Madras High CourtN.Ramar vs The Principal Accountant General on 7 October, 2021Author:S.S.SundarBench:S.S.SundarW.P.(MD)No.13102 of 2014\n\n\n                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n                                                DATED: 07.10.2021\n\n                                                     CORAM\n\n                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR\n\n                                           W.P.(MD)No.13102 of 2014\n                                                     and\n                                             M.P.(MD)No.1 of 2014\n                     N.Ramar                                                 ... Petitioner\n                                                        vs.\n\n                     1.The Principal Accountant General,\n                       (Accounts and Entitlements)Tamilnadu,\n                       Accountant General Office,\n                       281, Annasalai, Chennai.\n\n                     2.The Director,\n                       Elementary Education,\n                       Directorate of Elementary Education,\n                       College Road, DPI Campus, Chennai.\n\n                     3.The District Elementary Education Officer,\n                       Virudhunagar, Virudhunagar District.\n\n                     4.The Additional Assistant Elementary Education Officer,\n                       Srivilliputtur, Virudhunagar District.              ... Respondents\n\n                     PRAYER: Writ Petition filed underArticle 226of the Constitution of\n                     India for issuance of Writ of Certiorarified Mandamus to call for records\n                     relating to the Government letter for PEN 18/3/416, dated 13.12.2012,\n                     passed by the first respondent herein and quash the same and to direct the\n\n                     1/18\n\nhttps://www.mhc.tn.gov.in/judis/\n                                                                                   W.P.(MD)No.13102 of 2014\n\n\n                     respondents to revise and refix the petitioner's pension as per the\n                     petitioner's correct increment from 01.07.2008.\n\n                                        For Petitioner     : Mr.M.Joseph Thatheus Jerome\n                                                             for Mr.S.Alagusundar\n                                        For R-1            : Mr.P.Gunasekaran\n                                        For R2-R4          :Mr.M.Linga Durai\n                                                           Government Advocate\n                                                              *****\n\n\n                                                           ORDERThis Writ Petition is filed for issuance of a Writ of Certiorarified\n\n                     Mandamus, to quash the Government letter issued by the first\n\n                     respondent, dated 13.12.2012, and to direct the respondents to revise and\n\n                     refix the petitioner's pension, as per his correct pay by taking into\n\n                     account the correct increment from 01.07.2008.2.Heard   Mr.M.Joseph Thatheus        Jerome,    learned     Counsel\n\n                     appearing for the petitioner, Mr.P.Gunasekaran, learned Counsel\n\n                     appearing for the first respondent and Mr.M.Linga Durai, learned\n\n                     Government Advocate appearing for respondents 2 to 4.3.The petitioner is a retired Teacher, who retired on 31.08.2008.2/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014He originally joined as a Secondary Grade Teacher in the year 1975 at\n\n                     Thombakulam, Srivilliputtur Taluk, Virudhunagar District. The petitioner\n\n                     was then promoted as Headmaster and posted at Nallakamalapuram on\n\n                     05.07.1995. Subsequently, on 27.09.1995, he was promoted as Middle\n\n                     School Headmaster (Graduate cadre). It is admitted that on 14.08.2002,\n\n                     the petitioner was promoted as Additional Assistant Elementary\n\n                     Education Officer and posted at Radhapuram Range in Tiruneveli\n\n                     District.4.While in service, the petitioner was issued with a charge memo\n\n                     under Section-17B of Tamil Nadu Civil Service (Discipline and Appeal)\n\n                     Rules. The disciplinary proceedings initiated against the petitioner ended\n\n                     with a punishment of stoppage of increment for a period of three months\n\n                     without cumulative effect. The order of punishment, dated 15.04.2008,\n\n                     was just four months before the petitioner's retirement.5.The petitioner in the affidavit filed in support of this Writ\n\n                     Petition stated that his next increment date falls due on 01.07.2008.