IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2010 CORAM THE HONOURABLE MR.JUSTICE.T.RAJA W.P.No19299 of 2004 K.Subbiah ..Petitioner ..Vs.. 1.The Director of School Education College Road, Chennai-6. 2.The Accountant General,(A&E), Tamilnadu, Chennai-18. 3.The Additional Assistant Elementary Educational Officer, Kovilpatti. ..Respondents Prayer.: Writ petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorari to call for the records on the file of the 3rd respondent in connection with the orders passed by him in Na.Ka.No.678/A2/2003 dated 22.09.2003, R.C.No.678 A2/2003 dated 26.10.2003 and Na.ka.No.678 A2/2003 dated 19.06.2004 and quash the same. For Petitioner : Mr.R.Singaravelan For R1 to R3 : Mr.B.Vijay Government Advocate. ORDER The petitioner who was working as a Middle School Headmaster, retired from service on 31.05.1989 and he was also paid the salary on the basis of the 5th pay commission scale of pay with effect from 01.06.1988. Subsequently, on representation, the petitioner was paid the Special Grade of Rs.2200-4000 with effect from 01.06.1988. From the date of appointment till the date of retirement,the petitioner was in the post of Elementary School Head Master and Middle School Head Master only. He was not reverted at any point https://hcservices.ecourts.gov.in/hcservices/ of time and the petitioner was the senior most candidate. Therefore, as per the Government letter dated 20.11.1990, the Government order in G.O.Ms.No.1652 dated 26.10.1987, the Government Letter (MS) No.149 dated 02.02.1989 and G.O.Ms.No.210, dated 11.03.1987, the period of service rendered as Head Master before 01.06.1988 has to be taken into account for the purpose of Selection Grade and Special Grade in the post of Middle School Head Master in the revised pay. Since the petitioner was entitled to the benefit of the above said Government letters, he has submitted a representation dated 16.02.1996 to the Assistant Educational Officer, Kovilpatti, seeking revision of pay as per the Government Letters. On the basis of the petitioner's letter and the above said Government orders, the 3rd respondent has passed an order dated 25.03.1996 revising the scale of pay of the petitioner with effect from 01.06.1988 from 2000-3200 to 2200-4000 i.e. from the Selection Grade to the Special Grade in the post of Middle School Headmaster. Pursuant to the order dated 25.03.1996 passed by the third respondent herein, the petitioner was paid the differential amount. However, on the basis of the third respondent's, letter, the impugned order dated 22.09.2003 has been passed cancelling the special grade scale of pay given to the petitioner. The said impugned order was passed without even giving any show cause notice to the petitioner. Again the third respondent has passed another impugned order dated 26.10.2003 and another order dated 19.06.2004 seeking to recover the payment of Rs.10,615/-. Further, all these three impugned orders have been passed within 15 days from the date the petitioner retired from service, and, therefore, there cannot be an employee - employer relationship surviving after an employee retired from service. Hence, it was urged that the impugned orders are not sustainable in law. 2.This court in number of decisions has held on the basis of the Judgment of the Hon'ble Supreme Court in 1995 Supp(1)SCC 18 Sahib Ram & State of Haryana and Others, that if the petitioner has not made any misrepresentation but has wrongly been paid higher scale of pay by the Department itself, the same cannot be recovered by the Department without prior notice. In the present case, the respondent is not in a position to explain whether the excess payment made to the petitioner was due to any misrepresentation made by the petitioner. Therefore, this court is of the considered view that once the petitioner has been relieved or retired from service by passing appropriate relieving order by competent authority, the relationship of employer-employee ceased to exist and, therefore, unless there is specific rule empowering the competent authority to pass an order after due notice, no action can be initiated for recovery of the amount that has already been paid to the employee by the employer. Therefore, this court is of the considered view that the impugned order passed by the respondents does not stand to any good reason and the same is liable to be set aside. Accordingly, the impugned order passed https://hcservices.ecourts.gov.in/hcservices/ by the respondents is set aside and, accordingly the writ petition is allowed. No costs. kkd Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Director of School Education College Road, Chennai-6. 2.The Accountant General,(A&E), Tamilnadu, Chennai-18. 3.The Additional Assistant Elementary Educational Officer, Kovilpatti. + 1 cc to Government Pleader, SR No.17739 RJ(CO) SR/18.5.2010 W.P.No.19299 of 2004 https://hcservices.ecourts.gov.in/hcservices/