IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21-01-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.608 of 2006 H.N.Bheeman .. Petitioner. Versus 1.The District Adhi Dravidra and Tribal Welfare Officer, Udhagamandalam. 2.The Principal Accountant General (A&E) of Tamilnad, 361, Anna Salai, Chennai-18. 3.The Director of Adhi Dravidar and Tribal Welfare, Chepauk, Chennai-5. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a writ of Certiorarified Mandamus to call for the records of the first respondent issued in Na.Ka.H3 No.42440/03, dated 28.4.2005, and in Na.Ka.No.H3 No.42440/03, dated 19.5.2005, and the proceedings of the second respondent in No.AG (A&UE)/PEN P 09/31B15-628-R EB-2005-2006 17864, dated 6.10.2005, and quash the same and issue a consequential direction to the respondents to fix the petitioner's pay in the post of Selection grade Middle school Head Master, on 19.6.1988, and special grade scale of pay in the post of Middle school Headmaster, on 19.6.1998, and to grant arrears and to fix pension and other benefits. For petitioner : Mr.R.Saseetharan For respondents : Mr.A.Suresh Government Advocate (R1 & R3) Mr.T.Ravikumar (R2) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents. 2. The brief facts of the case are as follows: The petitioner had been appointed as a Secondary Grade https://hcservices.ecourts.gov.in/hcservices/ Teacher, on 20.10.1965, at the Government Tribal School, Kunjapanai, Nilgiris District, as per the order of the District Adhi Dravidar and Tribal Welfare Officer. On 11.6.1966, he had been transferred and posted as the Headmaster of the Government Tribal Elementary School, Anaikatti, Nilgiris District. The probation of the petitioner, as a Secondary Grade Teacher, had been declared as completed, with effect from 11.6.1968. 2.1. The post of Primary School Head Master and Secondary School Teacher were interchangeable and transferable before 1.6.1988. The petitioner had acquired B.A. and B.Ed. degrees from the Madras University. Thus, he was eligible for promotion to the post of B.T.Assistant and B.Ed. Headmaster. Before 1.6.1988, the post of B.T and B.Ed Grade Middle School Head Master were treated as one and the same and they were interchangeable. 2.2. The petitioner had been promoted as a B.T.Assistant, on 19.6.1978. He was posted as a Tutor cum Warden at the Government Boys Hostel, Ooty, which is equivalent to that of a B.T. Assistant. The pay of the petitioner had been fixed in the pay scale of Rs.300-500, as per the proceedings of the District Adhi Dravida and Tribal Welfare Officer. The petitioner's service in the post of B.T. Assistant was regularised, with effect from 19.6.1978. Thereafter, he was transferred and posted as Middle School Head Master at the Government Tribal Middle School, Kunjapanai, at Nilgiris District, as per the proceedings of the District Adhi Dravida Welfare Officer, dated 17.6.1971. The petitioner had joined the said post, on 3.7.1981 and his pay had been fixed in the scale of pay of a B.T.Assistant. 2.3. Thereafter, on 31.8.2003, the petitioner had retired from service, on his attaining the age of superannuation. The last drawn pay of the petitioner, in the post of Middle School Headmaster, had been fixed at Rs.11,575/-, in the Special Grade Pay of the Middle School Headmaster of Rs.9100-14050. The last drawn pay had been taken into account for the calculation of the petitioner's pension and his other terminal benefits. However, based on the objections raised by the Accountant General, the District Adhi Dravidar Welfare Officer, by his proceedings, dated 28.4.2005, had refixed the pay of the petitioner in the post of Middle School Headmaster, with effect from 3.7.1981. Further, he had directed that the alleged excess amount, drawn by the petitioner should be refunded to the Government Treasury account. Further, the petitioner's pay had been fixed at Rs.1820/-, as on 1.6.1988, in the scale of pay of Rs.1640 – 2900, against the pay of Rs.2025-2275, which had been originally fixed. 2.4. Based on the impugned orders, dated 28.4.2005 and 19.5.2005, issued by the first respondent, refixing the scale of pay of the petitioner and ordering the recovery of the alleged excess pay paid to the petitioner, consequential orders have been passed by the second respondent, ordering the recovery of the https://hcservices.ecourts.gov.in/hcservices/ alleged excess pay paid to the petitioner, from the Death cum Retirement Gratuity. In such circumstances, the petitioner has 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 orders of recovery have been passed, without any notice being issued to the petitioner to put forth his case. The impugned orders are 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 orders. In such circumstances, the impugned orders are 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, 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 https://hcservices.ecourts.gov.in/hcservices/ 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 above, the impugned orders of the first respondent, dated 28.4.2005 and dated 19.5.2005, and the proceedings of the second respondent, dated 6.10.2005, are set aside, insofar as it relates to the recovery of the amount due to the petitioner, as retiral benefits. However, it is open to the respondents to refix scale of pay of the petitioner, in accordance with law, after affording a reasonable https://hcservices.ecourts.gov.in/hcservices/ 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 District Adhi Dravidra and Tribal Welfare Officer, Udhagamandalam. 2.The Principal Accountant General (A&E) of Tamilnad, 361, Anna Salai, Chennai-18. 3.The Director of Adhi Dravidar and Tribal Welfare, Chepauk, Chennai-5. +2ccs to Govt. Pleader Sr 4072,4073 +1cc to Mr.T.Ravi Kumar, Advocate Sr 3948 SV(CO) km/4.2. Writ Petition No.608 of 2006 https://hcservices.ecourts.gov.in/hcservices/