Can a writ court fix or re-fix pay by mandamus on the strength of a single Government Order?
Coram: Justice S.M.Subramaniam · Justice N.Senthilkumar
Pay Rules and Government Orders — Selection Grade — Fixation of pay — Judicial review — Writ of Mandamus — Pay Rules and Government Orders — Fixation of pay — Administration decides at the first instance — Held: Fixation of pay and grant of selection grade turn on the Service Register and on clarifications the Court cannot see; the writ court exercises restraint and leaves them to the authorities at the first instance. (¶4) Writ of Mandamus — Pay fixation for one person — Prejudice to those similarly placed — Held further: A mandamus fixing one person's pay may prejudice those similarly placed. Order set aside, with liberty to apply to the competent authority. Appeal allowed. (¶5, ¶7)
Can a writ court fix or re-fix pay by mandamus on the strength of a single Government Order?
No. Fixation of pay, revision of pay and the grant of selection grade or special pay are to be decided with reference to the individual's Service Register, and that is not an exercise a court undertakes in judicial review. Acting on one Government Order alone leaves both the applicant and the Court unaware of the clarifications, or the opinion of the Accountant General, that bear on the question — which is why the authorities must decide at the first instance and the aggrieved person may come to Court only afterwards.
Does an order fixing one employee's pay by mandamus have consequences beyond that employee?
Yes. Pay fixation does not rest on the individual alone: it rests on finance department orders and clarifications issued commonly by the Government, and on Pay Commission clarifications. A direction granting fixation or refixation in one case may therefore cause prejudice to other similarly placed persons, which is a further reason for the writ court to stay its hand.
What did the Madras High Court decide on the State's appeal against the direction to award selection grade?
The writ appeal was allowed and the order of the writ court was set aside. The respondent was given liberty to submit a fresh application before the competent authority, who is to decide her eligibility with reference to the Pay Rules and Government Orders in force. No costs.
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(Judgment of the Court was delivered by S.M.Subramaniam J.) The present writ appeal has been preferred by the State challenging the order dated 14.03.2005 made in W.P.No.27556 of 2019.
The respondent herein was appointed as Secondary Grade Teacher on 28.03.1989. Selection grade was awarded in the post of Secondary Grade Teacher on 28.03.1999. She was promoted to the post of Headmaster, Primary School on 03.06.2002. The respondent was further promoted to the post of B.T.Assistant on 03.11.2007 and thereafter promoted as Middle School Headmaster on 23.12.2011. The school in which the respondent served was upgraded as Government High School in the year 2017. Therefore, the respondent was absorbed as B.T.Assistant on 04.08.2017.
The claim of the respondent is that she was promoted as B.T.Assistant initially on 03.11.2007 and thereafter served as Middle School Headmaster for a period of four years and again absorbed as B.T.Assistant on 04.08.2017. Therefore, the services rendered by the respondent in the post of Primary School Headmaster also to be counted for awarding Selection Grade. In this regard, learned counsel for the respondent relies upon G.O.No.9529 dated 13.11.1990. The respondent filed the writ of Mandamus to direct the respondents to award Selection Grade pay.
Fixation of pay is a complex issue which is to be decided by the administration at the first instance. The eligibility for fixation of pay, revision of pay, grant of selection grade or special pay are to be decided with reference to the Service Register of individuals and such an effort need not be undertaken by the High Court in exercise of the powers of judicial review. Merely based on one Government Order if pay revision, grant of selection grade or special pay is granted, the person approaching the Court as well as the Court may not be aware of the clarifications, opinion of the Accountant General of Tamil Nadu or any other issues in connection with the fixation of pay or re-fixation. This exactly is the reason why the Courts are expected to exercise restraint in pay matters, wherein the authorities must be allowed to take a decision at the first instance and if any such order is passed, thereafter the aggrieved person may approach the higher authority and thereafter the Court in the manner known to law.
Contrarily, in a writ of Mandamus if the High Court grants pay fixation or refixation of pay, the same may cause prejudice to the other similarly placed persons. It is not merely based on the individual pay fixation, but the finance department orders / clarifications issued commonly by the Government. Pay Commission clarifications are all to be considered for grant of pay fixation and refixation.
In the present case, the learned Government Counsel would submit that the respondent is not entitled to selection grade since she has not served ten years in the same post with stagnation. When she was periodically promoted to various posts, she is not eligible for selection grade. This being the factum, the respondent is at liberty to submit a fresh application before the competent authority, who in turn shall decide the eligibility of the petitioner with reference to Pay Rules and Government Orders in force.
With the above observations, the impugned order dated 14.03.2005 made in W.P.No.27556 of 2019 is set aside and the writ appeal is allowed. No costs. (S.M.S.,J.) (N.S.,J.)
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