\n\n                     Since the punishment was stoppage of increment for a period of three3/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014months ie., from 01.07.2008 to 01.10.2008 and the petitioner retired on\n\n                     31.08.2008, it is stated that the order of punishment, dated 15.04.2008,\n\n                     has been interpreted to deny the petitioner's benefit of increment that fell\n\n                     due on 01.07.2008. It is stated that the fourth respondent by order, dated\n\n                     21.07.2008, directed the stoppage of increment for three months and to\n\n                     re-deposit the amount towards third month in Government account.6.The grievance of the petitioner is that he is receiving pension\n\n                     calculating the increment that was given to the petitioner upto 2007.\n\n                     Though the increment for the month of August 2008 was not given due to\n\n                     the pendency of disciplinary proceedings, the petitioner submitted that\n\n                     the annual increment, which was due from January 2008 or from\n\n                     01.07.2008, cannot be neglected for the purpose of calculating pension.7.Earlier, the petitioner filed a Writ Petition before this Court to\n\n                     revise and refix his pension, as per the increment that was due to the\n\n                     petitioner from August 2008. By an order, dated 24.04.2012, the Writ\n\n                     Petition filed by the petitioner was disposed of by this Court with a\n\n                     direction to the second respondent to consider the representation of the4/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014petitioner, dated 25.07.2011, and pass appropriate orders on merits.\n\n                     Thereafter, the second respondent has forwarded the proposal to the first\n\n                     respondent, who in turn, passed the impugned order holding that the\n\n                     petitioner is not eligible for the increment, which fell due from\n\n                     01.07.2008. Stating that the petitioner was admitted in hospital due to\n\n                     his illness, the petitioner has filed the present Writ Petition only in 2014.8.The learned Counsel appearing for the petitioner submitted that\n\n                     the impugned order of first respondent is violative ofArticle 14of\n\n                     Constitution of India and against the principles of natural justice. The\n\n                     learned Counsel then relied upon the proceedings of the fourth\n\n                     respondent, dated 21.07.2008, which is extracted below:“=tpy;ypg;Gj;J}h; xd;wpak;> ,dhk;fhpry;Fsk;> Cuhl;rp\n                               xd;wpa eLeiyg; gs;spj; jiyik Mrphpah; jpU.eP.,uhkh;>\n                               vd;ghUf;F jpUney;Ntyp khtl;lk;> ,uhjhGuk; $Ljy; cjtp\n                               njhlf;f fy;tp mYtyuhfg; gdpahw;wpa fhyj;jpy;> md;dhh;kPJ   jkpo;ehL    FbKiwg;       gzpfs;     (xOq;F    kw;Wk;\n                               Nky;KiwaPL)     tpjpfspy;17(gp)d;gb   xOq;F     eltbf;ifNkw;nfhz;L> mt;tpjpapd; fPohd Fw;wr;rhl;L> jd;dpiy\n                               tpsf;fk;>   tprhuiz       mwpf;if     Mfpait       njhlf;f\n                               fy;tp ,af;Feh; mth;fshy; Ma;T nra;ag;gl;L md;dhhpd;\n                               mLj;J tUk; xU Cjpa cah;tpid %d;W khj fhyj;jpw;F\n                               epWj;jk; nra;a KbT nra;ag;gl;L mt;thNw md;dhhpd;\n                               mLj;J tUk; Cjpa cah;it jpuz;l gadpd;wp %d;W\n                               khjk; epWj;jk; nra;J (stoppage of one increment for three\n                               months without cumulative effect) ghh;itapy; fhZk;\n                               nray;Kiwfspy; cj;jutplg;gLfpwJ.md;dhhpd; mLj;j Cjpacah;T ehs; 01.01.2008.md;dhh; Xa;T ngWk; ehs; 31.8.08 (gpwe;j Njjp 24.8.50)5/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014vd;gjhy;>  md;dhh; ,uz;L khj fhyNk gzpapy; ,Uf;f\n                               Ntz;ba epiy cs;sJ.vdNt> ghh;itapy; fhZk; ,af;Feh; mth;fspd;nray;Kiwfspy; fz;l cj;jutpd;gb> md;dhuJ mLj;j\n                               Cjpa cah;tpid (01.07.08) ,uz;L khj fhyj;jpw;F epWj;jp\n                               itj;Jk;>   %d;whtJ    khjj;jpw;Fhpa  Cjpa    cah;Tj;njhifapid chpa gbfSld; muRf; fzf;fpy; jpUk;gr;nrYj;jp     mjw;fhd     mry;      nrYj;Jr;   rPl;bid\n                               cldbahf       ,t;tYtyfj;jpw;F      mDg;gp   itf;fTk;\n                               cj;jutplg;gLfpwJ.”9.The fact that the petitioner paid a sum of Rs.1,821/- in lieu of\n\n                     punishment for stoppage of increment for three months is not in dispute.From the communication of the fourth respondent, dated 21.07.2008, the\n\n                     learned Counsel for the petitioner submitted that the petitioner's next\n\n                     increment was due from 01.01.2008. Though the fourth respondent by\n\n                     this order directed the petitioner to pay the increment that was due for the\n\n                     three months before retirement, it is contended that the petitioner has\n\n                     paid a sum of Rs.1,821/- towards the increment for three months.