IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 15-06-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.4362 of 2007 (O.A.No.517 of 2001) R.Senthur Pandy .. Petitioner. Versus 1.The Secretary Education Department, Government of Tamil Nadu Secretariat, Chennai-600 009. 2.Director of Elementary Education, College Road, Chennai-600 006. 3.District Elementary Educational Officer, Thiruvallore. 4.Assistant Elementary Education Officer, Pozhal. .. Respondents. Prayer: Original Application No.517 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.4362 of 2007, seeking for a writ of certiorarified mandamus to call for the records of the impugned order Na.Ka.No.437530/A53/2000, dated 19.12.2000, passed by the 2nd respondent and set aside the same as null and void and against the principle of natural justice and consequently direct the respondents not to proceed for recovery of incentive increment already granted so as to enable the applicant to receive the incentive increment continuously and regularly as per the eligibility and entitlement as Post Graduate Teacher. For Petitioner : Mr.S.G.Thangavel For Respondents : Mr.V.Arun Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 2. It has been stated that the petitioner had joined as an Assistant Teacher at Thanjapuram, Radhapuram Panchayat Union School, Tirunelveli District, on 16.11.1970. Subsequently, he had been transferred as an Assistant Teacher to Radhapuram Union and Pozhal Union. Thereafter, he had been transferred and posted as an Assistant Teacher at Tiruvottiyur Municipal Primary School. Since he had acquired an M.A.Degree in the year 1994 and B.Ed., degree in the year 1996, he was given certain benefits and privileges, including an incentive increment, with effect from 27.9.1996, like those of the post graduate teachers, who had obtained their qualifications from regular university courses. However, by the impugned order, the second respondent had issued directions to recover the incentive increments, which had been paid to the petitioner, with effect from 27.9.1996, in accordance with the relevant rules applicable to such appointments. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 3. No reply or counter affidavit has been filed on behalf of the respondents. 4. 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: 4.1) 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. 4.2) 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. 4.3) 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, https://hcservices.ecourts.gov.in/hcservices/ good conscience, justice and fairness. 4.4) 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. 4.5) 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 their appointments had been secured on non-permissible grounds. 4.6) 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. 4.7) 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." 4.8) 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. 4.9) 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. 4.10) 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 5. In view of the submissions made by the learned counsel appearing on behalf of the petitioner, and in view of the decisions cited above, the impugned order of the second respondent, passed in Na.Ka.No.437530/A53/2000, dated 19.12.2000, is set aside, in so far as it relates to the recovery of the amounts already paid to the petitioner, as increment. Accordingly, the writ petition is allowed, as noted above. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Secretary Education Department, Government of Tamil Nadu Secretariat, Chennai-600 009. 2.The Director of Elementary Education, College Road, Chennai-600 006. 3.The District Elementary Educational Officer, Thiruvallore. 4.The Assistant Elementary Education Officer, Pozhal. +1cc to Govt. Pleader Sr 23232 PA(CO) km/3.7. Writ Petition No.4362 of 2007 https://hcservices.ecourts.gov.in/hcservices/