High Court · 2012

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.9.2012CORAM:THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANWrit Petition No.15963 of 2012andM.P.Nos.1 and 2 of 2012D.Madurai Pillai ... Petitioner-Vs-1.Accountant GeneralOffice of the PR.Accountant General(Account & Entitlement)Tamilnadu361, Anna Salai,Chennai-600 018.2.The Treasury OfficerDistrict Treasury, Salem.3.The Treasury OfficerSub-Treasury,Omalur. ... Respondents Prayer:Writ petition under Article 226 of the Constitution ofIndia praying this Honourable Court to issue a writ ofcertiorarified mandamus to call for the records of the impugnedorder dated 26.12.2011 passed by the third respondent in hisproceedings No.Na.Ka.367/2011 based on order passed by the 1strespondent dated 10.10.2011 and quash the same and consequentlydirect the respondents to repay the amount which was alreadyrecovered from the petitioner.For petitioner: Mr.T.GanesanFor Respondents: Mr.V.Vijaya Shankar for R1 Mr.RM.Muthukumar Govt. Advocate for R2& R3 https://hcservices.ecourts.gov.in/hcservices/ ORDERThe petitioner was employed in Agricultural Department andretired from service on 31.5.2006 on reaching the age ofsuperannuation. He was paid pension.2. Pursuant to the recommendations of the Sixth PayCommission, pay was revised with effect from 1.1.2006 for theservice employees and from 1.1.2007 to the retired employees.3. Based on the aforesaid recommendations, pay was revised andfixed at Rs.11,520/- by an order dated 2.2.2010. A grade pay ofRs.2,400/- was also taken into account. Admittedly, pension wasrevised and fixed at Rs.6,960/-. The revised pension was to bepaid with effect from 1.1.2007. The petitioner was paid arrearspursuant to the aforesaid revision.4. While so, the first respondent has found after more than ayear that pension was incorrectly fixed for the petitioner at therevision. According to the first respondent, the revised pay shallbe taken as Rs.9,120/- and not Rs.11,520/-. In that event,pension shall be revised to Rs.5,760/- and not Rs.6,960/-.Accordingly, a show cause notice dated 10.10.2011 was issued tothe petitioner as to why recovery shall not be made ofRs.1,02,936/- representing the excess payment made due toerroneous revision of pension. According to the first respondent,the pension was erroneously revised for the petitioner at Rs.6960/-instead of Rs.5760/-. Ultimately, the impugned order dated26.12.2011 was passed for recovery of Rs.1,02,936/- ininstalments and also for revision of his pension from Rs.6960/- toRs.5760/-.5. The petitioner has filed this writ petition seeking toquash the order dated 26.12.2011. According to the petitioner,the impugned order of recovery is bad and illegal as he was in noway responsible for erroneous fixation of pension and as themistake is on the part of the Department, the petitioner shall notbe made to suffer by way of recovery. He has no objection forcorrectly revising the pension. 6. The respondents filed counter refuting the allegations.It is stated that there was a mistake in revising the pension andthe mistake was rectified by way of impugned order. Therefore, thewrit petition is to be dismissed.7. Heard both sides. https://hcservices.ecourts.gov.in/hcservices/

