K.Meiyappan v. The Assistant ElementaryEducation Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 11-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.3439 of 2007(O.A.No.231 of 2001)K.Meiyappan.. Petitioner.VersusThe Assistant ElementaryEducation Officer, Kottur... Respondent.Prayer: Original Application No.231 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.3439 of 2007,seeking for a writ of Certiorari to call for the records pertainingto the impugned order of the respondent passed inNa.Ka.No.186/A1/2000, dated 18.11.2000, and set aside the same. For Petitioner : Mr.V.KathiravanFor Respondent : Mr.V.Arun Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondent.2. The brief facts of the case are as follows:The petitioner, who is a Post Graduate in Arts and Education,had joined in service, on 4.11.1987. His initial appointment in thepost of Secondary Grade teacher was on contract basis. Thereafter,his service, as a Secondary Grade teacher, was regularised and hewas brought into regular appointment, with effect from 1.6.1988.While so, the petitioner had been awarded with an increment for hisqualification as a Post Graduate in Arts, with effect from1.6.1988, which is the initial date of his regular appointment. Thepetitioner has been drawing his salary, along with the incentiveincrement, as per the orders of the respondent, dated 19.3.1992,with effect from 1.6.1988. However, the respondent had passed theimpugned order seeking to recover the amount paid to the petitioneras increment. In such circumstances, the petitioner had preferredthe present writ petition before this Court, under Article 226 ofthe Constitution of India. https://hcservices.ecourts.gov.in/hcservices/

3. A reply affidavit has been filed on behalf of therespondents denying the claims made by the petitioner. It has beenstated that the respondent had ordered for the recovery of theexcess amount paid to the petitioner by way of irregular sanctionof increment, since it was against the Government Order. Therecovery has been ordered only with the intention of rectifying themistake which had been committed. The petitioner is not entitled tothe benefit of the incentive increment for having higherqualifications.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,good conscience, justice and fairness. 4.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10SCC 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 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, inBABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it washeld that 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 show https://hcservices.ecourts.gov.in/hcservices/ cause 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 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. 4.9) 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. 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 wasquashed. 5. 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 respondent, passed inNa.Ka.No.186/A1/2000, dated 18.11.2000, is set aside, in so far asit relates to the recovery of the amounts already paid to thepetitioner as increment. Accordingly, the writ petition is allowed,as noted above. No costs.cshSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Assistant ElementaryEducation Officer, Kottur.+ 1 cc to Mr. V. Kathiravan, Advocate SR No.22240/09+ 1 cc to the Government Pleader, SR No.22588/09KGK(CO)SR/25.6.2009Writ Petition No.3439 of 2007