S.Sharfuddin v. The Director of School Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 10-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.48384 of 2006S.Sharfuddin ..PetitionerVersus1.The Director of School Education, College Road, Nungambakkam, Chennai-6.2.The Chief Educational Officer, Tiruvannamalai, Tiruvannamalai District.3.The Headmaster, Government Boys Higher Secondary School, Vandavasi-604 408, Tiruvannamalai District. ..RespondentsPrayer: Petition filed under Article 226 of the Constitution of Indiato seeking for a writ of Certiorari, to call for the entire recordspertaining to the impugned orders issued by the first respondent inG.O.Ms.No.100 School Education (M1) Department, dated 18.4.2000, andthe consequential orders passed by the Chief Educational Officer,Thiruvannamalai in Na.Ka.No.1469/A4/2000, dated 28.8.2000 and setaside the same and award all the consequential benefits. For Petitioner : Mr.K.ThennanFor Respondents : Mrs.Dhakshayani Reddy Government Advocate (R1 to R3)O R D E RHeard the learned counsel appearing for the petitioner and thelearned Government Advocate appearing for the respondents.2. It is submitted that the petitioner who was initially aSecondary Grade teacher, was appointed as Grade-II Tamil Pandit, on8.9.1967, and he had served as such till 1.9.1969 in the Government https://hcservices.ecourts.gov.in/hcservices/ High School, Irumbedu, Tiruvannamalai District. While so, he wasousted from service during the summer vacations in the month of Mayof the years 1968 and 1969. Later, he was posted as a Secondary Gradeteacher, on regular basis, in the Government High School,Sorakolathur, Thiruvannamalai District and he had been functioning assuch, from 2.6.1969 to 14.7.1995. Based on his qualifications andseniority he was promoted as a B.T.Assistant, on 15.7.1995. Therequest of the petitioner is that his service as Tamil Pandit Grade-II, which is equivalent to the service of a Secondary GradeAssistant, should be counted as Secondary Grade service for allpurposes, including regularisation of Secondary Grade service,Selection/Special Grade in Secondary Grade Assistant service.However, by the impugned orders issued by the first respondent, inG.O.Ms.No.100, School Education (M1) Department, dated 18.4.2000, andthe consequential orders passed by the Chief Educational Officer,Thiruvannamalai, in Na.Ka.No.1469/A4/2000, dated 28.8.2000, therespondents are seeking to reduce the pay of the petitioner torecover the alleged excess payment made in favour of the petitioner.The reduction of the pay scale of the petitioner is a major penaltyand therefore, the respondents ought to have followed the proceduresestablished in Rule 17(b) of the Tamil Nadu Civil Services(Classification, Control and Appeal) Rules. Since no opportunity hadbeen given to the petitioner to put forth his case, the impugnedorders are devoid of merits and therefore, liable to be set aside. 3. No reply or counter affidavit has been filed on behalf of therespondents.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, https://hcservices.ecourts.gov.in/hcservices/ 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. 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 had https://hcservices.ecourts.gov.in/hcservices/ held 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 first respondent, inG.O.Ms.No.100, School Education (M1) Department, dated 18.4.2000, andthe consequential order passed by the Chief Educational Officer,Thiruvannamalai, in Na.Ka.No.1469/A4/2000, dated 28.8.2000, are setaside,in so far as it relates to the recovery of the amounts alreadypaid to the petitioner as salary. However, it is open to therespondents to regularise the scale of pay of the petitioner, inaccordance with law, after affording a reasonable opportunity to thepetitioner to put forth his case. Accordingly, the writ petition isallowed as noted above. No costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1.The Director of School Education, College Road, Nungambakkam, Chennai-6.2.The Chief Educational Officer, Tiruvannamalai, Tiruvannamalai District.3.The Headmaster, Government Boys Higher Secondary School, Vandavasi-604 408, Tiruvannamalai District.Writ Petition No.48384 of 2006SSN (CO)GSK 26.06.2009.