8. It is not disputed that erroneous revision of pension atRs.6960/- with effect from 7.1.2007 instead of Rs.5760/- was notdue to the furnishing of any details by the petitioner. It wasdue to the mistake committed by the respondents 2 and 3. In thesecircumstances, arrears due to revision in pension was given topetitioner and the same was sought to be recovered on the groundthat there was erroneous calculation. It is done after more thanone and a half year. 9. As stated above, the mistake was not on the part of thepetitioner. There is no misrepresentation on the part of thepetitioner with regard to the revision of his pension. Hence, anyexcess amount paid to the petitioner shall not be recovered fromhim as held by the Apex Court and Division Bench of this Court.In fact, I have considered this in the decision dated 10.9.2009in A.P.N.RUKMANI & OTHERS Vs. THE DISTRICT TREASURY OFFICER,MADURAI & ANOTHER (CDJ 2009 MHC 3952). Para Nos.13 to 15 of theabove decision are extracted hereunder:"13.The Hon'ble Apex Court has categoricallyheld in various decisions that if any excesspayment was made by the Department to anemployee, not due to any misrepresentation fromhim, the Department cannot seek to recover theexcess payment, later. After referring to theearlier decisions in 1995 Supp(1) SCC 18: 1995SCC (L & S) 248 Sahip Ram v. State of Haryana,2000 (10) SCC 99: 2000 SCC (L & S) 394 BiharSEB v.Bijay Bhadur, 2002 (3) SCC 302 State ofKarnataka v. Mangalore University Non TeachingEmployees Association, the Hon'ble Apex Court,held in the decision reported in 2006(11) SCC 492(Purushottam Lal Das v. State of Bihar) that theDepartment cannot resort to recovery of excessamount if the said excess amount was paid not dueto any misrepresentation on the part of theconcerned employee. Paragraph 5 of the judgmentreported in 2006 (11) SCC 492 (referred to supra)is extracted hereunder in this regard:-"5. Admittedly the Appellant does not possess therequired educational qualifications. Under thecircumstances the appellant would not be entitledto the relaxation. The Principal erred ingranting him the relaxation. Since the date ofrelaxation the appellant had been paid his salaryon the revised scale. However, it is not onaccount of any misrepresentation made by theappellant that the benefit of the higher pay https://hcservices.ecourts.gov.in/hcservices/ scale was given to him but by wrong constructionmade by the Principal for which the appellantcannot be held to be at fault. Under thecircumstances the amount paid till date may notbe recovered from the appellant. The principleof equal pay for equal work would not apply tothe scales prescribed by the University GrantsCommission. The appeal is allowed partlywithout any order as to costs.” 14. A Division Bench of this Court inthe case of Palavesamuthu, D. v. Tamil NaduAdministrative Tribunal reported in (2006) 1M.L.J. 143 has followed the decision of theApex Court in Sahib Ram case, referred to above,and in paragraph 6, it has been laiddown as under:-“We are of the view that the course and methodadopted by the Tribunal cannot be appreciated inthe case of the petitioner. Even if it isaccepted for the argument sake that salary ofthe petitioner is fixed in a wrong scale of pay,it is the fault committed by the Department andtheir Officers, for which the petitioner shouldnot be penalised after a lapse of number ofyears that too after retirement of thepetitioner."15. In view of the categoricalpronouncement of the decisions of the Hon'bleApex Court and this court, referred to above,the writ petition is entitled to succeed andaccordingly a direction is issued to therespondents not to recover from the pensionpayable to the petitioner towards the excessamount paid pursuant to the revision in pensionfor the re-employment period of the petitioner.”10. In view of the same, I have no hesitation to quash theimpugned order dated 26.12.2011 in so far as the recovery isconcerned. It is stated that so far Rs.18,000/- (Rupees eighteenthousand only) is recovered. Hence, while quashing the impugnedorder relating to recovery, a direction is issued to therespondents to return back the amount of Rs.18,000/- (Rupeeseighteen thousand only) to the petitioner. However, the revisionof pension from Rs.6,960/- to Rs.5,760/- is not interferedwith. https://hcservices.ecourts.gov.in/hcservices/

11. The writ petition is disposed of in the above terms.No costs. Connected M.P.Nos.1 and 2 of 2012 are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.vksCopy to:-1. Accountant GeneralOffice of the PR.Accountant General(Account & Entitlement)Tamilnadu361, Anna Salai,Chennai-600 018.2.The Treasury OfficerDistrict Treasury, Salem.3.The Treasury OfficerSub-Treasury,Omalur.1 cc to Government Pleader, 585031 cc to Mr.V. Vijay shankar, Advocate, Sr. 585551 cc to Mr.T. Ganesan, Advocate Sr. 58058 W.P.No.15963 of 2012andM.P.Nos.1 and 2 of 2012 SGL (CO)kk 9/10