Madras High Court
P.Gandhimathi vs The Chief Educational Officer on 25 October, 2024
W.P.No.27155 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.10.2024
CORAM
THE HONOURABLE MR.JUSTICE VIVEK KUMAR SINGH
W.P.No.32218 of 2022
and W.M.P.No.31626 of 2022
P.Gandhimathi ... Petitioner
Vs.
1.The Chief Educational Officer,
Salem.
2.The District Educational Officer,
Salem.
3.The Principal Accountant General (A&E),
Tamil Nadu, Chennai 600 018.
4.The District Treasury Officer,
Salem. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records of the 2nd
respondent relating to the order in Proceedings Na.Ka.No.000029/A3/2020
dated 26.08.2022, to quash the same and to issue consequential directions to
the respondents to disburse the monthly pension, pension arrears, commuted
value of pension and disburse the same within a limited time frame with
interest for the delayed payment.
Page 1 of 8
https://www.mhc.tn.gov.in/judis
W.P.No.27155 of 2021
For Petitioner : Mr.M.Ravi
For Respondents : Mr.S.Prabhakaran, GA for R1 to R2
No appearance for R3 & R4
ORDER
This Writ Petition has been filed for quashment of the proceedings of
the 2nd respondent in Na.Ka.No.000029/A3/2020 dated 26.08.2022 and
consequential directions to the respondents to disburse the monthly pension,
pension arrears, commuted value of pension and disburse the same within a
limited time frame with interest for the delayed payment.
2. Heard the learned counsel on either side and perused the materials
available on record.
3. The learned counsel for the petitioner submitted that the petitioner
was initially appointed as Post Graduate Assistant in Government Girls
Higher Secondary School, Salem and was promoted as Headmistress on
08.08.2016 and thereafter, re-employed as Headmistress of Municipal Girls
High School, Pavadi, Salem. The 2nd respondent by its proceedings dated
07.12.2019 in Ni.Mu.No.6452/A3/2019, had issued orders for release of
https://www.mhc.tn.gov.in/judis
DCRG amount of Rs.19,14,705/- and the same was disbursed to the
petitioner. Later on, the petitioner has not been given monthly pension,
commuted value of pension and encashment of earned and unearned leave
and Special Provident Fund benefits. Based on the qualifications of
M.Phil/Ph.D degree acquired by the petitioner, incentive increment was
awarded to the petitioner. She was unconditionally permitted to retire from
service as Head Mistress on attaining superannuation on 30.09.2019. Now,
the second respondent based on the audit objection, passed an order of
recovery of incentive increments awarded to the petitioner for acquiring Post
Graduation Degree of M.Phil/Ph.D.
4. Challenging the said order, the petitioner has preferred a Writ
Petition in W.P.No.16501 of 2020 and this Court, by an order dated
15.03.2022, has set aside the order of recovery passed by the second
respondent and further directed the second respondent to consider and pass
appropriate orders on merits and in accordance with law after providing an
opportunity of hearing to the petitioner. Thereupon, the second respondent by
its proceedings dated 26.08.2022, had issued an order of cancelling the
incentive increment sanctioned to the petitioner earlier and revised the pay,
https://www.mhc.tn.gov.in/judis
which is unsustainable in law.
5.He further submitted that the Hon'ble Supreme Court in the case of
State of Punjab vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC
334, has held that the recovery of any excess payment made, owing to the
mistake of the Department for over a period of 5 years, cannot be made. The
aforesaid decision of the Hon'ble Supreme Court has been followed in the
Government Order in G.O.Ms.No.286, Finance (Pension) Department dated
28.08.2018, which bars any recovery from retired employees or recovery
from any employee, the excess payment has been made for a period in excess
of five years before the order of recovery is issued.
6. The learned Government Advocate appearing for the respondents 1
and 2 submitted that as per Government Letter (Ms) No.268, Higher
Education, dated 29.08.2006 and G.O.Ms.No.91, Higher Education (K2)
dated 03.04.2009, the degree obtained in June 2007 cannot be considered as
eligible degree for sanction of incentive increment. It is further submitted that
in similar Writ Petition in W.P.(MD) No.14073 of 2020, challenging the
recovery of incentive increment paid to similarly placed persons for obtaining
M.Phil was dismissed on 15.11.2021. Further, it is submitted that the
https://www.mhc.tn.gov.in/judis
Government of Tamil Nadu on 29.08.2006 had prohibited the Universities
from offering M.Phil courses through distance education from the academic
year 2007-08. The petitiner has joined the M.Phil degree course in 2006-
2007, she was awarded the M.Phil degree in June 2006 and as such the
degree obtained after the academic year 2006-2007, through distance
education mode, cannot be considered as eligible degree for incentive
increment. The petitioner filed a Writ Petition before this Court in
W.P.No.16501 of 2020 for quashment of the order of the second respondent
dated 09.01.2020 and this Court by an order dated 15.03.2022 had allowed
the said petition. The second respondent, after careful consideration of the
case of the petitioner, issued the impugned proceedings vide
Na.Ka.No.000029/A3/2020 dated 26.08.2022 stating that based on the audit
report of the Regional Accounts Officer, Coimbatore and as per the judgment
of this Court in W.P.No.16501 of 2020, to cancel the incentive increment
given to the petitioner for acquiring M.Phil degree through distance
education. Therefore, there is no infirmity in the impugned order passed by
the second respondent.
7. In view of the submissions made by the learned counsel on either
https://www.mhc.tn.gov.in/judis
side and in the light of the judgment of the Hon'ble Supreme Court in the case
of State of Punjab vs. Rafiq Masih (White Washer) stated supra, this Court
finds that the recovery of any excess payment made, owing to the mistake of
the Department for over a period of 5 years, cannot be made. Hence, this
Court directs the respondents to pay the amount, if any recovered from the
petitioner. The respondents are also directed to make all the payments due to
the petitioner as per law, within a period of four weeks from the date of
receipt of a copy of this order.
8. With the above observations and directions, this Writ Petition is
disposed of. No costs. Consequently, connected Miscellaneous Petition, if
any, is closed.
25.10.2024
vkr
Index : Yes / No
Speaking order / Non-speaking order
Neutral Citation : Yes / No
https://www.mhc.tn.gov.in/judis
To
1.The Chief Educational Officer,
Salem.
2.The District Educational Officer,
Salem.
3.The Principal Accountant General (A&E),
Tamil Nadu, Chennai 600 018.
4.The District Treasury Officer,
Salem.
https://www.mhc.tn.gov.in/judis
VIVEK KUMAR SINGH, J.
vkr
25.10.2024
https://www.mhc.tn.gov.in/judis
