N.Selvaraj v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.8.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.3268 of 2001 N.Selvaraj .. Petitioner vs. 1. The Government of Tamil Nadu rep. by Secretary to Government Education Department Fort St. George Madras-92. The Director of Elementary Education College Road Chennai-63. The District Elementary Educational Officer Namakkal Nakakkal District4. The Additional Assistant Elementary Educational Officer Namakkal Namakkal District .. RespondentsThis writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorarified Mandamus to call for the records in relation to theorder made in N.K.No.254/A1/2000, N.K.No.84/B1/2001, dated 11.1.2001and in N.K.No.84/B1/2001, dated 2.2.2001, issued by the AdditionalAssistant Elementary Officer, Namakkal District and issue aconsequential direction to the respondents to fix the petitioner'spay at Rs.6725/- as in the case of his junior namely M.K.Ramadosswith effect from 1.4.1996 as per the earlier order of the DistrictElementary Educational Officer, dated 25.1.1999 issued inN.K.No.6091/A4/94. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.R.Saseetharan For Respondents : Mr.T.Seenivasan Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents.2. The petitioner has stated that he is working as a SecondaryGrade Teacher, Kalaimagal Primary School, Nallipalayam Post,Namakkal District, which is a private aided primary school receivingteaching grant from the Government of Tamil Nadu. The said school isfunctioning in accordance with the provisions of the Tamil NaduPrivate Schools Regulation Act, 1973, and the rules framedthereunder and the Government orders applicable to such anInstitution. The petitioner had joined in service as a SecondaryGrade Teacher, on 1.4.1974. After completing 10 years of service, hewas awarded selection grade pay in the post of Secondary GradeTeacher, on 1.4.1984. He was also awarded Special Grade Pay in thepost of Secondary Grade Teacher, with effect from 1.4.1994. 3. The petitioner has further stated that his pay at selectiongrade was fixed at Rs.1550/- in the scale of pay of Rs.1400-2600,with effect from 1.6.1988, as per the recommendations of the TamilNadu Vth Pay Commission and his pay in the special grade was fixedat Rs.1880 + 30 PP in the scale of pay of Rs.1640-2900. 4. The petitioner has further stated that he had passed B.A.Literature and had also passed B.Ed., examination. The petitionerhad passed the Master of Arts degree in the month of April, 1988. Hewas granted two incentive increments for passing B.Ed., examinationat the rate of Rs.35 + 35 and he was given two further incrementsfor passing M.A. examination from 30.4.1988, at the rate of Rs.35 +35. The Government of Tamil Nadu had introduced the scheme ofawarding the incentive increments as per G.O.Ms.No.42, dated10.1.1969. The incentive increments had been granted to thepetitioner as per the Government order in G.O.Ms.No.42, dated10.1.1969, for M.A. and B.Ed., qualifications. One M.K.Ramadoss, whowas a junior to the petitioner, had been appointed as a SecondaryGrade Teacher only on 1.6.1974. His pay was fixed as per therecommendations of the Vth pay commission at Rs.1500/- in the scaleof pay of Rs.1400-2600, with effect from 1.6.1988. Whereas, the payof the petitioner was fixed at Rs.1,550/- in the scale of pay ofRs.1400-2600. Both the petitioner, as well as his juniorM.K.Ramadoss, had been awarded the selection grade in the scale of https://hcservices.ecourts.gov.in/hcservices/ Rs.1400-2600. Thereafter, M.K.Ramadoss had been given the specialgrade pay at Rs.1820 + 30 PP in the scale of pay at Rs.1640-2900,with effect from 1.6.1994. The petitioner was awarded special gradepay at Rs.1880 + 30 PP in the scale of pay Rs.1640-2900. 5. The petitioner has further stated that as per therecommendations of the VIth pay commission, the petitioner's pay wasfixed at Rs.6025/- in the scale of pay Rs.5500-9000. However,M.K.Ramadoss was granted two advance increments for passing M.A. andB.Ed., examinations, with effect from 4.1.1996, as per theproceedings of the Additional Assistant Elementary EducationalOfficer, dated 4.4.1996. According to which, the pay of M.K.Ramadosswas fixed at Rs.6550/- by giving 4 incentive increments at the rateof 175/. Therefore, his pay was raised from Rs.5050/- to that of6550/-. Whereas, the pay of the petitioner was fixed at Rs.6025/-,even though he had acquired M.A. and B.Ed., qualifications. WhileM.K.Ramadoss had been granted a higher rate of pay at Rs.6550/-after adding 4 incentive increments at the rate of Rs.175/- to thebasic pay of Rs.5850/- in the new scale of pay of Rs.5500-175-9000,the petitioner was granted 4 incentive increments for the samequalifications only at the rate of Rs.30/- in the pre-revised scaleof pay of Rs.950-30. Therefore, the pay anomaly had been rectifiedby the proceedings of the District Elementary Educational Officer,Namakkal, by his proceedings, dated 25.1.1999, by stepping up thepay of the petitioner, with effect from 1.4.1996, at Rs.6,725/-.However, the District Elementary Educational Officer, by his order,dated 29.12.2000, had passed an order of recovery of the paymentsgiven to M.K.Ramadoss, by way of incentive increments, stating thathe was not entitled for the same in view of G.O.Ms.No.307,Education, dated 15.12.2000, as an M.A. degree holder of the OpenUniversity system of Annamalai University was entitled for theincentive increments only from 15.12.2000 and not from 4.1.1996, asit had been calculated earlier. While so, the Additional AssistantElementary Educational Officer, had reduced the salary of thepetitioner from Rs.6,725/- to Rs.6,200/- by his impugned order,dated 29.12.2000. The petitioner's pay was raised from Rs.6,025/- toRs.6,725/- for the reason that his Junior is getting pay atRs.6,725/-, as on 1.4.1996, by virtue of 4 incentive incrementsgranted to him. Since the increments granted to M.K.Ramadoss wascancelled by an order, dated 29.12.2000, the impugned order had alsobeen passed against the petitioner reducing the pay of thepetitioner to Rs.6,025/- and the excess amount alleged to have beengranted to the petitioner was ordered to be paid back, in accordancewith the order, dated 29.12.2000. 