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2012 DIGILAW 1254 (MAD)

S. Radhakrishnan v. Government of Tamil Nadu

2012-03-08

R.SUDHAKAR

body2012
Judgment 1. This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, after calling for the concerned records relating to the order of the first respondent bearing G.O.(D1) No.151, Higher Education(D1) Department dated 28.9.2001 confirming the order of the second respondent dated 6.1.1998 bearing Na.Ka.No.40958/R3-94 and the order of the second respondent dated 17.8.2009 bearing Ref.No.10KN1727/F1/03 as illegal, arbitrary, discriminatory and contrary to the order of the Government and consequently direct the respondents to pay the terminal benefits and fix pension on the basis of the petitioner's last drawn salary (i.e.) on 31.5.1998 and pay the petitioner arrears with interest at the rate of 24% per annum. 2. The brief facts of the case are as follows: In the year 1968 petitioner joined in the service of the fourth respondent college, a Government Aided Private Arts and Science College, as Head Clerk. On 24.6.1970, he was promoted as Manager (Superintendent), non sanctioned post. He was receiving his pay as in the cadre of Manager (Superintendent) and he retired in the said post on 31.5.1998 (i.e.) in the cadre of Manager (Superintendent). Petitioner had put in more than 41 years of service. According to the petitioner, prior to 1973 no norms were fixed by the Government for extending grant in aid to private colleges. On 23.11.1973, the Government issued certain guidelines in respect of admissible and inadmissible items of the expenditure for grant of government aid to the private colleges. In the year 1986-87 a post of Superintendent was sanctioned to the fourth respondent College and the petitioner who was already working as Manager (Superintendent) continued in the said post till his retirement on 31.5.1998. In proceedings Na.Ka.No.96670/A4/90 dated 9.9.1991, the Director of Collegiate Education based on Government Letter No.109402/Z3/88-7 dated 23.9.1989 issued certain directions which reads as follows:- "On the orders of the Government issued in the Government letter No.1789 Education Department dated 15.11.84 and letter No.53370/Z1/81-13 dated 20.2.85, in the proceedings of the Director the following orders are issued. In the aided colleges the pay of the teaching staff shall be fixed based on the nature of post mentioned in the financial report, pay disbursement register and work certificate, in the scale of pay from 1.1.74 and the financial effect may be given from 1.1.77 onwards. In the aided colleges the pay of the teaching staff shall be fixed based on the nature of post mentioned in the financial report, pay disbursement register and work certificate, in the scale of pay from 1.1.74 and the financial effect may be given from 1.1.77 onwards. In the Government letter cited orders have been issued that the above said fixation of pay shall also be applicable to the non-teaching staff of the aided colleges. Therefore, in the aided colleges the pay of the non-teaching staff shall also be fixed based on the nature of post mentioned in the financial report, pay disbursement register and work certificate in the scale of pay from 1.1.74 with notional effect and with pay benefit from 1.1.77. Necessary steps may be taken to fix the pay of the non teaching staff as above by all the Regional Deputy Director of Collegiate Education." Thereafter another letter was issued by the Director of Collegiate Education in O.M.No.82217/A4/90 dated 9.12.91 reiterating the earlier letter whereby the department extended the benefit of pay fixation to teaching and non teaching staff based on their nature of post, scale of pay and pay mentioned in the college financial report, pay disbursement register and service certificate as on 1.1.74 notionally and with pay benefits from 1.1.77. This letter which is relevant for the case reads as follows:- "O.M.No.82217/A4/90 Date:9.12.91 Sub: Aided Colleges - Non Teaching Staff - Pay approved - anomalies rectified regarding. Ref: Letter in Na.Ka.No.10964/P1/91 dated 19.11.91 from the Deputy Director of Collegiate Education, Madurai Region. ***** The teaching staff in the aided colleges were given with the benefit of pay fixation based on their nature of post, scale of pay and pay mentioned in the college financial report, pay disbursement register and service certificate as on 1.1.74 notionally and with monitory effect from 1.1.77. In the Government letter No.109402/Z3/88-7 dated 23.9.89 it is ordered to fix the pay of non-teaching staff of aided colleges also in the above lines and accordingly, the Director of Collegiate Education had issued proceedings in Na.Ka.No.96670/A4/91 dated 9.9.91 in this regard. A copy of the Government letter No.109402/Z3/88-7 dated 23.9.89 is also enclosed herewith for reference. The nature of post, scale of pay and pay of the non-teaching staff mentioned in the financial report, pay disbursement register and service certificate as on 1.1.74 are to be considered to fix the pay. A copy of the Government letter No.109402/Z3/88-7 dated 23.9.89 is also enclosed herewith for reference. The