IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.2.2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.1896 of 2006 G.DHANDAPANI [ PETITIONER ] Vs 1 THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL), COLLEGE ROAD, CHENNAI-6 2 THE CHIEF EDUCATIONAL OFFICER KARUR, KARUR DISTRICT. [ RESPONDENTS ] Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the second respondent in Na.Ka.No.4330/A4/03, dated 2.9.2005, and quash the same and direct the respondents 1 and 2 not to disallow the bonus increment to the petitioner. For petitioner : Mr.P.Rajendran For respondents : Mr.R.Murali Government Advocate for R1 and R2 O R D E R This writ petition has been filed praying for a writ of Certiorarified Mandamus to call for and quash the impugned order of the second respondent, dated 2.9.2005, and to direct the respondents not to disallow the bonus increment to the petitioner. 2. The petitioner has stated that he was appointed as a Tamil Pandit (Grade II), on 5.11.1964. Before his appointment as a Tamil Pandit, (Grade II), he was working as an untrained Tamil Pandit, from 3.8.1962 to 4.11.1964. Later, he was promoted as a Tamil Pandit (Grade I), on 14.4.1966. In the year, 1995, he was offered a promotion, as the Headmaster of the High School, in the scale of pay of Rs.6500-200-10,500. Since, the scale of pay, in which the petitioner was drawing his pay, as a Tamil Pandit (Special Grade), was higher than the scale of pay for the post of Headmaster of a High School, the petitioner had expressed his inability to accept the offer of promotion. The rejection of the offer for promotion by the petitioner had been accepted by the Director of School Education and it had been recorded in the petitioner's service register. Thus, the petitioner had continued as a Tamil Pandit (Grade I). https://hcservices.ecourts.gov.in/hcservices/ 3. It has been further stated that in the year, 1998, the Government of Tamil Nadu had issued a Government Order, in G.O.Ms.No.562, Finance (Pay Cell) Department, dated 28.9.1998, directing that the employees stagnating in the special grade, beyond 10 years, may be granted one bonus increment, as an incentive. The said order took effect from 1.9.1998. Since, the petitioner had stagnated in the post of Tamil Pandit (Grade I) for more than 30 years and in the special grade for over 10 years, he was given the benefit of the said Government order. Thus, the petitioner was allowed the bonus increment. Thereafter, the petitioner had retired from service, on 31.1.2000, as a Tamil Pandit (Grade I) from the Government High School, Neithalur, Karur District. 4. It has been further stated that 3 years after the petitioner had retired from service, the Chief Educational Officer, Karur District, the second respondent herein, had issued an order, in Na.Ka.No.4330/B1/03, dated 8.8.2003, stating that a complaint had been received pointing out that the petitioner had received the benefit of bonus increment after relinquishing the promotion to the post of Headmaster and that on a perusal of the petitioner's service register, it was confirmed that he had availed the bonus increment, without being eligible for the same. Therefore, it was directed that the bonus increment, allowed in favour of the petitioner, with effect from 1.9.1998, was directed to be cancelled and the Headmaster of the School in which the petitioner had worked was directed to re-fix the pay scale of the petitioner without allowing the bonus increment. Further, there was a direction to take action to recover the excess amounts given to the petitioner on account of the bonus increment. Even though the petitioner had made representations in respect of the directions issued to recover the excess amount paid to him and to re- fix the pay scale, no order had been passed by the Joint Director of School Education (Personnel), Chennai. While so, the Chief Educational Officer, Karur, had issued the impugned order, dated 2.9.2005, directing the petitioner to remit the excess amounts received by him, in the Government account, as per the order, dated 8.8.2003. In such circumstances, the petitioner had preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 5. A counter affidavit has been filed on behalf of the second respondent stating that the petitioner had availed one special increment (bonus increment), from 1.9.1998, contrary to the conditions specified, in G.O.Ms.No.562, Finance (Pay Cell) Department, dated 28.9.1998, and the clarifications issued, in No.35681/CMPC/2000, dated 17.7.2000, addressed to all the Heads of Departments, clarifying that the bonus increments should not be availed by an employee, who had relinquished the promotion offered to him. This was once again clarified in the Government letter No.168, School Education Department, dated 11.10.2001. Since, the petitioner had relinquished his chances of promotion, on three occasions, he was not eligible for the bonus increment. Further, the petitioner had already executed consent declarations, even before the pensionary benefits had been sanctioned, to enable the recovery of the excess payment received by him, if any, during the tenure of his service, as per Rule 71 (3)(a) of the Tamil Nadu pension Rules, 1978. It has also https://hcservices.ecourts.gov.in/hcservices/ been stated that, as per G.O.Ms.No.230, Personnel and Administration Reforms Department, dated 7.4.1988, charges, if any, pending against a dead employee, have to be withdrawn. 