K.Murugesan, v. The Government of Tamil Nadu,

ORDER This Writ Petition had been filed challenging the proceedings issued in Na.Ka.No.W.7/73448/2000 dated 12.04.2001; in Na.Ka.No.A/151/01 dated

22.11.2005 and in No.AG(A&E)/PEN P09/5/MI33-1036/RTD/2007-2008/ dated 09.11.2007 and quash the same and issue a consequential direction to the respondents to release an amount of Rs.3,07,577/- recovered from the pensionary benefits to the petitioner with an interest at 18% per annum and to restore the pay of the petitioner at Rs.2000/- as on 09.09.1990 in the scale of pay of Rs.2000-3200 in the post of Primary School Headmaster and to grant consequential benefits including the arrears of pay and pension and consequently grant such other relief.

¶2Heard Mr.R.Saseetharan, learned counsel for the petitioner and Mr.S.Ravichandran, learned Additional Government Pleader appearing for the respondents 1 to 4 and Mr.V.Murali, learned counsel appearing for the 5th respondent.

¶3The learned counsel for the petitioner would submit that the petitioner was initially appointed as a Secondary Grade Teacher on

09.09.1970 in the Department of Adi Dravidar and Tribal Welfare at Senthanadu, Ulunthurpet Taluk, Villupuram District. Thereafter, he was posted as a Primary School Headmaster at Adi Dravidar Welfare Primary School, Senthannadu, Ulunthurpet Taluk on 06.12.1975 and had worked in the said capacity in the said school till 05.07.1979. Thereafter, he was transferred as a Primary School Headmaster at Kalathur Ulunthurpet Taluk where he worked till 12.08.1980 and was again retransferred and posted as Primary School Headmaster at Adi Dravidar Welfare Primary School, Senthanadu on 13.08.1980, where he worked till 10.12.1983, where again he was transferred and posted as Primary School Headmaster on 14.12.1983 at Adi Dravidar Welfare Primary School, Kattunemeli, Ulunthurpet Taluk and worked there till 01.11.1989. He was thereafter, transferred and posted as Secondary Grade Teacher in the same school on 02.11.1989 and worked in the said capacity till 30.11.1992 and thereafter, again promoted as Primary School Headmaster on 01.12.1992 at Adi Dravidar Welfare Primary School at Avaianoor, Panrutti Taluk where he worked in the said post till

30.06.1995 and thereafter, he was posted as Primary School Headmaster at Adi Dravidar Welfare Primary School, Karnatham, Viruthachalam Taluk, Cuddalore District on 03.07.1995 and had superannuated on 31.03.2005.

¶4The Government of Tamil Nadu had awarded a separate and higher pay scale to the post of Primary School Headmasters and to the post of Secondary Grade Teachers with effect from 01.06.1988. As per the recommendations of the 5th Pay Commission under the G.O.Ms.No.666, dated 26.07.1989. The Director of Elementary Education, in his proceedings dated 17.02.1990 had directed that the persons who are holding the post of Primary School Headmasters as on 01.06.1988 are allowed to continue as Primary School Headmasters continuously and they are deemed to have been appointed as Primary School Headmasters and the appointing authorities are directed to issue orders and thereafter, on 01.06.1988, the post of Primary School Headmaster shall be filled up as per the seniority in the post of Secondary Grade Teachers as the post of Primary School Headmaster became promotion post on awarding higher scale of pay to the post of Primary School Headmaster than the post of Secondary Grade Teacher with effect from 01.06.1988. The Department of Adi Dravidar and Tribal Welfare had adopted the said orders and Rules issued by the Education Department.

¶5The Government, by G.O.Ms.No.1381, dated 05.10.1990, directed the teachers who were in the position as Primary School Headmaster as on 01.06.1988 are entitled to count the service rendered in the post of Secondary Grade Teachers as well as Primary School Headmasters for the award of Selection Grade and Special Grade Pay, in the post of Primary School Headmasters. In view of the aforesaid proceedings from the Director of Elementary Education, dated 17.02.1990, the petitioner should have been allowed to continue as a Primary School Headmaster which he was holding on 01.06.1988 but, however, he was reverted from the post of Secondary Grade Teacher on 02.12.1989 after the Government had declared the post of Primary School Headmaster as promotional post on awarding higher scale of pay. The reversion from the post of Primary School Headmaster involves loss of emoluments and was put to monetary loss. The petitioner had again being promoted as a Primary School Headmaster on 01.12.1992. Therefore, he would submit that he should be given pay protection by applying G.O.Ms.No.1381, dated 05.10.1990.