\n\n                     Thereafter, the petitioner approached the respondents for disbursement of\n\n                     pensionary benefits. By the impugned order, the first respondent directed\n\n                     the second respondent to note that no revision of pensionary benefits is\n\n                     admissible to the petitioner and that therefore, the pension proposals and\n\n                     service register are returned for further action by the second respondent.\n\n                     From the narration of events and the discussion, this Court is able to see6/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014that the first respondent has recorded the following facts.“a)The Additional Assistant Elementary Education Officer has\n\n                     forwarded the revised proposals for revision of pensionary benefits after\n\n                     awarding an increment for 01.07.2008. It is specifically noted that\n\n                     increment fell due on 01.07.2008 was not awarded to the petitioner on\n\n                     account of imposition of penalty of stoppage of increment for three\n\n                     months without cumulative effects.b)The second respondent interpreted the rules to mean that the\n\n                     recovery of monetary value is not an independent punishment by itself\n\n                     and it can be resorted to, when the main punishment covered by Rule\n\n                     8(iii) of Tamil Nadu Civil Services (Discipline and Appeal) Rules, cannot\n\n                     be given effect to.c)The recovery of equivalent monetary value is not a substitution\n\n                     for main punishment. In all such cases, where increment should not be\n\n                     drawn and in addition, the monetary value should also be recovered for\n\n                     the unexpired portion of the punishment.10.From the above, it is seen that the second respondent has\n\n                     rejected the proposal for revision of pensionary benefits to the petitioner7/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014mainly on the interpretation of the rules. It is pointed out by the learned\n\n                     Counsel for the petitioner that the rule, which was quoted in the order of\n\n                     second respondent, is not the relevant rule. However, he admitted that\n\n                     the same rule is found in Rule 8 of Tamil Nadu Civil Service (Discipline\n\n                     and Appeal) Rules. It is relevant to extract Rule 8 of the Tamil Nadu\n\n                     Civil Service (Discipline and Appeal) Rules, which read as follows:“8.The following penalties may, for good and sufficient reason\n                               and as hereinafter provided, be imposed upon every person who is a\n                               member of the civil service of the State and every person holding a\n                               civil post under the State specified in rule 2, namely :-(i) Censure;(ii) Fine (in the case of persons for whom such penalty is\n                               permissible under these rules) ;(iii) Withholding of increments or promotion ;* Provided that the penalty of withholding of increment shall\n                               not be imposed on a Government servant, if the said penalty cannot be\n                               given effect to fully while in service :Provided further that incases where the penalty of withholding\n                               of increment cannot be given effect to fully for any contingency that\n                               arose after the penalty of withholding of increment is imposed, the\n                               monetary value equivalent to the amount of such increments that can\n                               not be given effect to shall be recovered from the person : Provided\n                               also that in cases of withholding of increment with cumulative effect,\n                               the monetary value equivalent to three times the amount of increments\n                               ordered to be withheld shall be recovered.( vide G.O.Ms.No.113, Personnel and Administrative Reforms\n                               (N) Department dated 2.8.2006) ( with effect from 2.8.2006)(iv) Reduction to a lower rank in the seniority list or to a lower\n                               post not being lower than that to which he was directly recruited,\n                               whether in the same service or in another service, State or\n                               Subordinate, or to a lower time-scale, not being lower than that to\n                               which he was directly recruited, or to a lower stage in a time-scale ;Provided that in cases where the punishment of reduction to a\n                               lower stage in a time-scale cannot be given effect to fully, the monetary\n                               value equivalent to the difference in emoluments as a result of\n                               reduction to such lower stage in the time-scale for the unexpired8/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014period of the punishment shall be recovered from the person.