nature of post, scale of pay and pay of the non-teaching staff mentioned in the financial report, pay disbursement register and service certificate as on 1.1.74 are to be considered to fix the pay. Accordingly, if in a case an individual's post is mentioned as Junior Assistant in the financial report, pay disbursement register and service certificate and the nature of post is mentioned as Junior Assistant, the scale of pay and pay was not fixed for the said post as on 1.1.74, and the pay was paid in any other cadre in the Audit, under this order the pay shall be fixed for the post of Junior Assistant itself as on 1.1.74 to till 31.12.76 notionally with monitory effect from 1.1.77. There is no connection between this and the new scale of pay. The meaning for the same is; "pay and status as per college records in respect of non-teaching staff as on 1.1.74 should be accepted. But the monetary benefit from Government funds should be from 1.1.77." The Management should have paid salary upto 31.3.80 for the post held as on 1.1.74 and therefore, there is no question of arrears. If the pay was not paid as above upto 31.3.80, the arrears shall be paid by the management for the said period and the proposal for the same shall be included in the financial statement. If there is any arrears of pay as on 1.4.80 the same may be paid by way of direct pay disbursement." 3. It is pertinent to point out that the above two letters have not been modified, withdrawn or cancelled. Thereafter, on 4.2.1992, the Deputy Director of Collegiate Education referring to the 9.9.1991 proceedings Na.Ka.No.96670/A4/90 passed a proceedings Na.Ka.No.11565/C2/91 dated 4.2.92 extending certain benefits in respect of the petitioner and the order reads as follows:- "Na.Ka.No.11565/C2/91 Date:4.2.92 Sub: Aided Colleges - Gopi Arts College Gopi - Non-teaching staff -Thiru S.Radhakrishnan, Superintendent anomaly in fixation of pay - rectified orders issued. Ref: 1. Proceedings of the Director in Na.Ka.No.96670/A4/90 dated 9.9.91 2.) Letter No. dated 26.12.91 from the Secretary, Gopi Arts College, Gopi. Ref: 1. Proceedings of the Director in Na.Ka.No.96670/A4/90 dated 9.9.91 2.) Letter No. dated 26.12.91 from the Secretary, Gopi Arts College, Gopi. ***** As per the proceedings of the Director cited, it is hereby permitted to fix the pay of Thiru S.Radhakrishnan, Gopi Arts College, Gopi based on the financial report, disbursement register and service register, in the earlier pay scale of Rs.350-15425-25-600 with effect from 1.1.74 with monitory benefit effect from 1.1.77. 2.) This order is issued with the condition that if there is any error found in future, the Secretary of the College is responsible for the same. 3.) The service register of the individual and college disbursement register are sent herewith." This was followed by another detailed order by the Deputy Director of Collegiate Education in P.M.No.1415/C2/92 dated 2.12.92, relating to pay fixation and other benefits which also relates to the petitioner and it reads as follows:- “P.M.No.1415/C2/92 Date 2.12.92 Sub: Aided College - Gopi Arts College Gopi - Non-teaching staff - Thiru S.Radhakrishnan, Superintendent anomaly in fixation of pay - orders issued. Ref: 1.) Proceedings of the Director in Na.Ka.No.96670/A4/90 dated 9.9.91 2.) This office proceedings P.M.No.11565/C2/91 dated 4.2.92. 3.) Letter No.454/A2/92 dated 12.2.92 from the Secretary, Gopi Arts College, Gopi. ***** Under proceedings 2nd cited, permission is hereby accorded for fixation of the pay of Thiru S.Radhakrishnan, Superintendent, Gopi Arts College, Gopi, as below: 1.) The pay as on 1.1.74 is fixed as Rs.395 in the scale of pay Rs.350-15-425-25-600 and the next increment was on 1.4.74. 3rd Pay Commission: 2.) As on 1.4.78 the pay is fixed as Rs.675 in the scale of pay Rs.525-25-675-30-855-35-925, next increment was on 1.4.78. 3.) In the selection grade the pay is fixed as Rs.780/- as on 24.6.80 in the scale of pay Rs.675-35-885-45-1200 and the next increment date was on 1.4.81. 4.) 4th Pay Commission: Pay is fixed Rs.1460/- as on 1.10.84 in the scale of pay Rs.1160-5-1460-70-1950 and the next increment date was on 1.4.85. 5.) 5th Pay Commission: As on 1.6.88 the pay is fixed Rs.2180/- in the scale of pay Rs.2000-60-2300-75-3200. The next increment was on 1.4.89. 2.) Monitory benefit for the same is given with effect from 1.1.77 and therefore, the arrears for the period from 1.1.77 to 31.3.80 has to be paid by the College Management. The pay shall be allowed with effect from 1.4.80 on which date 100% grant was given. The next increment was on 1.4.89. 2.) Monitory benefit for the same is given with effect from 1.1.77 and therefore, the arrears for the period from 1.1.77 to 31.3.80 has to be paid by the College Management. The pay shall be allowed with effect from 1.4.80 on which date 100% grant was given. 3.) Permission is hereby granted for fixing the pay in the Special grade pay scale as on 24.6.90 on attained the Special grade in the post of Superintendent and the fixation of pay as on date as Rs.2350/- in the scale of pay Rs.2000-75-2800-100-4000 + special pay of Rs.25/-. He is permitted to draw the said pay till he relieved from the above post. The next increment is on 1.4.91. 