Madras High Court
J.A.Thiruselvi vs The State Of Tamil Nadu on 28 October, 2024
Author: Battu Devanand
Bench: Battu Devanand
W.P.No.2990 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 02.09.2024
ORDERS PRONOUNCED ON: 28.10.2024
CORAM
THE HON'BLE MR. JUSTICE BATTU DEVANAND
W.P.No.2990 of 2018
and WMP.Nos.3643 and 3644 of 2018
1. J.A.Thiruselvi
2. C.R.Ananthalakshmi
3. T.Periyasamy
4. M.P.Murali
5. V.Saminathan
6. S.Sree Raja Rajeshwari
7. M.Kumaresan
8. R.Maria Shanthi ... Petitioners
[As per the order of this Court dated 28.10.2024
in WMP.No.24092 of 2018 in WP.No.2990 of 2018,
writ petition is withdrawn against 5th petitioner]
Vs.
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
School Education Department,
Fort St. George,
Chennai 600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai 600 006.
3. The Principal Accountant General (G&SS Audit),
1/12
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W.P.No.2990 of 2018
Tamil Nadu and Pondy,
Lekha Pariksha Bhavan,
361, Anna Salai, Teynampet,
Chennai 600 018.
4. Coimbatore District Chief Educational Officer,
No.500, Raja Street,
Coimbatore 641 001.
5. The Headmaster,
Government Higher Secondary School,
Karamadai, Coimbatore 641 104.
6. The Headmaster,
Ramasamy Chettiar Government Girls Higher Secondary School,
Ondiputhur, Coimbatore 641 106.
7. The Headmaster,
Government Boys Higher Secondary School,
Sulur, Coimbatore 641 402.
8. The Headmaster,
Nall Muthy Gounder Nachimuthu,
Gounder Higher Secondary School,
Reddiarur, Pollachi 642 007.
9. The Headmaster,
Government Higher Secondary School,
Sirumugaiputhur,
Coimbatore District 641 302.
10. The Headmaster,
Government Higher Secondary School,
Kuniamuthur,
Coimbatore District 641 008.
11. The Headmaster,
Government Boys Higher Secondary School,
Thondamuthur,
Coimbatore District 641 109.
12. The Headmaster,
Presentation Convent Girls Higher Secondary School,
Near Head Post Office,
Coimbatore 641 001. ... Respondents
PRAYER: Writ Petitions filed under Article 226 of the Constitution of
2/12
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W.P.No.2990 of 2018
India, to issue a Writ of Certiorarified Mandamus, calling for the records of
the 4th respondent dated 19.10.2016 having Re.No.Pa.Mu.No.8831/A4/2016
and the consequential proceedings dated 19.10.2017 having
Ref.No.Na.Ka.No.9000/A4/2017 of the 4th respondent and quash the same as
illegal and arbitrary, violative of Article 14 of the Constitution of India and
consequently forbear the 5th to 12th respondents from recovering the alleged
excess payment in the form of 1st increment sanctioned to the petitioners
from the date of acquiring M.Phil Degree and continue to pay the salary
along with the incentive increment to the petitioners as hitherto done.
For Petitioners : Mrs.Nalini Chidambaram, Senior Counsel
for M/s.C.Uma
For Respondents
for RR1, 2 4 to 8 : M/s.P.Rajarajeswari
Government Advocate
for R3 : Mr.V.Vijay Shankar
ORDER
Challenging the recovery orders issued by the fourth respondent in
Re.No.Pa.Mu.No.8831/A4/2016 dated 19.10.2016 and
Ref.No.Na.Ka.No.9000/A4/2017, dated 19.10.2017, this Writ Petition has
been filed.
2. The petitioners joined the service as Physical Directors Grade-I in
various Schools on different dates. They were granted incentive increment
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from the date of acquiring M.Phil Degree, but the Audit Department raised
objection to the incentive increment granted to the petitioners. Subsequently,
the District Educational Officer, Coimbatore, i.e., fourth respondent herein
issued proceedings dated 19.10.2016 and 19.10.2017 directing the
Headmasters to recover the incentive increment granted to the petitioners,
who are working as Physical Directors Grade-I prior to 13.10.2006. Against
the said proceedings, the present Writ Petition has been filed.
3. The learned Senior Counsel for the petitioners would submit that
even assuming allowing of the incentive increment was an error, it can be
seen that it was not allowed on any misrepresentation of the petitioners. The
mistake is admittedly sought to be corrected, however the amount paid
earlier till the date of issue of G.O. in the year 2016 cannot be recovered
from the petitioners.
4. The learned Government Advocate appearing for the respondents
submits that till G.O.Ms.No.177, School Education Department, dated
13.10.2016 was issued, M.Phil degree has not been recognised as higher
qualification. However, the authorities concerned wrongly calculated and
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sanctioned incentive increment to the petitioners. Therefore, the recovery
order issued by the fourth respondent is in accordance with law and sought
to dismiss the Writ Petition.