(v) Recovery from pay of the whole or part of any pecuniary\n                               loss caused to the State Government or the Central Government or to\n                               any Government Company or Organisation or Local Authority or to a\n                               Local Body, while on deputation, by negligence or breach of orders;(vi) Compulsory retirement;(vii) Removal from the Civil Service of the State Government;(viii) Dismissal from the Civil Service of the State Government;\n                               and(ix) Suspension, where a person has been suspended under rule\n                               17(e), to the extent considered necessary by the authority imposing the\n                               penalty.The penalties mentioned in items (i) to (iii), (v) and (ix) shall be\n                               deemed to be minor penalties and those in items (iv) and (vi) to (viii)\n                               shall be deemed as major penalties.The penalties mentioned in items (vi),(vii) or (viii), as the case\n                               may be, shall be imposed on a Government servant for the violation of\n                               rule 19 of the Tamil Nadu Government Servant’s Conduct Rules, 1973.Explanation-I .- The discharge,-(i) of a person appointed on probation before the expiry or at\n                               the end of the prescribed or extended period of probation ; or(ii) of a person engaged under contract, in accordance with the\n                               terms of his contract ; or(iii) of a person appointed, otherwise than under contract, to\n                               hold a temporary appointment on the expiration of the period of the\n                               appointment, does not amount to the removal or dismissal within the\n                               meaning of this rule.Explanation-II.- The following shall not amount to a penalty\n                               within the meaning of this rule, namely :-(i) withholding of increments of pay of a Government servant\n                               for his failure to pass any Departmental examination in accordance\n                               with the rules or orders governing the Service to which he belongs or\n                               post which he holds or the terms of his appointments;(ii) non-promotion of a Government servant, whether in a\n                               substantive or officiating capacity, after consideration of his case, to a\n                               service, grade or post for promotion to which he is eligible;(iii) reversion of Government servant officiating in a higher\n                               service, grade or post to a lower service, grade or post, on the ground\n                               that he is considered to be unsuitable for such higher service, grade or\n                               post or on any administrative ground unconnected with his conduct;(iv) reversion of a Government servant, appointed on probation\n                               to any other service, grade or post, to his permanent service, grade or\n                               post during or at the end of the period of probation in accordance with\n                               the terms of his appointment or to the rules and orders governing such9/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014probation;(v) replacement of the services of a Government servant, whose\n                               services had been borrowed from a State Government or the Central\n                               Government or an authority under the control of a State Government\n                               or the Central Government at the disposal of the State Government or\n                               the Central Government or the authority from which the services of\n                               such Government servant had been borrowed; and(vi) compulsory retirement of a Government servant in\n                               accordance with the provisions relating to superannuation or\n                               retirement.Explanation-III .- The removal of a person from the civil\n                               service of the State Government shall not disqualify him for future\n                               employment but the dismissal of a person from the Civil Service of the\n                               State Government shall ordinarily disqualify him for future\n                               employment”11.From the way in which the second respondent interpreted the\n\n                     Rule 8(iii), this Court is of the view that the second respondent has\n\n                     interpreted Rule 8(iii) quite opposite to the object and the meaning, that\n\n                     was conveyed by the Rule itself. Rule 8(iii) refers to withholding of\n\n                     increments or promotion as one of the punishments. The first proviso\n\n                     clearly says that the punishment of withholding of increment shall not be\n\n                     normally imposed on a Government servant, if the penalty cannot be\n\n                     given effect to fully while in service.12.In the present case, the petitioner was imposed with a\n\n                     punishment of stoppage of increment for a period of three months10/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014without cumulative effect.       