IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:05.01.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.6930 OF 2008 .. G.Rajeswari .. Petitioner vs. The Chief Educational Officer Villupuram District Villupuram. .. Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the respondent in his proceedings in O.Mu.No.15134/Aa2/2007 dt.15.11.2007 and quash the same and thereby direct the respondent to fix the pay level of the petitioner at the Secondary Grade Level as on 29.5.1996 at Rs.21,180/- + 20/- and also other consequential benefits that may arise therefrom in accordance with G.O.Ms.No.710 of the Finance Department, Government of Tamilnadu, dt.23.9.94. For petitioner : Mr.N.Suresh For respondent : Mrs.Dhakshayani Reddy Govt.Advocate .. ORDER The writ petitioner was appointed as secondary grade teacher on 14.10.1971 and posted at the Government High School, Siruvanthadu village, Villupuram taluk. Subsequently, she was promoted as B.T.Assistant on 13.8.1996 and she was taking classes up to 10th standard and she retired from service on 31.7.2001. The pay scale of the petitioner was increased from time to time from Rs.210 to the level of Rs.2060+50 upto 1.10.1995. After her promotion as B.T.Assistant, the salary was fixed at Rs.2120+50 and thereafter, the revision of pay under the pay commission was implemented. 2. It is the case of the petitioner that one A.Subramanian, who was appointed in 1973 and posted at Government High School at Koothakudi village, Kallakurichi taluk, is junior to her and as on https://hcservices.ecourts.gov.in/hcservices/ 1.4.1996, the said A.Subramanian was paid Rs. 2,060/- + 20/- at the secondary grade level, which was suddenly increased from 29.5.1996 to Rs.2180/-+20/-. Therefore, the petitioner made a representation stating that her junior was getting higher pay even though he was appointed in the year 1973 and the petitioner was appointed in the year 1971. 2(a). It is her case that by virtue of G.O.Ms.710 Finance Department, dated 23.9.1994, in case where junior is drawing more pay than the senior due to drawal of advance increment for acquiring higher qualifications, the pay of the senior shall be refixed by paying the same that is drawn by the junior. The representation made by the petitioner was rejected by the respondent on 15.11.2007 by the impugned order on the ground that the higher salary given to the said A.Subramanian is wrong. Therefore, the impugned order is challenged by the petitioner on various grounds including that the same is against G.O.Ms.No.710 Finance Department dated 23.9.1994 and that in case of such anomaly, it is the duty of the respondent to rectify the same. 3. In the counter affidavit filed by the respondent it is stated that it is true that in respect of Thiru A.Subramanian, who is junior to the petitioner, he was granted higher scale of pay and that was subsequently cancelled by a subsequent order and the salary of the said A.Subramanian was reduced. It is stated that the fixation of pay was made based on various rules and G.O.Ms.No.710 Finance Department dated 23.9.1994 is not applicable since after reduction of excess pay granted to the said A.Subramanian, his pay was reduced to the original fixation, there is no grievance on the part of the petitioner. It is stated that the hike given to the said A.Subramanian was a mistake committed in respect of one Pitchai Pillai, whose pay was subsequently reduced. 4. Mr.N.Suresh, learned counsel for the petitioner would submit that as per G.O.710 Finance Department dated 23.09.1994 the anomaly was rectified and even though it is stated in the counter affidavit that the pay of the said A.Subramanian was reduced, in fact, the same has not been done. On the other hand, it is submitted by Mrs.Dhakshayani Reddy, learned Government Advocate that Thiru A.Subramanian whose salary was wrongly fixed, retired from service on 30.4.2007 while the present writ petition was filed on 17.03.2008, however, the respondent has taken steps to reduce his basic pay and there is no anomaly in existence as on date. It is stated that by mistake if a junior has been granted higher pay which has been subsequently rectified, it does not mean that the petitioner is entitled to get the benefit of higher pay. 5. It is an admitted fact that the petitioner has retired from service on 31.7.2001 while the said A.Subramanian whose pay is said https://hcservices.ecourts.gov.in/hcservices/ to have been increased, which according to the respondent, was a mistake and the same has been rectified, has also retired from service on 30.4.2007. It is the grievance of the petitioner that the pay of the said A.Subramanian was increased to Rs.2180+20 in April, 1996, while at that time, the salary of the petitioner was Rs.2120+50. It is seen that the petitioner started making representation from February, 2006, that is, five years after retirement. While, as stated by the petitioner, the said A.Subramanian was getting higher pay even from April, 1996, it is not known as to why the petitioner was keeping quiet while she was in service at that time. It is only after ten years from the date when the said A.Subramanian’s salary was increased, the petitioner has chosen to make representation. 