1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 20.10.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.2704 of 2011 and M.P.(MD)Nos.1 and 2 of 2011 G.Jenova Prakasam .. Petitioner Vs. 1.The Secretary, Education Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Director of School Education, College Road, Nungambakkam, Chennai. 3.The Chief Education Officer, Chief Education Office, Karur-639 007, Karur District. 4.The Headmaster, Government Higher Secondary School, Thogamalai-621 313. Karur District 5.The Headmistress, Government Higher Secondary School, Ilavaipettai, Karur District. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the impugned notice issued by the fourth respondent in his Na.Ka.No.41/2008, dated 02.02.2011 directing the petitioner to deposit a sum of Rs.2,59,270/- in the Government account and to produce the receipt to the petitioner and to quash the same. For Petitioner : Mr.R.Jayaraman For Respondents : Mr.TS.Md.Mohideen, AGP ORDER The petitioner has filed the present writ petition seeking to challenge an order of the fourth respondent, dated 2.2.2011 directing the petitioner, who is a retired teacher, to deposit a sum of Rs.2,59,270/- into the Government account and to produce the receipt. 2.The petitioner was employed as a drawing teacher in the fourth respondent school. By the impugned order, the petitioner was informed that she has to pay the money paid to her for the period from 5.8.2005 to 31.10.2009, which was paid in excess. Hence a sum of Rs.2,59,270/- has to be returned by her. https://hcservices.ecourts.gov.in/hcservices/ 2 3.In the writ petition, notice regarding admission was ordered and an interim injunction was granted. Aggrieved by the grant of interim injunction, M.P.(MD)No.2 of 2011 was filed to vacate the interim injunction which was supported by the counter affidavit sworn to by the Chief Educational Officer, Karur. It was stated by the respondents that she was appointed as a Specialist Teacher in the high school. She was transferred to the higher secondary school in the same capacity and that it was not a promotion. She continued to teach drawing to the students of standards 6th to 10th. The revision of salary made by the State Government will not apply to her case. Hence the amount paid in excess in favour of the petitioner was illegal and is liable to be recovered. 4.However, it is not a case where the petitioner has made any misrepresentation in claiming salary. After her retirement, seeking her to pay back the amount is clearly illegal. No enquiry was conducted and no prior notice has been given to the petitioner. 5.In this context, it is necessary to refer to the judgment of the Supreme Court in Syed Abdul Qadir Vs. State of Bihar reported in (2009) 3 SCC 475. The following passages found in paragraphs 57 to 60 may be usefully reproduced below: “57.This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58.The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana1, Shyam Babu Verma v. Union of India2, Union of India v. M. Bhaskar3, V. Gangaram v. Director4, Col. B.J. Akkara (Retd.) v. Govt. of India5, Purshottam Lal Das v. State of Bihar6, Punjab National Bank v. Manjeet Singh7 and Bihar SEB v. Bijay Bhadur8. 59.Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the https://hcservices.ecourts.gov.in/hcservices/ 3 result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. 60..... Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” 6.In the light of the above, the writ petition will stand allowed and the impugned order will stand set aside. However there will be no order as to costs. Consequently connected miscellaneous petitions stand closed. Sd/- Deputy Registrar (W) /True copy/ Assistant Registrar To 1.The Secretary, Education Department, Government of Tamil Nadu, Fort St. George, Chennai-600 009. 2.The Director of School Education, College Road, Nungambakkam, Chennai. 3.The Chief Education Officer, Chief Education Office, Karur-639 007, Karur District. Vvk GH : 08.11.2011 : 3p/4c W.P.(MD)NO.2704 of 2011 20.10.2011 https://hcservices.ecourts.gov.in/hcservices/