CORAMTHE HONOURABLE MR v. The Government of Tamil NaduRep. by its Secretary

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 02-04-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.45 of 20041.M.A.Periyanayagam2.S.Karrupasamy3.S.Shakthivel4.T.Bose5.R.Kangaraj.. PetitionersVersus1.The Government of Tamil NaduRep. by its Secretary,Tamil Development, Cultural and Charitable Endowment Department,Fort St. George, Chennai – 600 009.2.The Commissioner,H.R.&C.E. Department,No.119, Uthamar Gandhi Salai,Nungambakkam, Chennai – 600 034.3.The Joint Commissioner / Executive Officer,Arulmighu Dhandayuthapani Swami Thirukoil,Palani – 624 601... RespondentsPRAYER: Petition filed under Article 226 of The Constitution ofIndia to issue a Writ of Certiorarified Mandamus, to call for therecords of the third respondent impugned order, dated 04.11.2003,made in Proceedings Na.Ka.No.4408/03/A1 and quash the same andconsequently permit the petitioners to draw the original scale fixedin the year 2001 and grant the monetary benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Ms.G.ThilakavathiFor Respondents : Mr.V.Viswanathan (AGP) (R1 & R2) Mr.M.Sriram (R3)O R D E RThis Writ Petition has been filed praying for a Writ ofCertiorarified Mandamus to call for the records relating to the orderof the third respondent, dated 04.11.2003, made inNa.Ka.No.4408/03/A1 and to quash the same and to permit thepetitioners to draw the original scale of pay fixed in the year 2001and for other monetary benefits. 2. It has been stated that the third respondent fixed the revisedscale of pay for the petitioners on the basis of the audit reportfrom Rs.4300-100-6000 to that of Rs.4000-100-6000 by the impugnedorder, dated 04.11.2003. The petitioners have been working as RecordClerks in the third respondent temple, in the scale of pay originallyfixed, without any avenue for promotions. 3. Based on the representations made by the petitioners, thepetitioners had been granted selection grade of pay pursuant to theorder, dated 09.07.1991. However, since the pay scales fixed byvarious temples in the State of Tamil Nadu, for persons holdingsimilar posts, were not uniform in nature, the question of re-fixation of pay scales, in terms of the Fifth Pay Commissionrecommendations, had arisen for consideration. Hence, a committee hadbeen constituted, to suggest modifications in the pay scales ofemployees employed in the various temples in the State of Tamil Nadu,in accordance with G.O.Ms.No.257, Tamil Development, Cultural andCharitable Endowments Department, dated 10.06.1998. 4. In view of the recommendations made by the said committee, thepay scales had been revised, with effect from 01.07.1997. With regardto the petitioners, who were holding the post of Record Clerks, thethird respondent had directed the fixation of their pay, with effectfrom 01.07.2001, in the selection grade pay of Rs.4300/-. Thepetitioners were also granted the arrears of selection grade scalefixed in the year 2001. However, without issuing any prior notice tothe petitioners, the impugned order had been passed based seeking torecover the amounts paid to the petitioners, in accordance with therevised pay scale. The impugned order is said to have been passed oncertain audit objections. However, no opportunity had been given tothe petitioners to put forth their case. In such circumstances, thepresent writ petition has been preferred by the petitioners beforethis Court, under Article 226 of the Constitution of India.5. In the counter affidavit filed on behalf of the thirdrespondent, it has been stated that the writ petition filed by the https://hcservices.ecourts.gov.in/hcservices/ petitioners is not maintainable, either in law or on facts, since thepetitioners have suppressed the material facts. Further, thepetitioners have not availed the provisions of Section 21 of theHindu Religious and Charitable Endowments Act, by exhausting thealternative remedies available under law. The second and the thirdpetitioners have already given a written request, on 15.12.2003, tothe third respondent to recover the excess salary received by themfrom their Provident Fund. Since the petitioners are not having thenecessary educational qualifications for their promotion as JuniorAssistants, they had not been promoted to the said post and onlythose persons who are having the necessary educational qualificationswere covered under G.O.Ms.No.257, Tamil Development, Cultural andCharitable Endowments Department, dated 10.06.1998. Since thepetitioners did not possess the minimum educational qualifications,as prescribed therein, the said Government Order is not applicable tothem and therefore, they are not entitled to the benefits of the saidGovernment Order. Further, they do not have the prescribedexperience, as well as the educational qualifications, as perG.O.Ms.No.257, Tamil Development, Cultural and Charitable EndowmentsDepartment, dated 10.06.1998. 6. It has been further stated that the pay of the petitioners,from 01.07.2001, in the selection grade, at the rate of Rs.4300/-,had been fixed by mistake and the same had been pointed out in theaudit report. As per the audit objections, the third respondent hadtaken necessary steps to recover the excess salary paid to thepetitioners, after intimating them, as per the proceedings, dated04.11.2003. Instead of submitting a reply or an objection, they havepreferred the present writ petition before this Court, under Article226 of the Constitution of India.7. In the auditor's report, dated 17.10.2003, it has been clearlypointed out that the petitioners are eligible only for the scale ofpay of Rs.4000-100-6000. The error committed in computing the scaleof pay for the petitioners has been rectified by the impugned orderof the third respondent, dated 4.11.2003. As far as the othersimilarly placed employees are concerned, the excess pay made to themhave been recovered, either from their salaries or from theirprovident fund. Having given their consent to recover the excess paymade to them, the second and the third petitioners have preferred thepresent writ petition by suppressing the said fact. Since the mistakein revising the scale of pay with regard to the petitioners wasapparent on the face of the records, as made out by the auditor'sreport, no notice had been issued to the petitioners. Hence, theproceedings, dated 04.11.2003, issued by the third respondent, isvalid in law and the writ petition is liable to be dismissed asdevoid of merits. 