4.) If there is any error found in the fixation of pay, the permission is hereby granted for the fixation on the undertaking given by Thiru S.Radhakrishnan and the Secretary of College on repayment of the excess amount if any drawn. The Secretary is requested to affix the approved copies of the pay fixation forms in the service register of the individual and to make necessary entries thereon. The service register of the individual is returned herewith.” The petitioner received monetary benefits with effect from 1.1.1977 to be paid by the college till 31.3.1980 and by 100% grant with effect from 1.4.1980. 4. In the above two proceedings, viz., dated 4.2.92 and 2.12.92 the authorities after perusing the financial reports, disbursement register and service register, fixed the scale of pay with effect from 1.1.74 notionally, and granted monitory benefits with effect from 1.1.77. The pay was fixed for the subsequent period as well, based on Pay Commission recommendation. The next date of increment was also fixed as 1.4.1991. Based on these two orders, the petitioner was drawing salary upto the date of retirement (i.e.) on 31.5.1998. In effect the pay fixation and further benefits were accepted by the Department and the Government. 5. Thereafter, on 6.1.1998, an order came to be passed interpreting the proceeding of the Director of Collegiate Education dated 9.9.91 stating that the post of Superintendent was sanctioned only in the year 1986-87 under the grant. Therefore, the earlier proceedings dated 9.9.1991 and 23.9.1989 fixing the pay to the post of Superintendent with effect from 1.1.1974 to the petitioner will amount to sanction of Superintendent post to the college on 1.1.1974. Therefore, the earlier proceedings dated 9.9.1991 and 23.9.1989 fixing the pay to the post of Superintendent with effect from 1.1.1974 to the petitioner will amount to sanction of Superintendent post to the college on 1.1.1974. According to the letter, Government Order is not to protect the pay by giving grant to the post which was not sanctioned at all. In other words, it will come into effect only from the date of the sanction of the post in the year 1986-87. The letter further interprets that the pay of the individual should be protected as per the norms in the post of grant as on 1.1.1974. It further held that pay fixation of the individual as on 1.1.74 cannot be accepted. The order dated 6.1.98 reads as follows:- “In your letter No.3297/E4/96 dated 18.7.97, it is informed that Thiru S.Radhakrishnan was earlier worked in N.G.F. College, Pollachi as Assistant from 1.7.62 and then worked as Assistant in Gopi Arts College, Gopichettipalayam, from 1.7.68 and then as Manager from 24.6.70. As per earlier norms this college was not allowed with grants for the post of Manager. Even though Thiru S.Radhakrishnan was worked as Manager, the grant was allowed for the post of Head Clerk alone. This college was sanctioned with the post of Superintendent only in the year 1986-87 under the grant and therefore, fixation of pay under proceedings of the Director in 96670/A4/90 dated 9.9.91 and the Government letter No.109402/Z3/88-7 dated 24.9.89, for the post of Superintendent with effect from 1.1.74 to Thiru S.Radhakrishnan amounts to sanction of Superintendent post to the College on that date itself. The intention of the Government Order is not to protect the pay by giving grant to the post which was not sanctioned at all. The intention of the proceedings dated 9.9.91 is to protect the loss of pay of an individual. Accordingly, the pay of the individual should have been fixed without loss of pay to the individual as per the norms in the post of grant as on 1.1.74. 3.) As described above, it is hereby ordered that the pay fixation of the individual as on 1.1.74 cannot be accepted.” Consequently, the pay fixation of the petitioner as on 1.1.74 was held to be not acceptable. 6. 3.) As described above, it is hereby ordered that the pay fixation of the individual as on 1.1.74 cannot be accepted.” Consequently, the pay fixation of the petitioner as on 1.1.74 was held to be not acceptable. 6. The petitioner, aggrieved thereby, filed an appeal to the first respondent Government and the Government in G.O.(D1)No.151 Higher Education (D1) Department dated 28.9.2001 dismissed the appeal holding as follows:- “It is not correct to give grant in aid to the post of Manager which was created by the college itself earlier to sanction of the same by the government. The grant for the said post was given only in the year 1986-87 to this college. There is no justification that the Government should pay for the post created by the College before the grant allowed to the College. This would certainly amount to allow the grant to the post of Superintendent in the college from retrospective effect and also to allow the pensionary benefit for the pay given by the college administration. In the circumstances, the decision taken by the Director of Collegiate Education is found correct. If it is accepted, it would be a bad precedent and many employees may claim the same who had already retired from service and getting pension.” 