High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.8.2009CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.924 of 2007 (T)O.A.No.1528 of 2001P.Pichaiya.. Petitioner vs. 1. The Government of TamilNadu rep. by its Secretary to Government School Education Department, Fort St. George, Chennai-92. The Director of School Education, College Road, Nungambakkam, Chennai-63. The Chief Educational Officer, Tiruvannamalai, Tiruvannamalai District4. The Headmaster Government Boys Higher Secondary School Vandavasi, Tiruvannamalai District.. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for a writ of Certiorari to call for the recordspertaining to the impugned orders issued by the first respondent inG.O.Ms.No.100 School Education (M1) Department, dated 18.4.2000 andthe consequential orders passed by the Chief Educational Officer,Tiruvannamalai in Na.Ka.No.8561/A4/2000 dated 29.8.2000 and by thefourth respondent in Na.Ka.No.A1/231/2000 dated 29.12.2000 and setaside the same and award all the consequential benefits. For petitioner : Mr.K.Thennan For respondents : Mr.V.Arun Additional Government Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents. 2. The brief facts of the case are as follows:The petitioner, who was a Secondary Grade Teacher Trainingqualified person, was appointed as Grade II Tamil Pandit, on23.10.1967 and served as Grade II Tamil Pandit till 5.7.1971, inGovernment High School, Koilur, Vellore District. During the periodof his service, as a Grade II Tamil Pandit, he was ousted fromservice, during the months when there was summer vacation, from 1967to 1971. He was posted as a Secondary Grade Teacher, on a regularbasis, from 6.7.1971 to 4.12.1989, in the Government High School, inTiruvannamalai District. Based on his additional qualifications andseniority, he was promoted as Tamil Pandit Grade I, equal to B.T.Assistant i.e., School Assistant, on 5.12.1969. The petitioner isserving as a Tamil pandit Grade I in the Government Boys Highersecondary school, vandavasi, Tiruvannamalai District. He had passedB.Lit., degree during the year 1983 and B.Ed., during the year 1987.He had also obtained M.A., degree during the year 1997 and M.Ed.,degree during the year 1985. 3. The petitioner's service, as a Tamil Pandit Grade II, isequivalent to Secondary Grade Assistant Service. Further, thepetitioner had served in the place of Grade II Tamil Pandit with thequalification of Secondary Grade and as such, it should be treated asSecondary Grade service for all purposes, including regularisation ofSecondary Grade Service, selection/Special Grade in Secondary GradeAssistant Service. 4. The learned counsel appearing for the petitioner hadsubmitted that with regard to a similarly placed person, N.ChethiaGounder, the Government of Tamil Nadu had issued G.O.Ms.No.692,Education, Science and Technology (M1) Department, dated 25.9.1996,while implementing the decision of the Tamil Nadu AdministrativeTribunal, made in O.A.No.4647 of 1993, by an order, dated 10.6.1994.By the said order, the Tamil Nadu Administrative Tribunal haddirected the regularisation of the service of N.Chethia Gounder, aSecondary Grade Assistant, retrospectively, by taking his Grade IITamil Pandit service, as Secondary Grade Service, and to count thesaid Grade II Tamil Pandit service with the Secondary Grade Assistantservice, for all purposes. 5. By a Government Order, in G.O.Ms.NO.692, Education, Scienceand Technology (M1) Department, dated 25.9.1996, the directionsissued by the Tamil Nadu Administrative Tribunal was implemented bythe authority concerned. Since the petitioner is placed in a similar https://hcservices.ecourts.gov.in/hcservices/ situation, he should also be given the benefits, which were given toN.Chethia Gounder. 6. It has been further stated that the Joint Director of SchoolEducation, Chennai, in his proceedings O.Mu.No. 148832/C2/C33/97,dated 6.11.1997, had directed the Chief Educational Officer,Tiruvannamalai, to count the Grade II Tamil Pandit service with theSecondary Grade service for the purpose of awarding Selection/SpecialGrade in Secondary Grade Assistant post. The Chief EducationalOfficer, Tiruvannamalai, had awarded Selection/Special Grade inSecondary Grade by counting the petitioner's Grade II Tamil Panditservice with the Secondary Grade Assistant service. 7. The petitioner was awarded Special Grade in Secondary Grade,from 24.10.1997 onwards. However, without any notice being issued tothe petitioner, the third respondent, by his proceedings, inNa.Ka.No.8561/A4/2000, dated 29.8.2000, had instructed the Headmasterof the School, in which the petitioner was working, to recover thealleged excess Selection/Special Grade Secondary Grade pay awarded tothe petitioner, by calculating the Selection/Special Grade bycounting the Grade II Tamil Pandit service. The fourth respondent,without giving any notice to the petitioner, had passed the impugnedorder of recovery, in his proceedings Na.Ka.No.A1/231/2000, dated29.12.2000. 8. It is further stated that the Government order inG.O.Ms.No.100, School Education (M1) Department, dated 18.4.2000, isthe basis for the order of recovery passed against the petitioner. 9. The main contention of the learned counsel appearing for thepetitioner is that the impugned orders of recovery have been passedwithout any notice being issued to the petitioner to put forth hiscase. The impugned orders are arbitrary and illegal, as it iscontrary to the provisions enshrined in Articles 14 and 16 of theConstitution of India. Further, the respondents had not followed theprinciples of natural justice, while passing the said orders. In suchcircumstances, the impugned orders are liable to be set aside. 10. No reply or counter affidavit has been filed on behalf ofthe respondents.11. The recovery of the excess amount said to have been paid tothe petitioner cannot be made, as held by this Court in its order,dated 27.6.2008, made in W.P.No.16150 of 2006 and as held in thefollowing decisions:11.1) In Shyam Babu Verma V. Union of India ((1994) 2SCC 521), the Supreme Court had held that it is not justand proper to recover any excess amounts already paid tothe petitioner, since the petitioners have received thehigher scale of pay due to no fault of theirs. https://hcservices.ecourts.gov.in/hcservices/

