IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.8.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.3268 of 2001 N.Selvaraj .. Petitioner vs. 1. The Government of Tamil Nadu rep. by Secretary to Government Education Department Fort St. George Madras-9 2. The Director of Elementary Education College Road Chennai-6 3. The District Elementary Educational Officer Namakkal Nakakkal District 4. The Additional Assistant Elementary Educational Officer Namakkal Namakkal District .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records in relation to the order made in N.K.No.254/A1/2000, N.K.No.84/B1/2001, dated 11.1.2001 and in N.K.No.84/B1/2001, dated 2.2.2001, issued by the Additional Assistant Elementary Officer, Namakkal District and issue a consequential direction to the respondents to fix the petitioner's pay at Rs.6725/- as in the case of his junior namely M.K.Ramadoss with effect from 1.4.1996 as per the earlier order of the District Elementary Educational Officer, dated 25.1.1999 issued in N.K.No.6091/A4/94. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Saseetharan For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 2. The petitioner has stated that he is working as a Secondary Grade Teacher, Kalaimagal Primary School, Nallipalayam Post, Namakkal District, which is a private aided primary school receiving teaching grant from the Government of Tamil Nadu. The said school is functioning in accordance with the provisions of the Tamil Nadu Private Schools Regulation Act, 1973, and the rules framed thereunder and the Government orders applicable to such an Institution. The petitioner had joined in service as a Secondary Grade Teacher, on 1.4.1974. After completing 10 years of service, he was awarded selection grade pay in the post of Secondary Grade Teacher, on 1.4.1984. He was also awarded Special Grade Pay in the post of Secondary Grade Teacher, with effect from 1.4.1994. 3. The petitioner has further stated that his pay at selection grade was fixed at Rs.1550/- in the scale of pay of Rs.1400-2600, with effect from 1.6.1988, as per the recommendations of the Tamil Nadu Vth Pay Commission and his pay in the special grade was fixed at Rs.1880 + 30 PP in the scale of pay of Rs.1640-2900. 4. The petitioner has further stated that he had passed B.A. Literature and had also passed B.Ed., examination. The petitioner had passed the Master of Arts degree in the month of April, 1988. He was granted two incentive increments for passing B.Ed., examination at the rate of Rs.35 + 35 and he was given two further increments for passing M.A. examination from 30.4.1988, at the rate of Rs.35 + 35. The Government of Tamil Nadu had introduced the scheme of awarding the incentive increments as per G.O.Ms.No.42, dated 10.1.1969. The incentive increments had been granted to the petitioner as per the Government order in G.O.Ms.No.42, dated 10.1.1969, for M.A. and B.Ed., qualifications. One M.K.Ramadoss, who was a junior to the petitioner, had been appointed as a Secondary Grade Teacher only on 1.6.1974. His pay was fixed as per the recommendations of the Vth pay commission at Rs.1500/- in the scale of pay of Rs.1400-2600, with effect from 1.6.1988. Whereas, the pay of the petitioner was fixed at Rs.1,550/- in the scale of pay of Rs.1400-2600. Both the petitioner, as well as his junior M.K.Ramadoss, had been awarded the selection grade in the scale of https://hcservices.ecourts.gov.in/hcservices/ Rs.1400-2600. Thereafter, M.K.Ramadoss had been given the special grade pay at Rs.1820 + 30 PP in the scale of pay at Rs.1640-2900, with effect from 1.6.1994. The petitioner was awarded special grade pay at Rs.1880 + 30 PP in the scale of pay Rs.1640-2900. 5. The petitioner has further stated that as per the recommendations of the VIth pay commission, the petitioner's pay was fixed at Rs.6025/- in the scale of pay Rs.5500-9000. However, M.K.Ramadoss was granted two advance increments for passing M.A. and B.Ed., examinations, with effect from 4.1.1996, as per the proceedings of the Additional Assistant Elementary Educational Officer, dated 4.4.1996. According to which, the pay of M.K.Ramadoss was fixed at Rs.6550/- by giving 4 incentive increments at the rate of 175/. Therefore, his pay was raised from Rs.5050/- to that of 6550/-. Whereas, the pay of the petitioner was fixed at Rs.6025/-, even though he had acquired M.A. and B.Ed., qualifications. While M.K.Ramadoss had been granted a higher rate of pay at Rs.6550/- after adding 4 incentive increments at the rate of Rs.175/- to the basic pay of Rs.5850/- in the new scale of pay of Rs.5500-175-9000, the petitioner was granted 4 incentive increments for the same qualifications only at the rate of Rs.30/- in the