¶6By proceedings, dated 23.01.1997, the District Adi Dravidar and Tribal Welfare Officer/3rd respondent herein had considered the issue in its proper prospective and held that he was entitled for fixation of pay by applying G.O.Ms.No.1381, dated 05.10.1990 on par with his juniors. By proceedings, dated 12.04.2001, the 3rd respondent had refixed the pay of the petitioner at a lower level and directed refund of Rs.98,382/- on the ground that his pay had been refixed wrongly and that the Audit Department had raised an objection since, there is no entry in the Service Register to show that he was working as a Headmaster as on 01.06.1988 and on the ground that G.O.Ms.No.1381, dated 05.10.1990 was set aside by this Court. However, the order of recovery was not given effect to till the dates of his retirement from service. By proceedings, dated 22.11.2005 i.e, after the date of retirement of the petitioner, the respondent had reduced the pay of the petitioner from Rs.1760/- to Rs.1500/- as on 01.06.1988 and from Rs.2000/- to Rs.1760/- as on 09.09.1990 on the ground that the pay fixation was found to be wrong by the Audit and recovery order was issued by the 3rd respondent on 12.04.2001.

¶7With this background, even though the petitioner had superannuated as early as in March 2005, the petitioner had not been paid his terminal benefits. Even the pension proposal was not sent by the 3rd respondent to the 5th respondent. The petitioner was coerced to give an undertaking that his excess sum that had been paid to him shall be recovered from the terminal benefits. Since, as admitted earlier, no pension has been paid by him, the petitioner had accepted to give his consent and receive the terminal benefits. He would submit that the entire recovery pursuant to the superannuation is wholly contrary to the law as laid down by this Court as well as the Hon'ble Apex Court and therefore, he would seek to set aside the order impugned in this Writ Petition and issue direction as claimed by the petitioner.

¶8Countering his arguments, Mr.S.Ravichandran, learned Additional Government Pleader appearing for the respondents 1 to 4 would heavily contend that the wrong pay fixation has been intimated to the petitioner as early as in the year 2001 and he had not challenged the same. The further order passed by the Special Tahsildar in November 2005 is consequential order in fixing the pay for his earlier service. When he had not challenged the original order of recovery, the petitioner cannot maintain the Writ Petition challenging the present order and subsequent order of recovery and he had also consented for recovery of such excess payment from his terminal benefits and now he cannot be heard to say that the petitioner is not entitled to repay the amount.

¶9I have considered the rival submissions made by the learned counsels appearing for their respective parties and perused the materials available on record before this Court.

¶10The facts regarding the petitioner's service has been admitted by the respective parties. It is also not in dispute that the petitioner had been made an excess payment. At this juncture, it would be relevant to peruse the decision of the Government in G.O.Ms.No.160 School Education Department (G-Department), dated 23.08.2005. For better appreciation, the aforesaid G.O. is extracted hereunder:- bjhlf;ff; fy;tp ? bjhlf;fg; gs;spj;jiyik Mrphpah;fSf;F njh;t[epiy-rpwg;g[ epiy tH';FtJ Fwpj;J Mizaplg;gl;l murhiz epiy vz;/185. gs;spf; fy;tpj;Jiw. ehs; 16/12/2002?f;F bjspthiz ? btspaplg;gLfpwJ/ gs;spf; fy;tp[ ($p) Jiw W.P.No.27411oofo2010 murhiz (epiy) vz;/ 160 ehs; 23/08/2005 goff; g;gl;lJ murhiz (epiy) vz;/185. gs;spf;fy;tpj;Jiw ehs; 16/12/2002 Miz bjhlff; g;gs;sp jiyik Mrphpah;fSfF; njh;tpepiy-rpwg;g[epiy mDkjpg;gJ Fwpj;J Mizaplg;gl;l ghhi; tapy; goff; g;gl;l murhizia vjph;j;J bjhlug;gl;l bjhFg;g[ tHf;Ffs; brd;id cahe; Pjpkd;wj;jpy; epYitapy; cs;sd/ nkw;fzl; murhizapid brayg; Lj;jp mjpfg;goahf tH';fgg; l;l bjhifia gpoj;jk; brat; jhy; Mrphpahf; SfF; ghjpg;g[ Vw;gLtjhf gyn; tW Mrphpah; r'f; ';fs; muRf;F KiwaPL bra;jd/ 2/,t;thwhd nfhhpf;iffis muR ftdKld; Ma;t[ bra;J. Murhiz (epiy) vz;/185. gs;spf; fyt; pj; Jiw ehs; 16/12/2002?f;F fHP f; ;fz;l bjspt[iuapid tH'f; p MizapLfpwJ/

