Thursday, November 19, 2015

B. Radhakrishnan V.The State of Tamil Nadu November 17, 2015

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.  13407  OF 2015
                   (ARISING OUT OF SLP (C) No. 29959/2013)

B. Radhakrishnan                  …..….Appellant(s)


The State of Tamil Nadu
& Ors.                                  ……Respondent(s)


                       CIVIL APPEAL No. 13409  OF 2015
                   (ARISING OUT OF SLP (C) No.30038/2013)

K. Padmaraj                       …..….Appellant(s)


The State of Tamil Nadu
& Ors.                                  ……Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    Leave granted.
2.    These appeals are filed against the common final  judgment  and  order
dated 02.07.2013 of the High Court of Judicature at Madras in  W.A.  Nos.398
and 399 of 2013 whereby the High Court allowed  the  appeals  filed  by  the
respondents herein and set aside the common order dated  13.09.2010  of  the
learned Single Judge in W.P. Nos. 9527  and  9528  of  2006   by  which  the
appellants’ writ petitions were allowed.
3.    In order to appreciate the issue involved in these appeals, which  lie
in a narrow compass, few relevant facts need mention infra.
4.    Mr. B. Radhakrishnan and Mr. K. Padmaraj,  -  appellants  herein  were
enlisted in the Police Department of the Coimbatore City Police Unit in  the
year 1976  and   1977  respectively  as  Grade-II  Police  Constables.   One
Eswaran and others were recruited between 1979 and 1982 in  the  Tamil  Nadu
Special Police  Battalion  as  Grade-II  Police  Constables,  Category  III.
These persons were promoted to the  post  of  Naik  in  the  year  1985  and
subsequently in the year 1987 to the post of Havaldar.  At that  time  these
persons were drawing higher pay than the appellants.
5.    In the year  1993,  Eswaran  and  others  exercised  their  option  as
provided in the Tamil Nadu Special Police  Subordinate  Service  Rules  1978
and sought their transfer to the Armed Reserve,  Coimbatore  City  Division.
It was allowed.
6.    After their transfer, it was found that in the transferred post,  they
have to receive lower pay and accordingly instructions were  issued  by  the
office of the Director General vide memo dated 27.07.1982 for protection  of
their pay and hence their pay was regularized in the scale of pay of Rs.825-
15-900-20-1200 on the basis of the pay last drawn by them in the time  scale
of pay of Rs.1200-30-1560-40-2040.   Subsequently,  they  got  promotion  as
Grade I  Police  Constable  and  Head  Constable  in  the  Taluk  Police  at
Coimbatore and consequently their pay was fixed under Fundamental Rule  22B.

