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Judgment
D. Hariparanthaman, J.—The petitioner was appointed as a Forester in the Forest Department in the year 1978. On completion of ten years
of service, he was granted Selection Grade in the year 1988 with effect from 19.07.1988. On completion of 20 years of Service, he was granted
Special Grade. In 1999, he was promoted as a Forest Ranger.
While so, the second respondent passed an order dated 18.05.2000, stating that awarding Selection Grade to the petitioner from 19.07.1988
was erroneous and that the petitioner is entitled to Selection Grade only from 14.08.1994. In the said order, no reason was given as to how the
granting of Selection Grade from 19.07.1988 is erroneous.
Thereafter, the first respondent passed an order, dated 16.12.2000, modifying the earlier order dated 18.05.2000, stating that the petitioner is
entitled to Selection Grade from 07.08.1992 and not from 14.08.1994 as fixed in the order dated 18.05.2000.
In the order dated 16.12.2000, refixation of pay was worked out, based on the grant of Selection Grade from 07.08.1992, instead of
19.07.1988.
The first respondent passed a separate consequential order dated 12.2.2001 stating that Rs. 34,850/- (Rupees thirty four thousand eight
hundred and fifty only) would be recovered pursuant to re-fixing of salary by the order dated 16.12.2000.
The petitioner filed O.A. No. 510 of 2002 to quash the aforesaid order dated 18.5.2000 of the second respondent, the order dated
16.12.2000 and 12.2.2001 of the first respondent, and also the Audit Report No. 18 of the Principal Accountant General, Chennai, for the year
1998-1999.
Though the order dated 25.10.1999 of the first respondent was also challenged, the same was cancelled in the order dated 12.2.2001 by the
first respondent and hence it does not survive for consideration. Likewise, the correctness of the order dated 18.05.2000 also need not be gone
into, as the same was modified and a fresh order dated 16.12.2000 was issued.
Heard Mr.Ravi, learned Counsel for the petitioner and Mr. A.N. Purushothaman, the learned Government Advocate (Forests).
The learned Counsel for petitioner contends that the award of Selection Grade from 19.07.1988 was granted by the respondents themselves
and the same was not due to any misrepresentation by the petitioner and that therefore, no question of recovery would arise. In support of this
submission, the learned Counsel has relied on the decision of the Honourable Apex Court in Purshottam Lal Das and Others Vs. The State of
Bihar and Others, , which in turn, relies on earlier decisions of the Apex Court in Sahib Ram Vs. State of Haryana and Others, ; Bihar State
Electricity Board and Anr. v. Bijay Bahadur and Anr. and The State of Karnataka and Another Vs. Mangalore University Non-Teaching
Employees Association and Others, and in all those cases, it is held that if any excess payment was made by the Department to an employee, not
by due to any misrepresentation from him, the Department cannot seek to recover the excess payment, later.
The learned Counsel has drawn the attention of this Court to para - 5 of the said Judgment reported in Purshottam Lal Das and Others Vs.
The State of Bihar and Others, of the said Judgment is extracted here-under:
Admittedly the Appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled
to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised
scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by
wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date
may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University
Grants Commission. The appeal is allowed partly without any order as to costs.
Thereafter, the issue that has to be resolved, is whether the petitioner is entitled to Selection Grade from 19.07.1988 on completion of ten
years of service, or from 07.08.1992, as fixed by the impugned order dated 16.12.2000.
The grant of Selection Grade was governed by G.O.Ms. No. 68, Personnel and Administrative Reforms (Personnel-S) Department, dated
23.01.1986. As per this G.O, the employees, who have put in 10/20 years of service, are not given Selection Grade/Special Grade automatically.
As per this G.O, an employee who completes ten years of service, should satisfy all the qualifications prescribed under the Rules for promotion to
the higher post. That is, he should have passed the departmental tests, if any, prescribed under the Rules for promotion. Further, he should not
suffer disqualification such as pendency of disciplinary proceedings. The guidelines prescribed under G.O.Ms. No. 68 for grant of Selection
Grade/Special Grade is extracted here-under:
(i) For advancement to Selection Grade/Special Grades, all employees, who have put in 10/20 years of satisfactory service and who satisfy all the
qualifications prescribed under the Special Rules/Adhoc Rules for promotion to the higher post shall be eligible.
(ii) All other normal criteria for promotion to a higher post viz. seniority, good or satisfactory record of service, the nature of punishments imposed
on the employee and the lapses for which the punishments were imposed, the pendency of charges of disciplinary proceedings or enquiry, by
Director of Vigilance and Anti-Corruption, qualifications test prescribed under the Special/Adhoc Rules for the higher post etc. should be followed
while moving the employees to the Selection/Special Grade.
Thus, the above said impediments, such as passing of departmental test to qualify for promotion, were to be crossed to get Selection
Grade/Special Grade.
But the said guidelines, prescribed in G.O.Ms. No. 68, were totally withdrawn in G.O.Ms. No. 276, Personnel and Administrative Reforms
(Personnel-S) Department, dated 07.08.1992. The effect of G.O.Ms. No. 276 is that mere completion of 10/20 years of service is enough for an
employee to get Selection Grade/Special Grade. The relevant portion of the said G.O.Ms. No. 276 is extracted here-under:
In the Government order read above, guidelines for advancement of Selection Grade/Special Grade posts were laid down. It has been ordered
therein; that the criteria as for promotion should form the basis for granting Selection Grade/Special Grade, on completion of 10/20 years of
service.
