IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED;13.07.2011 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA W.P.NO.13321 OF 2003 and WPMP No.16732 of 2003 J.Selvaraj ..Petitioner vs 1.The Director Local Fund Audit Kuralagam, Chennai 2.The Assistant Director Local Fund Audit Oothagamandalam The Nilgiris 3.The Executive Officer Town Panchayat Hulical, The Nilgiris ..Respondents Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent in "Ni.Mu.No.Pa.Oo.Sa.3/37512/2002" dated 11.09.2002 and to quash the same and consequently allow the petitioner to obtain his retirement benefits in full (which now stands partly recover). for petitioner :Mr.S.Samuel Raja Pandian for respondents :Mr.S.V.Durai Solaimalai, AGP (for R1 and R3) Mr.P.Chinndurai For-R3 O R D E R The petitioner J.Selvaraj has come to this court challenging the impugned order of recovery passed by the first respondent in Ni.Mu.No.Pa.Oo.Sa.3/37512/2002 dated 11.09.2002 and to quash the same and for a consequential direction to allow the petitioner to obtain his retirement benefits in full which is standing partly as recovered amount from the respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was employed as a Contingent Staff by the third respondent on 10.11.1970. He was doing the work as Drainage Cleaner which is equivalent to N.M.R. Subsequently, he was promoted and appointed as the Avenue Coolie cum Office Watchman at the Hulikkkal Town Panchayat with effect from 1.6.1971 on a monthly scale of pay of Rs.20/-. In the meanwhile, when the petitioner was serving in the office of the third respondent, the Government of Tamil Nadu issued G.O.Ms.No.878, Rural Development and Local Administration, dated 15.5.1981 directing that those who have completed 10 years of service without any break as contingent staff, as on 01.04.1981 shall be considered as employees under contingent establishment in the same Town Panchayat or Township which is falling under their jurisdiction on the basis of the requirement of the work code or actual need. Only in response to the said G.O.Ms.No.878, dated 15.5.1981, the respondents have brought the service of the petitioner into regular service by passing proceedings dated 29.8.1984. On the basis of the abovesaid G.O.Ms.No.878, the scale of pay of the petitioner was fixed at Rs.200-5-300. Subsequently, in the year 1987, when one of the Office Assistants worked under the third respondent Panchayat, namely, K.Kuttan passed away, the said vacancy was recommended to be filled up. Accordingly, the petitioner was upgraded to the post of Office Assistant and the District Town Panchayat Officer also accepted the said recommendation and passed the order appointing the petitioner as Office Assistant with effect from 01.10.1987. Since then, the petitioner continued to function as Office Assistant. Subsequently, on reaching the age of superannuation on 1.2.2001 the petitioner was also allowed to retire from service. After retirement, the respondent called upon the petitioner to the office and when the petitioner in response to the call given by the respondent reached the office, he was asked to give an undertaking on 13/1/2002 stating that the respondent has wrongly paid excess salary from the period 1981 to 1991. In view of the fact that the petitioner has retired from service on 1.2.2001 and when the petitioner's pension benefits having not been released, the petitioner by his consent letter dated 13.1.2002 agreed for the recovery of the excess pay and on the basis of the letter dated 13.1.2002, the present impugned order 11.9.2002 came to be passed. Hence, the present writ petition is filed challenging the said impugned order. 3. The learned counsel for the petitioner submitted the following three reasons for setting aside the impugned order: (i) When the scale of pay of the Watchman and the Office Assistant were one and the same, namely, Rs.450-10-570-15-720 the question of recovery would not arise in the case of the petitioner. (ii) In the very same impugned order dated 11.9.2002 the respondent had not mentioned anywhere on what basis the respondent https://hcservices.ecourts.gov.in/hcservices/ has sought to recover from the petitioner's pension. When the petitioner reached the office of the respondent to settle the pensionary benefits, by calculating Rs.70,008/- has wrongly been paid as excess to the petitioner, on obtaining consent letter dated 13.1.2002, the respondent had already deducted a sum of Rs.55,238/- from the petitioner's retirement amount. Further, they also informed the petitioner that the balance amount of Rs.14,770/- would be recovered from the petitioner's pension. When the respondent has not mentioned what is the excess they have paid to the petitioner during the period from 1981 to 1991, it is not open to the respondents to unilaterally come forward to recover the huge amount of Rs.70,008/-. (iii) It is further contended that the respondent had passed the order of regularisation only on the basis of G.O.Ms.No.878, Rural Development and Local Administration, dated 15.5.1981. As per the said G.O., only those persons who have completed 10 years of service without any break as Contingent Staff, as on 1.4.1981 shall be given the benefit of coming under the contingent establishment. When the respondents themselves came forward to regularise the service of the petitioner on the basis of the G.O.Ms.No.878, the question of finding fault with the petitioner as though the petitioner has misrepresented and played fraud with the department will not arise nor is it open to the respondent to recover the abovesaid amount of Rs.70,008/- (iv) The learned counsel relied upon the judgment rendered in C.E.(GENERAL), PUBLIC WORKS DEPARTMENT V. M.THANASEKARAN (2009 (5) MLJ 1) following the decision of the Supreme Court in SAHIB RAM V. STATE OF HARYANA AND OTHERS (1995) SUPP.1 SCC 18. 4. The learned counsel for the respondents while meeting the abovementioned submissions was unable to inform the Court regarding the excess amount paid to the petitioner when the scale of pay paid to the post of Watchman in the year 1981 and the scale of pay of the Office Assistant in the year 1991 was one and the same. The learned Government Advocate, after taking instructions from the officers who are present in the Court submitted that there is no difference between the scale of pay for the post of Watchman and the O.A. 5. In that view of the matter, the impugned recovery order seeking to recover a sum of Rs.700,08/- cannot stand to scrutiny of this Court. Besides, nowhere in the the impugned order it is mentioned that the respondents has paid any excess amount to the petitioner for the period he worked from 1981 to 1991. Therefore, when the recovery order has been passed without application of mind, this court finds no merit to support the recovery order. 6. The Hon'ble Apex Court has held in SAHIB RAM V. STATE OF HARYANA (1995 SUPP.1 SCC 18) that the respondent having paid wrongly or inadvertently any excess amount, such excess amount cannot be sought to be recovered if the department has not paid the said excess https://hcservices.ecourts.gov.in/hcservices/ amount on any misrepresentation or fraudulent representation made by the petitioner. In the present case the petitioner has not made any such misrepresentation. Therefore, the observations made in the decisions cited supra will squarely apply. On that basis the impugned order is liable to be interfered with. 7. Consequently, the writ petition stands allowed. The impugned order is set aside. It is made clear that the amount deducted from the petitioner, namely Rs.55,238/- should be refunded to the petitioner within a period of four weeks from the date of receipt of the copy of the order. There is no order as to costs. Consequently, connected pending M.P.is disposed of. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sal To 1.The Director Local Fund Audit Kuralagam, Chennai 2.The Assistant Director Local Fund Audit Oothagamandalam The Nilgiris 3.The Executive Officer Town Panchayat Hulical, The Nilgiris 2 ccs To Mr.S.Samvel Raja Pandian, Advocate, SR.41595 1 cc To Mr.P.Chinndurai, Advocate, SR.41421 1 cc To The Government Pleader, SR.41733 W.P.NO.13321/2003 SR(CO) RH (5.9.11) https://hcservices.ecourts.gov.in/hcservices/