S.Pushparaj v. The District Elementary Educational Officer,Cuddalore,Cuddalore District

IN THE HIGH COURT OF JUDICATAURE AT MADRASDATED 13.10.2011CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.5139 of 2007(O.A.NO.4597/2001)S.Pushparaj .. Petitioner Vs.

The District Elementary Educational Officer, Cuddalore, Cuddalore District.

The Assistant ElementaryEducational Officer, Keerapalayam, Chidambaram Taluk, Cuddalore District. .. Respondents The Original Application No.4597 of 2001 had been filedbefore the Tamil Nadu Administrative Tribunal and after abolitionof the Tribunal, the same was transferred to this Court andrenumbered as Writ petition seeking relief to direct therespondents to call for the entire records pertaining to theimpugned order of recovery passed by the second respondent in hisproceeding Na.Ka.No.231/A1/2000 dated 11.7.2001 and quash the same. For Petitioner : Mr.K.Thennan For Respondents : Mr.RM.Muthukumar Government Advocate

O R D E R The writ petition is filed to direct the respondents to callfor the entire records pertaining to the impugned order of recoverypassed by the second respondent in his proceedingNa.Ka.No.231/A1/2000 dated 11.7.2001 and quash the same. 2. It is the case of the petitioner that the petitioner wasworking as Secondary Grade Assistant in Panchayat Union Schoolfrom 18.08.1986 to 01.07.1997. He was promoted as B.T.GradeHeadmaster in Middle School by the first respondent in hisproceedings Na.Ka.No.3944/A6/97 dated 2.7.1997. The Time Scale of Pay of the of B.T. Grade Headmaster was granted to the petitionerfrom 2.7.1997 by the proceedings Na.Ka.No.227/A1/97 dated 15.7.1997 https://hcservices.ecourts.gov.in/hcservices/ of the second respondent. While so, without any notice, the secondrespondent passed the impugned order in his proceedingsNa.Ka.No.231/A1/2000 dated 11.7.2001 stating that the petitionerwas erroneously promoted as B.T.Grade Headmaster in Middle Schoolon 2.7.1997 overlooking one D.Venkatesan, who is the senior of thepetitioner and therefore, he should be treated as B.T. Grade MiddleSchool Headmaster only with effect from 22.12.2000 and not from2.7.1997 and sought to recover the excess pay that was given to thepetitioner as B.T.Grade Headmaster of Middle School from 2.7.1997to 21.12.2000. Hence, the petitioner filed O.A.No.4597 of 2001(W.P.No.5139 of 2007) to quash the impugned order of recoverypassed by the second respondent in his proceedingNa.Ka.No.231/A1/2000 dated 11.7.2001.

No counter affidavit has been filed by the respondents.

Heard both sides.

The learned counsel for the petitioner submits that theimpugned order passed by the second respondent is in blatantviolation of the principles of natural justice as the petitionerwas not heard before passing the same. It is also submitted thatthe petitioner was promoted as B.T.Grade Middle School Headmasterfrom 2.7.1997 based on his seniority only and not on therepresentation or mis-representation of the petitioner concerned. Hence, the respondents could not effect any recovery from thesalary of the petitioner paid for the post of B.T Grade MiddleSchool Headmaster. It is further submitted that since thepetitioner is working as B.T.Grade Middle School Headmaster from2.7.1997, the respondents could not recover from the salary on theprinciple of quantum meruit and the respondents should have paid tothe petitioner as per the emoluments available in the aforesaidhigher pay scale during the time he actually worked in the saidpost of B.T.Grade Middle School Headmaster.

In support of his submission, he relied on the decision ofthe Hon'ble Apex Court in SELVARAJ VS. LT.GOVERNOR OF ISLAND, PORTBLAIR AND OTHERS (1998 (II) LLJ (SC) 1191) and the decision of thelearned Single Judge of this Court in N.RAJASEKARAN NAIR VS.SECRETARY TO GOVERNMENT, MUNICIPAL ADMINISTRTION AND WATER SUPPLYDEPARTMENT, FORT ST. GEORGE AND ANOTHER (2006 (2) MLJ 420).

On the other hand, the learned Government Advocate seeks tosustain the impugned order of the second respondent stating thatthere was a mistake committed by the officials and hence, theorder of recovery is sought to be sustained by this Court.

I have heard the submissions made on either side.

