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Judgment
Elipe Dharma Rao, J.—The petitioner is a retired B.T. Middle School Headmaster and he is challenging the proceedings issued by the
respondents 3 and 4, ordering recovery of the alleged excess payments made to him, while he was in service, which was confirmed by the
Tribunal.
The brief facts leading to the filing of this writ petition are that the petitioner was appointed as Elementary School Headmaster in the year 1966
and thereafter in the year 1979, i.e. after a period of 13 years, he was promoted to the post of B.T. Middle School Headmaster and since
subsequently, the Middle School, where the petitioner was working, was upgraded as High School in the year 1989, he was absorbed as B.T.
Assistant in the said High School from 1989 and retired as such on 31.5.2003. When proposals were sent regarding the payment of the retiral
benefits to the petitioner, the third respondent, took an objection regarding the fixation of the pay of the petitioner as a Middle School Headmaster
and directed to fix the pay of the petitioner in the time scale of Rs.1640-2900 instead of Rs.2000-3200 w.e.f. 7.7.1989 and Rs.6500-10500
instead of Rs.9100-14050. It is also ordered that the petitioner is eligible for Special Grade Scale of Pay of B.T. Assistant at Rs.8000-13500 only
w.e.f. 7.11.1999 and that he is not eligible for bonus increment, observing that the petitioner has not completed ten years in special grade and 30
years in the same post. With such directions, the third respondent directed the fourth respondent to review the entire pay fixation from the date of
absorption of the petitioner in the post of B.T. Assistant from the post of Headmaster, Middle School and to recover the excess pay and
allowances paid to the petitioner. In compliance of the said directions of the third respondent, the fourth respondent, by his order dated
25.11.2003, has ordered recovery of a total sum of Rs.4,35,007/= from the terminal benefits of the petitioner, by re-fixing his pay. These orders
were unsuccessfully challenged by the petitioner before the Tribunal, resulting in his landing before this Court, by way of this writ petition.
There is no dispute with regard to the fact that by the time the petitioner entered into service in the year 1966, the pay of the post of the
Secondary Grade Teacher and the Headmaster of Elementary School is one and same and the post of Headmaster was not a promotive post,
which was made so on and from 1.6.1988 by giving higher pay scale to the post of Elementary School Headmaster by G.O.Ms. No. 1381,
Education Department, dated 5.10.1990, after the implementation of the V Pay Commission Report. But, even prior to that, i.e. on 7.11.1979
itself, the petitioner was promoted to the post of B.T. Grade Middle School Headmaster in Mittapalli, Uthangarai Panchayat Union and since on
and from 7.7.1989, the said School was upgraded as High School, the petitioner was absorbed as B.T. Assistant. Thus, the petitioner has worked
as Elementary School Headmaster for a period of 13 years 5 months and as a B.T.Grade Middle School Headmaster for a period of 8 years and
8 months, in toto more than 22 years. As such, since as on 1.6.1988, he was holding the post of B.T. Grade Middle School Headmaster and had
completed more than 20 years of Service as Elementary School Headmaster and Middle School Headmaster, he was awarded Special Grade
Middle School Headmaster pay scale of Rs.2200-4000 from 1.6.1988 onwards by the Assistant Education Officer, Uthangarai in his proceedings
in Na.Ka. No. 1266/91, A1, in the month of December, 1991.
It is seen from the materials placed on record that while the petitioner was receiving the said pay scale of Special Grade Middle School, the
third respondent raised an Audit Objection in his proceeding AG(AU) I ISC/IV/II/PRP/92-93 Case No. 57/846, dated 20.10.1992, objecting the
award of the Special Grade Middle School Headmaster pay scale in the pay scale of Rs.1640-2900.
According to the Government of Tamil Nadu Finance (PC) Department Lr. No. 46818/PC II 90.I, dated 20.11.1990 and clarification of the
Government in their Letter No. 86313/PC II/91, dated 13.2.1992, the services rendered by Headmasters Secondary Grade in Selection
Grade/Special Grade prior to 1.6.1988 to be reckoned for the purpose of awarding Selection Grade/Special Grade in the revised scale of pay of
Headmaster (B.T.Grade) Middle School. Admittedly, as has already been stated supra, the petitioner was a Special Grade Middle School
Headmaster on 1.6.1988 and hence, he is entitled for the benefits of the above letters of the Government. Accordingly, a suitable and fitting reply
was given to the Audit Objection raised by the third respondent by the 4th respondent. It is pertinent to note that the said reply was accepted by
the third respondent and allowed the said pay scale to the petitioner by their proceedings in AG(A) I/ISC IV/II/PRR/ Case No. 157/92-93/1383,
dated 31.12.1993, as follows:
Accepting your reply that the pay of Shri G. Venugopal, B.T. Asst. Government High School, Mittapalli had been regulated in the scale of pay
admissible to Special Grade B.T. Asst. Post be Rs.2000-3200 w.e.f. 7.7.89, the para No. 18 of Part-II B of the above mentioned Inspection
Report is treated as settled.