The order of punishment was dated\n\n                     15.04.2008, and taking that the punishment was in force for a period of\n\n                     three months from 15.04.2008, the punishment was over before the date\n\n                     of retirement. In other words, the punishment was to commence from\n\n                     15.04.2008 and it will end on 15.07.2008, that is before retirement.\n\n                     However, on the basis of previous communication, the respondents as\n\n                     well as the petitioner presumed that the punishment commenced from\n\n                     01.07.2008. Therefore, it is a case where such punishment cannot be\n\n                     imposed, as per the first proviso.13.The second proviso squarely applies to the case on hand\n\n                     explaining the situation and provides the only option that is given to the\n\n                     employer.      The second proviso now recommends a punishment of\n\n                     recovery from the person, when the penalty of withholding of increment\n\n                     cannot be given effect to.     Therefore, the petitioner, who retired on\n\n                     31.08.2008, can be imposed the punishment of stoppage of increment for\n\n                     a period, which would continue after his retirement. However, there can\n\n                     be recovery of a sum, which is equivalent to the monetary value of\n\n                     increment for three months. In this case, if the punishment was on the11/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014basis of second proviso, there cannot be a further punishment than\n\n                     recovery of the monetary value equivalent to the amount of increments\n\n                     for three months.14.Very strangely, the second respondent by the impugned order\n\n                     came to the conclusion that the punishment that was suggested by second\n\n                     and third proviso to Rule 8, is only additional and that the person, whose\n\n                     increment is due from 01.07.2008, cannot be given the benefit of\n\n                     increment, as the punishment of stoppage of increment will be over only\n\n                     after the period of retirement. This is not only arbitrary but also illegal\n\n                     and not supported by the Rule. In the impugned order, Rules 8(iii) and\n\n                     8(v)(b) of Civil Service (Discipline and Appeal) Rules, is quoted. Hence,\n\n                     the impugned order is based on a Rule, which is not applicable, as no\n\n                     Rule 8(v)(b) is found in Tamil Nadu Civil Services (Discipline and\n\n                     Appeal) Rules.15.The learned Counsel for the first respondent relied upon a\n\n                     judgment of Andhra Pradesh High Court in the case of Principal\n\n                     Accountant General and another vs C.Subbarao reported in 2005 (2)12/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014ALD 1, wherein, the point framed for consideration was whether a\n\n                     Government servant, who retires on the last working day of the\n\n                     proceeding month and whose annual increment falls due on the first of\n\n                     the succeeding month, is entitled for sanction of annual increment for the\n\n                     purpose of pension and gratuity. That was a peculiar case, where, the\n\n                     Government servant retired on the last day of the previous year, whereas,\n\n                     his next increment falls due on the first day of next year. Though it was\n\n                     contended by the Government servant that he had worked for the whole\n\n                     year and earned for the next increment, the High Court, based on the\n\n                     interpretation of Rules and regulation, rendered a specific finding that\n\n                     from the date of retirement, the petitioner therein ceased to be\n\n                     Government servant and that a Government servant, who retires on his\n\n                     last working day would not be entitled to any pay or any other benefits\n\n                     connected to his pay. Since annual increment payable to a Government\n\n                     servant will accrue from the date following the date on which it is\n\n                     earned, it is further held that the Government servant would get a right\n\n                     for annual increment only after completion of the year and that therefore,\n\n                     on the date when the increment falls due, it would not become payable.13/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 201416.The issue or question that arose before