WP No.9037 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09-09-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.9037 of 2016
And
WMP No.8023 of 2016
And
WMP No.3200 of 2017
S.P.Rajan .. Petitioner
vs.
1.Government of Tamil Nadu,
Represented by Secretary to Government,
Finance (Pension) Department,
Secretariat,
Chennai – 600 009.
2.The Principal,
Government Arts College,
Coimbatore.
3.The Principal Accountant-General
(Accounts and Entitlements)
Tamil Nadu,
Chennai – 600 018.
1/14
https://www.mhc.tn.gov.in/judis
WP No.9037 of 2016
4.The Treasury Officer,
Salem District,
Salem. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records of the fourth respondent relating to orders in (1) Na.Ka.No.
12536/2015/F1 dated 21.12.2015 and (2) Proc.Na.Ka.No.12536/2015/F1
dated 30.12.2015, to quash the same and to issue direction to the fourth
respondent to continue to disburse the existing pension, which the petitioner
was drawing till November 2015.
For Petitioner : Mr.I.Kabilan for
Mr.M.Ravi
For Respondent-1 : Mr.B.Vijay,
Additional Government Pleader.
For Respondent-3 : Ms.T.S.Selva Rani
ORDER
The order of recovery dated 21.12.2015 passed by the fourth respondent and the consequential order dated 30.12.2015, are under challenge in the present writ petition.
2/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016
2. The writ petitioner was appointed as Associate Lecturer in Government Arts College, Coimbatore during the year 1964-1965 and his services were regularised with effect from 20.06.1975. The petitioner was placed under senior scale in the post of Lecturer on and from 14.07.1988 and the selection grade was awarded to him in proceedings dated 19.11.1996. Accordingly, the scale of pay as applicable to the writ petitioner was fixed and he was permitted to draw the arrears of pay from 14.07.1988. The petitioner opted for voluntary retirement from service on 07.11.1990 and he was relieved from service. The petitioner has been drawing monthly pension from 08.11.1990 onwards. To his shock and surprise, the fourth respondent issued a notice that an excess amount of pension has been paid to him from the year 2007 onwards. Subsequently, another proceedings dated 30.12.2015 was issued by the fourth respondent stating that an amount of Rs.13,90,512/- was paid in excess to the writ petitioner and therefore, the petitioner shall deposit the said excess amount in one lump sum. In view of the recovery of huge amount, the petitioner filed the present writ petition.
3/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016
3. The learned counsel for the third respondent made a submission that excess pension was paid to the writ petitioner on account of erroneous revision of pension by the Competent Authorities of the Government Department. Therefore, the third respondent-Principal Accountant General cannot be held responsible.
4. The learned Additional Government Pleader, appearing on behalf of the respondents 1, 2 and 4, objected the contentions raised on behalf of the writ petitioner by stating that the excess pension was paid due to wrong fixation and therefore, the same is directed to be recovered from the petitioner.
5. An excess pension was paid on 01.01.2007 on account of wrong fixation and revision of pension. Thus, there is no infirmity in respect of the order passed and consequently the writ petition is to be rejected.
6. The revision of pension was granted at the instance of the Government Department and its establishment. There is no 4/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 misrepresentation or fraud on the part of the writ petitioner for revision of pay and consequential pension.
7. In the present case, the writ petitioner was allowed to retire from service under Voluntary Retirement Scheme on 07.11.1990. The impugned recovery order has been passed in the year 2015 stating that an excess amount of pension was paid with effect from 01.01.2007 onwards. The petitioner cannot be held responsible for any such erroneous fixation made at the end of the Department and further he is not responsible for any misrepresentation or otherwise. But the order impugned was passed when the petitioner was aged about 81 years. Thus in the event of recoverying the excess amount, the same would result in extreme hardship to the ageold pensioner and further, he has not committed any fraud in the matter of revision of scale of pay refixed or revision of scale of pay or pension.
8. In this regard, the Government issued G.O.Ms.No.286, Finance (Pension) Department dated 28.08.2018. The said Government Order was issued pursuant to the judgment of the Surpeme Court of India in 5/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 the case of State of Punjab and Others vs. Rafiq Masih (White Washer) etc., [decided on 18.12.2014 in C.A.No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012]. As per the principles laid down in the case, cited supra, the recovery from the retired employees are to be avoided as such recovery would cause hardship to the pensioners. The Government, therefore, directed that the ratio of responsibility in case of over payments/irregular payments. Paragraph 8 (1) of the Government Order stipulates that when over payment occurs in such cases, where the excess payments on acccount of wrong pay fixation, grant of scale without due approvals and promotions without following the procedure. The ratio of responsibility to be fixed will be fixed as under:-
“(a) If the overpayment occurs due to reasons solely attributable to Pay Fixation Authority, the ratio of responsibility will be as under:-
(i) Administrative Departments in Secretariat:
(a) Dealing Assistant Section 65% of the overpaid amount.
Officer
(b) Section Officer concerned 35% of the overpaid amount.6/14
https://www.mhc.tn.gov.in/judis WP No.9037 of 2016
(ii) Head of Departments / Head of Office:
(a) Dealing Assistant 65% of the overpaid amount.
(b) Section Superintendent 35% of the overpaid amount.
