(1.) HEARD the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.
(2.) THE brief facts of the case, as stated by the petitioner, are as follows: THE petitioner had been appointed, as a Higher Grade Teacher, on 7.6.1967, and was posted as a Primary School Headmaster, on 3.4.1968. THEreafter, he had been posted as a Secondary Grade Teacher, on 11.11.1968. THE petitioner had been further promoted, as a Primary School Headmaster, on 16.6.1979, and as a Middle School Headmaster, on 25.9.1979. While so, the school in which he was working, as a Middle School Headmaster, had been upgraded as a High School, on 28.10.1982 and he was absorbed as a B.T.Assistant, with pay protection. 2.1. After the introduction of the V Pay Commission's recommendations, the Government of Tamil Nadu had introduced the revised pay scales, with effect from 1.6.1988. Accordingly, it had issued the rules in Tamil Nadu Revised Scales of Pay, Rules, 1989, in G.O.Ms.No.666, Finance Department, 27.6.1989. As per the pre-revised pay scales, the pay of an Elementary Headmaster had been fixed as follows: Ordinary Grade:1400-40-1600-50-2300-60-2600 Selection Grade:1640-xxx xxx xxx Special Grade:2000-60-2300-75-3200 If the petitioner had continued in his substantive post of Primary School Headmaster, from 3.4.1968, he would have got the higher pay of Rs.2,120/-, as per G.O.Ms.No.1381, Education Department, dated 5.10.1990, as on 1.6.1988. 2.2. Further, the Government of Tamil Nadu had issued orders for the implementation of Rule 4(3), in G.O.Ms.No.57, Finance Department, dated 28.1.1991. A clarification in Government Letter, dated 8.11.1993, had also been issued, wherein, it had been stated that "at any time, on or after 1.6.1988, if a Government servant would have drawn more pay, in the revised pay scale, in the substantive post, had he continued in it than in the officiating post in which he is actually working, his pay in the officiating post, shall be refixed in the scale of pay of the officiating post at a stage next above the pay in the substantive post." 2.3. THE petitioner would have drawn more pay in the revised pay scale in the substantive post of Primary School Headmaster, than in the officiating post of Middle School Headmaster/absorbed B.T. Teacher, in which he had worked prior to his retirement, as per G.O.Ms.No.1381, Education Department, dated 5.10.1990. 2.4. Based on the claims made by the petitioner for the fixation of his pay, as per the relevant Government Orders, the fourth respondent had issued orders, on 2.9.1991, fixing the pay at Rs.2,120/-, on the basis of G.O.Ms.No.57, Finance Department, dated 28.1.1991 and G.O.Ms.No.1381, Education department, dated 5.10.1990, in the scale of pay of Rs.2000-60-2300-75-3200, applicable to a Special Grade Elementary Headmaster, with effect from 1.6.1988. 2.5. THE same pay, as admissible in the pay of officiating post of B.T.Assistant, has been fixed at Rs.2,120/-, in the scale of pay of Rs.1400-40-1600-50-2300-60-2600, with effect from 1.6.1988. However, based on the objections raised by the Accountant General, the fourth respondent had passed the impugned order, dated 17.8.1992, recovering the excess pay and he had also revised the pay in the scale of ordinary grade B.T. Assistant, at Rs.1,650/- in the scale of Rs.1400-40-1600-50-2300-60-2600, with effect from 1.6.1988. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India.
(3.) THE recovery of the excess amount said to have been paid to the petitioner cannot be made, as held by this Court in its order, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held in the following decisions: