Madras High Court

J.Somasundara Raj vs The Regional Accounts Officer ... on 10 October, 2023

                                                                W.P(MD)Nos.3442 of 2021 & 14796 of 2023




                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 10.10.2023

                                                     CORAM

                                  THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

                                      W.P(MD)Nos.3442 of 2021 & 14796 of 2023
                                                      and
                                        W.M.P(MD)Nos.2792 & 2794 of 2021


                (In W.P(MD)No.3442 of 2021)

                J.Somasundara Raj                                                  ... Petitioner

                                                        Vs.

                1.The Regional Accounts Officer (Audit),
                  School Education Department,
                  Madurai.

                2.The Head Mistress,
                  Head Master,
                  Kamaraj Nagarmandra Higher Secondary School,
                  Pettai,
                  Tirunelveli.

                3.The Head Master,
                  Government Higher Secondary School,
                  Vadasery, Nagercoil,
                  Kanyakumari District.                                   ... Respondents

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

records relating to the audit objection of first respondent enclosed along with impugned communication of second respondent in Na.Ka.No.63/141/2019, dated 10.07.2019 and consequential impugned entry of audit objection made into the service record of petitioner, quash the same and consequently direct the respondents herein to continue to pay the incentive increment to the petitioner for acquiring B.Ed., in the post of Physical Education Teacher as per G.O(Ms)No.42, dated 10.01.1969 and G.O(Ms)No.95, dated 25.01.1980.

(In W.P(MD)No.14796 of 2023)

J.Somasundara Raj ... Petitioner

Vs.

1.The Government of Tamil Nadu, Represented by its Principal Secretary to Government, Revenue Administration, Fort St. George, Chennai-600 009.

2.The District Collector, Nagercoil, Kanyakumari District.

3.The Head Master, Government Higher Secondary School, Vadasery, Nagercoil, Kanyakumari District.

4.The Sub Treasury Officer, Kalkulam, Kanyakumari District. ... Respondents

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the third respondent to issue No-Government due certificate to petitioner to produce before the fourth respondent for getting his pensionery benefits.



                                     (In Both the cases)
                                     For Petitioner        : Mr.R.Russel Raj

                                     For Respondents       : Mr.V.Om Prakash
                                                             Government Advocate


                                               COMMON ORDER

W.P(MD)No.3442 of 2021 has been filed by a retired Physical Education

Teacher seeking to quash the intimation letter issued by the Head Mistress of

the School on 10.07.2019, wherein the Teacher was requested to clear the audit

objections. The petitioner has further prayed for continuous payment of the

incentive increment for acquiring B.Ed degree.

2. The petitioner has also filed W.P(MD)No.14796 of 2023 for a

Mandamus directing the Head Master of the School to issue No Due Certificate

to the petitioner to produce it before the Sub Treasury Officer, Kalkulam for

getting pensionary benefits or other orders.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

3. The petitioner was initially appointed as Physical Education Teacher

in the pay scale of Secondary Grade Teacher on 13.04.1998. While he was in

service, he had acquired higher qualification of B.Ed on 28.12.2014. Based

upon the said higher qualification, the petitioner was conferred with an

incentive increment with effect from 28.12.2014. According to the petitioner,

the said conferment of incentive increment is based on G.O(Ms)No.42

Education, dated 10.01.1969 and G.O(Ms)No.95 Education Department, dated

21.01.1980.

4. The petitioner was promoted as Director Grade-II, Physical Education

on 22.06.2018. While he was functioning in the said post, he was issued with

the impugned notice on 10.07.2019, enclosing an audit objection of the first

respondent against granting of incentive increment. The petitioner has sent a

written reply on 02.08.2019. However, no further proceedings were initiated

either by the School Management or by the Educational Authorities based upon

the said audit objection. The petitioner had attained superannuation on

31.05.2022. Till such date, the petitioner was receiving the incentive increment.

These facts are not in dispute.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

5. After his retirement, in view of the audit objection raised while he was

in service, the petitioner was not able to get his terminal benefits. Therefore, the

present writ petition has been filed challenging the impugned communication,

dated 10.07.2019. Consequentially, the petitioner has prayed for issuance of No

Due Certificate from the School Head Master so that, he could claim the

terminal benefits and other benefits from the Treasury.

6. It is not in dispute, the petitioner is a Physical Education Teacher. As

per G.O(Ms)No.624 Education (E2) Department, dated 13.07.1992, sanction of

incentive increments for acquiring higher qualification could be conferred upon

a Teacher, only if he or she acquires the higher qualification in a particular

subject which is required to be taught by the said Teacher. Therefore, it is clear

that the writ petitioner would be entitled to an incentive increment only when

he or she acquires higher qualification in the subject which he or she handling.

In the present case, admittedly, the acquisition of B.Ed degree cannot be

considered to be a higher qualification for a Physical Education Teacher.

Therefore, it is clear that on an erroneous assumption, the incentive increments

were awarded to the writ petitioner with effect from December 2014.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

7. Audit objections were raised with regard to the conferment of

incentive increment upon the petitioner in the year 2019 and the said fact was

communicated to the writ petitioner by the concerned Head Master on

10.07.2019. The petitioner has submitted a detailed reply, enclosing the

supporting documents to the effect that he is entitled to receive the said

incentive increment and he had prayed for removal of the said audit objections.

