B. RADHAKRISHNAN Vs. THE STATE OF TAMIL NADU & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 13407 of 2015, Judgment Date: Nov 17, 2015
REPORTABLE [
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 13407 OF 2015
(ARISING OUT OF SLP (C) No. 29959/2013)
B. Radhakrishnan …..….Appellant(s)
VERSUS
The State of Tamil Nadu
& Ors. ……Respondent(s)
WITH
CIVIL APPEAL No. 13409 OF 2015
(ARISING OUT OF SLP (C) No.30038/2013)
K. Padmaraj …..….Appellant(s)
VERSUS
The State of Tamil Nadu
& Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are filed against the common final judgment and order
dated 02.07.2013 of the High Court of Judicature at Madras in W.A. Nos.398
and 399 of 2013 whereby the High Court allowed the appeals filed by the
respondents herein and set aside the common order dated 13.09.2010 of the
learned Single Judge in W.P. Nos. 9527 and 9528 of 2006 by which the
appellants’ writ petitions were allowed.
3. In order to appreciate the issue involved in these appeals, which lie
in a narrow compass, few relevant facts need mention infra.
4. Mr. B. Radhakrishnan and Mr. K. Padmaraj, - appellants herein were
enlisted in the Police Department of the Coimbatore City Police Unit in the
year 1976 and 1977 respectively as Grade-II Police Constables. One
Eswaran and others were recruited between 1979 and 1982 in the Tamil Nadu
Special Police Battalion as Grade-II Police Constables, Category III.
These persons were promoted to the post of Naik in the year 1985 and
subsequently in the year 1987 to the post of Havaldar. At that time these
persons were drawing higher pay than the appellants.
5. In the year 1993, Eswaran and others exercised their option as
provided in the Tamil Nadu Special Police Subordinate Service Rules 1978
and sought their transfer to the Armed Reserve, Coimbatore City Division.
It was allowed.
6. After their transfer, it was found that in the transferred post, they
have to receive lower pay and accordingly instructions were issued by the
office of the Director General vide memo dated 27.07.1982 for protection of
their pay and hence their pay was regularized in the scale of pay of Rs.825-
15-900-20-1200 on the basis of the pay last drawn by them in the time scale
of pay of Rs.1200-30-1560-40-2040. Subsequently, they got promotion as
Grade I Police Constable and Head Constable in the Taluk Police at
Coimbatore and consequently their pay was fixed under Fundamental Rule 22B.
7. With regard to their pay protection, the Accountant General of Tamil
Nadu raised objection, therefore, the Government ordered recovery of excess
pay and allowances from them.
8. Aggrieved by the orders of recovery, Eswaran and others filed
applications being O.A. No. 10317 of 1997 etc. etc. before the Tamil Nadu
Administrative Tribunal, Chennai. By order dated 06.04.2004, the Tribunal
allowed the applications and set aside the orders of recovery.
9. The appellants herein, therefore, gave a representation to the
Commissioner of Police, Coimbatore to fix their pay at par with their
juniors, namely, Eswaran and others. By order dated 17.09.2005, their
representation was rejected on the ground that the conditions in
Fundamental Rule 22B Ruling (2) are not fulfilled.
10. Aggrieved by the refusal to step up their basic pay at par with
Eswaran and others, the appellants herein preferred writ petitions being
W.P. Nos. 9527 & 9528 of 2006 before the High Court. By order dated
13.09.2010, the learned Single Judge of the High Court allowed the writ
petitions and directed stepping up of basic pay of the appellants herein at
par with Eswaran and others. This order was implemented by the respondents
by issuing the order dated 08.10.2011 and accordingly the basic pay of the
appellants was stepped up.
