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Judgment
M. Jaichandren, J.—The Writ Petition has been filed praying for the issuance of a writ of Certiorarified Mandamus, calling for the records
relating to the 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
are concerned.
It has been submitted that the 1st petitioner is working as a Headmaster at Panchayat Union Elementary School, Kadamangudi, Thiruvaiyaru,
Thanjavur District. The 2nd petitioner is working as a Secondary Grade Teacher, Panchayat Union Middle School, Kandiyur (South), Thanjavur
District. The 3rd petitioner is working as a Secondary Grade Teacher, Panchayat Union Middle School, Mohamed Bunder, Thanjavur District. All
the three petitioners are working in the Thiruvaiyaru Panchayat Union. The petitioners were having degree qualifications at the time of their
appointment as Secondary Grade Teachers. Even though, they were initially appointed on contract basis, their services had been regularised in the
post of Secondary Grade Teacher. A Secondary Grade Teacher, who is in possession of higher educational qualifications, shall be allowed
incentive increments. Since the petitioners were in possession of higher educational qualifications, they were allowed incentive increments.
However, the Assistant Elementary Educational Officer, Thiruvaiyaru, Thanjavur District, the respondent herein, had issued the impugned order,
dated 10.10.2000, seeking to recover the incentive increments paid to the petitioners. Under such circumstances, the petitioners have preferred the
present Writ Petition before this Court under Article 226 of the Constitution of India.
A reply affidavit has been filed on behalf of the respondents denying the claims made by the petitioner. It has been stated that the respondent
had ordered for the recovery of the excess amount paid to the petitioner by way of irregular sanction of increment, since it was against the
Government Order. The recovery has been ordered only with the intention of rectifying the mistake which had been committed. The petitioner is
not entitled to the benefit of the incentive increment for having higher qualifications.
The recovery of the excess amount said to have been paid to the 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 the following decisions:
4.1) In Shyam Babu Verma and Others Vs. Union of India (UOI) and Others, , the Supreme Court had held that it is not just and proper to
recover any excess amounts already paid to the petitioner, since the petitioners have received the higher scale of pay due to no fault of theirs.
4.2) The Supreme Court, in Sahib Ram Vs. State of Haryana and Others, , had held that the recovery of excess payment given by the authorities
concerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot be made.
4.3) The Supreme Court, in Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr. , had held that the recovery of the increments given,
not on account of any representation or misrepresentation, cannot be sustained, as it would not be in consonance with equity, good conscience,
justice and fairness.
4.4) In Union of India and Others Vs. Rekha Majhi, , the Supreme Court had refused to permit the recovery of excess payment made, since the
person against whom the recovery was to be made was the only breadwinner of the family and as she was, financially, not in a position to pay
back the excess dearness relief drawn.
4.5) In Purshottam Lal Das and Others Vs. The State of Bihar and Others, , the Supreme Court had held that the recovery of the excess amounts
paid to the employees could be recovered only in such cases where they have been found guilty of producing forged certificates or their
appointments had been secured on non-permissible grounds.
4.6) In the decision of the Supreme Court, in Babulal Jain Vs. State of M.P. and Others, , it was held that since the excess payment had been
made on misconception of law and not due to any mistake or misrepresentation on the part 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 of Bihar and Others Vs. Pandey Jagdishwar Prasad, , it has been held that where due to
confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service
tenure and was paid for it, no deduction could be made for that period from the retiral dues.
4.8) In the decision of a Division Bench of this Court in P. Arumugam v. Registrar, Tamil University (2006) 3 M.L.J. 1025, it was held that when
the employee was not responsible for the wrong fixation, the excess payment made cannot be recovered, especially, after the retirement of the
employee and when the recovery was sought for after 17 years of service.
4.9) In D. Palavesamuthu v. T.N. Administrative Tribunal (2006) (3) L.L.N. 461, a Division Bench of this Court had held that when the fault of
excess payment was committed by the Department and their officers and it was not due to the petitioner, the petitioner cannot be penalised after
the lapse of number of years, that too after his retirement.
4.10) In Kanthimathi, S.A. v. Director of School Education, Madras (2006) 1 M.L.J. 695, this Court had held that the recovery of excess amount
paid cannot be recovered when it was not due to the fault of the petitioner and when no opportunity had been given to her before the order of
recovery was passed. Since the salary paid to the petitioner was not on account of any misrepresentation and when the order had been passed
without giving any opportunity to the petitioner to put forth her case, the impugned order of recovery was quashed.
In view of the submissions made by the learned Counsel appearing on behalf of the petitioner, and in view of the decisions cited above, the
impugned order of the respondent, passed in Na.Ka. No. 1340/2000/Aa2, dated 10.10.2000, is set aside, in so far as it relates to the recovery of
the amounts already paid to the petitioner, as increment. Accordingly, the writ petition is allowed, as noted above. No costs. However, it is open
to the respondent to refix all the pay scales that may be due to the petitioners. However it shall be done only after giving sufficient opportunity of
hearing of the petitioners to put forth their cases.