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    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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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  

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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.

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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  

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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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