Heard Mrs.Juliet Latha, learned counsel for the petitioner and Mr.D.Sivaraman, learned panel advocate for the respondents.
2.The petitioner was appointed as Masalchi in the year 1980 and promoted as Office Assistant in the year 1981 and further promoted as Junior Bailiff in the year 1985 and finally as Junior Assistant, in which post, he retired on attaining the age of superannuation on 31.07.2007. In this writ petition, the petitioner challenges the proceedings of the first respondent dated 05.11.2003, by which, the first respondent cancelled the movement of the petitioner to Selection Grade, which benefit was extended to the petitioner in the year 1981, by the impugned order after a period of 12 years. It appears that the order was passed on the verge of retirement of the petitioner and a portion of the amount being the alleged payment was recovered from his salary and the remaining amount was sought to be recovered from the Death cum Retirement Gratuity.
3.The case of the respondent is that the petitioner was posted as Junior Bailiff in the year 1985 and was entitled to move to the Selection Grade scale of pay only after completion of 10 years of service in the said post and such benefits could have been extended only in the year 1995, but, it was extended to the petitioner in the year 1991 and this error was rectified and the impugned order was passed. Further, the respondent would state that though the impugned order was passed in the year 2006, the writ petition was filed belatedly in the year 2010.
4.We have heard the learned counsel on either side and perused the materials placed on record.
5.The first ground on which the impugned order is liable to be interfered is on the ground of violation of principles of natural justice. Admittedly, the petitioner was moved to the Selection Grade scale of pay, by orders passed by the first respondent and there is no allegation that the petitioner made any misrepresentation and obtained such benefit. The Administration did not take immediate action with regard to the petitioner's entitlement for Selection Grade scale of pay and after about 12 years, the impugned order was passed that too, when the petitioner was in the verge of retirement.
6.Thus, the respondent having acted in a such belated manner cannot blame the petitioner for having approached the Court in the year 2010. The petitioner had submitted representations to set aside the impugned order and since representations were not considered, the petitioner has approached this Court. Therefore, we are inclined non suit the petitioner on the ground that he has approached this Court only in the year 2010.
7.Even assuming that the petitioner's movement to the Selection Grade was not admissible, the financial benefit, which was extended to the petitioner in the higher category could not have been recovered for two reasons, firstly, as the recovery could not have been made without notice to the petitioner and when there is no allegation of any misrepresentation or fraud committed by the petitioner. This view is supported by the decision of the Honourable Supreme Court in the case in State of Punjab and Others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 Supreme Court Cases 334.
8.The second reason is that the petitioner was moved to the Selection Grade scale of pay in 1991 and had discharged duties in the said post. Thus, having extracted work in the said post, the question of now recovering the payment made to the petitioner that too on the verge of retirement/after retirement is illegal.
9.For all the above reasons, the writ petition is allowed and the impugned order is set aside and the respondents are directed to fix the pay of the petitioner in the original scale of pay as fixed prior to the impugned order and if any recovery had been made, the same shall be re-credited to the petitioners pension account. The above direction shall be complied with within a period of eight weeks from the date of receipt of a copy of this order. The prayer for interest is rejected. No costs. Consequently, connected miscellaneous petition is closed.
To:
1.The District Judge, Thanjavur District, Thanjavur.
2.The Additional Chief Judicial Magistrate, Kumbakonam, Thanjavur District. .