IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.5195 of 2004 and W.P.M.P.No.6031 of 2004 G.Subramanian .... Petitioner Vs. 1. The Registrar Tamil Nadu Veterinary and Animal Sciences University Chennai-51 2. The Finance Officer, Tamil Nadu Veterinary and Animal Sciences University Chennai-51 3. The Professor and Head Department of Clinics Madras Veterinary College Chennai-7 4. The Deputy Director Local Fund Audit Madras Veterinary College Chennai-7 ... respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. S.M.Subramaniam For Respondents: Mrs. C.K.Vishnupriya AGP O R D E R The petitioner has filed the writ petition praying for issuance of a writ of certiorarified mandamus, in calling for the records in pursuant to the impugned orders passed by the third respondent in Proc. No.658/Clinics/2001A dated 26.12.2003 and https://hcservices.ecourts.gov.in/hcservices/ Proc.No.658/Clinics/2001 dated 9.2.2004 and to quash these orders and consequently direct the respondents to pay the terminal benefits as per the fixation done from the year 1989. 2. The petitioner was initially appointed as Typist through Tamil Nadu Public Service Commission on 4.11.1959 in Tamil Nadu Ministerial Service and was allotted to Animal Husbandry Department. He was promoted as Assistant in November 1978 and later promoted as Superintendent on 27.12.1989. In 1988, he was awarded the Selection Grade in the post of Assistant and voluntarily retired from service on 31.5.1995. 3. The petitioner was given 5% personal pay in accordance with the Government orders and there was no irregularity in the pay fixation. The third respondent without issuing show cause notice to the petitioner passed the impugned order of recovery dated 26.12.2003 mentioning that his pay was refixed retrospectively with effect from 20.12.1989 and consequently the excess amount was sought to be recovered from 1.8.1992, the date from which the personal pay of 5% was given to him till his retirement on 31.5.1995. 4. The stand of the petitioner was that his pay was correctly fixed as per Government orders and he retired from service on 31.5.1995 and the third respondent had issued the impugned order of recovery dated 26.12.2003 and 9.2.2004 after long gap of nine years without issuing show cause notice and therefore, the same are contrary to law and facts and more over as per Rule 9 of the Tamil Nadu Pension Rules no action could be initiated after four years from the date of retirement of an individual and without issuing show cause notice, the impugned orders were in negation of principles of natural justice and as a matter of fact, the Government issued a clarification in its letter No.90514/CMPC/93-18 Finance dated 12.1.2001 in which it was clarified that the personal pay granted from 1.8.1992 should not be recovered and the same was made mention of by the Government in its letter No.19182/CMPC/2002 Finance(CRPC) Department dated 9.5.2002 and therefore, no recovery of the personal pay which was already granted was quite contravention of the instruction issued by the Government in its letters mentioned supra and therefore, prays for allowing the writ petition to subserve the ends of justice. 5. It is to be noted that the Government in its letter No.19182/CMPC/2002 Finance (CMPC) Department dated 9.5.2002 through the Deputy Secretary to Government addressed to the Registrar of the first respondent University had referred to its earlier letter No.90514/CMPC/93 Finance dated 12.1.2001 and the letter No 7415/A2/98 dated 4.3.2001 of the first respondent and clarified that the personal pay already drawn from 1.8.1992 and 1.9.98 to 27.11.2000 should be adjusted in arrears while fixing the pay in the revised scale as ordered in G.O.Ms.No.538 Finance(CMPC) Department dated https://hcservices.ecourts.gov.in/hcservices/ 27.11.2000 and there was no need to recover the personal pay already paid to them upto 27.11.2000 and further the difference of pay arrived at as on 27.11.2000 should be absorbed in future increments as already clarified in the Government letter NO.90514/CMPC/93-18 Finance dated 12.1.2001. 