pre-revised scale of pay of Rs.950-30. Therefore, the pay anomaly had been rectified by the proceedings of the District Elementary Educational Officer, Namakkal, by his proceedings, dated 25.1.1999, by stepping up the pay of the petitioner, with effect from 1.4.1996, at Rs.6,725/-. However, the District Elementary Educational Officer, by his order, dated 29.12.2000, had passed an order of recovery of the payments given to M.K.Ramadoss, by way of incentive increments, stating that he was not entitled for the same in view of G.O.Ms.No.307, Education, dated 15.12.2000, as an M.A. degree holder of the Open University system of Annamalai University was entitled for the incentive increments only from 15.12.2000 and not from 4.1.1996, as it had been calculated earlier. While so, the Additional Assistant Elementary Educational Officer, had reduced the salary of the petitioner from Rs.6,725/- to Rs.6,200/- by his impugned order, dated 29.12.2000. The petitioner's pay was raised from Rs.6,025/- to Rs.6,725/- for the reason that his Junior is getting pay at Rs.6,725/-, as on 1.4.1996, by virtue of 4 incentive increments granted to him. Since the increments granted to M.K.Ramadoss was cancelled by an order, dated 29.12.2000, the impugned order had also been passed against the petitioner reducing the pay of the petitioner to Rs.6,025/- and the excess amount alleged to have been granted to the petitioner was ordered to be paid back, in accordance with the order, dated 29.12.2000. 6. In the counter affidavit filed on behalf of the third respondent, it has been stated that the two incentive increments sanctioned to M.K.Ramadoss, who was junior to the petitioner, was ordered to be recovered as he was not eligible for the same, since https://hcservices.ecourts.gov.in/hcservices/ he had obtained the post graduate degree and B.Ed., degree through the open university system conducted by the Annamalai University without qualifying for the Bachelors degree. Since the petitioner's pay was stepped up to the level of pay being paid to the Junior M.K.Ramadoss, it had to be reduced thereafter and the excess amount paid to the petitioner had to be recovered as per the audit report, in accordance with G.O.Ms.No.307, Education, dated 15.12.2000. The petitioner ought to have preferred an appeal against the impugned order. Instead, he had approached this Court by way of writ petition filed under Article 226 of the Constitution of India. Since the fourth respondent had sanctioned the incentive increments to M.K.Ramadoss for the qualifications obtained through the open university system by mistake, the excess amount paid had to be recovered. Similarly, the excess amount paid to the petitioner were also ordered to be recovered. Since the petitioner is eligible for the incentive increments, with effect from 15.12.2000, in accordance with G.O.Ms.No.307, Education, dated 15.12.2000, necessary orders would be passed by the Government after disposal of the present writ petition. 7. The main contention of the learned counsel for the petitioner is that no prior notice had been issued to the petitioner before the impugned orders had been passed. Further, there was no misrepresentation or fraud committed by the petitioner, based on which the refixation of the petitioner's scale of pay was made. 8. The learned counsel has also submitted that in similar circumstances, this Court had set aside the orders issued by the concerned authorities attempting to recover the amounts paid as salary, increments and other allowances. The learned counsel for the petitioner had relied on the decision of this Court, dated 26.3.2008, made in W.P.No.36514 of 2007. 9. The learned Additional Government Pleader appearing for the respondents had not refuted the contentions raised on behalf of the petitioner. 10. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioner in the present writ petition. 10.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((2006) 11 SCC 492) , the Supreme Court had held that the recovery of the excess amounts paid to the employees could be recovered only in such cases where they have been found guilty of producing forged certificates or their appointments had been secured on non-permissible grounds. 10.2) The Supreme Court, in BIHAR STATE ELECTRICITY BOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99) had held that https://hcservices.ecourts.gov.in/hcservices/ the recovery of the increments given, not on account of any representation or misrepresentation, cannot be sustained, as it would not be in consonance with equity, good conscience, justice and fairness. 10.