8. The learned counsel appearing on behalf of the petitioners hadsubmitted that even if the petitioners had been paid certain amountsin excess of the salaries due to them, in accordance with the revisedpay scales, it was not due to any fraud committed by them or due to https://hcservices.ecourts.gov.in/hcservices/ their misrepresentation. Further, no notice had been issued to thepetitioners by the respondents before the impugned order had beenpassed. The impugned order of the third respondent, dated 4.11.2003,had been passed based on certain audit objections raised with regardto the fixation of the pay scales of the petitioners. While so, it isnot open to the respondents to raise the issue with regard to theirqualifications. Therefore, the impugned order of the thirdrespondent, dated 4.11.2003, made in Na.Ka.No.4408/03/A1, is liableto be set aside, as invalid in the eye of law.9. The learned counsel appearing on behalf of the thirdrespondent had submitted that the second and the third petitioners,having requested the third respondent to recover the excess salarypaid to them from their provident fund, cannot contend that therespondents should be prevented from recovering the excess paymentsmade to them. Since the petitioners are not having necessaryeducational qualifications for their promotion as Junior assistants,the Government Order, in G.O.Ms.No.257, Tamil Development, Culturaland Charitable Endowments Department, dated 10.6.1998, would not beapplicable to them. The excess amounts paid to certain othersimilarly placed persons have been recovered and since such recoveryhad become final, it may not be appropriate for this Court to grantan order in favour of the petitioners, by quashing the impugned orderof the third respondent, dated 4.11.2003. It has also been submittedthat the petitioners 1 to 3 have already retired from service duringthe pendency of the writ petition and the fourth petitioner had died,on 7.1.2007.10. In view of the submissions made by the learned counselsappearing for the petitioners, as well as the respondents, it isclear that even if certain excess amounts had been paid to thepetitioners, such amounts cannot be recovered since there was nomisrepresentation or fraud committed by the petitioners, based onwhich such excess amounts had been paid to them.11. Further, the recovery of the excess amount said to have beenpaid to the petitioners cannot be made, as held by this Court in itsorder, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held inthe following 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. 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. https://hcservices.ecourts.gov.in/hcservices/

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 State ofBihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197(SC), it has been held that where due to confusion in dateof birth due to negligence and lapses on the part of theauthorities due to which a service holder worked beyond hisservice tenure and was paid for it, no deduction could bemade for that period from the retiral dues."11.8) In the decision of a Division Bench of this Courtin P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006) 3M.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. 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 SCHOOL https://hcservices.ecourts.gov.in/hcservices/ EDUCATION, 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 decisions of the supreme Court cited supra,the respondents cannot be permitted to recover the excess amountspaid to the petitioners, even if such payments have been made bymistake. However, if any amount paid, as excess, has already beenrecovered, there would be no duty cast on the respondents to refundthe same, pursuant to this order. Since it has been submitted thatthe petitioners 1 to 3 have already retired from service and thefourth petitioner had died, on 7.1.2007, during the pendency of thewrit petition, the question of recovery of the amounts paid to themwould not arise, at this stage. Accordingly, the impugned order ofthe third respondent, dated 4.11.2003, shall stand quashed in so faras the petitioners are concerned. 13. However, with regard to the prayer of the petitioners to drawthe revised scale of pay, as fixed in the year 2001, it is made clearthat it would be open to the respondents to refix the scale of pay ofthe fifth petitioner, in accordance with the relevant provisions oflaw applicable to him, after giving him sufficient opportunity to putforth his case.Hence, the writ petition is partly allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary,Tamil Development, Cultural and Charitable Endowment Department,Fort St. George, Chennai – 600 009.2.The Commissioner,H.R.&C.E. Department,No.119, Uthamar Gandhi Salai,Nungambakkam, Chennai – 600 034.3.The Joint Commissioner / Executive Officer,Arulmighu Dhandayuthapani Swami Thirukoil,Palani – 624 601. 1 CC To Mr.M.Sriram , Advocate, SR NO.12020/091 CC To Mr.G.Thilakavathi, Advocate, SR NO.11745/09Writ Petition No.45 of 2004SA(CO)PMK.18.4.2009