Thus, having already accepted the reply sent by the 4th respondent for the audit objection raised by the third respondent and having treated the
said objection as ''settled'', the third respondent is again raking up the same issue, when the pension proposals were sent to them.
The fourth respondent has filed a counter affidavit before the Tribunal stating that since the Government in G.O.Ms. No. 1178, dated
22.12.1993 and in Letter No. 33627/Edn 4/97, dated 9.8.1999 had clearly stated that for movement to Selection/Special Grade in Headmaster
Middle School post, the total service rendered in Headmaster Middle School post, prior to or after 1.10.1970 and the services of Secondary
Grade Teachers who were acting as Headmaster Middle School on 2.10.1970, but reverted due to lack of seniority and got scale scale protection
could not be counted and that the petitioner was not the Headmaster Middle School on 2.10.1970 and his total service as on 1.6.1988 in
Headmaster Middle School post works out to 8 years 7 months and 24 days only and therefore, he was entitled only to ordinary grade scale of
Headmaster Middle School on 1.6.1988 and the Special Grade Scale of Pay in Headmaster Middle School post awarded was not in order. We
are unable to accept this explanation offered by the fourth respondent for the reason that even by the time, they treated the audit objection raised
by them as ''settled'' by their proceedings in AG(A) I/ISC IV/II/PRR/ Case No. 157/92-93/1383, dated 31.12.1993, after accepting the reply
given by the fourth respondent, the G.O.Ms. No. 1178, dated 22.12.1993, which is now being relied upon by the third respondent was in vogue
and in the considered opinion of this Court, the respondents are, therefore, restrained by the principles of constructive res-judicata, in revoking the
already settled issue and ordering recovery from his terminal benefits.
It is also available on record that the Government in their letter No. 769617/864, dated 15.6.1988, has ordered that the Middle School
Headmaster absorbed to High School should be called as Middle School Headmaster and his pay to be protected in the category of Middle
School Headmaster. Since he was awarded reduced pay scale after his absorption to the High School as B.T.Assistant, the petitioner filed O.A.
No. 1122 of 1996 before the Tribunal, praying to revert him back to his original unit and original cadre of Middle School Headmaster and the
Tribunal, by the order dated 22.2.1996 has directed the respondents to consider the request of the applicant, based on which, his pay scale was
revised and awarded Special Grade Middle School Headmaster Pay by the fourth respondent in his proceeding 234/97, dated 27.11.1997 and
the Special Grade Middle School Headmaster Pay was extended to the petitioner till his retirement. Therefore, now the respondents cannot take a
different stand and order the petitioner to pay back the alleged excess amounts received by him.
At this juncture, it is apt to make a mention that under similar circumstances, the Honourable Apex Court in Bhagwan Shukla Vs. Union of India
and others, and Sahib Ram Vs. State of Haryana and Others, , has held that excess amounts paid to the employees due to wrong construction of
relevant order by the authority concerned, without any misrepresentation by the employee, may not be recovered.
Since as has already been adverted to supra, the respondents are restrained by the principles of constructive res judicata by settling the issue
now revoked, and that the pay of the petitioner was fixed by the fourth respondent pursuant to a direction by the Administrative Tribunal, it cannot
be held to be an erroneous fixation. Further more, in State of Haryana and Ors. v. Ram Kumar and Ors., (2002) 9 SCC 703, , the Honourable
Apex Court has held that ''the administrative orders cannot overturn a judicial order''.
The Tribunal, without considering the case in its proper perspective has dismissed the claim of the petitioner. Therefore, it has become
incumbent on the part of this Court to cause its interference into such an erroneous conclusion arrived at by the Tribunal.
In the result, this writ petition is allowed, setting aside the order passed by the Tribunal. No costs. Consequently, WPMP.Nos. 40452 of 2004
and 2298 of 2007 are closed. The respondents are directed to settle the remaining terminal benefits of the petitioner within six weeks from the date
of receipt of a copy of this order.