H.N.Bheeman v. The District Adhi Dravidra and TribalWelfare Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21-01-2010CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDRENWrit Petition No.608 of 2006H.N.Bheeman.. Petitioner.Versus1.The District Adhi Dravidra and TribalWelfare Officer, Udhagamandalam.2.The Principal Accountant General (A&E)of Tamilnad,361, Anna Salai, Chennai-18.3.The Director of Adhi Dravidar and TribalWelfare, Chepauk, Chennai-5... Respondents.Prayer: Petition filed under Article 226 of the Constitution ofIndia, praying for a writ of Certiorarified Mandamus to call forthe records of the first respondent issued in Na.Ka.H3 No.42440/03,dated 28.4.2005, and in Na.Ka.No.H3 No.42440/03, dated 19.5.2005,and the proceedings of the second respondent in No.AG (A&UE)/PEN P09/31B15-628-R EB-2005-2006 17864, dated 6.10.2005, and quash thesame and issue a consequential direction to the respondents to fixthe petitioner's pay in the post of Selection grade Middle schoolHead Master, on 19.6.1988, and special grade scale of pay in thepost of Middle school Headmaster, on 19.6.1998, and to grantarrears and to fix pension and other benefits. For petitioner : Mr.R.Saseetharan For respondents : Mr.A.Suresh Government Advocate (R1 & R3) Mr.T.Ravikumar (R2)O R D E RHeard the learned counsel appearing for the petitioner and thelearned counsels appearing for the respondents.2. The brief facts of the case are as follows:The petitioner had been appointed as a Secondary Grade https://hcservices.ecourts.gov.in/hcservices/ Teacher, on 20.10.1965, at the Government Tribal School,Kunjapanai, Nilgiris District, as per the order of the DistrictAdhi Dravidar and Tribal Welfare Officer. On 11.6.1966, he had beentransferred and posted as the Headmaster of the Government TribalElementary School, Anaikatti, Nilgiris District. The probation ofthe petitioner, as a Secondary Grade Teacher, had been declared ascompleted, with effect from 11.6.1968.2.1. The post of Primary School Head Master and SecondarySchool Teacher were interchangeable and transferable before1.6.1988. The petitioner had acquired B.A. and B.Ed. degrees fromthe Madras University. Thus, he was eligible for promotion to thepost of B.T.Assistant and B.Ed. Headmaster. Before 1.6.1988, thepost of B.T and B.Ed Grade Middle School Head Master were treatedas one and the same and they were interchangeable. 2.2. The petitioner had been promoted as a B.T.Assistant, on19.6.1978. He was posted as a Tutor cum Warden at the GovernmentBoys Hostel, Ooty, which is equivalent to that of a B.T. Assistant.The pay of the petitioner had been fixed in the pay scale ofRs.300-500, as per the proceedings of the District Adhi Dravida andTribal Welfare Officer. The petitioner's service in the post ofB.T. Assistant was regularised, with effect from 19.6.1978.Thereafter, he was transferred and posted as Middle School HeadMaster at the Government Tribal Middle School, Kunjapanai, atNilgiris District, as per the proceedings of the District AdhiDravida Welfare Officer, dated 17.6.1971. The petitioner had joinedthe said post, on 3.7.1981 and his pay had been fixed in the scaleof pay of a B.T.Assistant. 2.3. Thereafter, on 31.8.2003, the petitioner had retired fromservice, on his attaining the age of superannuation. The last drawnpay of the petitioner, in the post of Middle School Headmaster, hadbeen fixed at Rs.11,575/-, in the Special Grade Pay of the MiddleSchool Headmaster of Rs.9100-14050. The last drawn pay had beentaken into account for the calculation of the petitioner's pensionand his other terminal benefits. However, based on the objectionsraised by the Accountant General, the District Adhi DravidarWelfare Officer, by his proceedings, dated 28.4.2005, had refixedthe pay of the petitioner in the post of Middle School Headmaster,with effect from 3.7.1981. Further, he had directed that thealleged excess amount, drawn by the petitioner should be refundedto the Government Treasury account. Further, the petitioner's payhad been fixed at Rs.1820/-, as on 1.6.1988, in the scale of pay ofRs.1640 – 2900, against the pay of Rs.2025-2275, which had beenoriginally fixed.2.4. Based on the impugned orders, dated 28.4.2005 and19.5.2005, issued by the first respondent, refixing the scale ofpay of the petitioner and ordering the recovery of the allegedexcess pay paid to the petitioner, consequential orders have beenpassed by the second respondent, ordering the recovery of the https://hcservices.ecourts.gov.in/hcservices/ alleged excess pay paid to the petitioner, from the Death cumRetirement Gratuity. In such circumstances, the petitioner haspreferred the present writ petition before this Court, underArticle 226 of the Constitution of India.3. The main contention of the learned counsel appearing forthe petitioner is that the impugned orders of recovery have beenpassed, without any notice being issued to the petitioner to putforth his case. The impugned orders are arbitrary and illegal, asit is contrary to the provisions enshrined in Articles 14 and 16 ofthe Constitution of India. Further, the respondents had notfollowed the principles of natural justice, while passing the saidorders. In such circumstances, the impugned orders are liable to beset aside. 4. No reply or counter affidavit has been filed on behalf ofthe respondents.5. 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:5.1) 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. 5.2) 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. 5.3) 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 ofany representation or misrepresentation, cannot besustained, as it would not be in consonance with equity,good conscience, justice and fairness. 5.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10SCC 659), the Supreme Court had refused to permit therecovery of excess payment made, since the person againstwhom the recovery was to be made was the only breadwinnerof the family and as she was, financially, not in aposition to pay back the excess dearness relief drawn. 5.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR((2006) 11 SCC 492) , the Supreme Court had held that therecovery of the excess amounts paid to the employeescould be recovered only in such cases where they havebeen found guilty of producing forged certificates or https://hcservices.ecourts.gov.in/hcservices/ their appointments had been secured on non-permissiblegrounds.5.6) In the decision of the Supreme Court, inBABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it washeld that since the excess payment had been made onmisconception of law and not due to any mistake ormisrepresentation on the part of the appellant, therecovery of the excess amount, without issuing any showcause notice, is not justified. 5.7) 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 workedbeyond his service tenure and was paid for it, nodeduction could be made for that period from the retiraldues."5.8) 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 employeewas not responsible for the wrong fixation, the excesspayment made cannot be recovered, especially, after theretirement of the employee and when the recovery wassought for after 17 years of service. 5.9) 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. 5.10) 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 wasquashed. 6. In view of the submissions made by the learned counselappearing for the petitioner and in view of the decisions citedabove, the impugned orders of the first respondent, dated 28.4.2005and dated 19.5.2005, and the proceedings of the second respondent,dated 6.10.2005, are set aside, insofar as it relates to therecovery of the amount due to the petitioner, as retiral benefits.However, it is open to the respondents to refix scale of pay of thepetitioner, in accordance with law, after affording a reasonable https://hcservices.ecourts.gov.in/hcservices/ opportunity to the petitioner to put forth his case. Accordingly,the writ petition is allowed, as noted above. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo:1.The District Adhi Dravidra and TribalWelfare Officer, Udhagamandalam.2.The Principal Accountant General (A&E)of Tamilnad,361, Anna Salai, Chennai-18.3.The Director of Adhi Dravidar and TribalWelfare, Chepauk, Chennai-5.+2ccs to Govt. Pleader Sr 4072,4073+1cc to Mr.T.Ravi Kumar, Advocate Sr 3948SV(CO)km/4.2.Writ Petition No.608 of 2006