G.P.Vetrichelvi v. The Additional AssistantElementary Educational Officer Kattumannarkoil Cuddalore District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:17-8-2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.996 of 2009and M.P.Nos.1 & 2 of 2009.....G.P.Vetrichelvi...Petitionervs.1.The Additional AssistantElementary Educational OfficerKattumannarkoilCuddalore District.2.The Accountant General(Accounts & Entitlements)Chennai 600 018.... Respondents Writ petition filed under Article 226 of the Constitution ofIndia for the issue of a writ of Certiorarified Mandamus call forthe records relating to the impugned order of the first respondentin Na.Ka.No.1105/A 4/2008 dated 20.11.2008 and quash the same asstated therein.For petitioner: Mr.P.RajendranFor respondents : Ms.Dhakshyani Reddy Government Advocate for R.1..ORDERThe writ petition is directed against the order of the firstrespondent dated 20.11.2008, by which the respondent directed forthe recovery of an amount of Rs.36,630/- from the salary of thepetitioner at the rate of Rs.3663/- per month for a period of 10months.2. The petitioner, who is working as Headmistress in thePanchayat Union Middle School, Thiruchinnapuram, Kattumannarkoil https://hcservices.ecourts.gov.in/hcservices/ Union was originally appointed as Secondary Grade Teacher on9.11.1987. She passed M.A. and B.Ed. degrees at that time andthereafter, she was promoted as Primary School Headmistress on01.06.2002 and Middle School Headmistress on 23.07.2007. Since thepetitioner was holding higher educational qualifications, she wassanctioned two incentive increments for the possession of M.A. andB.Ed. degree qualifications. The increments were sanctioned in theyear 1994. Even though there was no separate order passed, theamount of increments was added along with her monthly salary.However, the first respondent, by the impugned order directed forthe recovery of the amount on the basis that an audit objection hasbeen raised in respect of the said payment in favour of thepetitioner.3. It is the specific case of the petitioner that theincentive increments were granted to her only due to the reason thatshe was having more qualifications than the required qualificationfor the post she held and taking note of the fact that she washaving higher qualifications, she was granted incentive incrementsand there was no fault on the part of the petitioner. It is alsostated that in respect of a similarly placed person, viz.,M.Gajendran, an amount of Rs.15,423/- was ordered to be recovered atthe rate of Rs.1543/- for 9 months and Rs.1536/- for one month. Itis the case of the petitioner that when the incentive incrementswere sanctioned simultaneously to the petitioner and the saidperson, the amount of recovery in respect of the said person is lessthan the amount ordered to be recovered in the impugned orderagainst the petitioner. According to the petitioner, she had no roleto play in respect of payment of incentive increments. In suchcircumstances, the petitioner has filed this writ petition. 4. In the counter affidavit filed by the first respondent,while it is admitted that the petitioner was having B.Ed. degree andthe appointment was made as per G.O.Ms.No.539, Education, dated21.4.1986, it is the case of the first respondent that as per thesaid G.O., the petitioner is not eligible to draw any incentiveincrement for the possession of higher qualifications. According tothe first respondent, B.Ed. degree is not a higher qualification.It is admitted that the petitioner was granted incentive incrementwith effect from 1.6.1988 for M.A. and B.Ed. qualifications and theimpugned order came to be passed for the purpose of recovery basedon the audit objection raised by the Accountant General and after aperiod of 2½ years from the date of sanction, the amount is soughtto be recovered under the impugned order. It is the case of therespondents that the required qualification of D.T.Ed. for the postof Secondary Grade Teacher is equivalent to that of B.Ed. andtherefore, B.Ed. degree cannot be stated to be a higherqualification. https://hcservices.ecourts.gov.in/hcservices/

5. A reading of the counter affidavit makes it clear thatit is based on the objection raised by the Accountant-General, therecovery has been made. On the facts and circumstances of the case,it is clear that it is not as if the petitioner has herselfrepresented to the first respondent for the grant of the saidincentive increments. While the qualification of the petitioner,that is, M.A., B.Ed. is not in dispute, it is only the case of thefirst respondent that B.Ed. is equivalent to the requiredqualification for the post of Secondary Grade Teacher viz., D.T.Ed.,while admittedly the petitioner has never represented that B.Ed.should be treated as an additional qualification for the grant ofincentive increment and only the first respondent has granted theincentive increment. Further, it is the case of the first respondentthat there was no show-cause notice issued before the recovery wasordered. Therefore it is not possible to accept the contentionraised by the first respondent in the counter affidavit that thepetitioner is liable for recovery of the excess amount from hersalary. It is also seen that while admitting the writ petition,this Court granted interim stay of recovery and the said order ofinterim stay continues till date.6. It is well settled that where there is nomisrepresentation or active involvement of the person concerned forthe purpose of getting any benefit, it cannot be said to be unjustbenefit, if the person has been given such benefit and if at allthere is any remedy to the first respondent, it is only to takeaction against the officials who are said to be responsible for suchmistake. In BabulalJain vs. State of Madhyapradesh and others[(2007) 6 SCC 180], while referring to M.P.Civil Services (CCA)Rules, wherein higher scale was granted in respect of the post heldby a person, taking note of the fact that there was no promotionalopportunity and monetary benefit was given as deputation allowance,it was held as follows:"15. We, however, are of the opinion that in a case ofthis nature, no recovery should be directed to be made.The appellant has discharged higher responsibilities. Itis not a case where he obtained higher salary oncommitting any fraud or misrepresentation. The mistake,if any, take place on a misconception of law. He wasatleast entitled to some allowance. In refixing his pay,his claim to that effect has not been considered. He hassince retired. A sum of Rs.22,000/- has been recoveredfrom him. Such recovery has been effect without issuingany show-cause notice. His case on merit in this behalfhad not been considered by the Government and even by theTribunal. "7. Even before the said judgement, the Supreme Court in https://hcservices.ecourts.gov.in/hcservices/ Sahib Ram vs. State of Haryana and others [(1995) Supp.