From the records, it could be seen that no further action was initiated either by

the concerned School Management or by the Educational Authorities. The

petitioner had attained superannuation on 31.05.2022. After attaining

superannuation, the Educational Authorities and the Treasury Authorities have

not cleared the terminal benefits of the writ petitioner.

8. The learned Counsel appearing for the writ petitioner relied upon the

judgment of the Hon'ble Supreme Court in the case of State of Punjab &

Others Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, based

upon which the Government of Tamil Nadu has issued G.O(Ms)No.286

Finance [Pension] Department, dated 28.08.2018 to impress upon the Court that

the recovery orders could not be passed when the excess payments have been

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

made for a period in excess of five years. According to the writ petitioner, in

the present case, so far no recovery orders have been passed. So, after

retirement, no such recovery order could be passed. He further contended that

the petitioner having attained superannuation, any recovery order passed as on

today would cause great prejudice to the writ petitioner. Hence, he prayed for

quashing the said communication of the Head Master and for disbursal of the

terminal benefits.

9. Per contra, the learned Government Advocate appearing for the

respondents had relied upon the judgment of the Hon'ble Supreme Court in

Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others in

Civil Appeal No.5899 of 2012, dated 17.08.2012, to contend that when there is

a wrong fixation of pay, the authorities are entitled to recover the same. He

further contended that the impugned letter issued by the Head Master has been

issued within a period of five years from the date on which the incentive

increment was sanctioned to the writ petitioner. Therefore, even as per the

orders of the Hon'ble Supreme Court, the recovery proceedings could be

continued. He further relied upon the judgment of the learned Single Judge of

this Court in a batch of writ petitions in W.P(MD)Nos.18111 of 2019 etc.,

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

dated 25.04.2022, to convince the Court that when the petitioner is not entitled

to receive the incentive increment and when the mistake in granting of such an

increment was found out on a later point of time, the authorities could very well

recover the same even after the petitioner had attained superannuation. Hence,

he prayed for dismissing both the writ petitions.

10. I have carefully considered the submissions made on either side.

11. The discussion in the preceding paragraphs will clearly reveal that

the petitioner has been conferred with an incentive increment in violation of

G.O(Ms)No.624, dated 13.07.1992. However, the question that arises for

consideration is whether after attainment of superannuation the said excess

amount paid to the petitioner could be recovered at this length of time.

12. The Hon'ble Supreme Court in the case of State of Punjab & Others

Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334, in paragraph

No.12 has held as follows:

"12. 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

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

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 employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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

(iii) Recovery from 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."

13. The said judgment has been incorporated by the Government of

Tamil Nadu in G.O(Ms)No.286, dated 28.08.2018, with a direction to the

authorities not to recovery the excess amount paid to the employees in the

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

circumstances that are mentioned in paragraphs No.3 of the G.O. In the present

case, though on an erroneous ground incentive increment has been awarded to

the writ petitioner in the year 2014, the same was found out in the audit

objection in the year 2019. Even thereafter, the Educational Authorities have

not initiated any action or passed any orders of recovery. As per the judgment

of the Hon'ble Supreme Court, the order of recovery could not be passed as

against the retired employees. That apart, in the present case, the excess

payment has been made between the year 2014-2022. Therefore, after

retirement, especially when the excess payment has been made for a period in

excess of five years, no order of recovery could be passed at this length of time.

Any order of recovery would be iniquitous or harsh or arbitrary and it would be

outweigh the equitable balance of the employer's right to recover. Therefore,

this Court is of the view that the excess amount that was paid to the writ

petitioner as an incentive increment till his retirement on 31.05.2022 shall not

be recovered. However, the Department is at liberty to refix the pay scale

deleting the incentive increment and on the basis of the revised pay scale the

pensionary benefits of the writ petitioner may be refixed and the terminal and

other benefits of the writ petitioner may be released.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

14. With the above said observation, both the writ petitions stand

allowed to the extent as stated above. The authorities are directed to refix the

salary and pay pensionary benefits to the writ petitioner, within a period of

three (3) months from the date of receipt of a copy of this order. There shall be

no order as to costs. Consequently, connected Miscellaneous Petitions stand

closed.




                                                                                   10.10.2023

                NCC               : Yes / No
                Index             : Yes / No
                Internet          : Yes
                BTR


                To

                1.The Regional Accounts Officer (Audit),
                  School Education Department,
                  Madurai.

                2.The Head Mistress,
                  Head Master,

Kamaraj Nagarmandra Higher Secondary School, Pettai, Tirunelveli.

3.The Head Master, Government Higher Secondary School, Vadasery, Nagercoil, Kanyakumari District.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

4.The Principal Secretary to Government, The Government of Tamil Nadu, Revenue Administration, Fort St. George, Chennai-600 009.

5.The District Collector, Nagercoil, Kanyakumari District.

6.The Sub Treasury Officer, Kalkulam, Kanyakumari District.

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W.P(MD)Nos.3442 of 2021 & 14796 of 2023

R.VIJAYAKUMAR, J.

BTR

W.P(MD)Nos.3442 of 2021 & 14796 of 2023