This petition has been filed challenging the impugned order of the 1st respondent relating in his letter No.72325/ENT-1/A3/HO/06-1 dated 04.02.2008 and the subsequent impugned order passed by him in his letter No.72325/ENT-I/A3/06/HO dated 01.08.2008 and the order of the 2nd respondent relating to the consequent impugned order passed by him in his proceedings No.A1/1270/2007-2/CE/NR dated 28.08.2008
2.The case of the petitioner is that while he was working as Junior Assistant Accounts officer in TWAD Board maintenance Division, 6th pay commission report was implemented to all the employees of the respondent Board with effect from 01.01.1996 under the Tamil Nadu Revised Scale of Pay Rules 1998. Pursuant to the same, the petitioner's salary was fixed at Rs.8,550/- in the time scale of pay of Rs.8,000-375-13,500 by taking into account the personal pay. The petitioner had already reached the basic pay beyond the 6th pay scale, he was entitled to punching beyond the 6th stage and so entitled to 2 annual increments in the new scale of pay which 2 annual increments were given and fixed at Rs.8,550/- with effect from 01.01.1996 in the new scale of pay of Rs.8,000-275-13,500 and accordingly paid. The said revised pay was also approved by the internal auditing of the respondent Board. While so, in the external auditing done by the Accounts General Office, objection was raised that the pay was wrongly fixed on the ground that personal pay should not have been taken into account and two increments should not have been granted to the petitioner, while fixing the revised pay. While so, the Executive Engineer, Maintenance Division in his letter dated 23.07.2001 has replied to the objection through the Chief Audits officer stating that it was correctly fixed. The Auditor has also satisfied that it was correctly fixed. Thus, the Auditor has dropped the objection by letter of the office of the Accountant General in his letter dated 24.02.2002. Thus, in both the cases of internal and external audit, it was satisfied that there was no error committed.
3. In such situation, the petitioner attained superannuation and he was allowed to retire without any objection. After his retirement, the first respondent has passed the impugned order dated 04.03.2008 ordering the 2nd respondent to revise the petitioner's pay on the ground that it was incorrectly fixed and directed to recover the alleged excess payment made. Subsequently, the first respondent passed another impugned order in letter dated 01.08.2008 directing the 2nd respondent to revise the petitioner's salary recovering the alleged excess payment. Subsequently based on the said two impugned orders of the first respondent, second respondent has passed the impugned proceedings dated 28.08.2008 reducing the petitioner's salary and directed him to pay the alleged excess amount paid with effect from 01.01.1996. Challenging the same, the petitioner is before this Court with this petition.
4. When the matter is taken up for consideration, the learned counsel for the petitioner by inviting the attention of this Court to the letter of the TWAD Board dated 23.07.2001 submitted that on earlier occasion, when objection was raised by the External Auditor, dated 20.04.2001, based on the same, by letter dated 24.02.2002, the action was dropped by the letter of the office of the Accountant General. Therefore, the issue with regard to the excess pay has already reached finality. Under such circumstances, it is contended that the impugned order was passed by the first respondent, which is totally not sustainable and liable to be set aside.
5. The first respondent has filed a detailed counter affidavit submitting that the petitioner was working as a Junior Accounts Officer, at the time of implementation of the 6th pay commission. He was drawing a pay of Rs.2,575+Personal pay 25 as on 01.01.1996 in the pre-revised scale of pay Rs.2,200-75-2,800-100-4,000 and his pay was fixed as Rs.8,550/- in the revised time scale of Rs.8,000-275-13500. As per Rule 4 of the revised scale of pay rules communicated in G.O.Ms.No.162/Finance (P.C) Dept./dated 13.04.1998, his pay should have to be fixed only at Rs.8275/-. Hence, the revised scale of pay of Rs.8000-275-13500 has to be fixed at Rs.8275/- by giving one punching increment with effect from 01.01.1996 as per the clarification issued by the Government vide letter dated 22.09.1998. The personal pay should not be taken into account to arrive at the stage in the revised scale of pay as the same is treated as pay to compute DA & 40% of basic pay to arrive at emoluments. But, subsequently it was found that the petitioner's pay was incorrectly fixed by giving two punching increments instead of Rs.8275/- with effect from 01.01.1996 in the revised scale of pay Rs.8000-275-13500 by taking personal pay drawn in the pre-revised scale of pay. The fixation was initially objected by the Accountant General and subsequently dropped on 02.04.2002. However, the wrong fixation of the pay of the petitioner came to light while considering the request made by one S.Anji, Deputy Chief Accounts Officer to step up his pay on par with his junior, the petitioner herein. While examining the fixation made to the petitioner with reference to the rules laid down and also with reference to the clarification issued by the Government dated 22.09.1998, the wrong fixation has been found out and accordingly suitable instructions were issued to the 2nd respondent to recover the excess payment made to the petitioner. Therefore, it is contended that there is no infirmity in the impugned order.
6. Keeping the submissions, I have carefully gone through the records.
7. In fact, the wrong fixation fixed to the petitioner was raised as early as in the year 2001. Subsequently, objection was rejected by the Executive Engineer by letter dated 23.07.2001, based on which, the objection was also dropped by the Accountant General Audit, Tamilnadu Pondicherry dropped on 02.04.2002. Thereafter, after the period of retirement of the petitioner, once again the issue with regard to the fixation of excess payment came to light based on the request made by one Mr.Anji, who retired, to step up the pay on par with the petitioner herein. But, in my considered opinion, when the issue has reached the finality as early as in the year 2002 itself, the same cannot be reopened after the retirement of the petitioner, once again. Therefore, I am of the opinion that the impugned order is not legally sustainable and the same is liable to be quashed. Accordingly, the same is quashed. The writ petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The Secretary cum General Manager, TWAD Head Office, 31 Kamaraj Salai Chepauk, Chennai.
2.The Chief Engineer TWAD Board North Region, 8, 1st East Main Road, Gandhi Nagar, Valliyoor-6 .