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Judgment
Honourable Mr. Justice Vinod K. Sharma
The Petitioner has invoked the jurisdiction of this Court under Article 226 and 227 of the Constitution of India, with a prayer for issuance of a
Writ in the nature of Certiorari,to quash the order dated 05.04.2007, vide which the Petitioner has been directed to remit a sum of Rs. 5,84,533/-
(Rupees five lakhs eighty four thousand five hundred and thirty three onlY) to the Respondent/University.
The Petitioner served as a Principal at VSNSN College of Arts and Science, Virudhunagar, Virudhunagar District from where he sought
voluntary retirement in the year 1997. The Petitioner thereafter served as Principal in PGP College, Namakkal and also as Director in St.peter''s
Institute of Management and St. Peter''s Engineering College, Chennai.
Manonmaniam Sundarnar University advertised the post of Registrar for contractual appointment for a period of three years. The Petitioner
submitted his application for appointment with the University, and on being selected by the Interview Committee, joined as Registrar with the
Respondent University on 10.05.2000.
The Petitioner was appointed as per the terms of advertisement for a period of three years with basic pay of Rs. 17,750/- (Rupees Seventeen
Thousand Seven Hundred and Fifty only) in the scale of pay of Rs. 16400-450-20,000 + usual eligible allowances. The Petitioner was also
granted the annual increment during his service with the Respondent/University.
The Petitioner''s basic pay while working with VSNSN College of Arts and Science, Virudhunagar was Rs. 18,200/- (Rupees Eighteen
Thousand Two Hundred Only) with allowances and that in Namakkal college he has been getting consolidated salary of Rs. 19,000/- (Rupees
Nineteen Thousand only) and whereas at St. Peter''s Engineering College, the Petitioner was paid Rs. 17,750/- (Rupees Seventeen Thousand
Seven Hundred and Fifty only). This was taken into consideration while fixing the salary of the Petitioner at Rs. 17,750/- (Rupees Seventeen
Thousand Seven Hundred and Fifty only), that too, after police verification.
It was only when the Petitioner requested for release of the Provident Fund and other benefits, after ceased to be in the employment of the
Respondent University, on completion of terms of employment that an objection was raised regarding the fixation of pay of Petitioner at the time of
his appointment.
The case of the Petitioner is that Respondent/University on the objection of Local Fund Audit claimed a sum of Rs. 6,42,037/- (Rupees six
lakhs forty two thousand and thirty seven only) said to have been paid wrongly to the Petitioner, because of wrong fixation of pay. Thereafter, the
Petitioner was served with the impugned order asking the Petitioner to remit a sum of Rs. 5,84,566/- (Rupees five lakhs eighty four thousand five
hundred and sixty six only).
The impugned order has been challenged by the Petitioner on the ground, that the basis for coming to the conclusion that the salary of the
Petitioner was wrongly fixed, is based on non-existing reason, as the Petitioner was not reemployed, but was appointed on contractual basis in
pursuance to an advertisement issued in the newspapers.
In support of this contention, the Learned Counsel for the Petitioner placed reliance on Statute-8 of the Manomaniam Sundarnar University Act,
1990, which defines re-employment as under:
Re-employment:
Provided that the syndicate may employ any such employee for one year in respect of non-teaching staff and two years in respect of teaching staff
at a time and upon a period of two years in all in respect of non-teaching staff and five years in all in respect of teaching staff in recognition or
outstanding contribution to the University terms and conditions to be prescribed by the Syndicate.
It is the contention of the Learned Counsel for the Petitioner, that the University has no jurisdiction to seek refund of demanded amount, as the
Petitioner was not guilty of any mis-representation in fixing of his salary at Rs. 17,750/- (Rupees Seventeen Thousand Seven Hundred and Fifty
only) at the time of his appointment, therefore, it is not open to the University to claim the amount on the ground of wrong fixation of salary, after
the Petitioner ceased to be in employment of the Respondent/University.
