1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.02.2011 CORAM : THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD) No.98 of 2011 and WP(MD)No. 10681 of 2008 The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli-1. ... Appellant/1st Respondent Vs. 1.U.Ganthimathi, ... 1st Respondent/Writ Petitioner 2.The Assistant Director of Local Funds, Accounts, Tirunelveli Municipal Corporation, Tirunelveli-1. 3.The Director of Local Funds Accounts, 4th Floor, Kuralagam, Chennai-108. ... Respondents 2 and 3/Respondents 2 and 3 Appeal filed under Clause 15 of the Letters Patent against the order, dated 22.09.2010 in W.P.(MD)No.10681 of 2008. PRAYER: WP(MD)No. 10681 OF 2008: Writ Petition is filed under article 226 of the Constitution of India praying for the issue of a Writ of Certiorari, to call for the records in ROC.No. 5091 /2005, C1, Dated: 17.10.2008 from the 1st Respondent, quash the same and pass such further orders. For Appellant : Mr.S.P.Maharajan For 1st Respondent : Mr.M.V.Venkataseshan For Respondents 2&3 : Mr.M.Rajarajan, Government Advocate. JUDGMENT R.SUBBIAH,J. This writ appeal is directed against the order, dated 22.09.2010 passed in W.P(MD)No.10681 of 2008 whereby the learned single Judge quashed the order of the first respondent dated 17.10.2008. 2.The first respondent was appointed as typist in the appellant Corporation by order dated 07.05.1975. The said post is a permanent post on probation with the pay scale of Rs.210-5-245-10-325. After completing probation on 24.08.1977, the first respondent was ousted from service for want of vacancy for different periods upto 25.10.1979. In the year 1978, pursuant to the appeal filed by the first respondent, she was appointed to the post of typist by proceedings dated 20.09.1979. Finally, the first respondent was made permanent by the appellant corporation on 15.05.1985. https://hcservices.ecourts.gov.in/hcservices/ 2 Subsequently, on 23.12.1986, the first respondent was given Selection Grade. On 12.01.1990, the first respondent was promoted as Assistant and on 23.12.1996, she was given selection grade in the post of Assistant and on 01.10.1997 as per G.O.Ms.No.137,M.A. And W.S.(Election) Department, dated 27.05.1997, the first respondent was promoted as Superintendent in the pay scale of Rs.1600-2900. Subsequently, on verifying the service register of the first respondent, the respondents 2 and 3 pointed out that the first respondent was wrongly given selection grade in the post of Typist on 23.12.1986 and she ought to have been fixed salary of Rs.350/- for the post of Typist from 26.10.1979 and she ought to have been given selection grade in the post of typist only from 26.10.1989 and further, she ought to have been given selection grade in the post of Assistant only from 26.10.1999. Therefore, the first respondent was paid excess payment of those earlier period and found that Rs.74,191/- was directed to be deducted from the first respondent as excess payment by audit chit No.88/2003-2004. The appellant corporation without giving an opportunity of hearing to the first respondent accepting the audit chit of the respondents 2 and 3 passed an order dated 07.03.2006 to deduct the said sum of Rs.74,191/- from the first respondent. Challenging the same, the first respondent filed a writ petition in W.P.No.3838 of 2006. This Court by an order dated 05.10.2007, set aside the order of the appellant Corporation dated 07.03.2006 giving liberty to the appellant Corporation to pass orders after giving opportunity to the first respondent. Thereafter, by giving appropriate opportunity to the first respondent as ordered by this Court, the appellant Corporation passed the order dated 17.10.2008 directing recovery of the excess payment. Hence, the present appeal. On consideration of the submissions made on either side, the learned single Judge has quashed the impugned order dated 17.10.2008. Hence, the present appeal. 3.We have heard the submissions made by the learned counsel on either side and perused the materials available on record. 4.It is well settled legal position that if the excess payment is made to the first respondent on account of any misrepresentation on the part of her then the excess payment made to her could be recovered. But in the instant case, no material is available to show that there was any misrepresentation on the part of the first respondent for receiving the excess payment. The selection grade in the post of typist was given to the first respondent in the year 1986 and not on account of any misrepresentation on the part of the first respondent. Similarly, there was no misrepresentation on the part of the first respondent in getting selection grade in the post of Assistant. Hence, for the mistake committed by the appellant, the first respondent cannot be found fault with on any account. 5.The Supreme Court in the decision reported in 2009(1) SCC 163 (Syed Abdul Qadir & Others Vs.State of Bihar & others) and in paragraph-28, it is held as follows: "28.Undoubtedly, the excess amount that has been paid to the appellants-teaches 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 https://hcservices.ecourts.gov.in/hcservices/ 3 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 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 appellants-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 appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants- teachers should be made." The same view was taken earlier by the Honourable Supreme Court in the decisions reported in (1995)1 SCC (supp) 18 (Sahib Ram V.State of Haryana) and in [2007] 6 SCC 180 (Babulal Jain Vs. State of Madhya Pradesh) and by the Division Bench of this Court in the decisions reported in 2006(3) LLN 461 (D.Palavesamuthu v. Tamil Nadu Administrative Tribunal) and (2006) 3 MLJ 695 (S.A.Kanthimathi Vs. Director of School Education, Madras), one of us (NPVJ) also taken similar view following the Supreme Court decisions." 6.The dictum laid down in the above judgment is squarely applicable to the facts of the present case. Hence, we do not find any infirmity in the order passed by the learned single Judge. Moreover, as found by the learned single Judge, there has been a delay of 10 years in passing the impugned order seeking to recover the excess payment. Therefore, on that ground also, the impugned order is liable to be quashed. Therefore, we are not inclined to interfere with the order passed by the learned single Judge. Hence, the writ appeal is dismissed as devoid of any merit. No costs. Consequently, connected miscellaneous petitions are closed. SD ASST REGISTRAR ( CRL SIDE ) /TRUE COPY/ SUB ASST REGISTRAR sms To 1.The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli-1. 2.The Assistant Director of Local Funds, Accounts, Tirunelveli Municipal Corporation, Tirunelveli-1. 3.The Director of Local Funds Accounts, 4th Floor, Kuralagam, Chennai-108. 1CC TO MR. S.P.MAHARAJAN, ADVOCATE, SR: 5081: DM:2011::MARCH:08::: W.A.(MD) No.98 of 2011 3P;4C:: 09.02.2011 https://hcservices.ecourts.gov.in/hcservices/