IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10-06-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.48384 of 2006 S.Sharfuddin ..Petitioner Versus 1.The Director of School Education, College Road, Nungambakkam, Chennai-6. 2.The Chief Educational Officer, Tiruvannamalai, Tiruvannamalai District. 3.The Headmaster, Government Boys Higher Secondary School, Vandavasi-604 408, Tiruvannamalai District. ..Respondents Prayer: Petition filed under Article 226 of the Constitution of India to seeking for a writ of Certiorari, to call for the entire records pertaining to the impugned orders issued by the first respondent in G.O.Ms.No.100 School Education (M1) Department, dated 18.4.2000, and the consequential orders passed by the Chief Educational Officer, Thiruvannamalai in Na.Ka.No.1469/A4/2000, dated 28.8.2000 and set aside the same and award all the consequential benefits. For Petitioner : Mr.K.Thennan For Respondents : Mrs.Dhakshayani Reddy Government Advocate (R1 to R3) O R D E R Heard the learned counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents. 2. It is submitted that the petitioner who was initially a Secondary Grade teacher, was appointed as Grade-II Tamil Pandit, on 8.9.1967, and he had served as such till 1.9.1969 in the Government https://hcservices.ecourts.gov.in/hcservices/ High School, Irumbedu, Tiruvannamalai District. While so, he was ousted from service during the summer vacations in the month of May of the years 1968 and 1969. Later, he was posted as a Secondary Grade teacher, on regular basis, in the Government High School, Sorakolathur, Thiruvannamalai District and he had been functioning as such, from 2.6.1969 to 14.7.1995. Based on his qualifications and seniority he was promoted as a B.T.Assistant, on 15.7.1995. The request of the petitioner is that his service as Tamil Pandit Grade- II, which is equivalent to the service of a Secondary Grade Assistant, should be counted as Secondary Grade service for all purposes, including regularisation of Secondary Grade service, Selection/Special Grade in Secondary Grade Assistant service. However, by the impugned orders issued by the first respondent, in G.O.Ms.No.100, School Education (M1) Department, dated 18.4.2000, and the consequential orders passed by the Chief Educational Officer, Thiruvannamalai, in Na.Ka.No.1469/A4/2000, dated 28.8.2000, the respondents are seeking to reduce the pay of the petitioner to recover the alleged excess payment made in favour of the petitioner. The reduction of the pay scale of the petitioner is a major penalty and therefore, the respondents ought to have followed the procedures established in Rule 17(b) of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules. Since no opportunity had been given to the petitioner to put forth his case, the impugned orders are devoid of merits and therefore, liable to be set aside. 3. No reply or counter affidavit has been filed on behalf of the respondents. 4. The recovery of the excess amount said to have been paid to the petitioner cannot be made, as held by this Court in its order, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held in the following decisions: 4.1) In Shyam Babu Verma V. Union of India ((1994) 2 SCC 521), the Supreme Court had held that it is not just and proper to recover any excess amounts already paid to the petitioner, since the petitioners have received the higher scale of pay due to no fault of theirs. 4.2) 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. 4.3) The Supreme Court, in BIHAR STATE ELECTRICITY BOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99), had held that the recovery of the increments given, not on account of any representation or misrepresentation, cannot be sustained, https://hcservices.ecourts.gov.in/hcservices/ as it would not be in consonance with equity, good conscience, justice and fairness. 4.4) 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. 4.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR ((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. 4.6) 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. 4.7) In the decision of the Supreme Court, in State of Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197 (SC), it has been held that where due to confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service tenure and was paid for it, no deduction could be made for that period from the retiral dues." 4.8) 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. 4.9) 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. 4.10) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOL EDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court had https://hcservices.ecourts.gov.in/hcservices/ 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 forth her case, the impugned order of recovery was quashed. 5. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, and in view of the decisions cited above, the impugned order of the first respondent, in G.O.Ms.No.100, School Education (M1) Department, dated 18.4.2000, and the consequential order passed by the Chief Educational Officer, Thiruvannamalai, in Na.Ka.No.1469/A4/2000, dated 28.8.2000, are set aside,in so far as it relates to the recovery of the amounts already paid to the petitioner as salary. However, it is open to the respondents to regularise the scale of pay of the petitioner, in accordance with law, after affording a reasonable opportunity to the petitioner to put forth his case. Accordingly, the writ petition is allowed as noted above. No costs. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Director of School Education, College Road, Nungambakkam, Chennai-6. 2.The Chief Educational Officer, Tiruvannamalai, Tiruvannamalai District. 3.The Headmaster, Government Boys Higher Secondary School, Vandavasi-604 408, Tiruvannamalai District. Writ Petition No.48384 of 2006 SSN (CO) GSK 26.06.2009. https://hcservices.ecourts.gov.in/hcservices/