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC 659), the Supreme Court had refused to permit the recovery of excess payment made, since the person against whom the recovery was to be made was the only breadwinner of the family and as she was financially not in a position to pay back the excess dearness relief drawn. 10.4) The Supreme Court, in SAHIB RAM Vs. STATE OF HARYANA ((1995) Supp (1) SCC 18) had held that the recovery of excess payment given by the authorities concerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot be made. 10.5) In the decision of the Supreme Court in BABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it was held that since the excess payment had been made on misconception of law and not due to any mistake or misrepresentation on the part of the appellant, the recovery of the excess amount, without issuing any show cause notice, is not justified. 10.6) In the decision of a Division Bench of this Court in P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006) 3 M.L.J.1025), it was held that when the employee was not responsible for the wrong fixation, the excess payment made cannot be recovered, especially, after the retirement of the employee and when the recovery was sought for after 17 years of service. 10.7) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVE TRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of this Court had held that when the fault of excess payment was committed by the Department and their officers and it was not due to the petitioner, the petitioner cannot be penalised after the lapse of number of years, that too after his retirement. 10.8) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOL EDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court had held that the recovery of excess amount paid cannot be recovered when it was not due to the fault of the petitioner and when no opportunity had been given to her before the order of recovery was passed. Since the salary paid to the petitioner was not on account of any misrepresentation and when the order had been passed without giving any opportunity to the petitioner to put https://hcservices.ecourts.gov.in/hcservices/ forth her case, the impugned order of recovery was quashed. 11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the decisions rendered by the Courts of law and on a perusal of the records available before this Court, it is clear that the excess amount said to have been paid to the petitioner is not due to any misrepresentation or fraud on the part of the petitioner. Further, no notice had been issued to the petitioner to put forth his case before the impugned orders of recovery had been passed. The petitioner cannot be held liable for the fault committed by the concerned authorities, who were responsible for fixing the scale of pay of the petitioner. 12. In such circumstances, the impugned orders made in N.K.No.254/A1/2000, dated 29.12.2000, in N.K.No.84/B1/2001, dated 11.1.2001 and in N.K.No.84/B1/2001, dated 2.2.2001, issued by the Additional Assistant Elementary Officer, Namakkal District, the fourth respondent herein, seeking to recover the excess amount paid to the petitioner is liable to be set aside, as it have been passed without issuing the necessary notice to the petitioner and without giving him an opportunity to put forth his case. Further, it is not the case of the respondents that the excess amount had been granted to the petitioner based on his misrepresentation or fraud. Therefore, the impugned orders made in N.K.No.254/A1/2000, dated 29.12.2000, in N.K.No.84/B1/2001, dated 11.1.2001 and in N.K.No.84/B1/2001, dated 2.2.2001, issued by the Additional Assistant Elementary Officer, Namakkal District, the fourth respondent herein, are set aside. However, with regard to the prayer to fix the petitioner's pay at Rs.6725/-, as in the case of his junior, namely, M.K.Ramadoss, with effect from 1.4.1996, as per the earlier order of the District Elementary Educational Officer, dated 25.1.1999 issued in N.K.No.6091/A4/94, it is open to the respondents to re-fix the scale of pay of the petitioner in accordance with the rules and the Government orders applicable to the petitioner, after giving him an opportunity of being heard. Accordingly, the writ petition stands partly allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. lan https://hcservices.ecourts.gov.in/hcservices/ To: 1. The Secretary to Government Education Department The Government of Tamil Nadu Fort St. George, Madras-9 2. The Director of Elementary Education College Road, Chennai-6 3. The District Elementary Educational Officer Namakkal, Nakakkal District 4. The Additional Assistant Elementary Educational Officer Namakkal, Namakkal District 1 cc to Government Pleader, Sr. 43543 W.P.No.3268 of 2001 KGK (CO) kk 21/8 https://hcservices.ecourts.gov.in/hcservices/