11.2) The Supreme Court, in SAHIB RAM Vs. STATE OFHARYANA ((1995) Supp (1) SCC 18), had held that therecovery of excess payment given by the authoritiesconcerned, by wrong construction of the relevant orders,without any misrepresentation by the employee, cannot bemade. 11.3) The Supreme Court, in BIHAR STATE ELECTRICITYBOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99), had held thatthe recovery of the increments given, not on account of anyrepresentation or misrepresentation, cannot be sustained,as it would not be in consonance with equity, goodconscience, justice and fairness. 11.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC659), the Supreme Court had refused to permit the recoveryof excess payment made, since the person against whom therecovery was to be made was the only breadwinner of thefamily and as she was, financially, not in a position topay back the excess dearness relief drawn. 11.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR ((2006)11 SCC 492) , the Supreme Court had held that the recoveryof the excess amounts paid to the employees could berecovered only in such cases where they have been foundguilty of producing forged certificates or theirappointments had been secured on non-permissible grounds.11.6) In the decision of the Supreme Court, in BABULALJAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it was held thatsince the excess payment had been made on misconception oflaw and not due to any mistake or misrepresentation on thepart of the appellant, the recovery of the excess amount,without issuing any show cause notice, is not justified. 11.7) In the decision of the Supreme Court, in Stateof Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ197(SC), it has been held that where due to confusion indate of birth due to negligence and lapses on the part ofthe authorities due to which a service holder worked beyondhis service tenure and was paid for it, no deduction couldbe made for that period from the retiral dues."11.8) In the decision of a Division Bench of thisCourt in P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006)3 M.L.J.1025), it was held that when the employee was notresponsible for the wrong fixation, the excess payment madecannot be recovered, especially, after the retirement ofthe employee and when the recovery was sought for after 17years of service. https://hcservices.ecourts.gov.in/hcservices/

11.9) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVETRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of thisCourt had held that when the fault of excess payment wascommitted by the Department and their officers and it wasnot due to the petitioner, the petitioner cannot bepenalised after the lapse of number of years, that tooafter his retirement. 11.10) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOLEDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court hadheld that the recovery of excess amount paid cannot berecovered when it was not due to the fault of thepetitioner and when no opportunity had been given to herbefore the order of recovery was passed. Since the salarypaid to the petitioner was not on account of anymisrepresentation and when the order had been passedwithout giving any opportunity to the petitioner to putforth her case, the impugned order of recovery was quashed.12. In view of the submissions made by the learned counselappearing for the petitioner and in view of the decisions citedabove, the impugned order of the first respondent, in G.O.Ms.No.100,School Education (M1) Department, dated 18.4.2000 and theconsequential order passed by the Chief Educational Officer,Tiruvannamalai, the third respondent herein, dated 29.8.2000 and theorder of the fourth respondent, dated 29.12.2000, are set aside,insofar as it relates to the recovery of the amount already paid tothe petitioner, as salary. However, it is open to the respondents toregularise the scale of pay of the petitioner, in accordance withlaw, after affording a reasonable opportunity to the petitioner toput forth his case. Accordingly, the writ petition is allowed, asnoted above. No costs.lanSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary to Government The Government of TamilNadu School Education Department, Fort St. George, Chennai-9 https://hcservices.ecourts.gov.in/hcservices/

2. The Director of School Education College Road, Nungambakkam Chennai-63. The Chief Educational Officer Tiruvannamalai, Tiruvannamalai District4. The Headmaster Government Boys Higher Secondary School Vandavasi, Tiruvannamalai DistrictWrit Petition No.924 of 2007 (T)O.A.No.1528 of 2001GV(CO)VC (01.09.2009)