S.Mary Selvarani v. The Assistant Elementary Educational Officer,Thiruvaiyaru,Thanjavur District

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.6.2009CORAM:THE HONOURABLE MR.JUSTICE M.JAICHANDRENW.P.No.2963 of 2007 (T)O.A.No.447 of 20011. S.Mary Selvarani2. T.Gandhi3. S.Vallinayagam... PetitionersVs.The Assistant Elementary Educational Officer,Thiruvaiyaru,Thanjavur District.... Respondent Original Application No.447 of 2001 filed before the Tamil NaduAdministrative Tribunal, on abolition, transferred to the file ofthis Court and renumbered as W.P.No.2963 of 2007, seeking a writ ofCertiorarified Mandamus, calling for the records relating to theimpugned order of the respondent in Na.Ka.No.1340/2000/Aa2 dated10.10.2000 and quash the same so far as the petitioners are concerned.For Petitioners : Mr.P.RajendranFor Respondent : Mr.V.Arun, Additional Government PleaderO R D E RThe Writ Petition has been filed praying for the issuance of awrit of Certiorarified Mandamus, calling for the records relating tothe impugned order of the respondent, in Na.Ka.No.1340/2000/Aa2,dated 10.10.2000 and quash the same in so far as the petitioners areconcerned.2.It has been submitted that the 1st petitioner is working asa Headmaster at Panchayat Union Elementary School, Kadamangudi,Thiruvaiyaru, Thanjavur District. The 2nd petitioner is working as aSecondary Grade Teacher, Panchayat Union Middle School, Kandiyur(South), Thanjavur District. The 3rd petitioner is working as aSecondary Grade Teacher, Panchayat Union Middle School, MohamedBunder, Thanjavur District. All the three petitioners are working inthe Thiruvaiyaru Panchayat Union. The petitioners were having degreequalifications at the time of their appointment as Secondary Grade https://hcservices.ecourts.gov.in/hcservices/ Teachers. Even though, they were initially appointed on contractbasis, their services had been regularised in the post of SecondaryGrade Teacher. A Secondary Grade Teacher, who is in possession ofhigher educational qualifications, shall be allowed incentiveincrements. Since the petitioners were in possession of highereducational qualifications, they were allowed incentive increments.However, the Assistant Elementary Educational Officer, Thiruvaiyaru,Thanjavur District, the respondent herein, had issued the impugnedorder, dated 10.10.2000, seeking to recover the incentive incrementspaid to the petitioners. Under such circumstances, the petitionershave preferred the present Writ Petition before this Court underArticle 226 of the Constitution of India.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 the excessamount paid to the petitioner by way of irregular sanction ofincrement, since it was against the Government Order. The recoveryhas been ordered only with the intention of rectifying the mistakewhich had been committed. The petitioner is not entitled to thebenefit of the incentive 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. https://hcservices.ecourts.gov.in/hcservices/

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. 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.1340/2000/Aa2, dated 10.10.2000, 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, https://hcservices.ecourts.gov.in/hcservices/ as noted above. No costs. However, it is open to the respondent torefix the pay scales that may be due to the petitioners. However itshall be done only after giving sufficient opportunity of hearing tothe petitioners to put forth their cases.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsiTo:The Assistant Elementary Educational Officer,Thiruvaiyaru, Thanjavur District.1 cc To Mr.P.Rajendran, Advocate, SR.23337.1 cc To The Government Pleader, SR.23233.W.P.No.2963 of 2007 (T) (O.A.No.447/2001) VS(CO)RVL 02.07.2009