the Andhra Pradesh\n\n                     High Court has nothing to do with the present case, which revolves\n\n                     around a different factual and legal basis. The Andhra Pradesh High\n\n                     Court has held that the Government servant, who retired on the last\n\n                     working day of the month, shall be ceased to be a Government employee\n\n                     with effect from the mid night of that day and immediately after\n\n                     commencement of next day, that is after mid night, he becomes\n\n                     pensioner. It was further held that the Government servant, who was\n\n                     paid pension after his retirement, shall not be deemed to be on duty and\n\n                     therefore, annual increment cannot be sanctioned to the retired\n\n                     Government servant after his service.17.In the present case, the only factual issue that was raised by the\n\n                     the learned Counsel for the first respondent is that the increment fell due\n\n                     only on 01.07.2008 and that the punishment of stoppage of increment for\n\n                     three months should commence from 01.07.2008. It was also submitted\n\n                     that the increment fell due from 01.07.2008. The submissions of the\n\n                     learned Counsel for the first respondent is without any factual\n\n                     background. In this case, the increment was due from 01.01.2008. Even14/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014in the communication of the fourth respondent, dated 21.07.2008, it is\n\n                     stated that the next annual increment was due for the petitioner from\n\n                     01.01.2008. The first respondent also in the impugned communication\n\n                     has observed as follows:“It is now seen that the Additional Assistant Elementary\n                               Educational Officer, Srivilliputhur has forwarded revised\n                               proposals for revision of pensionary benefits after awarding an\n                               increment for 1.7.2008 which was originally not awarded to him\n                               on account of the imposition of the penalty of stoppage of\n                               increment for 3 months without cumulative effect.”18.From the reading of affidavit and the communications with\n\n                     reference to the service register, as acknowledged by the respondents,\n\n                     this Court has no hesitation to hold that the annual increment to the\n\n                     petitioner was due from 01.01.2008 and it was not given to him in view\n\n                     of the pendency of disciplinary proceedings.              Assuming that the\n\n                     petitioner has admitted that the next increment will fall only from\n\n                     01.07.2008, by virtue of the interpretation given by this Court to first and\n\n                     second proviso to Rule 8 of Tamil Nadu Civil Services (Discipline and\n\n                     Appeal) Rules, the petitioner cannot be denied the benefit of increment\n\n                     for the year 2008, which fell due before his retirement. As observed by\n\n                     this Court earlier, the first respondent has passed the impugned order on15/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014a wrong interpretation of Rule 8 and his attempt was to deny the benefit,\n\n                     which was sought to be preserved by the State by the Rule itself.19.For the above reasons, this Court is unable to sustain the order\n\n                     of first respondent, dated 13.12.2012 and hence, the same is set aside and\n\n                     the Writ Petition is allowed. The respondents are directed to revise and\n\n                     refix the petitioner's pension by calculating the petitioner's next\n\n                     increment, which he is entitled to, either from 01.01.2008 or from\n\n                     01.07.2008, within a period of twelve weeks from date of receipt of a\n\n                     copy of this order. No costs. Consequently, connected miscellaneous\n\n                     petition is closed.Index           :Yes / No                             07.10.2021\n                     Internet        :Yes\n\n                     tmg/cmr16/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014To\n\n                     1.The Director,\n                       Elementary Education,\n                       Directorate of Elementary Education,\n                       College Road, DPI Campus, Chennai.2.The District Elementary Education Officer,\n                       Virudhunagar, Virudhunagar District.3.The Additional Assistant Elementary Education Officer,\n                       Srivilliputtur, Virudhunagar District.17/18https://www.mhc.tn.gov.in/judis/W.P.(MD)No.13102 of 2014S.S.SUNDAR, J.tmg/cmr\n\n\n\n\n                                              Order made inW.P.(MD)No.13102 of 201407.10.202118/18https://www.mhc.tn.gov.in/judis/