Madras High Court
J.Punitha Rani vs The Secretary To Government on 14 July, 2023
W.P.(MD) No.21720 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.07.2023
CORAM:
THE HONOURABLE Mr.JUSTICE BATTU DEVANAND
W.P.(MD) No.21720 of 2016
and
W.M.P.(MD) No.15532 of 2016
J.Punitha Rani .. Petitioner
Vs.
1.The Secretary to Government,
Finance (Pension) Department,
Secretariat, Chennai.
2.The Treasury Officer,
District Treasury Office,
Tuticorin. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India,
praying for issuance of Writ of Certiorari, calling for the records
pertaining to the impugned order of the second respondent herein in
Na.Ka.No.9284/J2/2016, dated 21.10.2016 and quash the same.
For Petitioner : Mr.G.Mohankumar
For Respondents : Mr.A.Kannan
Additional Government Pleader
___________
Page 1 of 10
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
ORDER
Challenging the order of recovery passed by the second respondent
on 21.10.2016, this writ petition has been filed.
2. The facts of the case are that the petitioner's mother was
working as a Secondary Grade Teacher and she died on 14.04.1998,
while she was in service. The petitioner is the widowed daughter of her
deceased mother. On 28.11.2011, the Respondent No.1 issued
G.O.Ms.No.325, extending family pension to the widowed daughters of
the Government Servants, even though they have completed the age of
25 years and no minimum family pension was fixed in the said
Government Order.
3. The petitioner would submit that the Accountant General office
has fixed the family pension to the petitioner at Rs.4,543/- with effect
from 23.04.2012 by an order dated 17.08.2012. Hence, from 23.04.2012,
she has been receiving family pension at the rate of Rs.4,543/-. She
submits that on 31.01.2013, the Respondent No.1 issued G.O.(Ms) No.
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
29, fixing the minimum family pension at the rate of Rs.3,050/- with
dearness allowance of Rs.100/-. Therefore, from May, 2016 onwards, the
petitioner is receiving family pension at the rate of Rs.3,050/- per month.
On 21.10.2016, the Respondent No.2 issued the impugned order stating
that the family pension was wrongly fixed at Rs.4,543/- and hence, an
excess amount of Rs.1,42,721/- has been paid towards family pension to
the petitioner from 23.04.2012. The impugned order further directed the
petitioner to remit the entire alleged excess amount of Rs.1,42,721/-
before the Respondent No.2, otherwise the said excess amount would be
recovered from the family pension of the petitioner from the month of
November, 2016 onwards. Challenging the said recovery order, this writ
petition is filed.
4. The learned counsel appearing for the petitioner would submit
that the issue involved in this writ petition is no longer res integra and it
has been decided by this Court in W.P.(MD).No.669 of 2018 and this
Court, by order dated 19.11.2021, disposed of the Writ Petition on the
ground of violation of principles of natural justice. Hence, the impugned
order is liable to be set aside.
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
5. The learned Additional Government Pleader appearing for the
respondents did not dispute the facts submitted by the learned counsel for
the petitioner.
6. Heard the learned counsel for the petitioner and the learned
Additional Government Pleader for the respondents.
7. A similar issue was raised before this Court in W.P.(MD).No.669
of 2018 and a learned Single Judge of this Court, by order dated
19.11.2021, has held as follows:
“47. For a decision on whether the re-fixation is
proper, the 2010, 2012 and 2015 proceedings are to be
reconciled. A copy of audit objection has not been placed
on file. However, proceedings dated 21.05.2015 refers to
the objection to the effect that some certain posts
classified under the category 'other trade
posts' (unskilled) in the annexure to the 2012 letter
cannot be considered as technical posts as they do not
involve technical skill and therefore, higher category of
pay cannot be granted to such categories.
48. While exercise of determining the appropriate
categorization of posts is entirely within the domain of
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
the State, such categorization must be seen to be based
on proper and appreciable differentia. A comparison of
the categorization of 'other trade posts' in proceedings
dated 01.10.2012 and Annexure-B of proceedings dated
21.05.2015 would show that not all the posts
differentiated as 'other trade posts' have been denied the
effect of the pay enhancement.
49. Sixty nine (69) trade posts are covered in
proceedings dated 01.10.2012 and 36 stand excluded in
2015. Upon a comparison of the two lists, I find that
among those retained in the technical trade posts in the
category of ‘cleaners’ are fountain cleaner, motor
cleaner, pipe line cleaner, pump cleaner, pump house
cleaner, reservoir cleaner, and filter beed cleaner,
whereas tank cleaner, drain cleaner, silt pucket cleaner
and lorry cleaner have been excluded.
50. Then again while tank watchman, park
watchman, head works watchman, reservoir watchman,
spring watchman, water supply watchman, thoppu
watchman, market watchman, bus stand watchman,
boarding & lodging watchman, weekly market
watchman, kalyana mandapa watchman and TB
watchman stand excluded, borewell watchman and pump
house watchman continue to have the benefit of
increased pay.
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
51.I am thus, at a loss to understand the basis of
differentiation within the two categories as above. To my
mind, the exercise has been done mechanically simply
following the audit objection and this is arbitrary. The
respondents must apply their minds in a proper, scientific
manner in the categorization of posts as ‘skilled’ and
‘unskilled’ prior to arriving at a decision in regard to the
exclusions. Let this exercise be done forthwith, bearing in
mind the duties and functions performed by all categories
of employees in category 5 of proceedings issued in
2012. Impugned order dated 30.10.2017, not being based
upon proper categorization of the trade/non-trade posts
is set aside qua the aspect of re-fixation of pay.”
8. By following the aforesaid order, another learned Single Judge
has passed an order dated 02.06.2023 in W.P.(MD) No.12819 of 2016.
9. On the other hand, the learned Additional Government Pleader
for the respondents placed a copy of the common order, dated 08.08.2017
passed by this Court in W.P.No.15937 of 2017 and batch.
10. On a careful perusal of the above order dated 08.08.2017, it
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
appears that the said order is also in favour of the petitioners. While
allowing the said Writ Petitions, this Court followed the legal principle in
this regard as settled by the Hon'ble Supreme Court of India in the case
of State of Punjab v. Rafiq Masih reported in (2015) 4 SCC 334. It is
relevant to extract paragraph No.18 of the judgment stated supra as
herein under:
"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 hereinabove, 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 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.
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
(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 in
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."
11. In the light of the orders passed by this Court as stated supra,
applying the ratio laid down in those orders, this Writ Petition is allowed
with the same terms.
12. No costs.
13. Consequently, the connected miscellaneous petition is closed.
14.07.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
abr
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
To
1.The Secretary to Government,
Finance (Pension) Department,
Secretariat, Chennai.
2.The Treasury Officer,
District Treasury Office,
Tuticorin.
___________
https://www.mhc.tn.gov.in/judis
W.P.(MD) No.21720 of 2016
BATTU DEVANAND, J.
abr
W.P.(MD) No.21720 of 2016
Dated : 14.07.2023
___________
https://www.mhc.tn.gov.in/judis
