G.DHANDAPANI v. THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL), COLLEGE ROAD, CHENNAI-62 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 22.2.2010CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN Writ Petition No.1896 of 2006 G.DHANDAPANI [ PETITIONER ] Vs1 THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL), COLLEGE ROAD, CHENNAI-62 THE CHIEF EDUCATIONAL OFFICER KARUR, KARUR DISTRICT.[ RESPONDENTS ] Prayer: Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a Writ of Certiorarified Mandamus to callfor the records relating to the impugned order of the secondrespondent in Na.Ka.No.4330/A4/03, dated 2.9.2005, and quash the sameand direct the respondents 1 and 2 not to disallow the bonusincrement to the petitioner. For petitioner : Mr.P.Rajendran For respondents : Mr.R.Murali Government Advocate for R1 and R2O R D E RThis writ petition has been filed praying for a writ ofCertiorarified Mandamus to call for and quash the impugned order ofthe second respondent, dated 2.9.2005, and to direct the respondentsnot to disallow the bonus increment to the petitioner. 2. The petitioner has stated that he was appointed as a TamilPandit (Grade II), on 5.11.1964. Before his appointment as a TamilPandit, (Grade II), he was working as an untrained Tamil Pandit, from3.8.1962 to 4.11.1964. Later, he was promoted as a Tamil Pandit(Grade I), on 14.4.1966. In the year, 1995, he was offered apromotion, as the Headmaster of the High School, in the scale of payof Rs.6500-200-10,500. Since, the scale of pay, in which thepetitioner was drawing his pay, as a Tamil Pandit (Special Grade),was higher than the scale of pay for the post of Headmaster of a HighSchool, the petitioner had expressed his inability to accept theoffer of promotion. The rejection of the offer for promotion by thepetitioner had been accepted by the Director of School Education andit had been recorded in the petitioner's service register. Thus, thepetitioner had continued as a Tamil Pandit (Grade I). https://hcservices.ecourts.gov.in/hcservices/

3. It has been further stated that in the year, 1998, theGovernment of Tamil Nadu had issued a Government Order, inG.O.Ms.No.562, Finance (Pay Cell) Department, dated 28.9.1998,directing that the employees stagnating in the special grade, beyond10 years, may be granted one bonus increment, as an incentive. Thesaid order took effect from 1.9.1998. Since, the petitioner hadstagnated in the post of Tamil Pandit (Grade I) for more than 30years and in the special grade for over 10 years, he was given thebenefit of the said Government order. Thus, the petitioner wasallowed the bonus increment. Thereafter, the petitioner had retiredfrom service, on 31.1.2000, as a Tamil Pandit (Grade I) from theGovernment High School, Neithalur, Karur District. 4. It has been further stated that 3 years after the petitionerhad retired from service, the Chief Educational Officer, KarurDistrict, the second respondent herein, had issued an order, inNa.Ka.No.4330/B1/03, dated 8.8.2003, stating that a complaint hadbeen received pointing out that the petitioner had received thebenefit of bonus increment after relinquishing the promotion to thepost of Headmaster and that on a perusal of the petitioner's serviceregister, it was confirmed that he had availed the bonus increment,without being eligible for the same. Therefore, it was directed thatthe bonus increment, allowed in favour of the petitioner, with effectfrom 1.9.1998, was directed to be cancelled and the Headmaster of theSchool in which the petitioner had worked was directed to re-fix thepay scale of the petitioner without allowing the bonus increment.Further, there was a direction to take action to recover the excessamounts given to the petitioner on account of the bonus increment.Even though the petitioner had made representations in respect of thedirections issued to recover the excess amount paid to him and to re-fix the pay scale, no order had been passed by the Joint Director ofSchool Education (Personnel), Chennai. While so, the ChiefEducational Officer, Karur, had issued the impugned order, dated2.9.2005, directing the petitioner to remit the excess amountsreceived by him, in the Government account, as per the order, dated8.8.2003. In such circumstances, the petitioner had preferred thepresent writ petition before this Court, under Article 226 of theConstitution of India. 5. A counter affidavit has been filed on behalf of the secondrespondent stating that the petitioner had availed one specialincrement (bonus increment), from 1.9.1998, contrary to theconditions specified, in G.O.Ms.No.562, Finance (Pay Cell)Department, dated 28.9.1998, and the clarifications issued, inNo.35681/CMPC/2000, dated 17.7.2000, addressed to all the Heads ofDepartments, clarifying that the bonus increments should not beavailed by an employee, who had relinquished the promotion offered tohim. This was once again clarified in the Government letter No.168,School Education Department, dated 11.10.2001. Since, the petitionerhad relinquished his chances of promotion, on three occasions, he wasnot eligible for the bonus increment. Further, the petitioner hadalready executed consent declarations, even before the pensionarybenefits had been sanctioned, to enable the recovery of the excesspayment received by him, if any, during the tenure of his service, asper Rule 71 (3)(a) of the Tamil Nadu pension Rules, 1978. It has also https://hcservices.ecourts.gov.in/hcservices/ been stated that, as per G.O.Ms.No.230, Personnel and AdministrationReforms Department, dated 7.4.1988, charges, if any, pending against a dead employee, have to be withdrawn. 