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2014 DIGILAW 2738 (MAD)

K. Ramasamy v. Animal Welfare Board of India

2014-08-19

S.VAIDYANATHAN

body2014
JUDGMENT S. VAIDYANATHAN, J. 1. The petitioner has filed this writ petition for the issuance of a Writ of Mandamus, to direct the respondents to release the balance of Rs. 2,53,354/- informed by the first respondent in its communication dated 8.9.2010 with interest. 2. The petitioner joined the services of the Animal Welfare Board of India as Stenographer (Senior) on 8.2.1974 and his services were regularised in the year 1976. The petitioner was working in a higher post which is a non-sanctioned post and for the excess salary paid to the petitioner, the respondents sought to recover the amount by means of a recovery order. 3. Aggrieved by the same, earlier, a writ petition in W.P. No. 8947 of 1999 was filed by the petitioner challenging the recovery order and there was an interim order granted by this Court initially and subsequently the said interim order was modified that the entire amount of Rs. 28,358/- could be recovered at the rate of Rs. 1,000/- per month. The higher position was given when the petitioner was working and drawing IV Pay scale. 4. The petitioner has also filed another writ petition in W.P. No. 10495 of 1999 to fix the pay scale as in the scale of Rs. 3,000/- and Rs. 4,500/- pre-revised with effect from 1.1.1986. The post of Assistant Secretary which is a sanctioned post in the pay scale of Rs. 8,000/- and Rs. 13,500/- existed on 15.2.2007, but there was no provision for the post of Private Secretary to the post of Assistant Secretary. The petitioner was given the post of Additional Charge of Secretary without any additional remuneration. The petitioner became Secretary In-charge and he himself fixed his salary in the scale of Deputy Secretary namely, Rs. 12,000/- and Rs. 16,500/- without the prior approval of the Ministry and also disbursed the pension in the high scale holding it for a period of 3 months as if he was promoted to the post of Secretary scale and thereby directly jumping from the scale of Rs. 8,000/- and Rs. 13,500/- to the scale of Rs. 12,000/- and Rs. 16,500/-. The petitioner's pay scale was irregular and the petitioner has misled the Board and the Chairman and got the approval. No papers have been forwarded to the Ministry for pay fixation, who is the competent authority. 5. 8,000/- and Rs. 13,500/- to the scale of Rs. 12,000/- and Rs. 16,500/-. The petitioner's pay scale was irregular and the petitioner has misled the Board and the Chairman and got the approval. No papers have been forwarded to the Ministry for pay fixation, who is the competent authority. 5. The petitioner submitted that he was superannuated on 31.5.2007 and thereafter, the petitioner was appointed as a Consultant Secretary on 1.6.2007 for a period of six months on a salary of Rs. 19,624/- for a month. The petitioner submitted a proposal for fixation of his pay on 26.6.2007. In May 2009, the irregularity committed by the petitioner was noted by the Internal Audit Wing Team of Ministry of Environment and Forest and that the petitioner did not possess the requisite qualifications as per the rule to be promoted/upgraded to the higher post and hence the respondents have decided to recover the excess amount paid to the petitioner. 6. Even though the communication dated 29.9.2009 has been issued showing that the petitioner is entitled to the balance amount, since the appointment itself is irregular, the petitioner will have to pay the money to the respondents and there is no need for the respondents to pay the balance amount due to the petitioner. The petitioner has also relied upon the Animal Welfare Board of India (Officers and Employees) Recruitment Rules for recruitment of persons and also the powers and duties of the Chairman. 7. At this stage, this Court does not want to deal with those disputed questions. Since there is a dispute with regard to the appointment of the petitioner itself in the post of Secretary and fixation of salary in the post of Deputy Secretary, even though the respondents have contended that his appointment is irregular, it is to be noted that the representation of the petitioner dated 28.10.2008 is pending, it is open to the respondents to consider the same in the light of the communication of the Government of India, Animal Welfare Board, dated 29.9.2009, wherein it has been stated that the Animal Welfare Board is instructed not to disburse the Pay Commission arrears to any staff except Secretary, till upgraded posts are regularised by the competent authority and temporary posts are created/promoted by the Ministry of Finance as on date. 8. 8. It is the admitted position that the promotional post has been created for accommodating the petitioner and it has not been recognised by the competent authority. Since there is a dispute with regard to promotion/upgradation/appointment to the post of Desk Officer and that representation of the petitioner dated 28.10.2008 is pending, that there is an internal communication dated 29.9.2009 regarding a final decision to be taken on the issue in question with regard to regularisation of the post for upgradation and also the creation of temporary posts to be approved by the Ministry of Finance, the relief sought for by the writ petitioner, cannot be granted at this stage. 9. Since it is a disputed question of fact and that his representation dated 28.10.2008 is pending and the decision is yet to be taken by the Government as seen from the communication dated 29.9.2009 and that in the counter, the respondents have stated that the posting/up-gradation/promotion given to the petitioner is irregular and not illegal, it is directed that the authorities concerned will have to take a decision and communicate the same to the petitioner immediately within a period of 12 weeks from the date of receipt of a copy of this order. While disposing of the matter, the authority concerned should take into account the fact whether the petitioner is working in a higher post and also the provisions of Gratuity Act, if applicable and decide the issue on merits. 10. The petitioner has also relied upon the audit report dated 11.3.2013, wherein it has been stated that the earlier audit report was not correct and that employees have been given up-gradation and promotion in higher and re-designated posts without referring to the matter to the administrative body of the Ministry. Taking note of the audit report, which may not be conclusive for appointing/upgrading/promoting a person to higher post, as the same has got to be approved in terms of the rules applicable to the facts of the each case, this Court expects the authority to take a decision on merits as expeditiously as possible, within the time limit stipulated supra. 11. The writ petition is disposed of on the above terms. No costs.