It is not in dispute that the petitioner discharged thefunctions of the B.T.Grade Middle School Headmaster from 2.7.1997and hence, the salary could be paid to the post of B.T.GradeMiddle School Headmaster as per the decision of the Hon'ble ApexCourt SELVARAJ VS. LT.GOVERNOR OF ISLAND, PORT BLAIR AND OTHERS https://hcservices.ecourts.gov.in/hcservices/ (1998 (II) LLJ (SC) 1191) (cited supra). The relevant portion ofparagraph 3 of the said judgment is extracted hereunder: "Fact remains that the appellant has worked onthe higher post though temporarily and in anofficiating capacity pursuant to the aforesaid orderand his salary was to be drawn during that timeagainst the post of Secretary (Scouts). It is alsonot in dispute that the salary attached to the postof Secretary (Scouts) was in the pay scale ofRs.1640-2900. Consequently, on the principle ofquantum meruit the respondent authorities shouldhave paid the appellant as per the emolumentsavailable in the aforesaid higher pay scale duringthe time he actually worked on the said post of Secretary (Scouts) though in an officiating capacityand not as a regular promotee. This limited reliefis required to be given to the appellant only onthis ground. "

The decision of this Court in N.RAJASEKARAN NAIR VS.SECRETARY TO GOVERNMENT, MUNICIPAL ADMINISTRTION AND WATER SUPPLYDEPARTMENT, FORT ST. GEORGE AND ANOTHER (2006 (2) MLJ 420) (citedsupra) is also squarely applicable to the facts of this case. Paragraph 9 to 12 of the above said judgment are extractedhereunder: "In the decision reported in(SELVARAJ VS.LT. GOVERNOR OF ISLAND, PORT BLAIR) (1998) 4(SCC) 291 in paras 3 and 4 the Hon'ble SupremeCourt held that the pay of higher post ifadmissible when an employee is looking afterduties of that post, the employee is entitled toget the higher post pay even though the said postis not to be treated as promotion. In the other judgment cited by the learnedcounsel for the petitioner which is reported inJASWANT SINGH V. PUNJAB POULTRY FIELD STAFFASSOCIATION, (2002) I.S.C 261, the Supreme Courtheld that even if a person promoted is notqualified to hold the post, but discharged theduties in the promotion post, he is entitled toget the pay and allowances admissible to thepromotion post.

The above referred judgments of the Supreme Court are followed by a Division Bench ofthis Court in the decision reported in UNION OFINDIA V. CENTRAL ADMINISTRATIVE (2004) 1 A.T.J.24.

The other objection that the promotionwas given only as stop-gap arrangement is alsoanswered by the Hon'ble Supreme Court in paras 6and 7 of the decision reported in SECRETARY-CUM- https://hcservices.ecourts.gov.in/hcservices/ CHIEF ENGINEER V. HARI OM SHARMA (1998)5 SCC 87. Therefore, the said objection is alsounsustainable".11.Furthermore, the learned counsel for the petitionersubmitted that the promotion of the petitioner to the post of B.T.Grade Middle School Headmaster on 2.7.1997 was not on anymisrepresentation on the side of the petitioner and hence as perthe decision of the Hon'ble Division Bench of this Court in CHIEFENGINEER (GENERAL), PUBLIC WORKS DEPARTMENT, CHENNAI AND ANOTHERVS. M. THANASEKARAN (2009 (5) MLJ (HC/SC) no recovery could bemade. Paragraphs 3 and 4 of the said judgment are extractedhereunder: "As far as the recovery of excess salary, orexcess payment made to an employee, the law is wellsettled. If the excess payment is made, on themisrepresentation of the employee concerned, the State Government would certainly be entitled todirect for recovery of such excess payment. On theother hand, if the excess payment is made by the State even though by mistake, such excess paymentcannot be recovered. To support the above, we mayrefer to the following judgments in (1)Col.B.J.Akkara (Retd) v. Government of India and Others (2006) 11 SCC 709, (2) Shyam Babu Verma v.Union of India (1994) 2 SCC 521 : 1994 SCC (L&S)683 : (1994) 27 ATAC 121 : 1994-I-LLJ-815, (3)Union of India v. M.Bhaskar (1996) 4 SCC 416 : 1996SCC (L&S) 967 and (4) V.Gangaram v. Regional JointDirector AIR 1997 SC 2776 : (1997) 6 SCC 139 :(1997) SCC (L&S) 1652 apart from referring to thejudgment of the Apex Court referred by the learnedsingle Judge. 4. In view of the above, we find no merit inthe appeal as admittedly, the scale of pay wasfixed by the appellant themselves and not on therepresentation or mis-representation of theemployee concerned. Accordingly, the appeal isdismissed. Consequently, connected miscellaneouspetition is closed. No costs".12.In the light of the above said decisions, the secondrespondent is not correct in passing the impugned order to effectthe recovery. Therefore, the impugned order of recovery passed bythe second respondent is liable to be quashed and the same isquashed accordingly. https://hcservices.ecourts.gov.in/hcservices/