6. It has also been stated that the petitioner had died, on30.12.2008 and therefore, the legitimate steps taken by the secondrespondent, to effect the recovery, had become futile. 7. The learned counsel appearing for the petitioner hadsubmitted that the impugned order of the second respondent, dated2.9.2005, is contrary to law and the principles of natural justice.No action had been taken by the respondents, within the stipulatedperiod of 12 months, as provided under Rule 71 (3)(a) of the TamilNadu pension Rules. As such, the action taken by the secondrespondent, after a period of 3 years from the date of thepetitioner's retirement, is contrary to the said rule. 8. It was further stated that the relinquishment of promotion bythe petitioner, in the year 1995, had been accepted and entered inthe service register of the petitioner. The grant of bonus incrementto the petitioner had been approved by the office of the AccountantGeneral, Chennai, after all the entries in the petitioner's serviceregister had been verified. The petitioner had not suppressed anymaterial fact to avail bonus increment, nor had he made anymisrepresentation, based on which the bonus increment had beenallowed. The bonus increment had been allowed to the petitioner, inaccordance with the Government Order, in G.O.Ms.No.562, Finance (PayCell) Department, dated 28.9.1998. The said order does not say thatthe persons, who had relinquished their promotions, were not eligibleto receive the bonus increment. Since, the petitioner had fulfilledthe necessary conditions stipulated in the Government order, thebonus increment had been allowed in his favour. Further, no noticehad been issued to the petitioner and no opportunity had been givento him to putforth his case before the order, dated 8.8.2003,cancelling the bonus increment, had been issued. In suchcircumstances, the impugned order of the second respondent, dated2.9.2005, is liable to be set aside. 9. The following decisions, relating to the recovery of excessamounts paid to the employees, are in favour of the petitioner in thepresent writ petition. 9.1) In PURSHOTTAM LAL DAS Vs. STATE OF BHIAR ((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. 9.2) The Supreme Court, in BIHAR STATE ELECTRICITYBOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99) had held that therecovery 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. 9.3) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC659), the Supreme Court had refused to permit the recovery https://hcservices.ecourts.gov.in/hcservices/ of 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 to payback the excess dearness relief drawn. 9.4) The Supreme Court, in SAHIB RAM Vs. STATE OFHARYANA ((1995) Supp (1) SCC 18) had held that the recoveryof excess payment given by the authorities concerned, bywrong construction of the relevant orders, without anymisrepresentation by the employee, cannot be made. 9.5) 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. 9.6) 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. 9.7) 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. 9.8) 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.10. In view of the averments made by the learned counselsappearing for the parties concerned and in view of the contentionsraised on their behalf, and on a perusal of the records available andin view of the decisions cited supra, it is clear that the excessamounts said to have been paid to the petitioner is not due to anymisrepresentation or fraud on the part of the petitioner. Thepetitioner cannot be held liable for the fault committed by theconcerned authorities, who were responsible for fixing the scale ofpay of the petitioner. Further, it is not the case of the respondentsthat the excess amount had been granted to the petitioner, based onhis misrepresentation or fraud. Hence, the impugned order of thesecond respondent, dated 2.9.2005, is set aside, only insofar as it https://hcservices.ecourts.gov.in/hcservices/ relates to the recovery of bonus increment, granted in favour of thepetitioner. Accordingly, the writ petition stands partly allowed. Nocosts. Consequently, connected W.P.M.P.No.2150 of 2006 is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarlanTo:1. THE JOINT DIRECTOR OF SCHOOL EDUCATION (PERSONNEL) COLLEGE ROAD CHENNAI-62. THE CHIEF EDUCATIONAL OFFICER KARUR, KARUR DISTRICT.Writ Petition No.1896 of 2006 KGK(CO)RVL 23.03.2010