(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of writ of Certiorarified Mandamus, calling for the records of the impugned orders passed by the 1st respondent in G.O.Ms.No.429, Tamil Department, Religious and Information Department, dated 17.12.2008, as well as the consequential order dated 05.03.2009 passed in Na.Ka.No.5443/2008/I, by the 2nd respondent and quash the same and further direct the respondents to continue to pay the same scale of pay to the petitioner as was given.)
1. The writ petition has been filed for issuance of writ of Certiorarified Mandamus, calling for the records of the impugned orders passed by the 1st respondent in G.O.Ms.No.429, Tamil Development, Religious and Information Department, dated 17.12.2008, as well as the consequential order dated 05.03.2009 passed in Na.Ka.No.5443/2008/I, by the 2nd respondent and quash the same and further direct the respondents to continue to pay the same scale of pay to the petitioner as was given.
2. The case of the petitioner is that he was appointed on 01.01.1981 as Watchman in Arulmigu Mariamman Thirukovil, Samayapuram, Trichy District and he was studied upto 10th Standard (not completed). He was posted as Sittrezhuthar Attender on 01.11.1982. On 01.07.1997, scale of pay was fixed as Rs.2610-60-3150-65-3540. He has completed 10 years in the said post on 01.11.1992 and was granted selection grade and his scale of pay was fixed as Rs.4000-100-6000. He was completed 20 years of service in the sittrezhuthar post on 01.11.2002. On 27.12.2002, the petitioner was fixed the scale of pay of Rs.4300-100-6000 in the special grade and he was granted an increment on 27.12.2002, now his scale of pay is 5200-100... total Rs.7,300/-.
3. He further stated that the post of sittrezhuthar was upgraded as Junior Assistant and the Scale of pay was fixed as Rs.950-20-1150-25-1700. On reaching selection grade, the pay scale was fixed as Rs.3200-85-4900. The first respondent has constituted an expert committee to iron out the anomaly of different scales of pay given to different ladder though they were discharging the same kind of work. On the basis of the expert committees report, the first respondent issued G.O.Ms.No.141, Tamil Culture and Religious Endowment Department dated 21.05.2004. On the basis of the said G.O. the petitioner pay was fixed as Rs.4000-100-6000 and now he was drawing the scale of pay of Rs.5200-100..... total Rs.7,300/-.
4. He further states that he was discharging his duties to the utmost satisfaction of his superiors, but the first respondent, to his great shock and surprise has passed G.O.Ms.No.429 Tamil Development Religious and Information Department dated 17.12.2008, as a result of which his scale of pay has been reduced from Rs.5,200/- basic to that of Rs.4,000/- basic. On the basis of the above said G.O., the second respondent has issued a consequential order dated 05.03.2009, directing to recover the alleged excess payment of salary. Aggrieved by the above said orders and having been left with no other alternative and efficacious remedy, he constrained to file this writ petition for the above relief.
5. Heard Mr.A.Thirumoorthy, learned counsel appearing for the petitioner and Mr.K.Guru, learned Additional Government Pleader appearing for the respondents 1 and 2 and Mr.D.Rajendran, learned counsel appearing for the third respondent.
6. Now coming to the question of recovery of the excess pay paid based on the revision of pay made under the impugned orders, I am of the view that it would not be appropriate for the respondents to recover the same. It is well settled law that unless re-fixation of pay had been made on any misrepresentation made by the individual, the amount paid in excess cannot be recovered vide following judgments of the Hon'ble Supreme Court:-
"(i) Sahib Ram v. State of Haryana (1995) Supp (1) SCC 18);
(ii) Collector of Madras and Another v. K.Rajamanickam (1995) (2) SCC 98) and
(iii) Syed Abdul Qadir and Others v. State of Bihar and others (Supreme 1 (2009) 153).
7. In the case on hand, it is not the contention of the respondents that refixation in pursuance of G.O.Ms.No.257 was made on any misrepresentation made by the petitioner. It was done by the respondents on their own by inadvertently applying the said Government Order. Rightly, the same has been now corrected.
8. In view of the said well settled legal position, in so far as recovery of the excess amount paid to the petitioner in pursuance of the above two Government Orders is concerned, this Court in the case in WP.No.13934, 19990, 20870 and 20871 of 2011 has considered the same view and allowed the writ petitions in respect of recovery of excess amounts whereas in respect of re-fixation was dismissed on 27.02.2010. Therefore, all the four writ petitions are squarely applicable to the petitioner's case. I am of the view that to that extent, the impugned orders are liable to be interfered with.
9. In the result, the writ petition is partly allowed in the following terms:
(i) The impugned orders refixing the pay scale of the petitioner is confirmed;
(ii) The impugned orders are set aside in so far as they relate to recovery of excess salary paid to the petitioner.
(iii) It is further directed that the petitioner shall be entitled for HRA, CCA and DA based on the refixation of the pay scale as per the impugned orders. No costs.