R.Senthur Pandy v. The Secretary Education Department, Government of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 15-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.4362 of 2007(O.A.No.517 of 2001)R.Senthur Pandy.. Petitioner. Versus1.The SecretaryEducation Department, Government of Tamil NaduSecretariat, Chennai-600 009.

Director of Elementary Education, College Road, Chennai-600 006.

District Elementary Educational Officer, Thiruvallore.

Assistant Elementary Education Officer, Pozhal... Respondents. Prayer: Original Application No.517 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.4362 of 2007,seeking for a writ of certiorarified mandamus to call for therecords of the impugned order Na.Ka.No.437530/A53/2000, dated19.12.2000, passed by the 2nd respondent and set aside the same asnull and void and against the principle of natural justice andconsequently direct the respondents not to proceed for recovery ofincentive increment already granted so as to enable the applicantto receive the incentive increment continuously and regularly asper the eligibility and entitlement as Post Graduate Teacher. For Petitioner : Mr.S.G.ThangavelFor 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 therespondents.2. It has been stated that the petitioner had joined as an Assistant Teacher at Thanjapuram, Radhapuram Panchayat UnionSchool, Tirunelveli District, on 16.11.1970. Subsequently, he hadbeen transferred as an Assistant Teacher to Radhapuram Union and Pozhal Union. Thereafter, he had been transferred and posted as an Assistant Teacher at Tiruvottiyur Municipal Primary School. Sincehe had acquired an M.A.Degree in the year 1994 and B.Ed., degree inthe year 1996, he was given certain benefits and privileges, including an incentive increment, with effect from 27.9.1996, likethose of the post graduate teachers, who had obtained theirqualifications from regular university courses. However, by theimpugned order, the second respondent had issued directions torecover the incentive increments, which had been paid to thepetitioner, with effect from 27.9.1996, in accordance with therelevant rules applicable to such appointments.

In suchcircumstances, the petitioner has preferred the present writpetition before this Court, under Article 226 of the Constitutionof India.3. No reply or counter affidavit has been filed on behalf ofthe respondents.4. 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:4.1) 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. 4.2) 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.

4.3) 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, https://hcservices.ecourts.gov.in/hcservices/ good conscience, justice and fairness. 4.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC659), 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. 4.5) 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 ortheir appointments had been secured on non-permissiblegrounds.4.6) In the decision of the Supreme Court, in BABULALJAIN Vs.

STATE OF M.P. ((2007) 6 SCC 180), it was heldthat 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. 4.7) 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. "4.8) In the decision of a Division Bench of this Court 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.

4.9) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVETRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of this Court 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. 4.10) 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 salary https://hcservices.ecourts.gov.in/hcservices/ paid 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.

In view of the submissions made by the learned counselappearing on behalf of the petitioner, and in view of the decisionscited above, the impugned order of the second respondent, passed inNa.Ka.No.437530/A53/2000, dated 19.12.2000, is set aside, in so faras it relates to the recovery of the amounts already paid to thepetitioner, as increment. Accordingly, the writ petition isallowed, as noted above. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarcshTo1.The SecretaryEducation Department, Government of Tamil NaduSecretariat, Chennai-600 009.2.The Director of Elementary Education, College Road, Chennai-600 006.3.The District Elementary Educational Officer, Thiruvallore. 4. The Assistant Elementary Education Officer, Pozhal.+1cc to Govt. Pleader Sr 23232PA(CO)km/3.7.Writ Petition No.4362 of 2007