6. That apart,the petitioner had addressed a letter dated 26.8.2002 to the Finance Officer of the second respondent inter alia mentioned that he was paid the arrears of pay and allowances for the period from 27.12.1989 to 31.5.1995(from the date of appointment as Superintendent to the date of Voluntary retirement) and in his letter dated 9.3.2002, he had mentioned that the objection of the Audit party was not correct and further he had to be paid the pensionary benefits due to revision of scale of pay etc., Added further, the petitioner in his another representation dated 3.1.2003 addressed to the second respondent had categorically stated that the personal pay already paid upto 27.11.2000 should not be recovered and the difference of pay arrived at as on 27.11.2000 should be absorbed in future increments and further that since he retired on voluntarily scheme on 31.5.1995, the question of recovery of personal pay does not arise etc. 7. In the above two letters dated 26.8.2002 and 3.1.2003 respectively addressed by the petitioner to the second respondent, the learned counsel for the petitioner informs this Court that no reply was issued by the authorities concerned. However, the third respondent in his proceedings No.658/Clinics/2001 dated 26.12.2003 had refixed the pay of the petitioner in the time scale of pay Rs.1700-60-2480-75-3005 with effect from 20.12.1989 and the subsequent increments as mentioned in detailed and also mentioned that the excess amount drawn with effect from 1.8.1992 to 31.5.1995 needs to be recovered and therefore, the excess amount of Rs.5961/- being the arrears paid was to be recovered from the pension of the petitioner. 8. Moreover, the third respondent in his letter No.658/Clinics/2001 dated 9.2.2004 addressed to the second respondent had issued instructions to recover a sum of Rs.5871/- from the pension of the petitioner being the excess amount drawn by him with effect from 1.8.1992 to 31.4.1995. 9. At this stage, the learned counsel for the petitioner beings it to the notice of this Court to the order dated 10.3.2006 passed by this Court in W.P.Nos.20156 and 13143 of 2000(V.Rathinakiri-v- A.L.Devaraj and others) wherein at paragraph 16, it was observed as follows: "It is therefore clear that the denial of 5% personal pay of the basic pay to the petitioners, is arbitrary and unreasonable. The reason given by the first respondent in rejecting the https://hcservices.ecourts.gov.in/hcservices/ petitioners' claim is illogical besides being arbitrary. There is no rationale or basis for rejecting the claim of the petitioners. In this case, equals are being treated unequally. The petitioners are rightfully entitled to the benefit of 5 % personal pay of the basic pay. We accept the contention of the petitioners as observed by this Court in its order dated 15.4.1995 in W.P.No.928 of 1995 that when the benefit is granted to the Assistants-Selection Grade of the same pay scale, there is no justification for denying the benefits to the petitioners who were also on the same scale of pay during the relevant time.' Also, he invites the attention of this Court to the common order dated 10.2.2009 passed by this Court in W.P.Nos.34399 and 32612 of 2006 (The Tamil Nadu Survey Computor Draftsman Union, rep. by its State President G.Sivamani-v- The Principal Accountant and General of Tamil Nadu and others) wherein paragraphs 2 and 3 of the order which is observed thus: " It is admitted by both sides that the subject matter of the writ petitions is covered by the orders of this Court made in a batch of writ petitions in W.P.Nos.30168 of 206 and batch cases dated 20.11.2008. In the operative portion of the order it has been held that, " 4. Subsequently, an identical issue also came up before the another Division Bench presided by S.J.Mukhopadhaya, J in the case of A.Chenniappan and others.-v- State of Tamil Nadu in W.P.No.26991 of 2007 and batch cases. The Division Bench disposed of all the writ petitions after referring to the decisions of the Government communicated vide its letter dated 12.12.2006. The operative portion of the Division Bench Judgment dated 28.8.2007 in paragraph 5, it is stated as follows: " 5. In view of the aforesaid decision of the State Government as contained in Letter No.22188/CMPC/2006, dated 12.12.2006, all the cases are disposed of with the following directions. (i) The concerned Principal District Judges/Chief Judicial magistrates will decide the eligibility of one or other petitioner and similarly situated persons and refer the cases of eligible persons to the competent authority of the State Government within