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Judgment
N. Paul Vasanthakumar, J.—Prayer in the writ petition is to quash the impugned order of the first respondent dated 24.4.2002 bearing No.
27007/T-2/2000-14 and direct the first respondent to sanction the remaining amount of pay of Rs. 156.40 treating it as a special or separate pay
from the date of petitioner''s re-employment as Office Assistant in the office of the second respondent i.e, 14.7.1983, for the purpose of re-fixation
of pay at Rs. 796.40.
The brief facts necessary for disposal of the writ petition as stated in the affidavit filed by the writ petitioner are that the petitioner was appointed
as a Soldier in the Indian Army on 25.5.1968 and after 15 years of his unblemished record of service, he was discharged from the Army on
1.6.1983. At the time of his discharge from Army, his last drawn salary was Rs. 796.40. Petitioner was re-employed in the Government Industrial
Training Institute at Karaikudi, Sivagangai District on 14.7.1983 as an Ex-Serviceman. Petitioner even though received Rs. 796.40 as his last
drawn salary, the second respondent originally fixed his salary at the rate of Rs. 640/- per month with usual allowances. According to the
petitioner, the said action being contrary to the Government orders, petitioner submitted a representation to the second respondent to re-fix his
scale of pay at the rate of Rs. 796.40 per month on the basis of his last drawn salary at the time of his discharge from the Indian Army.
It is the case of the petitioner that G.O.Ms. No. 847 Finance (Pension) Department, dated 7.10.1983 clearly states that when the Exservicemen
are re-employed in civil services, their salary should be fixed on the basis of their last drawn salary. It is the further case of the petitioner that one
A.Dharmarajan, Record Clerk, who was an ExServiceman, on his re-employment as Record Clerk at the Government Industrial Training Institute,
Paramakudi, was given pay protection with effect from his date of re-employment, i.e, from 13.1.1984 by the proceedings of the Principal,
Government Industrial Training Institute, Paramakudi in his proceeding in Rc. No. 7068/A/91, dated --.2.1992. The said re-fixation was made to
the said A.Dharmarajan based on Government orders.
It is further stated by the petitioner that his last drawn salary was verified from the Madras Regiment, Abhilekh Karyalaya, Wellington, Nilgiris
and the said Office by letter dated 23.3.1994, certified petitioner''s last drawn salary as Rs. 796.40 and stated that the said last drawn salary can
be taken into consideration for fixation of pay at his civil service. Pursuant to the said certificate, the second respondent by order dated 3.7.1997
sanctioned additional amount of Rs. 156.40 to the basic pay of the petitioner, so as to reach the total pay of Rs. 796.40. The petitioner was paid
the arrears of salary from 14.7.1983.
Further case of the petitioner is that the second respondent sent the proposal to the first respondent for ratification and the first respondent by
letter No. 27007/TD-2/2000-14 dated 24.4.2002 ordered that the difference in pay of Rs. 156/- sanctioned from 14.7.1983 cannot be paid to
the petitioner as special pay or personal pay and the petitioner is eligible to get pay scale of Rs. 250/- with usual allowances and that the excess
amount paid to the petitioner shall be recovered. The said order of the first respondent is challenged by the petitioner in O.A. No. 3959 of 2002
before the Tamil Nadu Administrative Tribunal, which was subsequently transferred to this Court.
The Tribunal, while admitting the original application, granted interim stay of recovery by order dated 8.7.2002 and subsequently the stay order
was extended until further orders on 26.7.2002.
The respondents have filed a counter affidavit wherein it is admitted that on the date of discharge of petitioner from the military service, he was
receiving Rs. 796.40 and that the petitioner was sanctioned only Rs. 640/- on his re-employment. The difference of Rs. 156.40 was paid to the
petitioner from 14.7.1983 as per petitioner''s request and there is no provision to include this difference in the petitioner''s pay and therefore the
Government ordered recovery of the said amount. It is further stated in the counter affidavit that there is no provision to fix the pay and allowances
of an Ex-Serviceman at the time of his re-employment in civil services, equivalent to his total emoluments last drawn by him and hence the
impugned order is passed based on the rules. As the petitioner is not eligible to get the enhanced pay as per the rules, there is no necessity to give
any notice or opportunity of hearing to the petitioner before ordering recovery of the said amount.
The learned counsel appearing for the petitioner argued that the petitioner retired from the service as on 28.2.2006 and the order of the first
respondent is contrary to the sanction order passed by the second respondent as well as the Gover ers. The learned counsel further submitted that
the petitioner being an Ex-Serviceman, is legally entitled to get his last drawn salary on re-employment and that the first respondent has not given
any reason to cancel the sanction order passed by the second respondent.
Learned counsel also argued that the petitioner was not given any notice or opportunity of hearing before ordering cancellation of the sanction
order and order of recovery and thus the principles of natural justice is thoroughly violated in this case. For all these reasons, learned counsel for
the petitioner sought to set aside the impugned order.
I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned Government Advocate
for the respondents.
The points in issue are, whether the sanction of Rs. 156.40 additionally to the basic pay of the petitioner by the second respondent is valid and
that whether the first respondent is entitled to cancel the said order and order recovery without issuing any notice or opportunity of hearing to the
petitioner.
It is the specific case of the petitioner that the ExServicemen, appointed in the civil services on re-employment basis are entitled to get their
salary fixed, taking note of their last drawn salary in the military service. No rule was pointed out or Government Order was produced, disentitling
the petitioner to claim the last drawn salary, by the first respondent. The same was not even stated in the counter affidavit. The second respondent,
who is the competent authority, by order dated 3.7.1997 duly re-fixed the petitioner''s scale of pay at the rate of Rs. 796.40 with effect from
14.7.1983 and also paid the arrears. The Madras Regiment Office, by letter dated 23.3.1994 also certified that the petitioner''s last drawn salary
in the military service as Rs. 796.40 per month.
During the course of arguments, the learned counsel for the petitioner pointed out that one A.Dharmarajan was appointed as Record Clerk in
the Government Industrial Training Institute, Paramakudi, and his pay was fixed based on his last drawn salary in the military service and the said
order is filed among the typed set of papers. Placing reliance on the same, the learned counsel stressed that the action of the first respondent is
discriminatory and violative of principles of natural justice.
This Court on 2.2.2006, 13.2.2006, 16.2.2006, 23.2.2006, 2.3.200 6, 6.3.2006 and on 9.3.2006 adjourned the matter to find out as to
whether the said A.Dharmarajan was paid salary on his re-employment on the basis of his last drawn salary in the military service and also to find
out the difference in the case of A.Dharmarajan to that of the petitioner. In spite of giving adjournments on the above dates, no reply was
forthcoming from the Government Advocate appearing for the respondents. Therefore, it is presumed that the first respondent has no answer to
take a different view from that of A.Dharmarajan''s case. Hence petitioner''s contention is to be accepted as the action of the first respondent is
violative of Article 14 of the Constitution of India.
Further, petitioner was not given any notice or opportunity of hearing before passing the impugned order of recovery. While ordering recovery
from the salary, petitioner''s civil rights are very much affected, for which principles of natural justice is to be mandatorily followed. It is also
admitted in the counter affidavit that no notice or opportunity of hearing was given to the petitioner. Hence the action of the first respondent is in
violation to Article 14 of Constitution of India and against the principles of natural justice.
For the above reasons, the impugned order dated 24.4.2002 is quashed and there will be a direction to the first respondent as prayed for.
The writ petition is allowed. No costs.