7. The Government Order and the order of the Director of Collegiate Education are challenged primarily on the following grounds:- (1) The petitioner was given the benefit of pay fixation as on 1.1.74 notionally and with monitory benefit from 1.1.77 by the proceedings of a competent authority based on the guidelines issued by the Director of Collegiate Education dated 9.9.91 and 9.12.1991 without issuing a notice and without allowing the petitioner to give a proper reply. The order came to be passed reversing the benefit already granted unilaterally and arbitrarily. (2) The petitioner filed an appeal to the Government inter alia contending that similarly placed persons were extended the benefits and that has not been cancelled or modified. Thereby the benefits that flow out of the proceedings of the Director of Collegiate Education dated 9.9.91 and 9.12.91 which are based on Government letter dated 23.9.89, should also enure to the petitioner. There cannot be any discrimination amongst similarly placed persons. Thereby the benefits that flow out of the proceedings of the Director of Collegiate Education dated 9.9.91 and 9.12.91 which are based on Government letter dated 23.9.89, should also enure to the petitioner. There cannot be any discrimination amongst similarly placed persons. In grounds of appeal, the petitioner has referred to the names of six individuals, who were given the benefit similar to that of the petitioner and they are enjoying the same. Their names are as follows:- 1.) Thiru G.V.Venkatesan, Superintendent G.V.Vishalakshi College, Udumalaipet (Joint Director of Collegiate Education in P.M.No.9802-C3-91 Dated 06.12.91) - Retired and getting pension. 2.) Thiru S. Arumugam, Superintendent, N.G.M. College, Pollachi (Joint Director of Collegiate Education in P.M.No.7236-A2-93 Dated 23.06.94) - Retired and getting pension. 3.) Thiru Mathew, Superintendent, P.S.G.Krishnammal College, Kovi - Retired and died. 4.) Thiru Ramalingam, Superintendent, Kongu Nadu Arts and Science College, Coimbatore In Service. 5.) Thiru Ravindran, P.S.G.R.Krishnammal College, Coimbatore - In service. 6.) Tmt.Subulakshmi, G.V.G.Vishalakshi College, Udumalaipet - In service.” The petitioner is also entitled to similar relief as per the interpretation given to the above stated beneficiaries. (3) Petitioner pleads that after retirement, the pension has not been determined on the basis of last pay and provisional pension alone is being paid to him and therefore, prejudice is caused by the unilateral and arbitrary action on the part of the department. (4) In ground No.(g) a specific plea of violation of principles of natural justice has been taken. (5) In this case, it is pleaded that after fixation of pay by competent authority in proceedings dated 4.2.92 and subsequent proceedings dated 2.12.92, (i.e.) after more than six years the impugned order dated 6.1.1998 has been passed by the Director of Collegiate Education reversing the earlier order without following the principles of natural justice and bypassing due process of law. This plea though not raised before the Government, is urged by the learned counsel for the petitioner before this Court contending that violation of principles of natural justice renders the proceedings totally bad and arbitrary. (6) Even before the original authority as well as the Government a specific plea of discrimination has been raised with a specific examples as stated above. Neither the Government nor the Department is able to controvert the same by proper records or by way of a counter-affidavit. 8. (6) Even before the original authority as well as the Government a specific plea of discrimination has been raised with a specific examples as stated above. Neither the Government nor the Department is able to controvert the same by proper records or by way of a counter-affidavit. 8. If in a similar circumstance, as stated by petitioner, in the appeal and writ affidavit, the proceedings of the Director of Collegiate Education dated 9.9.91 and 9.12.91 are made applicable to non-teaching staff as well, based on service register even prior to the sanction of the post. It is not clear as to why the petitioner alone has been singled out. This stand is not controverted. Further, there is no reason given as to why the modification of the earlier order was made in violation of principles of natural justice and the writ petitioner's plea deserved to be considered on this plea. In view of the above, the impugned Order of Government and the subsequent order passed by the Director of Collegiate Education pursuant to interim direction of this Court dated 29.4.2009 deserves to be set aside and accordingly set aside. 9. In the result, the Writ Petition is allowed by way of remand. The matter is remitted back to the Government to reconsider the claim of the petitioner taking note of the benefits given to six other persons similarly placed whose names are referred to in this order earlier that too without discrimination. Such exercise shall be concluded preferably within a period of twelve weeks from the date of receipt of a copy of this order. No costs.