IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.11.2010 CORAM THE HONOURABLE MR. JUSTICE P.JYOTHIMANI Writ Petition No.4765 of 2007 and W.P.M.P.Nos.2 of 2007 and 2 of 2008 N.A.Narayanasamy ... Petitioner vs 1. The State of Tamilnadu rep. by its Secretary to Government, Finance (Pension) Department, Secretariat, Chennai-9. 2. The Accountant General (A&E), Teynampet, Chennai-18. 3. The Sub Treasury Officer, Chengam, Thiruvannamalai District. 4. The Treasury Officer, District Treasury, Thiruvannamalai District. ... Respondents. Prayer:- Writ 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 connected with the impugned order passed by the 2nd respondent in TM/IV/05-06/Pt87 dated 05.07.2005 and quash the same and direct the respondents to fix the petitioner's pension at Rs.4482/- with D.A. w.e.f. 01.01.1996 and also direct the respondents to refund the recovered amount to the petitioner. For Petitioner : Mr.G.Elanchezhiyan For Respondents : Mr.N.Senthilkumar, for R1, R3 and R4. Mr.T.Ravi Kumar for R2. https://hcservices.ecourts.gov.in/hcservices/ O R D E R The writ petitioner was employed as an Elementary School Headmaster in the year 1957 and it is stated that he was promoted as Middle School Headmaster on 01.10.1970. Thereafter, he was reverted as Elementary School Headmaster again and retired as Elementary School Headmaster on 31.12.1989 by following G.O.Ms.No.1178, Education Department dated 22.12.1993. Since the petitioner was acting as a Middle School Head Master as on 01.10.1970, the petitioner's pension was fixed at Rs.4482/-. The said fixation is stated to be as per paragraph No.6 of the said Government Order. 2. The grievance of the petitioner is that while he was receiving pension at the above said rate, it was reduced in the year 1999 onwards and fixed at Rs.4413/-. In the year 2004, the amount of pension was reduced from Rs.4413/- to Rs.3940/-. When the petitioner has sought for reasons, the second respondent, as per the communication dated 21.09.2004, which was originally challenged by the petitioner in the writ petition, has stated that the same was due to audit objection since there was an improper fixation of salary of the petitioner consequently, resulting in different fixation of pension also. Against the same, the petitioner has given a representation to the respondents on 20.10.2004 and it was, thereafter, on analysing the entire issue, the second respondent has passed the subsequent order dated 05.07.2005, which is challenged in this writ petition by way of amendment, which was subsequently carried out in which it is stated that the pension of the petitioner should be fixed instead of Rs.3940/- as Rs.4110/-. In the said order, it is also stated by the second respondent that in the audit objection it was found that the excess pension paid was @ Rs.4413/- and inasmuch as the petitioner is eligible for fixation of pension as Rs.4110/-, the difference of Rs.303/- per month is to be recovered. So a direction was issued to recover the said excess amount paid. Challenging the said order, the present writ petition is filed. 3. The learned counsel for the petitioner would submit that the impugned order has been passed without passing any recovery order and therefore, the same is opposed to the principles of natural justice. That apart, while reducing the pension, the petitioner should have been given an opportunity and without giving opportunity, such recovery has been and therefore, it is without jurisdiction. The learned counsel would also submit that in the form of application, which is given as an enclosure to the letter of the Additional Assistant Primary Educational Officer addressed to the second respondent, it is seen that by arriving at a revised scale of pay of the petitioner as Rs.9100-275-14050, the pension has been arrived at https://hcservices.ecourts.gov.in/hcservices/ Rs.4482/- with effect from 01.04.1999. Therefore, according to the learned counsel, it is not only that the impugned order of the second respondent is bad in law, but even as per the order of the Educational authorities, as approved by the Pension Sanctioning Authority, the pension has to be fixed at Rs.4482/- and hence, the petitioner filed the writ petition and by way of amendment sought for payment of revised pension at Rs.4482/-. 4. In the counter affidavit filed by the second respondent, the second respondent has stated that while the petitioner was allowed to retire, he was holding the post of Primary School Headmaster and therefore, his pension should be fixed only as a Primary School Headmaster only. But it has been wrongly fixed as Middle School Headmaster by mistake, which has been found out in the audit objection and only to rectify the mistake, the impugned order of recovery has been passed. It is also the case of the respondents that after reversion of the petitioner from the post of Middle School Headmaster to Elementary School Headmaster, at the time of retirement, he retired only as the Elementary School Headmaster and therefore, the fixation of his pay as that of Middle School Headmaster at that time is not proper, as it is not in accordance with G.O.Ms.No.1178 dated 22.12.1973. On a reference to the records, it is clear that the second respondent has fixed the pension due to the petitioner at the rate of Rs.4413/- and the same has been continuously paid till 2004. It is not in dispute that without information to the petitioner, his pension was reduced to Rs.3940/-. When that act itself is arbitrary without giving notice and without opportunity to the petitioner, it is strange to note that when the petitioner made a representation against such conduct on 20.10.2004, the second respondent has come forward with a reply stating that during audit objection, it was found that some mistake has occurred. Law is well settled that in fixation of such pay or pensionary benefits, even if mistake is on the part of the office, so long as the mistake has not been activated by the conduct of the petitioner or mistake has not been occurred on the active collusion of the petitioner, no recovery could be possible. However, in the impugned orders passed originally by the third respondent and thereafter, by the second respondent, the amount has been refixed from Rs.4110/- to Rs.3940/-. This can only be attributed as an arbitrary conduct on the part of the respondents, which cannot be done without either passing the order of refixation of pension even assuming that there has been a mistake committed in which event certainly it requires notice to be given to the petitioner and only after hearing the petitioner, such an order has to be passed. 5. In view of the above, the impugned order stands set aside with a direction to the respondents to refund the recovered amount forthwith to the petitioner, however, making it clear that it is https://hcservices.ecourts.gov.in/hcservices/ always open to the respondents to refix the salary as well as the pension of the petitioner in accordance with law after giving due opportunity to the petitioner. The writ petition stands allowed accordingly. Connected M.Ps. are closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar bs/ To 1. The Secretary to Government, State of Tamilnadu Finance (Pension) Department, Secretariat, Chennai-9. 2. The Accountant General (A&E), Teynampet, Chennai-18. 3. The Sub Treasury Officer, Chengam, Thiruvannamalai District. 4. The Treasury Officer, District Treasury, Thiruvannamalai District. 1 cc To The Government Pleader, SR.81154 1 cc To Mr.Ravikumar, Advocate, SR.81474 1 cc To Mr.G.Elanchezhiyan, Advocate, SR.81164 W.P.No.4765 of 2007 MBS (CO) RH (24.11.10) https://hcservices.ecourts.gov.in/hcservices/