6. In any event, when the respondent has taken a categorical stand as it is seen in the counter affidavit that the increase of pay given to Thiru A.Subramanian was a mistake and the same was rectified, it is of no use now for the petitioner to insist that the increased pay given to the said A.Subramanian by mistake, has to be given to her also. If really the respondent has not actually taken any steps to rectify the error in the case of Mr.A.Subramanian, it is for the respondent to take appropriate action in the manner known to law. In fact, as it is seen in the typed set filed by the respondent that in the proceedings of the respondent, the Chief Educational Officer, Villpuram, in Na.Ka.5167/B2/2008, dated 16.12.2008, orders were passed cancelling the wrong fixation of pay to Mr.A.Subramanian. Even though the said order came to be passed by the respondent on 16.12.2008 after retirement of Thiru A.Subramanian who is said to have retired on 30.4.2007, it cannot be presumed that no steps would be taken by the respondent to give effect to the order passed by the respondent for recovery of the excess amount so paid from the said A.Subramanian, while it is stated by the learned counsel for the petitioner and the learned counsel for the respondent that the said A.Subramanian has not taken any steps against the said order of the respondent dated 16.12.2008 cancelling the earlier order of fixation. On such factual matrix, as it is seen, it is not possible to accept the contention of the learned counsel for the petitioner that the petitioner should be given the increase in pay which was wrongly given to Mr. A.Subramanian. 7. The Government Order which has been referred to by the learned counsel for the petitioner viz., G.O.Ms.No.710 Finance Department dated 23.09.1994 relates to the decision of the Government in cases where a junior is drawing more pay than his senior due to possession of higher qualification alone and there is nothing to presume that the said G.O. is applicable to the present case. 8. The judgment relied upon by the learned counsel for the petitioner in Syed Abdul Qadir vs. State of Bihar [(2009) 3 SCC 475] is not applicable to the facts of the present case. That was a case https://hcservices.ecourts.gov.in/hcservices/ where excess pay which was paid by mistake was sought to be recovered and in those circumstances, it was held that where there was no misrepresentation or fraud on the part of employee in obtaining such increased pay and where the excess amount was paid by the employer by applying a wrong principle for calculating the amount, the recovery was not allowable. The relevant portion of the judgment is as follows: " 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58.... 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made." The said judgment cannot be applied to the facts of the present case since the petitioner has not challenged against any such recovery. 9. Similarly, the judgment in the case of G.P.Vetrichelvi vs. The Additional Assistant Elementary Educational Officer & another reported in CDJ 2009 MHC 3737 is not applicable, as the said judgment relates to a case where recovery was sought to be made on the basis that the increased pay was paid by mistake. In those circumstances, in the judgment of the Supreme Court in Sahib Ram vs. State of Haryana [(1995) Supp.1 SCC 918] and also subsequent catena of judgments including the judgment of the Supreme Court in Babulal Jain vs. State of Madhya Pradesh and others [(2007) 6 SCC 180], it https://hcservices.ecourts.gov.in/hcservices/ was held that the respondent authority with its eyes wide open has fixed the pay without any misrepresentation or fraud on the part of the employee and therefore, the recovery cannot be made without following the basic principles of natural justice. 10. In fact, it is seen from the proceedings of the Headmaster of the Government Girls Higher Secondary School in Ulundurpet that the order fixing the pay to Mr.A.Subramanian on par with Mr.K.Pitchai Pillai was not only cancelled, but the amount was directed to be returned by the said A.Subramanian. It is relevant to point out at this stage that the judgments which have been relied upon by the learned counsel for the petitioner may be applicable to Mr.A.Subramanian, if there was no misrepresentation or fraud on the part of A.Subramanian and certainly, those judgments are not applicable to the case of the petitioner herein in any manner to get her pay increased. That was the view of the Supreme Court in B.Rama Rao vs. Government of Andhra Pradesh [(1995) Supp.1 SCC 153] wherein the Supreme Court held as follows: "4. …… Any wrong order or a negative benefit given to an employee or non-action by the employer to remedy the same illegality would not be a ground to extend the illegal benefit to the person similarly situated."(emphasis supplied) In such view of the matter, there is absolutely no illegality in the impugned order of the respondent. The writ petition therefore fails and the same is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Kh To The Chief Educational Officer Villupuram District,Villupuram. 1 cc To Mr.N.Suresh, Advocate, SR.1032 1 CC to the Government Pleader SR NO.908 W.P.No.6930 of 2008 RSY(CO) sra 19.01.2010 https://hcservices.ecourts.gov.in/hcservices/