(i) 1/6/88 md;W bjhlff; g;gs;spj;jiyik Mrphpahf; shf gzpgh[ pe;j 1/8/2005?f;Fg; gpwFk; bjhlff; g;gs;sp jiyikahrphpah;fshf bjhlhe; ;J gzpgh[ pgthf; isg; bghWj;jtiu/ 1/08/2005 md;W cs;sthW mthf; s; bjhlff; g;gs;sp jiyikahrphpahf; shf gzpgh[ pe;j fhyj;jpid kl;Lk; fzff; py; bfhz;L njht; e[ piy-rpwg;g[epiy fzff; plyhk; 1/8/2005 md;W mthf; s; bgw;Wte;j mog;gil Cjpaj;jpid mthf; Sf;F jFjpa[s;s njht; e[ piy-rpwg;g[epiyapy; bghUj;jyhk;/ mt;thW bghUj;Jtjw;fhd Cjpaepiy rstage) njh;te[ piy-rpwg;g[ epiyapy; ,y;iybadpy;. mjw;F Ke;ija epiyapy; rLower o stage) bghUj;jp ntWgLk; kPjKs;s Cjpaj;jpid jdp Cjpakhf (Personal Pay) mth;fs; Xa;t[ bgWk; tiuapy; mDkjpf;fyhk;/

(ii) 1/6/1988 md;W bjhlf;fg;gs;spj; jiyik Mrphpah;fshf gzpg[hpe;J 1/8/2005?f;F Kd;djhf Xa;t[ bgw;wth;fisg; bghWj;jtiu:- rpwg;g[ epfH;thf. mth;fs; Xa;t[ bgw;wnghJ ,Wjpahfg; bgw;wpUe;j mog;gil Cjpaj;jpd; mog;gilapy; Xa;t[{jpak; eph;zak; bra;ag;glyhk; mth;fsJ njh;t[epiy-rpwg;g[epiyapid kWgoa[k; jpUj;jp eph;zak; bra;a ntz;oajpy;iy/

(iii) murhiz epiy vz;/1381 fy;tp ehs; 5/10/90 Vw;fdnt ePjpkd;wj;jhy; ,uj;J bra;ag;gl;L jpUj;jpa Miz btspaplg;gl;ljhy;. mt;thizapd; mog;gilapy; ,dp ve;j xU bjhlf;fg;gs;spj; jiyik MrphpaUf;Fk; g[jpjhf kW Cjpa eph;zak; bra;af;TlhJ/ 3/brd;id cah;ePjpkd;wj;jpy; epYitapy; cs;s hpl; kDf;fspd; bjhFg;g[ tHf;Ffspd; ,Wjp Mizf;F cl;gl;L ,j;bjspt[iu tH';fg;gLfpwJ/ 4/,t;thiz epjpj;Jiwapd; m/rh/vz;/2815-FS-/P-2005 ehs; 15/8/2005y; bgwg;gl;l ,irt[ld; btspaplg;gLfpwJ/ (MSehpd; Mizg;go) fphp$h itj;jpaehjd; muRr; brayhsh;

¶11A reading of the aforesaid G.O. it seems to have been passed by taking into consideration various proceedings that have been pending before this Court in respect of the recovery that is sought to be made by the Government for the payment that had been excessively paid. The Primary School Education Headmasters has been classified into two categories i.e.,Primary School Headmasters who had been working as on 01.06.1988 and who continued to work after 01.08.2005. The 2nd category of people are Primary School Headmasters who have been working as Primary School Headmasters as on 01.06.1988 and who have superannuated prior to

01.08.2005. The petitioner had been admittedly working as a Primary School Headmaster as on 01.06.1988 and had superannuated prior to

01.08.2005 as a Primary School Headmaster.