7.    With regard to their pay protection, the Accountant General  of  Tamil
Nadu raised objection, therefore, the Government ordered recovery of  excess
pay and allowances from them.
8.    Aggrieved  by  the  orders  of  recovery,  Eswaran  and  others  filed
applications being O.A. No. 10317 of 1997 etc. etc. before  the  Tamil  Nadu
Administrative Tribunal, Chennai.  By order dated 06.04.2004,  the  Tribunal
allowed the applications and set aside the orders of recovery.
9.    The  appellants  herein,  therefore,  gave  a  representation  to  the
Commissioner of Police, Coimbatore to  fix  their  pay  at  par  with  their
juniors, namely, Eswaran and  others.   By  order  dated  17.09.2005,  their
representation  was  rejected  on  the  ground  that   the   conditions   in
Fundamental Rule 22B Ruling (2) are not fulfilled.
10.   Aggrieved by the refusal to step  up  their  basic  pay  at  par  with
Eswaran and others, the  appellants herein  preferred writ  petitions  being
W.P. Nos. 9527 & 9528 of  2006  before  the  High  Court.   By  order  dated
13.09.2010, the learned Single Judge of the  High  Court  allowed  the  writ
petitions and directed stepping up of basic pay of the appellants herein  at
par with Eswaran and others.  This order was implemented by the  respondents
by issuing the order dated 08.10.2011 and accordingly the basic pay  of  the
appellants was stepped up.
11.   Aggrieved by the order of the learned Single  Judge,  the  respondents
(State) filed appeals being Writ Appeal Nos. 398 and 399 of 2013 before  the
Division Bench  of  the  High  Court.   By  common  impugned  judgment,  the
Division Bench allowed the appeals, set  aside  the  order  of  the  learned
Single Judge and dismissed the appellants’  writ  petitions.   It  was  held
that the case of the appellants could not  be  compared  with  that  of  the
other set of employees – namely Eswaran and others to claim  parity  in  pay
in terms of Ruling 2 of Fundamental Rule 22B and  Ruling  2  of  Fundamental
Rule 27 for the reason that in order to claim parity in pay,  firstly,  both
junior and senior officers should belong to the  same  Cadre/Post  in  which
they have been promoted/appointed.  Secondly, there should be parity in  pay
in lower and higher pay.  Thirdly, Eswaran and others became  Armed  Reserve
Grade-II Police Constables on their own reasons and  apart  from  that  they
were promoted as ‘Naik’ and ‘Havaldar’ and were, therefore,  in  receipt  of
higher emoluments after transfer.  Fourthly,  their  emoluments  were  lower
than the amount received by them as members of  Tamil  Nadu  Special  Police
Battalion.  This view was taken by the Division Bench  by  placing  reliance
on the decision of this Court in Union of  India  &  Ors.  vs.  O.P.  Saxena
[1997 (6) SCC 360], wherein it was held  inter alia  that  when  the  feeder
post of employee concerned is different, the principle of  stepping  up   of
pay would not apply.
12.   Aggrieved by the aforesaid judgment,  the  appellants  have  preferred
these appeals by way of special leave petitions before this Court.
13.   Mr. R. Basant, learned senior counsel appearing  for  the  appellants,
argued only one point.  It was his submission that the appellants  had  been
getting the benefit of the order dated  13.09.2010  passed  by  the  learned
Single Judge during the pendency of the petitions  because  the  respondents
had implemented the said order by stepping up their pay. It was pointed  out
that consequent upon the passing of the impugned order,  which  resulted  in
setting aside of the order of the learned Single Judge  and  in  consequence
resulted in dismissal of appellants’ writ petition, the respondents are  now
contemplating an action to recover the excess amount paid to the  appellants
during the interregnum  period  on  the  strength  of  the  impugned  order.
Learned counsel, by placing reliance on the principles laid  down   by  this
Court in Shyam Babu Verma & Ors. vs. Union of India &  Ors.,  (1994)  2  SCC
521, urged that the respondents can be restrained from  making  recovery  of
excess  amount  from  the  appellants   because   the   appellants   neither
misrepresented any fact nor committed any fault  and  nor  indulged  in  any
kind of illegality in securing the benefit.  Learned Counsel,  however,  did
not challenge the action of the respondents on merits.
14.   In contra, Mr. S. Prasad, learned senior counsel for  the  respondents
supported the impugned order.
15.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find force  in  the  submission  of  the  learned
counsel for the appellants.
16.    In somewhat similar facts, a Bench of three Judges of this  Court  in
Shyam  Babu  Verma's  case  (supra)  had  issued  a  direction  against  the
Government not to make recovery of any excess payment  in  relation  to  the
money which was already paid to  the  employees  concerned  because  it  was
noticed that the excess payments were not made to  the  employees  concerned
on account of any fault on their part. This is what was held in para  11  in
Shyam Babu’s case,
“11. Although we have held that the petitioners were entitled  only  to  the
pay scale of Rs 330-480 in terms of the recommendations  of  the  Third  Pay
Commission w.e.f. January 1, 1973 and only after the  period  of  10  years,
they became entitled to the pay  scale  of  Rs  330-560  but  as  they  have
received the scale of Rs 330-560 since 1973 due to no fault  of  theirs  and
that scale is being reduced in the year 1984 with  effect  from  January  1,
1973, it shall only be just and proper not  to  recover  any  excess  amount
which has already been paid to them. Accordingly, we direct  that  no  steps
should be taken to recover or to  adjust  any  excess  amount  paid  to  the
petitioners due to the fault of the respondents, the  petitioners  being  in
no way responsible for the same.”

17.   Applying the same principle to the facts  of  the  case  in  hand,  we
notice that firstly, the respondents issued an  order  sanctioning  stepping
up of the pay scale of the appellants on the strength of the order  of  High
Court.  Secondly,  while  claiming  this  relief,  the  appellants   neither
committed any fault nor made any incorrect/false  statement  to  secure  the
benefits because it was being claimed  only  on  the  basis  of  parity  and
lastly, the appellants rendered their services for the period in question.
18.   In the light of these reasons and further keeping in  view  the  short
controversy involved in the case which is  somewhat  akin  to  the  case  of
Shaym Babu (supra), we are of the view that similar directions,  which  were
given in the case of Shaym Babu, can also be given in these appeals  against
the respondents. In other words, it shall only be just  and  proper  not  to
recover any excess amount from the appellants, which has been paid  to  them
on the basis of stepping up of their pay scale. It is much more so  when  as
mentioned above, the  appellants  have  given  up  their  challenge  to  the
respondent's main action taken against  the  appellants  objecting  for  the
grant of benefit of stepping up of their pay and confined  their  attack  to
the issue of recovery of excess amount from them.
19.   In view of foregoing discussion, the appeals succeed  and  are  hereby
allowed in part. The impugned order  is  modified  only  to  the  extent  of
directing the respondents not to make recovery of  any  excess  amount  from
the appellants in relation to the payment made to them towards  stepping  up
of their pay scale.


New Delhi;
November 17, 2015.

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