IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20-01-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.24964 of 2006 M.Chellakumar Ramarjun Sheddu .. Petitioner. Versus 1.The Director of School Education, College Road, Chennai-6. 2.The Chief Educational Officer, Salem. 3.The District Elementary Educational Officer, Sangagiri, Salem District. 4.The Headmaster, Government Girl's High School, Kolathur P.O. Salem District. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a writ of Certiorarified Mandamus, to call for the records pertaining to the order of the fourth respondent in Na.Ka.No.259/92, dated 17.8.1992 and quash the same and direct the respondents to fix the pay of the petitioner in scale of Special Grade Middle School Headmaster w.e.f. 1.6.1988 and confer all consequential retirement benefits, including revised pension. For petitioner : Mr.N.Hidayathulla Khan For respondents : Mr.A.Suresh Government Advocate O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. The brief facts of the case, as stated by the petitioner, are as follows: https://hcservices.ecourts.gov.in/hcservices/ The petitioner had been appointed, as a Higher Grade Teacher, on 7.6.1967, and was posted as a Primary School Headmaster, on 3.4.1968. Thereafter, he had been posted as a Secondary Grade Teaher, on 11.11.1968. The petitioner had been further promoted, as a Primary School Headmaster, on 16.6.1979, and as a Middle School Headmaster, on 25.9.1979. While so, the school in which he was working, as a Middle School Headmaster, had been upgraded as a High School, on 28.10.1982 and he was absorbed as a B.T.Assistant, with pay protection. 2.1. After the introduction of the V Pay Commission's recommendations, the Government of Tamil Nadu had introduced the revised pay scales, with effect from 1.6.1988. Accordingly, it had issued the rules in Tamil Nadu Revised Scales of Pay, Rules, 1989, in G.O.Ms.No.666, Finance Department, 27.6.1989. As per the pre- revised pay scales, the pay of an Elementary Headmaster had been fixed as follows: Ordinary Grade : 1400-40-1600-50-2300-60-2600 Selection Grade : 1640-xxx xxx xxx Special Grade : 2000-60-2300-75-3200 If the petitioner had continued in his substantive post of Primary School Headmaster, from 3.4.1968, he would have got the higher pay of Rs.2,120/-, as per G.O.Ms.No.1381, Education Department, dated 5.10.1990, as on 1.6.1988. 2.2. Further, the Government of Tamil Nadu had issued orders for the implementation of Rule 4(3), in G.O.Ms.No.57, Finance Department, dated 28.1.1991. A clarification in Government Letter, dated 8.11.1993, had also been issued, wherein, it had been stated that "at any time, on or after 1.6.1988, if a Government servant would have drawn more pay, in the revised pay scale, in the substantive post, had he continued in it than in the officiating post in which he is actually working, his pay in the officiating post, shall be refixed in the scale of pay of the officiating post at a stage next above the pay in the substantive post." 2.3. The petitioner would have drawn more pay in the revised pay scale in the substantive post of Primary School Headmaster, than in the officiating post of Middle School Headmaster/absorbed B.T. Teacher, in which he had worked prior to his retirement, as per G.O.Ms.No.1381, Education Department, dated 5.10.1990. 2.4. Based on the claims made by the petitioner for the fixation of his pay, as per the relevant Government Orders, the fourth respondent had issued orders, on 2.9.1991, fixing the pay at Rs.2,120/-, on the basis of G.O.Ms.No.57, Finance Department, dated 28.1.1991 and G.O.Ms.No.1381, Education department, dated 5.10.1990, in the scale of pay of Rs.2000-60-2300-75-3200, applicable to a Special Grade Elementary Headmaster, with effect from 1.6.1988. https://hcservices.ecourts.gov.in/hcservices/ 2.5. The same pay, as admissible in the pay of officiating post of B.T.Assistant, has been fixed at Rs.2,120/-, in the scale of pay of Rs.1400-40-1600-50-2300-60-2600, with effect from 1.6.1988. However, based on the objections raised by the Accountant General, the fourth respondent had passed the impugned order, dated 17.8.1992, recovering the excess pay and he had also revised the pay in the scale of ordinary grade B.T. Assistant, at Rs.1,650/- in the scale of Rs.1400-40-1600-50-2300-60-2600, with effect from 1.6.1988. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 3. The main contention of the learned counsel appearing for the petitioner is that the impugned order is arbitrary and illegal, as it is contrary to the provisions enshrined in Articles 14 and 16 of the Constitution of India. Further, the respondents had not followed the principles of natural justice, while passing the said order. In such circumstances, the impugned order is liable to be set aside. 4. No reply or counter affidavit has been filed on behalf of the respondents. 5. 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: 5.1) 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. 5.2) 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. 5.3) 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, as it would not be in consonance with equity, good conscience, justice and fairness. 5.4) 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, https://hcservices.ecourts.gov.in/hcservices/ not in a position to pay back the excess dearness relief drawn. 5.5) 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. 5.6) 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. 5.7) 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." 5.8) 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. 5.9) 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. 5.10) 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 forth her case, the impugned order of recovery was quashed. 6. In view of the submissions made by the learned counsel appearing for the petitioner and in view of the decisions cited https://hcservices.ecourts.gov.in/hcservices/ above, the impugned order of the fourth respondent, dated 17.8.1992, is set aside, insofar as it relates to the recovery of the amount already paid to the petitioner, as salary. However, it is open to the respondents to refix 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, Chennai-6. 2.The Chief Educational Officer, Salem. 3.The District Elementary Educational Officer, Sangagiri, Salem District. +1cc to Mr.M.Hidayathulla Khan, Advocate Sr 4105 +1cc to Govt. Pleader Sr 3617 RB(CO) km/9.2. Writ Petition No.24964 of 2006 https://hcservices.ecourts.gov.in/hcservices/