IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2011 CORAM: THE HONOURABLE MR.JUSTICE T. RAJA W.P.No.8835 of 2011 & M.P.No.1 of 2011 P.V. Chokkalingam ... Petitioner Versus 1.Director of Elementary Education Chennai – 6 2.District Elementary Educational Officer Vellore District Vellore 3.Assistant Elementary Educational Officer Sholingur Vellore Distirct ... Respondents Writ Petition is filed under Article 226 of Constitution of India for the relief as stated therein. For Petitioner : Mr. P.Ganesan for M/s. C.S.Associates For Respondents : Mr. R.Kannan Government Advocate ORDER The petitioner-P.V.Chokkalingam has filed the present Writ Petition seeking for the issuance of a Writ of Certiorari, calling for the records pertaining to the order passed by the third respondent in his proceedings Na.Ka.No.403/A1/2011 dated 18.03.2011 and quash the same on the ground that though the petitioner was granted the incentive increment for B.Ed., qualification in the year 1995, without any reason whatsoever and without even any prior notice calling upon the petitioner to give a simple explanation as to why the incentive increment for B.Ed., qualification sanctioned in the year 1995 should not be cancelled have erroneously passed this impugned order. https://hcservices.ecourts.gov.in/hcservices/ 2. Learned counsel appearing for the petitioner submitted that when the petitioner has acquired B.Litt., qualification in the year 1995, on the basis of his qualification, he was called for an interview for certificate verification for appointment to the post of Tamil Pandit by a communication dated 03.11.1987. After thorough certificate verification made by the respondents, they also issued appointment order appointing him as a Secondary Grade Teacher. On the basis of the appointment order dated 03.11.1987, he joined on 16.11.1987. While he was working as Secondary Grade Teacher, he acquired B.Ed., qualification in 1994. Since the Secondary Grade Teachers are eligible for one set of incentive increment for higher qualification, he applied for getting the said incentive meant for B.Ed., degree and on proper verification and consideration of the fact that the petitioner has acquired the B.Ed., qualification so as to sanction the incentive increment, the respondents also sanctioned the said incentive increment for B.Ed., degree from July 1995 with effect from 24.05.1994. Therefore, his case is that when the petitioner has not, at any point of time, misrepresented or fraudulently made any representation to the respondents, it is not open to the respondents to pass the impugned order taking away the benefit given already without any notice as it is totally against the several dictums laid down by this Court as well as by the Hon'ble Apex Court. Basing reliance on the decisions of the cases reported in the case of Syed Abdul Qadir and others Vs. State of Bihar and others reported in (2009) 3 SCC 475 and yet another decision in Sahib Ram Vs. State of Haryana and others reported in 1995 Supp (1) SCC 18, he prayed for setting aside the impugned order by allowing the present Writ Petition. 3. Mr.R.Kannan, learned Government Advocate appearing for the respondents after perusing the impugned order stated that when the petitioner was given the incentive increment for B.Ed., qualification in the year 1995 he was ineligible, however, taking note of the fact that the said impugned proceeding was issued without any prior notice, he could not make any further argument to support the impugned order. 4. It is an admitted case that the petitioner after acquiring the B.Ed., qualification became eligible to get the incentive increment for higher qualification. Accordingly, he made an application therefor. Taking note of the fact that he has acquired B.Ed., qualification, the respondents sanctioned the incentive increment way back in July 1995 with effect from 24.05.1994. When he has been enjoying the incentive increment from 24.05.1994, if at all the respondents come to know that the petitioner has made misrepresentation and only on account of misrepresentation, the petitioner was awarded the incentive increment, they could have initiated proper proceeding in tune with law for recovering or cancelling the said incentive increment. But, that is not the case https://hcservices.ecourts.gov.in/hcservices/ of the petitioner as well as the respondents. When the respondents sanctioned the incentive increment for B.Ed., to the petitioner, there is no justification in ordering recovery without notice. 5. In this context, it is relevant to keep in mind the ratio laid down by the Hon'ble Apex Court in the case of Syed Abdul Qadir and others cited supra, which are given as under:- “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judical discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram Vs. State of Haryana, Shyam Babu Verma Vs. Union of India, Union of India Vs. M.Bhaskar, V.Gangaram Vs. Director, Col. B.J. Akkara (Retd.) Vs. Govt. of India, Purshottam Lal Das Vs. State of Bihar, Punjab National Bank Vs. Manjeet Singh and Bihar SEB Vs. Bijay Bhadur.” 6. The above ratio and observation made by the Hon'ble Apex Court is squarely applicable to the facts of this case. Therefore, I am of the opinion that this Court has no other option except to set aside the impugned order. However, it is made clear that it is open to the respondents to proceed afresh by giving proper notice and decide the matter afresh in accordance with law, if the sanction granted in the year 1995 for incentive increment was found to be wrong. https://hcservices.ecourts.gov.in/hcservices/ 7. With the above directions, the Writ Petition is allowed. No costs. Consequently, the connected Miscellaneous Petition is closed. smn Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Director of Elementary Education Chennai – 6 2.The District Elementary Educational Officer Vellore District Vellore 3.The Assistant Elementary Educational Officer Sholingur Vellore Distirct + 1 cc to M/s. C.S. Associates, SR No.34915 RV(CO) SR/4.7.2011 W.P.No.8835 of 2011 https://hcservices.ecourts.gov.in/hcservices/