(b) If the overpayment occurs due to reasons solely attributable to Bill Passing Authority i.e. Pay and Accounts Office / District Treasury Office / Sub-Treasury Office, the ratio of responsibility will be as under:-
(i) Pay and Accounts Office:
(a) Dealing Accountant 50% of the overpaid amount.
(b) Superintendent concerned 25% of the overpaid amount.
(c) Assistant Pay and Accounts 25% of the overpaid amount.
Officer concerned
(ii) District Treasury Office:
(a) Dealing Accountant 50% of the overpaid amount.
(b) Superintendent concerned 25% of the overpaid amount.
(c) Additional Treasury Officer 25% of the overpaid amount.
concerned
(iii) Sub-Treasury Office:
(a) Dealing Accountant 50% of the overpaid amount.
(b) Additional Sub-Treasury 25% of the overpaid amount.
Officer/Sub-Treasury Officer concerned
(c) Assistant Treasury Officer 25% of the overpaid amount.
concerned (2) Over Payment occurred in Pension / Family Pension cases.
(a) If the overpayment occurs due to reasons solely attributable to 7/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 Pension Sanctioning Authority, the ratio of responsibility will be as under:-
(i) Administrative Departments in Secretariat:
(a) Dealing Assistant Section 65% of the overpaid amount.
Officer
(b) Section Officer concerned 35% of the overpaid amount.
(ii) Head of Departments / Head of Office:
(a) Dealing Assistant 65% of the overpaid amount.
(b) Section Superintendent 35% of the overpaid amount.
(b) If the overpayment occurs due to reasons solely attributable to Pension Disbursing Authority i.e. Pension Pay Office, Chennai / District Treasury Office / Sub-Treasury Office, the ratio of responsibility will be as under:-
(i) Pension Pay Office, Chennai:
(a) Dealing Accountant 50% of the overpaid amount.
(b) Superintendent concerned 25% of the overpaid amount.
(c) Assistant Accounts Officer 25% of the overpaid amount.
concerned
(ii) District Treasury Office:
(a) Dealing Accountant 50% of the overpaid amount.
(b) Superintendent concerned 25% of the overpaid amount.
(c) Additional Treasury Officer 25% of the overpaid amount.
concerned
(iii) Sub-Treasury Office:8/14
https://www.mhc.tn.gov.in/judis WP No.9037 of 2016
(a) Dealing Accountant 50% of the overpaid amount.
(b) Additional Sub-Treasury 25% of the overpaid amount.
Officer/Sub-Treasury Officer concerned
(c) Assistant Treasury Officer 25% of the overpaid amount.
concerned (In the foregoing, overpaid amount shall mean the amount that has been overpaid and is not recoverable from the employee / pensioner / family pensioner concerned in accordance with the Hon’ble Supreme Court order indicated in para-3 above).”
9. This Court also passed several ordrs that in the event of wrong fixation on account of lapes, negligence or dereliction of duty on the part of the Department Officials, then such excess amounts are to be recovered from the officials, who all are responsible for financial loss caused to the State Exchequer. There cannot be any other opinion regarding the recovery of excess payment made from the Government funds. The question arises from whom to such recovery is to be effected. In the cases, where there is no misrepresentation, fraud or in the absence of any undertaking from an employee is concerned, the excess amount from Clause 9/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 IV employees and retired employees need not be recovered.
10. As far as the errors, lapses, negligence committed by the Department, for wrong fixation or excess payment of pension, then the excess payment, so made, is to be recovered from the official, who committed such lapses or negligence and caused financial loss to the State Exchequer.
11. This being the principles which is reiterated in the Government Order issued in G.O.Ms.No.286, dated 28.08.2018, the respondents are bound to recover the excess amount from the officials as per the ratio fixed in the Government Order.
12. As far as the petitioner is concerned, he has not misrepresented for fixtion of his pension and thus, he cannot be held responsible. Further the petitioner, as of now, is aged about 87 years and any such recovery at this stage would cause extreme hardship to him. Therefore, this Court is inclined to consider the writ petition. Accordingly, 10/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 the orders impugned by the fourth respondent in (1) Na.Ka.No. 12536/2015/F1 dated 21.12.2015 and (2) Proc.Na.Ka.No.12536/2015/F1 dated 30.12.2015 are quashed with reference to the recovery of excess payment alone. The respondents are direcrted to initiate all appropriate action to recover the excess amount in accordance with the Government Order issued in G.O.Ms.No.286, dated 28.08.2018.
13. It is made clear that the error in the fixation shall be corrected and the revised fixation done by the Authorities Competent stands confirmed and the writ petitioner is eligible to get pension based on the corrected/revised pension as per the Tamil Nadu Pension Rules, 1978.
14. With the abovesaid observations, the writ petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
09-09-2022 11/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn To
1.The Secretary to Government, Government of Tamil Nadu, Finance (Pension) Department, Secretariat, Chennai – 600 009.
2.The Principal, Government Arts College, 12/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 Coimbatore.
3.The Principal Accountant-General (Accounts and Entitlements) Tamil Nadu, Chennai – 600 018.
4.The Treasury Officer, Salem District, Salem.
S.M.SUBRAMANIAM, J.
Svn 13/14 https://www.mhc.tn.gov.in/judis WP No.9037 of 2016 WP 9037 of 2016 09-09-2022 14/14 https://www.mhc.tn.gov.in/judis