(1) SCC 918],in similar circumstances, particularly when upgraded pay scale oflibrarian was made on the basis that the incumbent was having betterqualification, held as if the authority is erred in grantingrelaxation or benefit without any misrepresentation on the partyconcerned, the benefit of higher pay scale paid cannot be held to bedue to the fault of the concerned person and the amount cannot berecovered. The relevant portion of the judgement is as follows:"5. Admittedly, the appellant does not possess therequired educational qualifications. Under thecircumstance, the appellant would not be entitled to therelaxation. The principal erred in granting him therelaxation. Since the date of relaxation the appellanthad been paid the salary on the revised scale. However,it is not on account of any misrepresentation made by theappellant that the benefit of the higher pay scale wasgiven to him but by wrong construction made by theprincipal for which the appellant cannot be held to be atfault. Under the circumstance, the amount paid till datemay not be recovered from the appellant. The principal ofequal pay for equal work would not apply to the scalesprescribed by the University Grants Commission. Theappeal is allowed partly without any order as to costs."8. Following the said judgement, this Court inS.A.Kanthimathi vs. Director of School Education, Madras and others.[(2006) 1 MLJ 695], in similar circumstances, held as follows:"3. A perusal of the impugned order of recoverynowhere discloses that the petitioner has misrepresentedor suppressed for the receipt of excess scale of pay.Further, no notice or opportunity was given to thepetitioner before the impugned order of recovery waspassed and as stated, the petitioner also retired fromservice.4. In the said judgement of the Supreme Court, itis clearly stated that since the salary is paid not onaccount of any misrepresentation made by the appellant andthe benefit of higher scale of pay was made by the wrongconstruction made by the Principal for which the appellantcannot be held to be at fault. The facts in this casealso and therefore the impugned order of recovery isquashed. The writ petition is allowed. No costs."9. A Division Bench of Madurai Bench of this Court inP.Arumugam vs. Registrar, Tamil University, Thanjavur [(2006) 3 MLJ1025] while following the said judgement of the Supreme Court inSahib Ram's case, cited supra, construed the provisions of Tamil https://hcservices.ecourts.gov.in/hcservices/ Nadu Pension Rules and held as follows:"11.5. ........... It is relevant to state thatbetween 1.2.1984 i.e. the date of appointment of theappellant as Superintendent in the respondent University,till he was allowed to retire from service on 31.12.2001,the respondent did not raise its little finger as regardsthe alleged excess payment paid to the appellant. On theother hand, knowing fully well about the previousemployment of the appellant, the respondent University inits offer of appointment, dated 13.06.1983 as well as theorder of appointment dated 21.7.1983, specificallymentioned that the pay of the appellant was being fixed ina particular scale ensuring the pay last drawn by theappellant in his previous employment. That apart, it isnot known why in spite of the Audit Objections raised asearly as in the year 1984-85, the respondent did notintimate the same to the appellant nor taken anyproceedings for suitably re-fixing the pay fixed at thetime of issuance of the order of appointment in accordancewith Rule 44(4)(i) of the Tamil Nadu Pension Rules. Therespondent thus, with its eyes wide open, fixed the pay ofthe appellant in a particular scale of pay applicable tohim and also allowed him to draw that pay throughout hisservice in the respondent University till the date of hisretirement. Therefore, while the respondent was squarelyresponsible for the wrong fixation of pay, if any, of theappellant, the appellant was never to be blamed as regardhis pay fixation. ......"10. In addition to the above, on the facts of the case itis clear that while passing the impugned order, there was noopportunity given to the petitioner at all to explain her case. Thisis also in violation of the principles of natural justice. For allthe above said reasons, I am of the view that the impugned orderpassed by the first respondent is not sustainable in law and liableto be set aside and accordingly, it is set aside. The writ petitionis allowed. No costs. Connected miscellaneous petitions areclosed. https://hcservices.ecourts.gov.in/hcservices/

11. In the event of first respondent having recovered anyamount from the petitioner, the first respondent shall refund thesame to the petitioner forthwith. However, it is open to the firstrespondent to refix the salary of the petitioner in accordance withlaw, after giving notice to the petitioner, but it does not meanthat the amount should be recovered from her pay after refixation. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Additional AssistantElementary Educational OfficerKattumannarkoilCuddalore District.2.The Accountant General(Accounts & Entitlements)Chennai 600 018.+1cc to Mr.P.Rajendran, Advocate Sr 39409+1cc to Govt. Pleader SR 39020RSM(CO)km/31.8.W.P.No.996 of 2009