It is also the contention that there was no question of wrong fixation of salary of the Petitioner, as admittedly, the appointment was on
contractual basis for a period of three years, and the salary was in terms of the contract of service, which had nothing to do with the fixation, of pay
scale by taking into consideration the previous employment.
The factual position is not in dispute, as no counter has been filed by the Respondent/University.
The Learned Counsel for the University contested the Writ petition by contending that the refund is claimed from the Petitioner, on the
objection of the Local Fund audit Department vide G.O. Ms. No. 52, Finance(Pension)Department, dated 27.02.2003, which reads as under:
Government of Tamil Nadu
Finance (Pension) Department
G.O. Ms. No. 52, dated 27 th February 2003
(Chitrabanu, Masi-15,Thiruvalluvar Andu 2034)
Pension -Tamil Nadu Pension rules, 1978, Sanction of increment orders-issued.
--------------------------------------------------------------
ORDER:
According to Rule 5 of the Central Civil Services (fixation of pay of reemployed Pensioners) Orders, 1986, once the initial pay of re-employed
pensioner has been fixed in the manner indicated in rule 4 of the said orders, he may be allowed to draw normal increment in the time scale of the
post to which he is appointed as if the pay has been fixed at the minimum or the higher stage as the case may be, provided that the pay and gross
pension takentogether do not at any time exceed Rs. 8,000/- (now Rs. 20,000/- )per month. As there is no similar provision available in the Tamil
Nadu Pension Rules, 1970, the Accountant General has sought for clarifications in this regard.
The Government have carefully examined the matter and decided to adopt the above rule in respect of the State Government pensioners who
are re-employed. Accordingly, the Government direct that normal increments shall be sanctioned to the Government pensioners who are re-
employed in the time scale of pay of the post to which he is appointed as if the pay had been fixed at the minimum or the higher stage, as the case
may be (i.e., before an adjustment on account of pension and pension equivalent or other retirement benefits is made) subject to the condition that
the pay and gross pension or pension equivalent of other retirement benefits taken together do not at any time exceed Rs. 26,000/- per month.
This order shall take effect from 13.07.1994.
Necessary amendments to Tamil Nadu Pension rules, 1978 will be issued separately.
(By order of the Government)
Sd/- S. Arumugam
Additional Secretary to Government
The Government Order on the face of it is not applicable to Petitioner, as it was not the case of re-employment, but of appointment on
contractual basis, in pursuance to the advertisement issued by the University, for appointment on contractual basis for period of three years. The
employment of the Petitioner does not fall within the definition of re-employment as referred to above.
The Respondent/University should answered with the objection of the Local Fund Audit Department by explaining the correct position, rather
than blindly asking the Petitioner to deposit the amount.
On being questioned, as to how the Government Order was be applicable to the University, where, the service conditions are covered by the
Statute, the learned counsel for the University referred to Statute 16, wherein, the Tamil Nadu Government Rules have been made applicable for
interpretation of these statutes, and the decision of the Vice-Chancellor of the University is final, except the matters which are specifically governed
by the statutes of the University employees. The rules governing the service of Tamil Nadu Government are applicable unless and otherwise
decided by the Syndicate.
The reliance on Statute 16 is also misplaced. There was no question of interpretation, as the rules being applied for recovery, do not deal with
the contractual appointment.
It is well-settled law that the contractual appointment are governed by the contract of employment, and once the salary is fixed under the
contract of employment, no other rule can be looked into.
Even otherwise also once no misrepresentation is attributed on the Petitioner in fixation of the salary, if the same could not be withdrawn or
reduced retrospectively to claim any refund from the Petitioner.
The impugned order, therefore, on the face of it is arbitrary, and based on mis-interpretation of the statutes of the University which cannot be
sustained in law.
Consequently, the Writ Petition is allowed. The impugned order is set aside. The Respondents are directed to release the dues of the
Petitioner, forthwith.
The connected Miscellaneous Petitions are closed.