(Prayer: Writ Petition filed under Article 226 of the Constitution of India, seeking to issue a Writ of Certiorarified Mandamus, calling for the records relating to the 5th respondent in his proceedings No.P10/3/11018561/ADK, dated 07.12.2016 and the consequential recovery order passed by the 4th respondent. The District Elementary Education Officer, Virudhunagar, Virudhunagar District in his proceeding Na.Ka.No.3601/A1/2016, dated 23.02.2018 herein and quash the same and to direct the 4th respondent to forward the revised pension proposal to the 5th respondent based on the last pay drawn pay of the petitioner by adding the grade pay as Rs.5400/- instead of Rs.4700/- and direct the 5th respondent to accept the pension proposal.)

1. Heard the learned counsel for the petitioner, the learned Government Advocate appearing for the respondents 1 to 4 and the learned Senior Standing Counsel appearing for the 5th respondent and perused the records.

2. The brief case of the petitioner is that he had joined service as Secondary Grade Assistant on 06.08.1984; that he was promoted to the post of Elementary School Headmaster on 16.06.2003; that thereafter as B.T Grade Middle School Headmaster on 11.07.2005; that while working as B.T. Grade Middle School Headmaster, he was transferred as Assistant Elementary Education Officer on 21.11.2006 which is equivalent to B.T. Grade Middle School Headmaster; and that he had retired from service on 31.10.2016.

3. The petitioner further contends that on being promoted to the post of B.T. Grade Middle School Headmaster with effect from 11.07.2005, he had opted to continue his earlier lower category i.e., Selection Grade Elementary School Headmaster pay scale, as the scale of pay in the promotional post i.e., ordinary grade B.T Grade Middle School Headmaster was lesser than the lower post pay scale held by him.

4. It is the further case of the petitioner that as on 01.01.2006, in the initial 6th Pay Commission revision proposal, there was no selection grade or special grade; that even then he had opted to continue his lower post pay scale as applicable to Elementary School Headmaster; that the Government vide G.O.Ms.No.234, Finance (PC) Department, dated 01.06.2009, had revised the pay scale of higher post B.T. Grade Middle School Headmaster (Ordinary Grade), which was lesser than the lower post of Selection Grade Elementary School Headmaster pay scale; that his pay scale was fixed on the basis of the Selection Grade Primary School Headmaster pay scale, for which he had opted; and that he had never opted to fix the scale of Middle School Headmaster (Ordinary Grade).

5. The Petitioner further contends that since, he opted to remain in the pay scale as applicable to the Selection Grade Primary School Headmaster, the respondents cannot and could not have applied the pay scale of Middle School Headmaster (Ordinary Grade), resulting in reduction of pay to the petitioner.

6. The petitioner also contended that based on his last drawn pay, i.e., Selection Grade Primary School Headmaster, pension proposal was prepared and forwarded by the respondents 1 to 4 to the 5th respondent for sanction of pension on 04.11.2016 as he had retired from service on 31.10.2016; that the 5th respondent by the impugned order dated 07.12.2016 while returning service book and pension proposal, had directed the 4th respondent to send pension proposal again by considering the Grade Pay of Rs.4,700/- only and not Grade pay of Rs.5400/- as considered while preparing the pension proposal; that since, the petitioner was holding the post of Headmaster Middle School (Ordinary Grade) as on 01.01.2006, he should be granted time scale as applicable to Headmaster Middle School (Ordinary Grade) as per G.O.Ms.No.234, Finance (PC) Department, dated 01.06.2009.

7. The petitioner contends that the claim of the 5th respondent of he holding the post of Headmaster Middle School (Ordinary Grade) as on 01.01.2016 in order to reject the Grade pay payable to him in Selection Grade as applicable to Primary School Headmaster, is without considering the fact of he having opted to continue in lower category, i.e., Selection Grade Elementary School Headmaster pay scale at the time when he was promoted as B.T. Grade Middle School Headmaster on 11.07.2005.