¶12Therefore, the aforesaid Clause-II of the Government order would be applicable to the petitioner. As per the Government order, as a special case, the Government had decided that such persons falling under category-II their pension and terminal benefits would be calculated on the basis of the basic pay that they had been receiving at the time of their retirement and that there will be on refixation of pay of such persons in view that G.O.Ms.No.1381, dated 05.10.1990 had been set aside by this Court and further orders have been issued. The G.O. also contemplates that their Selection Grade and Special Grade need not be revisited again. From the order passed by the 4th respondent after the superannuation of the petitioner the 4th respondent had refixed the pay of the petitioner contrary to the policy decision that has been taken by the Government in the above extracted G.O. and had sought recovery of the amount that has been excessively paid. From a reading of the Government order extracted supra one another object in issuing the aforesaid G.O. is clear that if such salary is refixed then the orders of recovery would have to be passed against the retired employees. This is very well implied from the aforesaid Government order. When there is a bar in refixing the salary that had been received by the retired employees, the order passed by the 4th respondent is wholly illegal and would necessarily have to be interfered with and whatever recovery had been made based upon the aforesaid order would have to be necessarily refunded. Further, it is also pertinent to note that the Hon'ble Apex Court in a judgment rendered in State of Punjab and Others Vs Rafiq Masih & Others reported in (2015) 4 SCC 334 (White washer's case) paragraph 18 clause -2 had held that there can be no recovery made from a retired employee even if such payment had been made by mistake at the hands of the employer. For better appreciation, the relevant paragraph is extracted hereunder. " 18. It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

¶13In the present case also it is not on the fault of the petitioner that the petitioner had been paid excess payment. No recovery had been made till his date of superannuation. Clause II of the paragraph extracted above clearly prohibits recovery of any amount that had been mistakenly being made at the hands of the employer from a employee who will be superannuating within a period of one year or who had superannuated. In the present case as factually no recovery had been made from the petitioner till his superannuation. No recovery could have been made and the recovery made by the respondent is illegal. Therefore, will have to necessarily be directed to refund the aforesaid amount, however, with an interest at the rate of 7% per annum and the said refund shall be made within a period of eight

(8) weeks from the date of a receipt of a copy of this order. Further, since, the Government had directed not to refix the salary of the petitioner, the pension shall also be calculated based on the last drawn pay as referred to in G.O.Ms.No.160 School Education Department (G-Department), dated

23.08.2005 and pay the difference of the pension that the petitioner would be entitled to within a period of eight (8) weeks from the date of the receipt of a copy of this order.

¶14In fine, this Writ Petition is allowed and order impugned in this Writ Petition is allowed with the aforesaid directions as indicated above. However, there shall be no order as to costs.

16.11.2023 Gba Index : Yes/No Speaking order : Yes/No K.KUMARESH BABU,J. Gba To

1.The Government of Tamil Nadu, Represented by the Secretary to the Government, Adi Dravidar & Tribal Welfare Department, Fort St.George, Chennai – 9.

2.The Director of Adi Dravidar and Tribal Welfare, Chepauk, Chennai – 5.

3.The District Adi Dravidar Welfare Officer, Cuddalore District, Cuddalore.

4.The Special Tahsildar Adi Dravidar Welfare, Vridhachalam Taluk, Cuddalore District.

5.The Accountant General, Tamil Nadu, Teynampet, Chennai – 18.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.11.2023 CORAM: THE HON'BLE MR.JUSTICE K.KUMARESH BABU K.Murugesan ... Petitioner Vs 1.The Government of Tamil Nadu, Represented by the Secretary to the Government, Adi Dravidar & Tribal Welfare Department, Fort St.George, Chennai – 9. 2.The Director of Adi Dravidar and Tribal Welfare, Chepauk, Chennai – 5. 3.The District Adi Dravidar Welfare Officer, Cuddalore District, Cuddalore. 4.The Special Tahsildar Adi Dravidar Welfare, Vridhachalam Taluk, Cuddalore District. 5.The Accountant General, Tamil Nadu, Teynampet, Chennai – 18. ... Respondents PRAYER:- Writ Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records of the respondents in relation to the proceedings issued in Na.Ka.No.W.7/73448/2000 dated 12.04.2001; in Na.Ka.No.A/151/01 dated 22.11.2005 and in No.AG(A&E)/PEN P09/5/MI33-1036/RTD/2007-2008/ dated 09.11.2007 and quash the same and issue a consequential direction to the respondents to release an amount of Rs.3,07,577/- recovered from the pensionary benefits to the petitioner with interest at 18% per annum and to restore the pay of the petitioner at Rs.2000/- as on 09.09.1990 in the scale of pay of Rs.2000-3200 in the post of Primary School Headmaster and to grante consequential benefits including the arrears of pay and pension and consequently grant such other relief. For Petitioner : Mr.R.Saseetharan For RR1 to 4 : Mr.S.Ravichandran Additional Government Pleader For R5 : Mr.V.Murali