IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.7.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.29596 of 2006 (T) O.A.No.5465 of 1996 K. ABDUL JABBAR PETITIONER Vs 1 THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT SECRETARIAT MADRAS -9. 2 THE PRINCIPAL ACCOUNTANT GENERAL (ACCOUNTS & ENTITLEMENTS) TAMIL NADU TEYNAMPET MADRAS-18. 3 THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER THEPPAKULAM THIRUCHY. 4 THE ASST. ELEMENTARY EDUCATIONAL OFFICER VEPPANTHATTAI. ... RESPONDENTS This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of certiorari to call for the records on the file of the second respondent in connection with the order passed by him in his proceedings No.pen.17/I/ Pt.79/1284 dated 9.9.96 and quash the same. For petitioner : Mr.R.Singaravelan For Respondents : Mr.T.Seenivasan Additional Govt. Pleader for R1, R3 and R4 Mr.V.Vijayashankar for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R It is submitted by the petitioner that he was initially selected for appointment to the post of Higher Grade Teacher, through the employment exchange, on merits and he had joined the service, on 31.7.1956. He was promoted to the post of Secondary Grade Assistant on 5.8.1961 and thereafter, he was promoted to the post of Middle School Headmaster in the month of August, 1967. From 5.8.1967 to 4.6.1969, the petitioner was in service as a Middle School Headmaster. 2. The petitioner has further stated that he was transferred to the post of Secondary Grade Assistant from the post of Middle School Headmaster by an order, dated 13.5.1969 and by another order, dated 2.9.1976, he was posted as an Elementary School Headmaster. Once again, the petitioner was posted as an Assistant, on 7.4.1985, and in the year 1990, he was promoted to the post of Headmaster, Panchayat Union Elementary School, at Nerkunam. Since the petitioner has been serving as a Middle School Headmaster from 5.8.1967 to 4.6.1969, he is entitled to get the benefit of G.O.Ms.No.1178, Education Department, dated 22.12.1993. Before the notification of the Vth Pay Commission, both the posts of Secondary Grade Assistant and the Middle School Headmaster were in the same scale of pay. Only a special allowance of Rs.10/- was made available to the post of Headmaster of the Middle School. Therefore, due to administrative reasons, the persons were being transferred from one post to the other, without any loss of pay. However, with effect from 1.6.1988, the scale of pay for the post of Secondary Grade Teacher was fixed at a lower scale than that of the Middle School Headmaster, vide G.O.Ms.No.666, dated 27.6.1989. Since the petitioner was entitled to the benefits specified in G.O.Ms.No.1178, dated 22.12.1993, he was paid a sum of Rs.70,381/- in the month of April, 1996, in accordance with the said Government order. However, without giving the petitioner an opportunity of being heard, the second respondent had passed the impugned order, dated 9.9.1996, ordering revision of the petitioner's pension and recovery of the pay and allowance paid to the petitioner. In such circumstances, the petitioner has filed an original application in O.A.No.5465 of 1996, which has been transferred to this Court and renumbered as W.P.No.29596 of 2006. 3. No reply affidavit has been filed on behalf of the respondents. Further, the learned Government Advocate appearing for the respondents has not produced any records to show that the claims made by the petitioner are unsustainable. https://hcservices.ecourts.gov.in/hcservices/ 4. The main contention of the learned counsel appearing for the petitioner is that the pay and allowance given to the petitioner is in accordance with G.O.Ms.No.1178, dated 22.12.1993, and therefore, the impugned order of the second respondent, dated 9.9.1996, is unsustainable and invalid in the eye of law. Further, the impugned order of recovery has been passed by the second respondent without giving the petitioner an opportunity to put forth his case. 5. The learned counsel appearing for the petitioner had also submitted that the pay and allowance given to the petitioner is not based on any misrepresentation or fraud committed by the petitioner. 6. In view of the contentions raised on behalf of the petitioner and in view of the fact that no opportunity was given to the petitioner before the order of recovery has been passed by the second respondent and since there was no misrepresentation or fraud based on which the alleged excess payment has been made to the petitioner, the impugned order of the second respondent, dated 9.9.1996, is quashed. However, it is open to the respondents to re-fix the scale of pay of the petitioner in accordance with the rules and the Government orders applicable to the petitioner, after giving him an opportunity of being heard. Accordingly, the writ petition stands allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan To: 1 THE SECRETARY TO GOVERNMENT THE STATE OF TAMIL NADU EDUCATION DEPARTMENT SECRETARIAT MADRAS -9. https://hcservices.ecourts.gov.in/hcservices/ 2 THE PRINCIPAL ACCOUNTANT GENERAL (ACCOUNTS & ENTITLEMENTS) TAMIL NADU TEYNAMPET MADRAS-18. 3 THE DISTRICT ELEMENTARY EDUCATIONAL OFFICER THEPPAKULAM THIRUCHY. 4 THE ASST. ELEMENTARY EDUCATIONAL OFFICER VEPPANTHATTAI. +1cc to Govt. Pleader Sr 37298 +1cc to Mr.V.Vijay Shankar, Advocate Sr 36501 +1cc to Mr.R.Singaravelan, Advocate Sr 37021 RJ (CO) km/4.8. W.P.No.29596 of 2006 (T) O.A.No.5465 of 1996 https://hcservices.ecourts.gov.in/hcservices/