T.Baby Chandrabai v. State of Tamil Nadu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 17-06-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.48398 of 2006(O.A.No.293 of 2001)T.Baby Chandrabai.. Petitioner/ApplicantVersus1.State of Tamil Nadu,rep. By its Secretary to Government,School Education Department,Secretariat, Chennai-9.2.Headmistress,Government Girls Higher Sec. School,Modakkurichi, Erode District... Respondents/RespondentsPrayer: Original Application No.293 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.48398 of 2006,seeking for a writ of Certiorari, to call for the records pertainingto the order passed by the 1st respondent in Government LetterNo.1661/E2/2000-4 School Education Department, dated 12.2.2000 andthe consequential order passed by the 2nd respondent in herproceedings No.641E/2000, dated 29.12.2000 and set aside the same. For Petitioner : Mr.S.ManiFor Respondents : 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 respondents.2. The brief facts of the case are as follows:The petitioner has obtained the qualification of B.Litt., in theyear, 1975 and she had also undergone Pandit Training Course in theyear, 1984 and had obtained a Masters Degree in Tamil in the year,1996. She was appointed as B.T. Tamil Pandit, on 22.11.1996. Whileso, she was sanctioned one set of incentive increments for acquiringM.A. Qualification, from 22.11.1996, in the month of September, 1998.The scale of pay of the petitioner, which was Rs.1400/- had beenrevised, as per the Tamil Nadu Revised Scale of Pay Rules, 1998.Accordingly, the scale of pay had been fixed at Rs.5500/-, with https://hcservices.ecourts.gov.in/hcservices/ effect from 1.1.1996. Thereafter, based on her request, two incentiveincrements were given to the petitioner for her higher qualification,from 22.11.1996. Thereafter, her scale of pay had also been revised.While so, the Government of Tamil Nadu had issued orders, in LetterNo.1661/E2/2000-4, School Education Department, dated 12.2.2000,whereby, it has been directed that the incentive increments shouldnot be given in the revised scale of pay and therefore, the secondrespondent had instructed that the incentive increments, alreadysanctioned in the new scale of pay, were to be recovered from thesalary of the concerned persons. In such circumstances, thepetitioner has preferred the present writ petition before this Court. 3. At this stage of the hearing of the writ petition the learnedcounsel for the petitioner had placed before this Court, variousdecisions passed by this Court under similar circumstances, holdingthat the recovery of the salaries paid or incentives granted cannotbe recovered, unless it was due to misrepresentation or fraudcommitted by the petitioner. The learned counsel for the petitionerhad submitted that there was no misrepresentation or fraud on thepart of the petitioner based on which the incentives had been grantedto her.4. The learned counsel appearing on behalf of the respondents hadnot refuted the submissions made by the learned counsel appearing onbehalf of the petitioner. 5. 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 the https://hcservices.ecourts.gov.in/hcservices/ family 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 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.6. 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 2nd respondent, in proceedingsNo.641E/2000, dated 29.12.2000, is set aside, in so far as it https://hcservices.ecourts.gov.in/hcservices/ relates to the recovery of the amounts already paid to the petitioneras incentive increments. 7. However, the petitioner is permitted to make a representationto the first respondent, with regard to his claim for re-fixation ofthe pay scale and for claiming additional increments, if any, withina period of fifteen days from today and on such representation beingmade, the first respondent is directed to dispose of the same, onmerits and in accordance with law, within a period of twelve weeksthereafter. Accordingly, the writ petition is disposed of, with the abovedirections. No costs.Sd/-Assistant Registrar/True Copy/Sub Assistant RegistrarcshTo1. The Secretary to Government,State of Tamil Nadu,School Education Department,Secretariat, Chennai-9.2.Headmistress,Government Girls Higher Sec. School,Modakkurichi, Erode District.Writ Petition No.48398 of 2006PUR(CO)SRA(13/07/2009)