbefore has laid down any proposition of law that only if the State or its
officials establish that there was misrepresentation or fraud on the part of the recipients of the
excess pay, then only the amount paid could be recovered. On the other hand, most of the cases
referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because
the recipients had retired or on the verge of retirement or were occupying lower posts in the
administrative hierarchy.

16. We are concerned with the excess payment of public money which is often described as ?tax
payers money? which belongs neither to the officers who have effected over-payment nor that of the
recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such
situations. Question to be asked is whether excess money has been paid or not may be due to a bona
fide mistake. Possibly, effecting excess payment of public money by Government officers, may be
due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in
such situation does not belong to the payer or the payee. Situations may also arise where both the
payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many
situations without any authority of law and payments have been received by the recipients also
without any authority of law. Any amount paid/received without authority of law can always be
recovered barring few exceptions of extreme hardships but not as a matter of right, in such
situations law implies an obligation on the payee to repay the money, otherwise it would amount to
unjust enrichment.

17. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul
Qadir case (supra) and in Col. B.J. Akkara (retd.) case (supra), the excess payment made due to
wrong/irregular pay fixation can always be recovered.?

16. Thus, in the light of the discussion and the endorsement made by the petitioner in the Office
Note, dated 16.10.2014 and the decision of the Apex Court in Chandi Prasad Uniyal's case (cited
supra), the impugned order of re-fixation and recovery, is sustained. Though the learned Special
Government Pleader submitted that there is suppression of material facts, this Court is not inclined
to advert to the same. In our opinion, the mistake has also been committed by the respondents.

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 S.Sathik Rahman vs The District Judge on 10 April, 2015

17. Hence, the Writ Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition
is also closed.

To

1.The District Judge, Ramanathapuram, Ramanathapuram District.

2.The Subordinate Judge, Paramakudi, Ramanathapuram District.

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