In the meeting convened by the Honourable Chief Minister, with the Service Associations on 01.08.1992, it was represented that the criterion
that one should possess all the qualifications for promotion to next higher post for awarding Selection/Special Grade should be removed. The
Honourable Chief Minister announced that this request will be considered.
The Government after careful consideration of the request of the Service Association and in partial modification of the orders issued in the
Government Order first read above and the clarifications issued thereon from time to time, direct that the crieterion that one should possess the
qualifications and pass the tests, if any, prescribed for next higher posts need not be insisted upon for movement to Selection/Special Grade.
The impugned order dated 16.12.2000 proceeds that the petitioner is not entitled to get Selection Grade on completion of ten years of service,
since he did not pass the departmental test to qualify for promotion to the post of Ranger from Forester, as per G.O.Ms. No. 68. According to the
impugned order dated 16.12.2000, though the said impediment was removed in G.O.Ms. No. 276, the petitioner will get the benefit of Selection
Grade only from the date of G.O.Ms. No. 276 i.e. from 07.08.1992. In fact, in paragraph No. 6 of the reply affidavit, it is stated as follows:
....However, in G.O. Rt. No. 276 P & A.R. Dept, dated 7.8.1992 and further clarification issued in Govt. letter No. 75678/92-1 dated
21.9.1992, it was ordered that those who have completed 10 years of service prior to 7.8.1992 and not possessing the qualification prescribed for
the promotion can be moved to Selection Grade with effect from 7.8.1992 only.
That is, according to the respondents, G.O.Ms. No. 276 is prospective from the date of issuance of G.O.
15.While the earlier order dated 18.05.2000 granted Selection Grade from 14.08.1994 instead of 07.08.1992, the reason therefore was that the
petitioner suffered disqualification due to the currency of punishments.
However, the later order dated 16.12.2000 states that those punishments were set aside by the appellate authority and hence those
punishments are no more disqualification for grant of Selection Grade under G.O.Ms. No. 68. In those circumstances, it necessitated the issuance
of the order dated 16.12.2000, modifying the date fixed for grant of Selection Grade in the order dated 18.05.2000 from 14.08.1994 to
07.08.1992.
Therefore, after the order dated 16.12.2000, the issue is whether the petitioner is entitled to Selection grade from 07.08.1992 or 19.07.1988.
The petitioner states that under the Special Rules, namely Tamil Nadu Forest Subordinate Service Rules, framed under Article 309 of the
Constitution, the Foresters need not pass departmental tests, before promotion to the post of Rangers. On the other hand, as per the rules, it is
sufficient, if they pass the departmental tests, before the completion of probation in the promoted post of Rangers. Hence, when passing of tests is
not a condition precedent for a person to become Ranger from Forester, the non-passing of tests could not be cited to deny the Selection Grade,
under the G.O.Ms. No. 68.
In this connection, the learned Counsel for the petitioner brought to the notice of this Court, the order dated 10.05.1993 passed in O.A. No.
2110 of 1991 by the Tribunal, regarding the grant of Selection Grade for a Forester. The Tribunal passed the following order:
The Selection Grade for the applicant has been denied on the ground that the benefit is available only when the concerned individual fulfills all the
conditions for promotion by way of seniority based on the departmental tests. According to the applicant, the requirement of passing the test is not
prescribed for promotion to the next post, according to the rules, which require that the test should be completed before the period of probation.
....
Accordingly, if the requirement of passing the test is not incorporated in the rules for promotion that cannot be the basis for denial of Selection
Grade also. The respondents are directed to take action accordingly, if the applicant possess the qualifications to be eligible for promotion as in the
rules.
According to the learned Counsel for the petitioner, this case squarely covers the case of the petitioner also. Therefore, the petitioner is entitled
to the grant of Selection Grade from 19.07.1988 itself.
In these circumstances, the impugned order dated 16.12.2000 is not correct in denying Selection Grade to petitioner on the ground that he did
not pass the departmental tests to qualify for promotion to the post of Ranger and that therefore, he is not entitled to Selection Grade, up to
07.08.1992, is not correct. As stated above, the passing of departmental tests was not necessary for promotion to become a Ranger from
Forester as per the Tamil Nadu Forests Subordinate Service Rules framed under Article 309 of the Constitution, at the relevant time.
If the order dated 16.12.2000 is quashed, automatically the audit report No. 18 of the Principal Accountant General, Chennai for the year
1998-1999, will get quashed, since, the audit report proceeds on the erroneous basis on the lines of the order dated 16.12.2000.
It is already found that the order dated 16.12.2000 granting Selection Grade from 07.08.1992 on the premise that the petitioner did not pass
the department tests for promotion to the post of Ranger from Forester is not correct. As per the then existing rules, the passing of test before
promotion is not necessary and also the order dated 10.05.1993 of the Tribunal in O.A. No. 2110 of 1991 also fortifies the view.
In these circumstances, the order dated 16.12.2000 and 12.02.2001 of the first respondent and the audit report No. 18 of the Principal
Accountant General, the third respondent, are quashed and the writ petition is allowed. No costs.