8. It is the further case of the petitioner that the action of the respondents is also without taking note of the fact that by 10.07.2015 he had completed 10 years of service; that even by accepting the claim of the 5th respondent that as on 01.01.2006, he was B.T. Grade Middle school headmaster (Ordinary Grade), he would be entitled for being granted the benefit of selection grade. Contending as above, the petitioner prays for quashing the impugned orders.

9. On behalf of the petitioner, reliance is placed on the decision of the Coordinate Bench of this Court, dated 12.02.2025 in WP No.12735 of 2018 and batch, wherein this Court had considered the effect of G.O.Ms.No.234, Finance (PC) Department, dated 01.06.2009, the extension of time is granted vide G.O.Ms.No.240, Finance (PC) Department, dated 22.07.2013 and the effect of G.O.Ms.No.38, School Education Department, dated 05.03.2001 and Rule 22B of Tamil Nadu Fundamental Rules.

10. Separate counter affidavits are filed on behalf of the 3rd and 5th respondents.

11. The 5th respondent by the counter affidavit had admitted to the fact that prior to 11.07.2005, the petitioner was in lower post of Selection Grade Primary School Headmaster in the pay scale of Rs.6,500-10,500 and on promotion, as Middle School Headmaster (Ordinary Grade) on 11.07.2005, he is entitled to scale of pay of Rs.5,900-9,900.

12. The 5th respondent by the counter affidavit further admit to the fact of scale of pay in the promoted post being lower, the petitioner was allowed to draw higher scale of pay as applicable to the Selection Grade Primary School Headmaster as per G.O.Ms.No.590, Finance (PC) Department, dated 01.08.1992.

13. The 5th respondent by the counter affidavit contended that it had taken into consideration the pay drawn by the petitioner in the higher scale of lower post and by applying factor 1.86, fixed his pay from 01.01.2006 in the Pay Band and Grade Pay relating to the post held by him, i.e., Headmaster Middle School (Ordinary Grade); and that there is no provision in the 6th Pay Commission recommendation to grant Grade Pay of Selection Grade Primary School Headmaster post to ordinary grade Middle School Headmaster.

14. The 5th respondent by the counter affidavit contended that the pay scale of Headmaster Primary School Selection Grade is Rs.15,600 - 39,100 + 5,400 Grade Pay, while Headmaster Middle School Ordinary Grade is Rs.9,300 - 34,800 + 4,700 Grade Pay.

15. The 5th respondent by counter affidavit further contended that the pay scales are post specific and the criteria is the post held on 01.01.2006 and since, the petitioner was promoted as Headmaster Middle School (Ordinary Grade), he is entitled to Grade Pay of Rs.4,700/- and is not entitled to continue the Selection Grade pay of Headmaster of Primary School. Contending as above, the 5th respondent seeks for dismissal of the writ petition.

16. The 3rd respondent by the counter affidavit while not denying and disputing the factual averments made by the petitioner with regard to his appointment and promotion, however, contended that the petitioner was holding the post of Middle School Headmaster on 31.12.2005 and is entitled to Grade Pay of Rs.4,700/- as per G.O.Ms.No.23, Finance (PC) Department, dated 12.01.2011.

17. The respondents by the counter affidavit further contended that the Government by letter dated 04.01.2013 had clarified that the employees promoted to higher posts before 01.01.2006, and continued to retain higher stage of pay of the substantive post, availed the benefit of fixation of pay in the revised pay scales of pay from 01.01.2006, by taking into account the substantive pay in the revised scales of pay, are not entitled to Higher Grade applicable to Selection Grade / Special Grade of the substantive post consequent revision of ordinary Grade scale of pay in such cases. Thus, the petitioner is not entitled to Grade Pay of Rs.5,400/- as prayed for in the Writ Petition.

18. I have taken note of the respective contentions made by the learned counsel on either side.

19. At the outset, it is to be noted that promotion to a higher post cannot lead to or result in reduction of salary. It is for the said reason Rule 22 B of Fundamental Rules provides for an option to be exercised by an employee to retain his pay scale in lower category which is called as pay protection. The petitioner on being promoted as B.T Grade Middle School Headmaster on 11.07.2005, which is admittedly prior to 01.01.2006 having exercised the option to continue his pay scale in lower category, i.e., Selection Grade Elementary School Headmaster, the respondents, particularly the 5th respondent, cannot contend that the petitioner would be covered by the pay scale as applicable to Headmaster Middle School (Ordinary Grade). If the said contention of the respondents, is accepted, the same would make Rule 22B of Fundamental Rules redundant. Further, the Fundamental Rules having statutory effect, the effect of the said rules cannot be diluted by the Government by way of letter i.e., by letter dated 04.01.2013 as sought to be contended in the facts of the present case.