a period of two months from the date of receipt of production of copy of this order (ii) The competent authority of the Government of Tamil Nadu, in its turn will pay the benefit to such eligible persons from the effective date in terms of G.O.Ms.No.664 Finance(Pay Cell) Department, dated https://hcservices.ecourts.gov.in/hcservices/ 24.8.1992 read with aforesaid letter No.22188/CMPC/2006 dated 12.12.2006 and the Division Bench Judgment dated 10.3.2006 in W.P.Nos.34846,34847,34559 and 34560 of 2005 within six weeks from the date of receipt of such recommendation. (iii) Failure to comply with the above direction(ii), will make liable the respondents, to pay interest at the rate of 5% per annum" In the light of the stand of the Government, those writ petitions were allowed." 3.There is no quarrel that the present writ petitions also raises similar issues. In the light of the two Division Bench Judgments, these two writ petitions stand allowed to the extent indicated by the respective Division Benches. However, there will be no order as to costs." and submits that the said orders of this Court squarely applies to the facts on hand. 10. It is to be borne in mind that in Union of India-v Ramgopal Agarwal 1998(2) SCC 589, the Hon'ble Supreme Court noticing that recovery orders caused hardship held that such recovery could not be effected. Moreover, as the effect of recovery was a deprivation, the issuance of show cause notice was a must and further once a pay was fixed and and drawn for years there would not be any recovery on the ground of mistake in fixation. 11. Indeed, the recovery of over payments to an employee by the State on account of its own mistake would not be recovered from an employee as per decision of Hon'ble Supreme Court Bhagwan Shukla-v- Union of India AIR 1994 SC 1480. 12. Further, this Court worth recalls the decision of the Hon'ble supreme Court in State of Karnataka-v- Mangalore University Non Teaching Employees Association AIR 2002 SC 1223 wherein it is observed that 'if an additional payment was made to the employees for no fault of theirs, they should not be penalised.' 13. One cannot ignore an important fact that any recovery much less pertaining to a money recovery, affecting one's monetary benefit which results in civil consequences must be effected by adhering to the principles of natural justice like issuance of show cause notice and hearing the objections of the affected and in the instant case on hand, in spite of the representations made by the petitioner in his letters dated 26.8.2002 and 3.1.2003, the impugned orders came to be passed by the third respondent and in short, his two representations were of a futile one and when the Government had issued specific instructions in letter No.19182/CMPC/2002-1 dated 9.5.2002 to the effect that the personal pay already drawn from 1.8.1992 and 1.9.1998 to 27.11.2000 should be adjusted in arrears while fixing the pay in the revised scale as ordered in G.O.Ms.No.538, Finance(CMPC) Department dated 27.11.2000 and further no need to recover the personal pay already paid to them upto 27.1.2000 and the difference https://hcservices.ecourts.gov.in/hcservices/ of pay arrived at as on 27.11.2000 should be absorbed in future increments as already clarified in its letter dated 12.1.2001, then the above said Government letter dated 9.5.2002 was not taken into account by the third respondent while passing the impugned orders of recovery dated 26.12.2003 and 9.2.2004 and this Court is of the considered view that the same are quite in contrary to the tenor and spirit of the letter dated 9.5.2002 and in that view of the matter, this writ petition is allowed by setting aside the impugned orders dated 26.12.2003 and 9.2.2004 leaving the parties to bear their own costs. Consequently, connected WPMP is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Registrar Tamil Nadu Veterinary and Animal Sciences University, Chennai-51 2. The Finance Officer, Tamil Nadu Veterinary and Animal Sciences University, Chennai-51 3. The Professor and Head Department of Clinics Madras Veterinary College, Chennai-7 4. The Deputy Director Local Fund Audit Madras Veterinary College, Chennai-7 + 1 cc to M/S.S.M.Subramaniam, Advocate Sr 12069 + 1 cc to Govt., Pleader, SR 12803 W.P.Nos.5195/2004 RK (CO) RH (5.3.10) https://hcservices.ecourts.gov.in/hcservices/