1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.03.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN W.P.(MD)No.3476 of 2011 and M.P.(MD)No.1 of 2011 G.Jayabalan, Addl.Block Development Officer (Training), Small Saving Section, Collectorate Office, Ramanathapuram District, Ramanathapuram. : Petitioner Vs. 1.The Secretary to the Government, Rural Welfare & Panchayat Raj Department, Fort St. George,Chennai. 2.The Director of Rural Development & Panchayat Raj,Panagal Building, Saidapet, Chennai-600 015. 3.The District Collector, Ramanathapuram District, Ramanathapuram. 4.Block Development Officer, (Block Panchayat), Ramanathapuram Block, Ramanathapuram. : Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records of the respondents herein in his Na.Ka.Aa1/2320/09, dated 18.02.2011 and quash the same, consequently, direct the respondents herein to continue to pay the same time pay scale, as the petitioner received before the above said impugned order. For Petitioner : Mr.V.Neethidurai For Respondents : Mr.V.Rajasekaran Special Government Pleader ORDER Mr.V.Rajasekaran, learned Special Government Pleader, takes notice on behalf of the respondents By consent, the Writ Petition is taken up for final disposal at the stage of admission itself. 2. Heard the learned counsel appearing for the petitioner and the learned Special Government Pleader appearing for the respondents. 3.The present Writ Petition is laid challenging the order of the fourth respondent dated 18.02.2011 and consequently, directing the respondents to continue to pay the same time pay scale, which was received by him before the impugned order. https://hcservices.ecourts.gov.in/hcservices/ 2 4. The short matrix of the matter is set out hereunder: (a) The petitioner was appointed as Rural Welfare Officer Grade-II in Thimiri Block North Arcot District on 22.03.1975. On 25.06.1985, he was promoted as Assistant and then, promoted as Extension Officer. Later, he was promoted as Deputy Block Development Officer and posted at Chetpet Block, Thiruvannamalai District. Finally, on 09.06.2003, he was promoted as Block Development Officer and posted at Arni, Thiruvannamalai District. From there, he was transferred to Ramanathapuram on 08.07.2008. Presently, he is working as Additional Block Development Officer (Training), Small Saving Section in Ramanathapuram Collectorate Office. (b) While he was working there from the month of September, 2009, his pay was fixed as per sixth pay commission recommendation. While so, the fourth respondent, without conducting any enquiry and without issuing a show cause notice to him, has passed the impugned order dated 18.02.2011, stating that excess amount has been paid to him towards his salary for the period from July 2009 to December 2010, of a sum of Rs.1,27,222/- and consequently, ordered recovery of the same in nine installments at the rate of Rs.12,922/- per month from January, 2011 onwards. The said order is under challenge in the present Writ Petition. 5. The learned counsel appearing for the petitioner mainly contended that the impugned order came to be passed by the fourth respondent without issuing notice to the petitioner and without conducting enquiry. 6. The learned Special Government Pleader is unable to point out from the impugned order that the said order was passed after due notice to the petitioner and after due enquiry. 7. The Principal Bench of this Court has taken the view that such recovery cannot be made, in the judgment in Palavesamuthu, D. v. Tamil Nadu Administrative Tribunal reported in (2006) 1 MLJ 143. Paragraph Nos.7,8 and 9 of the said judgment are usefully extracted hereunder: "7. It is worthwhile to refer the Judgment of the Supreme Court in the case of Sahib Ram v. State of Haryana, 1995 AIR S.C.W. 1780. In that case, the Principal of College granted relaxation while fixing the revised pay scale of a Librarian. After finding that the Principal erred in granting him the relaxation, their Lordships have concluded, ".... it is not on account of any misrepresentation made by the appellant that the benefit of higher pay-scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to at fault. Under these circumstances, the amount paid till date may not be recovered from the appellant....". 8. The learned counsel appearing for the petitioner has also brought to our notice that the Department has not issued notice or given opportunity before ordering recovery, but proceeded merely on the basis of the report of the Accountant- General. According to him, reduction of pay and recovery of pay without hearing him are illegal. In support of the said https://hcservices.ecourts.gov.in/hcservices/ 3 argument, he relied on the Judgment of the Supreme Court in the case of Divisional Superintendent, Eastern Railway, Dinapur and others v. L.N.Kashri and others, A.I.R.1974 S.C 1889. In similar circumstances, their Lordships have held that, "The appellants having fixed the scale and confirmed the respondents could not reduce the scale without giving any opportunity to the respondents to be heard. Furthermore, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board. The said decision is applicable in all force to the case on hand. The above principles and material aspects have not been considered by the Tribunal and the Tribunal has committed an error in dismissing the application of the petitioner. 9. Under these circumstances, the impugned order of the Tamil Nadu Administrative Tribunal, dated 10.01.2003 made in O.A.No.2662 of 2001 and the order dated 28.02.2011 of the District Adi-Dravidar and Tribal Welfare Officer, Kancheepuram are quashed and the Writ Petition is allowed." 8. In view of the above stated position, I am of the considered view that the impugned order passed by the fourth respondent dated 18.02.2011 is liable to be set aside and accordingly, set aside and the Writ Petition stands allowed. It is needless to say that the fourth respondent is at liberty to pass orders afresh, after due notice to the petitioner and after hearing the petitioner. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To 1. The Secretary to the Government, Rural Welfare & Panchayat Raj Department, Fort St. George,Chennai. 2. The Director of Rural Development & Panchayat Raj, Panagal Building, Saidapet,Chennai-600 015. 3. The District Collector, Ramanathapuram District,Ramanathapuram. 4. The Block Development Officer, (Block Panchayat),Ramanathapuram Block, Ramanathapuram. +1cc to Mr.V.Neethidurai, Advocate SR.No.8039 +1cc to Special Govt.Pleader SR.No.8240 Order made in W.P.(MD)No.3476 of 2011 Dated:-24.03.2011 SML PA/06.04.2011/3P/7C https://hcservices.ecourts.gov.in/hcservices/