The High Court set aside an order directing recovery of excess pay and questioning the petitioner's appointment without a show-cause notice. The Court directed the respondent to give prior notice before refixing pay.
The impugned order was set aside; respondents directed to give prior notice before refixing pay within four weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.(MD).No.12675 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.06.2024
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.(MD).No.12675 of 2024 and WMP(MD) No.11282 of 2024
G.Saravanan
... Petitioner
Vs
... Respondents
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W.P.(MD).No.12675 of 2024
Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order vide Na.Ka.No. 839/2024/SaPa, dated 02.05.2024 passed by the 2nd respondent and quash the same and consequently directing the 2nd and 3rd respondents to approve / regularize the scale of pay revised by the 4th respondent for the post of Attendar with effect from 01.04.2018 and consequently approve the promotion given to the petitioner as Clerk vide resolution, dated 29.08.2022 and revision of scale of pay application to the post of Clerk.
For Petitioner : Mr. D.Shanmugaraja Sethupathi For Respondents : Mr.K.Selvaganesan Additional Government Pleader
ORDER
Heard Mr.D.Shanmugaraja Sethupathi, learned counsel appearing
for the petitioner and Mr.K.Selvaganesan, learned Additional Government Pleader appearing for the respondents.
2.The petitioner has filed this writ petition challenging the impugned order vide Na.Ka.No. 839/2024/SaPa, dated 02.05.2024 passed by the 2nd respondent and consequently to direct the 2nd and 3rd respondents to approve / regularize the scale of pay revised by the 4th respondent for the post of Attender with effect from 01.04.2018 and also to approve the promotion
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given to the petitioner as Clerk vide resolution, dated 29.08.2022 and revision of scale of pay application to the post of Clerk.
3.The petitioner, who has been appointed as an Attender was slapped with an order of recovery, dated 02.05.2024, stating that the petitioner was originally appointed as a Salesman and there is no manipulation in the order of appointment.
4.In fact, the petitioner has earlier filed a writ petition to consider his representation for fixing his pay on his promotion, on par with his juniors in the cadre of Clerk. On the direction given by this Court, the representation of the petitioner was considered, but to his shock, it was resulted in recovery stating that his appointment was only to the post of Salesman, whereas, his pay has been fixed for the Attender post.
5.Before passing such an order, which would affect the interest of the petitioner, no show-cause notice has been given by the respondents. As far as the petitioner is concerned, there is no manipulation in his appointment and
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all along he has been paid with the salary right from the beginning to the post of Attender.
6.Further, the recovery relates back to the period between 2018-2022, since the recovery has been ordered to be made for a person, who was working as a Clerk, comes under Group 4 category. The recovery order has been passed unmindfully without following the dictum laid down by the Hon'ble Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) reported in AIR 2015 SC 696 . In which, the Hon'ble Apex Court has laid down the guidelines for recovery in the following manner:-
(i)Recovery from employees belonging to ClassIII and Class-IV service (or Group 'C' and Group 'D' service).
(ii)Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii)Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (iv)Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly,
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W.P.(MD).No.12675 of 2024
even though he should have rightfully been required to work against an inferior post.
(v)In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”
7.Further, the Government of Tamil Nadu has also passed Government Order in G.O.Ms.No.286 Finance (Pension) Department, dated 28.08.2018 and issued guidelines in the light of the order of the Hon'ble Supreme Court held in Whitewasher's case.
8.Even if the respondent authorities thought it fit that the petitioner's pay has to be refixed in view of the allegations stated in the impugned order, that cannot be done all of a sudden, even without putting him on notice.
9.In view of the same, the impugned order in vide Na.Ka.No. 839/2024/SaPa, dated 02.05.2024 is hereby set aside. However, the respondents
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W.P.(MD).No.12675 of 2024
can resort for refixation of pay, if there is apparently any error or mistake on the part of the petitioner by giving him prior notice and pass appropriate orders within a period of four weeks from the date of receipt of copy of this order. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
18.06.2024
NCC : Yes / No Index : Yes / No Internet : Yes PNM
To
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W.P.(MD).No.12675 of 2024
R.N.MANJULA, J.
PNM
ORDER IN W.P.(MD).No.12675 of 2024 and WMP(MD) No.11282 of 2024
18.06.2024
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3 issues framed by the court
Whether the impugned order directing recovery of excess pay and questioning the petitioner's appointment violated the principles laid down in State of Punjab vs. Rafiq Masih.
Whether the appellate/departmental authority issued a show-cause notice before passing an order affecting the petitioner's interest.
Whether the petitioner was entitled to have his pay fixed on promotion on par with his juniors.
Colour shows how this judgement treated each authority
State of Punjab and others vs. Rafiq MasihDistinguished¶38
State of Punjab and others vs. Rafiq Masih (White Washer), AIR 2015 SC 696 · Who else cites this
2 provisions across 2 enactments
G. Saravanan
The Registrar of Co-operative Societies
The Regional Joint Registrar of Co-operative Societies
The Deputy Registrar of Co-operative Societies
The Administrator / Secretary, S.Pudur Primary Agricultural Co-operative Credit Society
R.N. Manjula
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
