B. RADHAKRISHNANversusTHE STATE OF TAMIL NADU & ORS.

                   [2015] 14 s,c.R. 57


                  B. RADHAKRISHNAN                           A
                            v.
          THE STATE OF TAMIL NADU &ORS.
             (Civil Appeal No. 13407 of 2015)                B
                  NOVEMBER 17, 2015
              [J. CHELAMESWAR AND
            ABHAV MANOHAR SAPRE, JJ.]
                                                             c
      Service Jaw: Recovery of excess amount paid to the
employee - Single Judge of High Court directed stepping
up of basic pay of the appellants-writ petitioners at par with
some other employees - €Jrder implemented - Division
Bench allowed State's appeal against the said order and held D
that appellants could not be compared with the other set of
employees to grant parity of pay and ordered recovery of
excess amount paid - On appeal, held: The respondents
issued an order sanctioning stepping up of the pay scale of
the appellants on the strength of the order of High Court - E
While claiming this relief, the appellants neither committed
any fault nor made any incorrect/false statement to secure
the benefits and it was being claimed only on the basis of
parity - Therefore, it shall not be just to recover any excess
amount which has already been paid to them.                    F
     Partly allowing the appeals, the Court
     HELD: It shall only be just and proper not to recover
any excess amount from the appellants, which has been G
paid to them on the basis of stepping up of .their pay
scale. It is much more so when 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 H
                            57
58        SUPREME COURT REPORTS                  (2015] 14 S.C.R.


A the issue of recovery of excess amount from them. 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.
B [Paras 18, 19] [63-F-H; 64-A]
          Shyam Babu Verma & Ors. v. Union of India &
          Ors. 1994 (1) SCR 100 : (1994) 2 sec 521 -
          relied on.
c         Union of India & Ors. v. O.P. Saxena 1997 (2)
          Suppl. SCR 695: 1997 (6) SCC 360 - referred
          to.

                        Case Law Reference
D
     1997 (2) Suppl. SCR 695         referred to        Para 11
     1994 (1) SCR 700                relied on          Para 13
         CIVIL APPELLATE JURISDICTION: Civil Appeal No.
E    13407 of 2015.

          From the Judgment and Order dated 02.07.2013 of the
     High Court of Judicature at Madras in W. A. No. 398 of 2013

                                  WITH
F·
          C. A. No. 13409 of 2015.

         R. Basant, Sr. Adv., Govind Manoharan, Ms. Suchitra
     Kumbhat (For Senthil Jagadeesan) for the Appellant.

G        Subramonium Prasad, Sr. Adv., B. Balaji for the
     Respondent.

          The Judgment of the Court was delivered by
          ABHAY MANOHAR SAPRE, J. 1. Leave granted.
H
 B. RADHAKRISHNAN v. THE STATE OF TAMIL NADU &                     59
                     ORS.

     2. These appeals are filed against the common final           A
judgment and order dated 02.07.2013 of the.High Court of
Judicature at Madras in W.A. Nos.398 and 399 of 2Q13
whereby the High Court allowed the appeals filed by the
respondents herein and set aside the common order dated
13.09.201 O of the learned Single Judge in W.P. Nos. 9527          B
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         c
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        D
others were recruited between 1979 and 1982 in theTamil
Nadu Special Police Battalion as Grade-II Police Constables,        .
Category Ill.. 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        E
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        F
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 G
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.

                                                                   H
60         SUPREME COURT REPORTS                     (2015] 14 S.C.R.


A    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
B 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.
C    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
D    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.
E
           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
F    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.
G
           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
H
 B. RADHAKRISHNANv. THE STATEOFTAMILNADU &                           61
        ORS. [ABHAY MANOHAR SAPRE, J.]

allowed the appeals, set aside the order of the learned Single       A
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          B
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               C
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
                                                                     0
 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 a/ia that when the feeder post
 of employee concerned is different, the principle of stepping       E
 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.
                                                                     F
      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 G
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
                                                                   H
62         SUPREME COURT REPORTS                 [2015] 14S.C.R.


A 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
B 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
C benefit. Learned Counsel, however, did not challenge the
  action of the respondents on merits.

           14. In contra, Mr. S. Prasad, learned seriior counsel for
     the respondents supported the impugned order.
D
          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
E    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
F    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
G          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
H
 B. RADHAKRISHNAN v. THE STATE OF TAMIL NADU &                   63
        ORS. [ABHAY MANOHAR SAPRE, J.)

      of theirs and that scale is being reduced in the year A
      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 B
      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. c
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 D
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 E
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 F
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 G
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
                                                                 H.
64           SUPREME COURT REPORTS              [2015] 14S.C.R.


A    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.

     Devika Gujral                               Appeals pa:11y allowed.