IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2008 CORAM THE HONOURABLE MR. JUSTICE S.MANIKUMAR Writ Petition Nos. 22575 to 22580 of 2006 (O.A.Nos. 2071 to 2075 of 1994 ) M.Kulandaivelu ...Petitioner in W.P.No. 22575/2006 M.Ayyavoo ...Petitioner in W.P.No. 22576/2006 S.Karuppiah ...Petitioner in W.P.No. 22577/2006 A.Sundaram ...Petitioner in W.P.No. 22578/2006 S.Lakshmi ...Petitioner in W.P.No. 22579/2006 V.Dhanapackiam ...Petitioner in W.P.No. 22580/2006 Vs. 1. The District Adi Dravider & Tribal Welfare Department, Dindigul, Dindigul Anna District. ...1st Respondents in all W.Ps. 2. The Special Tahsildar (ADW), Unit I, Dindigul, Dindigul Anna District. ... 2nd Respondents in W.P.Nos. 22575, 22576, 22579 and 22580 of 2006 3.The Special Tahsildar (ADW), Nilakottai, Dindigul Anna District. ... 2nd Respondent in W.P.Nos.22577 & 22578/2006 Writ Petitions filed under Article 226 of the Constitution of India for issue a Writ of Certiorari to call for the records of the first respondent in this proceedings in ROC.No.114/2400/93, dated 23.07.1993 and quash the same. For Petitioners : S.Mani For Respondents : Mrs. Lita Srinivasan, Government Advocate COMMON ORDER The Writ Petitioners have challenged the proceedings of the respondent, ROC No. 114/2400/93, dated 23.07.1993 and for further orders. As the issues involved in these writ petitions are one and the same, they are taken up together and disposed of by a common order. 2.Brief facts leading to the Writ Petitions are as follows: The petitioners were appointed as a secondary grade Teachers in the Adi Dravider and Tribal Welfare Department and lateron, promoted as Headmaster. Prior to 01.06.1988, the post of secondary Grade Teacher and Headmaster of Primary Schools were interchangeable and since there was no separate scale of pay for the post of headmaster a meagre amount was paid by way of allowance. The incumbents according to the turn of choice, took the post of headmaster/Headmistress and hold the post of secondary grade teachers and consequently juniors happened to hold the post of Headmasters of Primary School 3. The petitioners have further submitted that the V Pay Commission recommended a separate time scale of pay for the post of primary school Headmasters. Higher scale of pay was fixed to those who held the post of Headmaster of the Primary School as on 01.06.1988 and the Government issued G.O.Ms. No. 1381 Education dated 05.10.1990. As per Government Order, a teacher who was promoted on 31.05.88 was given selection Grade and special Grade counting the total length of service and the teacher promoted on or after 01.06.88 was denied the scale of pay on the ground that it is only a promotional post and therefore the service rendered in the secondary Grade Teacher post cannot be counted. The anomaly was pointed out to the educational authorities standing that there is a vast difference in the scale of pay between the persons who were promoted to the post of Headmasters i.e., one set of teachers promoted prior to 01.06.88 and the other, after 01.06.88. The Director of School Education, Chennai issued instructions to extend the benefit to the teachers, promoted after 01.06.88 also. The petitioners have submitted that they had reached the special Grade in the lower post (Secondary Grade) and the scale of pay was Rs.1640/-. After adding weightage and increments, they had reached scale of pay of Rs.2000/- and based on the government and the proceedings of the District Adi-Dravider Welfare Officer the scale of pay was fixed. The scale of pay for the post of Special Grade Headmasters of primary School was also Rs.2000/-. Thus the petitioners were given the Special Grade scale of pay equivalent to that of primary school headmasters, taking in to consideration the special Grade of pay for the post of Secondary Grade Teacher. 4. The petitioner have further contended that as per G.O.Ms.No.304 Finance dated 28.03.1990, if the promotional post happens to get lesser scale of pay than the lower post, than the scale of pay has to be stopped up. Therefore they have submitted that the fixation of scale of pay to the petitioners cannot be said as illegal and contrary to the Government Orders. It is also the case of the petitioners that the Tribunal has struck down the cut-off date 01.06.88 as arbitrary, as the dividing line drawn between the two groups of primary school Headmasters, i.e., one group of Headmasters prior to 01.06.2008 and other after 01.06.88, as without any basis. 5. The petitioners have further submitted that based on the audit objective that the petitioners are not entitled to have their scale of pay fixed at Rs.2000/-, the department have revised and re-fixed the pay. Along with the re-fixation, the respondent has also directed the petitioners to repay the differential amount. Aggrieved by the said orders, the petitioners have the present Writ Petition. 6. The respondents in their counter affidavit have submitted that the Accountant General (Audit) Tamil Nadu and Pondicherry, Madras.18, took up the inspection of the accounts of the office of the first respondent during April, 1993, and sent a report, in his letter No.A.G.(A) I/MDU/ISCI/2716/93-94/128 dated 25.05.1993, noticing certain mistakes in the fixation of the pay scale, applicable to the petitioners. It was observed that an excess payment of Rs.28,858/- has been made in respect of seven Adi-Draviders Welfare Family Primary School Headmasters, who were promoted from the post of special Grade Secondary Grade Teachers/Wardens and the same has to be recovered from them along with the corresponding allowances, and that the said amount has to be recovered from them along with the corresponding allowance, and that the said amount has to be credited in to the Government Account. The posts of seven Adi Dravidar Primary School Headmasters, who were promoted from the post of Special Grade/Secondary Grade Teachers/Wardens after 01.06.88 were regulated in the scale of pay of Rs.2000-60-2300-75-3200, as applicable to the Special Grade Headmasters. 