11. Aggrieved by the order of the learned Single Judge, the respondents
(State) filed appeals being Writ Appeal Nos. 398 and 399 of 2013 before the
Division Bench of the High Court. By common impugned judgment, the
Division Bench allowed the appeals, set aside the order of the learned
Single Judge and dismissed the appellants’ writ petitions. It was held
that the case of the appellants could not be compared with that of the
other set of employees – namely Eswaran and others to claim parity in pay
in terms of Ruling 2 of Fundamental Rule 22B and Ruling 2 of Fundamental
Rule 27 for the reason that in order to claim parity in pay, firstly, both
junior and senior officers should belong to the same Cadre/Post in which
they have been promoted/appointed. Secondly, there should be parity in pay
in lower and higher pay. Thirdly, Eswaran and others became Armed Reserve
Grade-II Police Constables on their own reasons and apart from that they
were promoted as ‘Naik’ and ‘Havaldar’ and were, therefore, in receipt of
higher emoluments after transfer. Fourthly, their emoluments were lower
than the amount received by them as members of Tamil Nadu Special Police
Battalion. This view was taken by the Division Bench by placing reliance
on the decision of this Court in Union of India & Ors. vs. O.P. Saxena
[1997 (6) SCC 360], wherein it was held inter alia that when the feeder
post of employee concerned is different, the principle of stepping up of
pay would not apply.
12. Aggrieved by the aforesaid judgment, the appellants have preferred
these appeals by way of special leave petitions before this Court.
13. Mr. R. Basant, learned senior counsel appearing for the appellants,
argued only one point. It was his submission that the appellants had been
getting the benefit of the order dated 13.09.2010 passed by the learned
Single Judge during the pendency of the petitions because the respondents
had implemented the said order by stepping up their pay. It was pointed out
that consequent upon the passing of the impugned order, which resulted in
setting aside of the order of the learned Single Judge and in consequence
resulted in dismissal of appellants’ writ petition, the respondents are now
contemplating an action to recover the excess amount paid to the appellants
during the interregnum period on the strength of the impugned order.
Learned counsel, by placing reliance on the principles laid down by this
Court in Shyam Babu Verma & Ors. vs. Union of India & Ors., (1994) 2 SCC
521, urged that the respondents can be restrained from making recovery of
excess amount from the appellants because the appellants neither
misrepresented any fact nor committed any fault and nor indulged in any
kind of illegality in securing the benefit. Learned Counsel, however, did
not challenge the action of the respondents on merits.
14. In contra, Mr. S. Prasad, learned senior counsel for the respondents
supported the impugned order.
15. Having heard the learned counsel for the parties and on perusal of
the record of the case, we find force in the submission of the learned
counsel for the appellants.
16. In somewhat similar facts, a Bench of three Judges of this Court in
Shyam Babu Verma's case (supra) had issued a direction against the
Government not to make recovery of any excess payment in relation to the
money which was already paid to the employees concerned because it was
noticed that the excess payments were not made to the employees concerned
on account of any fault on their part. This is what was held in para 11 in
Shyam Babu’s case,
“11. Although we have held that the petitioners were entitled only to the
pay scale of Rs 330-480 in terms of the recommendations of the Third Pay
Commission w.e.f. January 1, 1973 and only after the period of 10 years,
they became entitled to the pay scale of Rs 330-560 but as they have
received the scale of Rs 330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess amount
which has already been paid to them. Accordingly, we direct that no steps
should be taken to recover or to adjust any excess amount paid to the
petitioners due to the fault of the respondents, the petitioners being in
no way responsible for the same.”
17. Applying the same principle to the facts of the case in hand, we
notice that firstly, the respondents issued an order sanctioning stepping
up of the pay scale of the appellants on the strength of the order of High
Court. Secondly, while claiming this relief, the appellants neither
committed any fault nor made any incorrect/false statement to secure the
benefits because it was being claimed only on the basis of parity and
lastly, the appellants rendered their services for the period in question.
18. In the light of these reasons and further keeping in view the short
controversy involved in the case which is somewhat akin to the case of
Shaym Babu (supra), we are of the view that similar directions, which were
given in the case of Shaym Babu, can also be given in these appeals against
the respondents. In other words, it shall only be just and proper not to
recover any excess amount from the appellants, which has been paid to them
on the basis of stepping up of their pay scale. It is much more so when as
mentioned above, the appellants have given up their challenge to the
respondent's main action taken against the appellants objecting for the
grant of benefit of stepping up of their pay and confined their attack to
the issue of recovery of excess amount from them.
19. In view of foregoing discussion, the appeals succeed and are hereby
allowed in part. The impugned order is modified only to the extent of
directing the respondents not to make recovery of any excess amount from
the appellants in relation to the payment made to them towards stepping up
of their pay scale.
……...................................J.
[J. CHELAMESWAR]
..……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 17, 2015.
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