TN.Post Graduate TeachersAssociation (Reg.No.10/78) v. The Secretary to the Government of Tamil Nadu, Education Department, Fort St. George, Chennai-9 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 17-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.3436 of 2007(O.A.No.279 of 2001)TN.Post Graduate TeachersAssociation (Reg.No.10/78)reptd. By its State Legal SecretaryV.Veeranan Office at No.5, Vivekanandar Street, Sivalingapuram,Koratur, Chennai-600 076... Petitioner.Versus1. The Secretary to the Governmentof Tamil Nadu, Education Department,Fort St. George, Chennai-9.2.The Director of School Education,College Road, Chennai-6.3.The Joint Director of SchoolEducation (Higher Secondary Course),College Road, Chennai-600 006. .. Respondents. Prayer: Original Application No.279 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.3436 of 2007,seeking for a writ of Certiorarified Mandamus, to call for therecords of the order of the 1st respondent, dated 12.2.2000, issued inthe Ref.No.Lr.No.1661/E2/2000-4 and the order of the II respondent,dated 18.10.2000, issued in the Ref.Na.Ka.No.147502/K-2-2000 andquash the same and further direct the respondent to continue to payincentive to those who were promoted/appointed as P.G.Assistantbetween 1.1.96 to 31.3.98 in the revised pay of VI Pay Commission.For Petitioner : Mr.K.ThennanFor 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 the respondents.2. This writ petition has been filed challenging the impugnedproceedings of the first respondent, dated 18.10.2000, in so far asit relates to the recovery of the incentive increments paid to themembers of the petitioner Association. 3. It has been stated as far as the teachers are concerned theyare eligible for incentives for acquiring higher qualifications.Originally, a teacher was eligible for two incentives in a cadre.Subsequently, for the entire cadre, a teacher was given twoincentives. As far as P.G. Teachers were concerned, who wereappointed between 1.1.96 and 31.3.98, they were eligible for twoincentives for higher qualifications in the VI Pay Commission.However, by the impugned order of the first respondent, dated12.2.2000, the incentives which were due to the members of thepetitioner Association have been denied. Hence, the petitionerAssociation has preferred the present writ petition before this Court.4. At this stage of the hearing of the writ petition the learnedcounsel for the petitioner had placed before this Court, variousdecisions passed by this Court under similar circumstances, holdingthat the recovery of the salaries paid or incentives granted cannotbe recovered, unless it was due to misrepresentation or fraudcommitted by the concerned claimants. The learned counsel for thepetitioner had submitted that there was no misrepresentation or fraudon the part of the members of the petitioner Association based onwhich the incentives had been granted to them. 5. The learned counsel appearing on behalf of the respondentshas not refuted the submissions made by the learned counsel appearingon behalf of the petitioner. 6. 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 OF https://hcservices.ecourts.gov.in/hcservices/ 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. 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 of anyrepresentation or misrepresentation, cannot be sustained,as it would not be in consonance with equity, goodconscience, justice and fairness. 4.4) 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. 4.5) 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.4.6) 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. 4.7) 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."4.8) 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. 4.9) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVE https://hcservices.ecourts.gov.in/hcservices/ TRIBUNAL ((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. 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 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.7. In view of the submissions made by the learned counselappearing on behalf of the petitioner, and in view of the decisionscited above, the impugned orders of the 1st respondent, dated12.2.2000, issued in Ref.No.Lr.No.1661/E2/2000-4 and the order of the2nd respondent, dated 18.10.2000, issued in the Ref.Na.Ka.No.147502/K-2-2000, are set aside, in so far as it relates to the recovery of theamounts already paid to the petitioner as incentive increments. 8. However, the petitioner is permitted to make a representationto the first respondent, with regard to his claim for re-fixation ofthe pay scale and for claiming additional increments, if any, withina period of fifteen days from today and on such representation beingmade, the first respondent is directed to dispose of the same, onmerits and in accordance with law, within a period of twelve weeksthereafter. Accordingly, the writ petition is disposed of, with the abovedirections. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarcsh https://hcservices.ecourts.gov.in/hcservices/ To1. The Secretary to the Governmentof Tamil Nadu, Education Department,Fort St. George, Chennai-9.2.The Director of School Education,College Road, Chennai-6.3.The Joint Director of SchoolEducation (Higher Secondary Course),College Road, Chennai-600 006.Writ Petition No.3436 of 2007KJ(CO)PMK..13.7.2009