6. In the counter affidavit filed on behalf of the thirdrespondent, it has been stated that the two incentive incrementssanctioned to M.K.Ramadoss, who was junior to the petitioner, wasordered to be recovered as he was not eligible for the same, since https://hcservices.ecourts.gov.in/hcservices/ he had obtained the post graduate degree and B.Ed., degree throughthe open university system conducted by the Annamalai Universitywithout qualifying for the Bachelors degree. Since the petitioner'spay was stepped up to the level of pay being paid to the JuniorM.K.Ramadoss, it had to be reduced thereafter and the excess amountpaid to the petitioner had to be recovered as per the audit report,in accordance with G.O.Ms.No.307, Education, dated 15.12.2000. Thepetitioner ought to have preferred an appeal against the impugnedorder. Instead, he had approached this Court by way of writ petitionfiled under Article 226 of the Constitution of India. Since thefourth respondent had sanctioned the incentive increments toM.K.Ramadoss for the qualifications obtained through the openuniversity system by mistake, the excess amount paid had to berecovered. Similarly, the excess amount paid to the petitioner werealso ordered to be recovered. Since the petitioner is eligible forthe incentive increments, with effect from 15.12.2000, in accordancewith G.O.Ms.No.307, Education, dated 15.12.2000, necessary orderswould be passed by the Government after disposal of the present writpetition.7. The main contention of the learned counsel for thepetitioner is that no prior notice had been issued to the petitionerbefore the impugned orders had been passed. Further, there was nomisrepresentation or fraud committed by the petitioner, based onwhich the refixation of the petitioner's scale of pay was made. 8. The learned counsel has also submitted that in similarcircumstances, this Court had set aside the orders issued by theconcerned authorities attempting to recover the amounts paid assalary, increments and other allowances. The learned counsel for thepetitioner had relied on the decision of this Court, dated26.3.2008, made in W.P.No.36514 of 2007.9. The learned Additional Government Pleader appearing for therespondents had not refuted the contentions raised on behalf of thepetitioner. 10. The following decisions, relating to the recovery of excessamounts paid to the employees, are in favour of the petitioner inthe present writ petition. 10.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR((2006) 11 SCC 492) , the Supreme Court had held that therecovery of the excess amounts paid to the employees couldbe recovered only in such cases where they have been foundguilty of producing forged certificates or theirappointments had been secured on non-permissible grounds. 10.2) The Supreme Court, in BIHAR STATE ELECTRICITYBOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99) had held that https://hcservices.ecourts.gov.in/hcservices/ the 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. 10.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000)10 SCC 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 a positionto pay back the excess dearness relief drawn. 10.4) The Supreme Court, in SAHIB RAM Vs. STATEOF HARYANA ((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. 10.5) 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. 10.6) 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. 10.7) 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. 10.8) 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 put https://hcservices.ecourts.gov.in/hcservices/ forth her case, the impugned order of recovery wasquashed. 11. In view of the submissions made by the learned counselsappearing on behalf of the parties concerned and in view of thedecisions rendered by the Courts of law and on a perusal of therecords available before this Court, it is clear that the excessamount said to have been paid to the petitioner is not due to anymisrepresentation or fraud on the part of the petitioner. Further,no notice had been issued to the petitioner to put forth his casebefore the impugned orders of recovery had been passed. Thepetitioner cannot be held liable for the fault committed by theconcerned authorities, who were responsible for fixing the scale ofpay of the petitioner. 12. In such circumstances, the impugned orders made inN.K.No.254/A1/2000, dated 29.12.2000, in N.K.No.84/B1/2001, dated11.1.2001 and in N.K.No.84/B1/2001, dated 2.2.2001, issued by theAdditional Assistant Elementary Officer, Namakkal District, thefourth respondent herein, seeking to recover the excess amount paidto the petitioner is liable to be set aside, as it have been passedwithout issuing the necessary notice to the petitioner and withoutgiving him an opportunity to put forth his case. Further, it is notthe case of the respondents that the excess amount had been grantedto the petitioner based on his misrepresentation or fraud.Therefore, the impugned orders made in N.K.No.254/A1/2000, dated29.12.2000, in N.K.No.84/B1/2001, dated 11.1.2001 and inN.K.No.84/B1/2001, dated 2.2.2001, issued by the AdditionalAssistant Elementary Officer, Namakkal District, the fourthrespondent herein, are set aside. However, with regard to the prayerto fix the petitioner's pay at Rs.6725/-, as in the case of hisjunior, namely, M.K.Ramadoss, with effect from 1.4.1996, as per theearlier order of the District Elementary Educational Officer, dated25.1.1999 issued in N.K.No.6091/A4/94, it is open to therespondents to re-fix the scale of pay of the petitioner inaccordance with the rules and the Government orders applicable tothe petitioner, after giving him an opportunity of being heard. Accordingly, the writ petition stands partly allowed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.lan https://hcservices.ecourts.gov.in/hcservices/ To:1. The Secretary to Government Education Department The Government of Tamil Nadu Fort St. George, Madras-92. The Director of Elementary Education College Road, Chennai-63. The District Elementary Educational Officer Namakkal, Nakakkal District4. The Additional Assistant Elementary Educational Officer Namakkal, Namakkal District1 cc to Government Pleader, Sr. 43543W.P.No.3268 of 2001 KGK (CO)kk 21/8