IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:17-8-2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.996 of 2009 and M.P.Nos.1 & 2 of 2009 ..... G.P.Vetrichelvi ... Petitioner vs. 1.The Additional Assistant Elementary Educational Officer Kattumannarkoil Cuddalore District. 2.The Accountant General (Accounts & Entitlements) Chennai 600 018. ... Respondents Writ petition filed under Article 226 of the Constitution of India for the issue of a writ of Certiorarified Mandamus call for the records relating to the impugned order of the first respondent in Na.Ka.No.1105/A 4/2008 dated 20.11.2008 and quash the same as stated therein. For petitioner : Mr.P.Rajendran For respondents : Ms.Dhakshyani Reddy Government Advocate for R.1 .. ORDER The writ petition is directed against the order of the first respondent dated 20.11.2008, by which the respondent directed for the recovery of an amount of Rs.36,630/- from the salary of the petitioner at the rate of Rs.3663/- per month for a period of 10 months. 2. The petitioner, who is working as Headmistress in the Panchayat Union Middle School, Thiruchinnapuram, Kattumannarkoil https://hcservices.ecourts.gov.in/hcservices/ Union was originally appointed as Secondary Grade Teacher on 9.11.1987. She passed M.A. and B.Ed. degrees at that time and thereafter, she was promoted as Primary School Headmistress on 01.06.2002 and Middle School Headmistress on 23.07.2007. Since the petitioner was holding higher educational qualifications, she was sanctioned two incentive increments for the possession of M.A. and B.Ed. degree qualifications. The increments were sanctioned in the year 1994. Even though there was no separate order passed, the amount of increments was added along with her monthly salary. However, the first respondent, by the impugned order directed for the recovery of the amount on the basis that an audit objection has been raised in respect of the said payment in favour of the petitioner. 3. It is the specific case of the petitioner that the incentive increments were granted to her only due to the reason that she was having more qualifications than the required qualification for the post she held and taking note of the fact that she was having higher qualifications, she was granted incentive increments and there was no fault on the part of the petitioner. It is also stated that in respect of a similarly placed person, viz., M.Gajendran, an amount of Rs.15,423/- was ordered to be recovered at the rate of Rs.1543/- for 9 months and Rs.1536/- for one month. It is the case of the petitioner that when the incentive increments were sanctioned simultaneously to the petitioner and the said person, the amount of recovery in respect of the said person is less than the amount ordered to be recovered in the impugned order against the petitioner. According to the petitioner, she had no role to play in respect of payment of incentive increments. In such circumstances, the petitioner has filed this writ petition. 4. In the counter affidavit filed by the first respondent, while it is admitted that the petitioner was having B.Ed. degree and the appointment was made as per G.O.Ms.No.539, Education, dated 21.4.1986, it is the case of the first respondent that as per the said G.O., the petitioner is not eligible to draw any incentive increment for the possession of higher qualifications. According to the first respondent, B.Ed. degree is not a higher qualification. It is admitted that the petitioner was granted incentive increment with effect from 1.6.1988 for M.A. and B.Ed. qualifications and the impugned order came to be passed for the purpose of recovery based on the audit objection raised by the Accountant General and after a period of 2½ years from the date of sanction, the amount is sought to be recovered under the impugned order. It is the case of the respondents that the required qualification of D.T.Ed. for the post of Secondary Grade Teacher is equivalent to that of B.Ed. and therefore, B.Ed. degree cannot be stated to be a higher qualification. https://hcservices.ecourts.gov.in/hcservices/ 5. A reading of the counter affidavit makes it clear that it is based on the objection raised by the Accountant-General, the recovery has been made. On the facts and circumstances of the case, it is clear that it is not as if the petitioner has herself represented to the first respondent for the grant of the said incentive increments. While the qualification of the petitioner, that is, M.A., B.Ed. is not in dispute, it is only the case of the first respondent that B.Ed. is equivalent to the required qualification for the post of Secondary Grade Teacher viz., D.T.Ed., while admittedly the petitioner has never represented that B.Ed. should be treated as an additional qualification for the grant of incentive increment and only the first respondent has granted the incentive increment. Further, it is the case of the first respondent that there was no show-cause notice issued before the recovery was ordered. Therefore it is not possible to accept the contention raised by the first respondent in the counter affidavit that the petitioner is liable for recovery of the excess amount from her salary. It is also seen that while admitting the writ petition, this Court granted interim stay of recovery and the said order of interim stay continues till date. 6. It is well settled that where there is no misrepresentation or active involvement of the person concerned for the purpose of getting any benefit, it cannot be said to be unjust benefit, if the person has been given such benefit and if at all there is any remedy to the first respondent, it is only to take action against the officials who are said to be responsible for such mistake. In BabulalJain vs. State of Madhyapradesh and others [(2007) 6 SCC 180], while referring to M.P.Civil Services (CCA) Rules, wherein higher scale was granted in respect of the post held by a person, taking note of the fact that there was no promotional opportunity and monetary benefit was given as deputation allowance, it was held as follows: " 15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made. The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, take place on a misconception of law. He was atleast entitled to some allowance. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs.22,000/- has been recovered from him. Such recovery has been effect without issuing any show-cause notice. His case on merit in this behalf had not been considered by the Government and even by the Tribunal. " 7. Even before the said judgement, the Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ Sahib Ram vs. State of Haryana and others [(1995) Supp.(1) SCC 918], in similar circumstances, particularly when upgraded pay scale of librarian was made on the basis that the incumbent was having better qualification, held as if the authority is erred in granting relaxation or benefit without any misrepresentation on the party concerned, the benefit of higher pay scale paid cannot be held to be due to the fault of the concerned person and the amount cannot be recovered. The relevant portion of the judgement is as follows: " 5. Admittedly, the appellant does not possess the required educational qualifications. Under the circumstance, the appellant would not be entitled to the relaxation. The principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid the salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the principal for which the appellant cannot be held to be at fault. Under the circumstance, the amount paid till date may not be recovered from the appellant. The principal of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." 8. Following the said judgement, this Court in S.A.Kanthimathi vs. Director of School Education, Madras and others. [(2006) 1 MLJ 695], in similar circumstances, held as follows: " 3. A perusal of the impugned order of recovery nowhere discloses that the petitioner has misrepresented or suppressed for the receipt of excess scale of pay. Further, no notice or opportunity was given to the petitioner before the impugned order of recovery was passed and as stated, the petitioner also retired from service. 4. In the said judgement of the Supreme Court, it is clearly stated that since the salary is paid not on account of any misrepresentation made by the appellant and the benefit of higher scale of pay was made by the wrong construction made by the Principal for which the appellant cannot be held to be at fault. The facts in this case also and therefore the impugned order of recovery is quashed. The writ petition is allowed. No costs." 9. A Division Bench of Madurai Bench of this Court in P.Arumugam vs. Registrar, Tamil University, Thanjavur [(2006) 3 MLJ 1025] while following the said judgement of the Supreme Court in Sahib Ram's case, cited supra, construed the provisions of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Pension Rules and held as follows: " 11.5. ........... It is relevant to state that between 1.2.1984 i.e. the date of appointment of the appellant as Superintendent in the respondent University, till he was allowed to retire from service on 31.12.2001, the respondent did not raise its little finger as regards the alleged excess payment paid to the appellant. On the other hand, knowing fully well about the previous employment of the appellant, the respondent University in its offer of appointment, dated 13.06.1983 as well as the order of appointment dated 21.7.1983, specifically mentioned that the pay of the appellant was being fixed in a particular scale ensuring the pay last drawn by the appellant in his previous employment. That apart, it is not known why in spite of the Audit Objections raised as early as in the year 1984-85, the respondent did not intimate the same to the appellant nor taken any proceedings for suitably re-fixing the pay fixed at the time of issuance of the order of appointment in accordance with Rule 44(4)(i) of the Tamil Nadu Pension Rules. The respondent thus, with its eyes wide open, fixed the pay of the appellant in a particular scale of pay applicable to him and also allowed him to draw that pay throughout his service in the respondent University till the date of his retirement. Therefore, while the respondent was squarely responsible for the wrong fixation of pay, if any, of the appellant, the appellant was never to be blamed as regard his pay fixation. ......" 10. In addition to the above, on the facts of the case it is clear that while passing the impugned order, there was no opportunity given to the petitioner at all to explain her case. This is also in violation of the principles of natural justice. For all the above said reasons, I am of the view that the impugned order passed by the first respondent is not sustainable in law and liable to be set aside and accordingly, it is set aside. The writ petition is allowed. No costs. Connected miscellaneous petitions are closed. https://hcservices.ecourts.gov.in/hcservices/ 11. In the event of first respondent having recovered any amount from the petitioner, the first respondent shall refund the same to the petitioner forthwith. However, it is open to the first respondent to refix the salary of the petitioner in accordance with law, after giving notice to the petitioner, but it does not mean that the amount should be recovered from her pay after refixation. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional Assistant Elementary Educational Officer Kattumannarkoil Cuddalore District. 2.The Accountant General (Accounts & Entitlements) Chennai 600 018. +1cc to Mr.P.Rajendran, Advocate Sr 39409 +1cc to Govt. Pleader SR 39020 RSM(CO) km/31.8. W.P.No.996 of 2009 https://hcservices.ecourts.gov.in/hcservices/