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Judgment
Vinod K. Sharma, J.—The Petitioner has approached this Court by invoking the extraordinary jurisdiction, with the prayer for the issuance
of writ in the nature of Certiorari, to quash the order, dated 15.11.2005, with the consequential relief of issuance of writ in the nature of
Mandamus, directing the Respondents to restore the pay scale enjoyed by the Petitioner before passing of the impugned order.
The pleaded facts, are that the post of Junior Assistant/Typist was redesign Ted as Depot Manager GradeIII vide G.O. No. 50, dated
14.02.1995.
Prima facie, the service conditions of employee cannot be altered with the change of nomenclature. The change of nomenclature does not effect
the Petitioner as he was appointed in the Agriculture Department on 13.09.2000as Junior Assistant (Security).
The Petitioner was placed in the pay scale of Rs.3200/- , though he was entitled to be placed in the pay scale of Rs. 3375/- in view of the
Government undergo. Ms. No. 321, dated 02.07.1998, taking a conscious decision, to grant higher pay scale to the Junior Assistant having
qualification of graduation.
The Government Order No. 321, dated 02.07.1998 reads as under:
In the reference first cited, orders we reissued granting higher start of pay at two stages above the minimum of scale of pay of Rs. 975-25-1150-
30-1660/- ie. at Rs. 1025/- for Graduate Junior Assistants/Typists/Steno typists. Order were also issued that the minimum pay of Record Clerk
with Secondary School Leaving Certificate (S.S.L.C) as the minimum basic qualification has to be fixed at Rs. 799/- in the scale of pay of Rs.775-
12-835-15-1030/- .
Consequent on the revision of scales of pay as ordered in the Government Order second read above, the Government have now decided to
continue the benefits extended in the Government order first read above and accordingly direct that:
(i)the minimum pay of Record clerks with S.S.L.C. Qualification be Rs. 2730/- in the scale of pay of Rs. 2610-60-1315-65-3540 (ii) Graduate
Junior Assistants eligible for higher start of two stage above the minimum scale of pay of Rs. 3200-85-49, i.e. (iii)Employees whose pay has been
fixed in the revised scale below Rs. 3370/- and who have been graduated subsequently are entitled for higher start of pay up to Rs. 3370/- i.e.
employees with graduate qualification whose pay has been fixed in the revised scale at Rs. 3200/- or Rs.3285/- are eligible for higher start at
Rs.3370/- . In respect of others, whose pay has-been fixed at Rs. 3370/- or above, they are not eligible for the higher start.
The above ruling is applicable to Junior Assistants/Typists already in service either appointed directly or by transfer of service.
In respect of Steno Typists outside Secretariat and Personal Clerks and Assistants in the Tamil Nadu Secretariat Service as they were already
granted higher pay scale above the pay scale of Junior Assistant, they are not entitled to any higher start of pay.
These orders shall apply to Graduate village Administrative Officers of Revenue Department also.
This order shall take effect from 01.01.1996 the date of implementation of the revised scales of pay ordered.
(By order of the Governor)
The Petitioner being a graduate was entitled to the benefit of G.O. Ms. No. 321, dated 02.07.1998. The pay scale of the Petitioner was
accordingly fixed at Rs. 3375/- from the date of his appointment.
While the Petitioner was performing his duty as Junior Assistant, the impugned order was passed reducing the pay of the Petitioner to Rs.
3200/- and the Respondents are taking further steps to recover the excess amount paid.
The basis for passing of the impugned order, is that the Government has issued an Administrative Order clarifying, that the G.O. Ms. No. 321,
dated 02.07.1998 was not applicable to Depot Manager, Grade III.
This order, on the face of it, is not sustainable in law as it is not in dispute that videG.O. Ms. No. 165, dated 04.04.1990, it was the post of
Junior Assistant/Typists which were redesign Ted as Depot Manager, Grade III. Mere redesign ting of post, cannot be a ground to deny the
benefit.
Though for the present, we are not concerned with this aspect, as the Petitioner was not appointed as Depot Manager, Grade III, as
admittedly, the Petitioner was appointed as Junior Assistant (security), after redesignation.
The order of recovery, on the face of it, cannot be sustained, as it is well settled law, that the benefit granted to an employee even if wrongly, it
cannot be withdrawn retrospectively and recovery ordered unless its shown, the benefit was outcome of misrepresentation by the employee.
In this case, no misrepresentation is alleged against the Petitioner.
The impugned order also cannot be sustained, as it is passed on the wrong assumption, that the Petitioner was holding the post of Depot
Manager, Grade III.
The post of Junior Assistant/Typist wasredesignated as Depot Manager, Grade III in the year 1990,whereas, the Petitioner was appointed on
13.09.2000 as Junior Assistant (security). There is thus no question of Petitioner being treated as Depot Manager, Grade III.
Even if it is taken to be a case of redesignation Junior Assistant, the clarification given by the Government, by order on which reliance is placed
would-be per se illegal, and not sustainable in law. Merely byre designating a post, the benefit due to an employee cannot be denied. If the
clarification order is accepted, then it will amount to taking away the benefits attach to the post, this would effect the civil rights of an employee.
Such an order cannot be passed without giving opportunity of hearing and recording reasons.
The impugned order, on the face of it, is arbitrary and amounts to colorable exercise of power, thus is hit by Article 14 of Constitution of India.
Consequently, the writ petition is allowed, the impugned order is set aside.
The Respondents are directed to refix the salary of the Petitioner, at the stage he was drawing before passing of the impugned order. The
Petitioner shall also entitled to receive all consequential benefits. No costs.
Consequently, connected miscellaneous petitions are closed.