6. It has also been stated that the petitioner had died, on 30.12.2008 and therefore, the legitimate steps taken by the second respondent, to effect the recovery, had become futile. 7. The learned counsel appearing for the petitioner had submitted that the impugned order of the second respondent, dated 2.9.2005, is contrary to law and the principles of natural justice. No action had been taken by the respondents, within the stipulated period of 12 months, as provided under Rule 71 (3)(a) of the Tamil Nadu pension Rules. As such, the action taken by the second respondent, after a period of 3 years from the date of the petitioner's retirement, is contrary to the said rule. 8. It was further stated that the relinquishment of promotion by the petitioner, in the year 1995, had been accepted and entered in the service register of the petitioner. The grant of bonus increment to the petitioner had been approved by the office of the Accountant General, Chennai, after all the entries in the petitioner's service register had been verified. The petitioner had not suppressed any material fact to avail bonus increment, nor had he made any misrepresentation, based on which the bonus increment had been allowed. The bonus increment had been allowed to the petitioner, in accordance with the Government Order, in G.O.Ms.No.562, Finance (Pay Cell) Department, dated 28.9.1998. The said order does not say that the persons, who had relinquished their promotions, were not eligible to receive the bonus increment. Since, the petitioner had fulfilled the necessary conditions stipulated in the Government order, the bonus increment had been allowed in his favour. Further, no notice had been issued to the petitioner and no opportunity had been given to him to putforth his case before the order, dated 8.8.2003, cancelling the bonus increment, had been issued. In such circumstances, the impugned order of the second respondent, dated 2.9.2005, is liable to be set aside. 9. The following decisions, relating to the recovery of excess amounts paid to the employees, are in favour of the petitioner in the present writ petition. 9.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((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. 9.2) 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. 9.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC 659), the Supreme Court had refused to permit the recovery https://hcservices.ecourts.gov.in/hcservices/ 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. 9.4) 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. 9.5) 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. 9.6) 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. 9.7) 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. 9.8) 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. 10. In view of the averments made by the learned counsels appearing for the parties concerned and in view of the contentions raised on their behalf, and on a perusal of the records available and in view of the decisions cited supra, it is clear that the excess amounts said to have been paid to the petitioner is not due to any misrepresentation or fraud on the part of the petitioner. The petitioner cannot be held liable for the fault committed by the concerned authorities, who were responsible for fixing the scale of pay of the petitioner. Further, it is not the case of the respondents that the excess amount had been granted to the petitioner, based on his misrepresentation or fraud. Hence, the impugned order of the second respondent, dated 2.9.2005, is set aside, only insofar as it https://hcservices.ecourts.gov.in/hcservices/ relates to the recovery of bonus increment, granted in favour of the petitioner. Accordingly, the writ petition stands partly allowed. No costs. Consequently, connected W.P.M.P.No.2150 of 2006 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1. THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL) COLLEGE ROAD CHENNAI-6 2. THE CHIEF EDUCATIONAL OFFICER KARUR, KARUR DISTRICT. Writ Petition No.1896 of 2006 KGK(CO) RVL 23.03.2010 https://hcservices.ecourts.gov.in/hcservices/