S MAYIL MURUGAN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) Here is a petition filed by fourteen employees of the Tamil Nadu Slum Clearance Board (in short The Board), second respondent herein. All the petitioners are working as the Divisional Accountants in the second respondent Board. The Board is the child of the Tamil Nadu Slum Areas (Improvement and Clearance) Act, 1971 (in short the Act). Under Sec.37(3) of the Act, the Board may appoint its officials and servants as per its necessity. Under Sec.38(2), the Board fixes the pay and other conditions of service of its employees. There are rules framed by the Board governing the conditions of service of its employees called the Tamil Nadu Slum Clearance Board (Non-technical Subordinate) Service Rules, 1972 (in short the Rules). It is an admitted position that the Rules framed are still in vogue.

(2.) The basic challenge in this petition is to G.O.2D.No.40, dated 25-9-1992 and the consequent action taken by the Board, directing the recovery of the excess salaries paid erroneously to the petitioners. Under the aforementioned Government Order, the Government, first respondent herein, directed the Board to revise the pay scale of the Divisional Accountants working in the Board and to bring down their scale of pay from Rs.2000-3200 to Rs.1820-3200 on the ground that the salaries paid to the Divisional Accountants in other State Public Sector Undertakings/Boards like Tamil Nadu Housing Board, Highways and Rural Works Department, Tamil Nadu Water Supply and Drainage Department, etc. were fixed in the pay scale of Rs.1820-3200. The Government having re-fixed the pay scale of the Divisional Accountants working in the Board and directed the recovery of the excess salary paid as a result of erroneous revision of pay scale, the Board has passed the consequent order of recovery dated 22-12-1994. These two orders, viz. Order of the first respondent in G.O.2D.No.40 dated 25-9-1992 and the order of the Board dated 22-12-1994 are challenged in this writ petition.

(3.) The controversy, in short and shorn of details, is as follows: 3.1 Petitioners are working as Divisional Accountants in the second respondent Board. The post of Divisional Accountant in the Board, as per the rules, fall under Category-I while the posts of Estate Officer/Vigilance Officer come under category-II. There are six other posts falling under Categories III to VIII, which include the posts of Assistant Vigilance Officer; Manager Circle Office; Office Superintendent Circle Office; Superintendent Accounts Section; Superintendent Common Grade; and Personal Clerk to Chairman Superintendent Grade respectively. Rule 3 specifies the method of appointment. The post of Divisional Accountant in Category-I, which is a promotional post, is to be filled under Rule 3 firstly by the appointment of a S.A.S. Accountant or a Divisional Accountant of the Accountant Generals Office, Government of India, having the experience in Works Audit on deputation; and secondly, by promotion from Category-II, i.e. from the post of Estate/Vigilance Officer and when qualified candidates are not available in Category-II, from the posts falling under the categories III to VIII, in the same order of priority. The further look at the Rules suggests that for promotion as Divisional Accountant from Categories II to VIII, the following qualifications are prescribed: All qualifications prescribed for Categories-VII and IX; Should have passed the Divisional Accountant Test conducted by the Accountant General. Provided that the said test must have been passed within three attempts. Provided further that in the case of promotion from category V, he should have put in a minimum service of five years in the category before appearing the Divisional Accountant Test conducted by the Accountant General. Thus, the position obtained is that in order to be promoted to the post of Divisional Accountant, the feeder category mainly is Category-II, i.e. Estate/Vigilance Officer and such persons must have passed the Divisional Accountant Test conducted by the Accountant General in three attempts. It is only when such qualified Estate/Vigilance Officer is not available then, the selection pointer moves to Category-III to Category-VIII in that order of priority. The rule is amended subsequently but that does not change the position substantially as shown in the later part of the judgment. 1. The pay scales in the Government set-up were bettered by the Fifth Pay Commission. It is also an admitted position that after the scales of pay of the Government servants were bettered by the application of the recommendations of the Fifth Pay Commission, even the scales of pay of the employees of State Public Sector Undertakings/Boards were also bettered. Prior to the re-fixation of the scales of pay by the Fifth Pay Commission, the scale of pay applicable to the post of Divisional Accountant was Rs.1160-1950. Same was the scale of pay for Estate Officer and Vigilance Officer and also for the Superintendent (Selection Grade). Though the post of Divisional Accountant was a promotional post, the only advantage that an Estate/Vigilance Officer got by way of promotion was the notional increment. Same would be the case of superintendent (Selection Grade). There is a post of Assistant in Category-IX which also includes the posts of Fair Copy Superintendent, Upper Division Estate Inspector and Cashier. Petitioners plead and it is not disputed that an Assistant serving in the Board could not directly become a Divisional Accountant by promotion and that it is not a feeder category post for promotion as Divisional Accountant. The Government too has taken this position in their letter No.56671/R2/82-1 dated 7-2-1983. This is not disputed by the learned Government Advocate or the learned standing counsel for the Board. 2. After the advent of the Fifth Pay Commission, the Government went on to pass G.O.Ms.No.802 dated 7-8-1989. This was for the purposes of culling out the principles on which the Fifth Pay Commissions recommendations would be made applicable to the employees in State owned Corporations or Public Sector Undertakings/Boards. Under clause (iv) of paragraph 2 of the said Government Order, before the revised pay scales were made applicable and allowed in case of the employees of these undertakings or as the case may be, the Board, formal approval was made a must. There is a very significant paragraph in this Government Order, on which the petitioners heavily rely, i.e. Paragraph 2(vi), which reads as under: Though the nature of work in a post in the State Public Sector Undertakings/Boards is not comparable with that of a post in the Government Department due to less onerous nature of duties and responsibilities in the former case, yet identical scales of pay may have been allowed in the State Public Sector Undertakings/Boards just for the reason that the nomenclature of the post is the same. The State Public Sector Undertakings/Boards should obtain prior permission of Government for revision of scales of pay for such posts It so happened that in terms of this, the Board passed a resolution bearing No.222 dated 8-9-1989 and decided to approve the proposal for implementing the revised scales of pay sanctioned in the G.O.Ms. No.666 for its staff. In that, the scale of pay suggested for the post of Divisional Accountant was Rs.2000-3200. The Government approved this by G.O.Ms.No.965 dated 28-9-1989. Thus, from that date the scale of pay of Rs.2000-3200 became applicable to the Divisional Accountants serving in the Board. Petitioners assert that the same scale of pay was made applicable even to the feeder category posts of Estate Officer/Vigilance Officer and the Superintendent (Selection Grade), who were drawing the identical scales of pay under the Fourth Pay Commission. Thus, the petitioners point out that the scale of pay of the Divisional Accountant and its feeder category posts of Estate/Vigilance Officer and Superintendent (Selection Grade) was identically maintained and fixed at Rs.2000-3200 and this was approved by the Government specifically on the basis of the resolution No.222 dated 8-9-1989. So far it was alright. 3. Thereafter, however, the Government passed the impugned order, G.O.Ms.2D.No.40, dated 25-9-1992. By this, the Government directed the Board, using its authority under Sec.44 of the Act, to cancel the fixation of scale of pay at Rs.2000-3200 to the Divisional Accountants of the Board and re-fix the scale of pay at Rs.1820-3200 and to recover the excess amount paid as a result of erroneous revision of scale of pay from the pay of the Divisional Accountants. Needless to say, that the Board has sent its impugned communication dated 22-11-1994 seeking to recover the allegedly excess amount paid to its Divisional Accountants on that basis. These two communications are challenged in the present writ petitions.