S.Venkatesan v. The Assistant ElementaryEducation Officer, Kottur

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 11-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.3440 of 2007(O.A.No.232 of 2001)S.Venkatesan.. Petitioner.VersusThe Assistant ElementaryEducation Officer, Kottur... Respondent.Prayer: Original Application No.232 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.3440 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 2.11.1987. His initial appointment in thepost of Secondary Grade teacher was on contract basis. Thereafter,his service, as a Secondary Grade teacher, was regularised and he wasbrought into regular appointment, with effect from 1.6.1988. Whileso, the petitioner had been awarded with an increment for hisqualification as a Post Graduate in Arts, with effect from 1.6.1988,which is the initial date of his regular appointment. The petitionerhas been drawing his salary, along with the incentive increment, asper the orders of the respondent, dated 24.12.1992, with effect from1.6.1988. However, the respondent had passed the impugned orderseeking to recover the amount paid to the petitioner as increment. Insuch circumstances, the petitioner had preferred the present writpetition before this Court, under Article 226 of the Constitution ofIndia. https://hcservices.ecourts.gov.in/hcservices/

3. A reply affidavit has been filed on behalf of the respondentdenying the claims made by the petitioner. It has been stated thatthe respondent had ordered for the recovery of the excess amount paidto the petitioner by way of irregular sanction of increment, since itwas against the Government Order. The recovery has been ordered onlywith the intention of rectifying the mistake which had beencommitted. The petitioner is not entitled to the benefit of theincentive increment for having higher qualifications.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 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 https://hcservices.ecourts.gov.in/hcservices/ (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. 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 was quashed.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 as itrelates to the recovery of the amounts already paid to the petitioneras increment. Accordingly, the writ petition is allowed, as notedabove. 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+ 1 cc to the Government Pleader, SR No.22588KGK(CO)SR/25.6.2009Writ Petition No.3440 of 2007