7. It is further submitted that as per G.O.M.S.No.1384 Educational dated 05.10.1990, the post of Primary School Headmasters in a Promotion post and that the pay has to be fixed under Fundamental Rules FR-22B in respect of those, who were promoted to that post after 01.06.88. Selection Grade and Special Grade in that cadre, (Primary School Headmaster) should be given only after completion of 10 years and 20 years of service, respectively in the post. As the petitioners were in the cadre of secondary Grade Teacher/Wardens on as 01.06.88, their pay on promotion was regulated in the Ordinary grade of Headmaster (1400-40-1600-50-2300-60-2600) and it is proper. Accordingly to the respondents the petitioners are entitled to only one notional increment vide G.O.Ms No.590 Finance (pay cell) Department dated 01.08.1992. The excess payment of Rs.28,858/- inrespect of seven Headmasters was rightly ordered to recovered along with corresponding allowance and credited into Government Account. Heard the counsel appearing for the parties and perused the materials available on record. 9. Impugned order dated 23.07.1993 reads as follows: "An extract of para 11 of the above audit notes is sent herewith. Please recover the excess amount paid to the Primary School Headmasters concerned, remit into the following head of account and send the original chalan to this office on or before 05.08.1993 without fail." 10. In the impugned order, though a reference has been made to an Accountant General's letter, dated 25.051993, the department has failed to indicate the objections of the Accountant General or the reason for the recovery of the amount from the petitioners. As rightly contended by the Learned Counsel for the petitioners, the scale of pay of the petitioners have not fixed on their representation nor they have given any notice before ordering recovery. The cut off date, i.e., 01.06.88, fixed for dividing the two group of Headmasters has already been struck down by the Tribunal. In this background let me extract some of the decisions relating to recovery of excess pay, made by the department on their own without there being any misrepresentation on the part of the employees. 11. In 1994 (2) SCC 521 (Shyam Babu verma V. Union of India) and 1995 Supp. (1) SCC 18 (Sahib Ram V. State of Haryana), the Supreme Court, held that when higher pay scale was erroneously given to the Government servant/employee, due to wrong construction of the relevant order, by the concerned authority, without any misrepresentation by the employee or no fault of others, it shall not be proper to recover any amount already paid to them. 12. Following the Principles laid down by the Supreme Court and after considering the series of judgments, a learned single judge of this Court in 2006 Writ LR 327 (N.S.Balasubramanian & 18 others V.Food Corporation of India) in paragraph 18, held as follows: "The last submission of the learned senior counsel appearing for the petitioner is that even assuming without admitting that the respondents have stepped up the pay by wrong understanding of the circular as contended by the learned Additional Advocate General appearing for the respondents/corporation, the petitioners have not misrepresented anything and the higher pay having been given, it is not open to the respondents to recover the same as held by the Supreme Court in the decision reported in 1995 Supp. (1) SCC 18 Sahib Ram V. State of Haryana and the decision of this court reported in (2006) 1 MLJ 695 (S.A.Kanthimathi V. Director of School Education, Madras & others). There is much force in the contention. The learned Additional Advocate General has no answer to the said submission. The recovery made by the respondents on the alleged ground of excess pay, even assuming it was erroneously fixed, is unsustainable in view of the fact that the petitioners never misrepresented and secured the order stepping up of their pay on par with the said Rajan C.Abraham. The above referred judgments of the Supreme Court and of this Court (decision of mine) equally apply to the facts of this case. Hence, I hold all the points in favour of the petitioners and the petitioners are entitled to get refund of the recovered amount and arrears of pay." 13. In a recent decision in Babulal Jain V.State of M.P. 7 others reported in JT 2007 (6) SC 59, The Supreme Court considered a case of recovery of excess payment made to an employee without any notice and who had retired on superannuation. Their Lordships have held that the State was not correct in recovering the excess sum, even without any notice to the employee and further directed that the respondents herein to refund the amount recovered from the appellant therein. 14. In a latest decision in A.Chandra Bose and others V. The Executive Engineer, Distribution, Tamil Nadu Electricity Board, reported in 2008 WLR 164, a learned single judge, of this Court has quashed the recovery on the grounds of procedural irregularity as well as for violation of principles of natural justice. 15. In the instant case, the respondents have not made any averment in the counter affidavit that the scale of pay of the petitioners had been fixed on any misrepresentation made by petitioners. The respondents have attempted to justify the impugned order by giving reasons in the counter affidavit, which is not permissible in law. It is well settled that the Impugned order has to speak for itself and that it cannot be supported by any fresh materials in the form of counter affidavit. 16. Having regard to the fact that the impugned order is berefit of details and considering the fact that the petitioners were not provided with adequate opportunity to put forth their case before passing the impugned order and taking into account, the passage of time, the Impugned orders are set aside and the Writ Petitions are allowed. No costs. 17.03.2008 Index : Yes skm To 1. The District Adi Dravider & Tribal Welfare Department, Dindigul, Dindigul Anna District. 2. The Special Tahsildar (ADW), Unit I, Dindigul, Dindigul Anna District. 3.The Special Tahsildar (ADW), Nilakottai, Dindigul Anna District. S. MANIKUMAR.,J., skm W. P.Nos. 22575 to 22580 of 2006 17.03.2008