20. Notwithstanding the fact that the petitioner opted to draw the pay scale as applicable in lower category even after being promoted, the fact of petitioner having completed 10 years of service as Headmaster Middle School to which post he was appointed on 11.07.2005 and posted to work as Assistant Elementary Education Officer, (which post is stated to be equivalent to Headmaster Middle School), would also otherwise make him eligible for being granted Selection Grade.

21. Even if the contention of the respondents that as on 01.01.2006, the petitioner is to be considered as Headmaster Middle school (Ordinary Grade) is accepted, on account of the petitioner having completed 10 years of service as Headmaster B.T. Grade Middle School by 10.07.2015, the petitioner would be entitled for being granted Selection Grade even as per G.O.Ms.No.234, Finance (PC) Department, dated 01.06.2009, thereby becoming entitled to Grade Pay of Rs.5700/- and not Rs.5,400/- as claimed by him.

22. Even going by the 5th respondent’s assertion, the petitioner having completed 10 years of service would make him entitled to be granted selection grade with Grade Pay of Rs.5,700/-. The 5th respondent having failed to consider the said fact when petitioner was in fact claiming lesser amount of Grade pay. Thus, the action of the 1st respondent in not granting the Selection Grade Grade pay even after the petitioner had completed 10 years of service as on 10.07.2015, while fixing his pensionary benefits or for that matter considering the petitioner as eligible for Special Grade + Grade Pay as payable to Headmaster Middle School Selection Grade, in the considered view of this Court only goes to show the non application of mind and the mechanical approach adopted by the 5th respondent to reject the claim of the petitioner. If only the deponent to the counter affidavit filed by the 5th respondent had taken some pain to go through the contents of the counter affidavit being filed by them before affixing his signature, the aforesaid aspect which is glaring would not have gone unnoticed.

23. The 5th respondent, on the other hand, has merely justified his action by contending that the petitioner is not entitled for being granted Grade Pay as applicable to the Headmaster Primary school in Selection Grade rather than considering that the petitioner is actually entitled for higher emoluments in the form of Grade Pay of Rs.5,700/- on account of completion of 10 years of service as Headmaster Middle School (Ordinary Grade).

24. Since, a duty is cast on the respondents to fix the correct emoluments payable to an employee, particularly in respect of a retiring employee, the action of the respondents in justifying its illegal action, of the petitioner not being entitled for Grade Pay of Rs.5400/- as claimed by him as against Rs.5700/- to which he is actually entitled to at the time of his retirement from service having completed 10 years of service as Headmaster Middle School on being appointed on 11.07.2005, cannot be countenanced.

25. Accordingly, the writ petition is allowed. The impugned proceedings dated 07.12.2016 in Proceedings No.P10/3/11018561/ADK issued by the 5th respondent and the consequential recovery order passed by the 4th respondent, i.e., the District Elementary Education Officer, Virudhunagar, Virudhunagar District in proceeding Na.Ka.No.3601/A1/2016, dated 23.02.2018 are set aside.

26. The respondents are directed to grant benefit as applicable to Selection Grade B.T. Grade Middle School Headmaster to the petitioner and consequently revise his pensionary benefits with effect from the date the petitioner had retired from service and make payment of arrears / dues to the petitioner, within a period of twelve weeks from the date of receipt of a copy of this order.

27. As noted herein above, since it is on account of the non application of mind by the 5th respondent at the time of issuing impugned proceedings, whereby the petitioner had been denied the benefit to which he is otherwise entitled to, compelling him to approach this Court by filing the present Writ Petition, this Court is of the view that the 5th respondent respondent is to be directed to pay cost of Rs.10,000/- (Rupees Ten Thousand only) to the petitioner within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.