5. To substantiate the arguments, the learned counsel for the
petitioners has relied on the order dated 19.07.2023 passed by a learned
Single Judge of this Court in W.P.No.12328 of 2022 and batch. He also
relied on the order dated 21.06.2024 passed by a learned Single Judge of this
Court in W.P.No.26937 of 2023.
6. The learned counsel for the respondents, in support of his
contentions, relied on the order dated 16.11.2022 in WP(MD).No.4973 of
2019, which was confirmed by the judgment dated 14.02.2023 in
W.A.(MD).No.119 of 2023.
7. Heard learned counsel for the petitioners and the learned counsel
for the respondents and perused the materials available on records including
the reliance placed by the respective counsels.
8. It is seen that while confirming the order dated 16.11.2022 in
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WP(MD).No.4973 of 2019, the Division Bench of this Court in its judgment
dated 14.02.2023 in W.A.(MD).No.119 of 2023 held that the higher
qualification mentioned in G.O.Ms.No.95, Education Department, dated
21.01.1980 for Physical Directors / Physical Education Teachers Grade I &
II, are M.P.Ed/B.T or B.Ed or B.P.Ed or Diploma in Physical Education,
wherein the qualification of M.Phil has not been prescribed for eligible for
payment of additional increment. Expressing such finding, the Writ Appeal
was dismissed confirming the order of the learned Single Judge.
9. In the orders relied on by the petitioners in W.P.No.12238 of 2022
and 26937 of 2023, the Court has set aside the recovery orders by following
the order of the Hon'ble Apex Court in State of Punjab and Others vs.
Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 34. The
relevant paragraph of the order in WP.No.26937 of 2023 is extracted
hereunder:
“6. Firstly, it can be seen that the incentive increment was
granted by the respondent. The same was not because of any
misrepresentation of the petitioner. Secondly, it was allowed
with effect from 01.06.2006. The same is now sought to be
recovered in the year 2016. In that view of the matter, the
Hon'ble Supreme Court of India in Rafiq Masih's case while
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considering the hardship which would be faced by the
employees in the matters of recovery belatedly has laid down
the following conditions at paragraph no.18 as situated
wherein recovery by the employers would be equivalent in
principles of law.
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.
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(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”.
10. As seen from the facts of the present case, it came to understand
that the petitioners would come within paragraph No. 18(iii) of the order of
Apex Court stated supra, whereby the recovery is made in respect of the
excess payment, which is made for the period in excess of 5 years before the
order of recovery is issued. Therefore, the petitioners are entitled for the
benefit of the said judgment. However, in the judgment relied on by the
respondents, the judgment of Apex Court stated supra has not been
examined.
11. In such view of the matter, this Writ Petition is allowed on the
following terms:
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(i) The impugned orders passed by the fourth
respondent in Re.No.Pa.Mu.No.8831/A4/2016 dated
19.10.2016 and Ref.No.Na.Ka.No.9000/A4/2017 dated
19.10.2017 are upheld inasmuch as they correct the
mistake of grant of advance increment and refixation of
pay.
(ii) However, the impugned orders are also
declared to be illegal inasmuch as they order recovery of
the amount already paid to the petitioners.
(iii) Even if any recovery had already been made,
the same should be refunded to the petitioners within a
period of 12 weeks from the date of receipt of a copy of
this order.
No costs.
Consequently, connected miscellaneous petitions are also closed.
12. This Writ Petition stands withdrawn in respect of the fifth
petitioner alone, as ordered by this Court in WMP.No.24092 of 2018, dated
28.10.2024.
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28.10.2024
Speaking/Non-speaking order
Index : Yes/No
Neutral Case Citation : Yes/No
pvs
To
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
School Education Department,
Fort St. George,
Chennai 600 009.
2. The Director of School Education,
DPI Campus, College Road,
Chennai 600 006.
3. The Principal Accountant General (G&SS Audit),
Tamil Nadu and Pondy,
Lekha Pariksha Bhavan,
361, Anna Salai, Teynampet,
Chennai 600 018.
4. Coimbatore District Chief Educational Officer,
No.500, Raja Street,
Coimbatore 641 001.
5. The Headmaster,
Government Higher Secondary School,
Karamadai, Coimbatore 641 104.
6. The Headmaster,
Ramasamy Chettiar Government Girls Higher Secondary School,
Ondiputhur, Coimbatore 641 106.
7. The Headmaster,
Government Boys Higher Secondary School,
Sulur, Coimbatore 641 402.
8. The Headmaster,
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Nall Muthy Gounder Nachimuthu,
Gounder Higher Secondary School,
Reddiarur, Pollachi 642 007.
9. The Headmaster,
Government Higher Secondary School,
Sirumugaiputhur,
Coimbatore District 641 302.
10. The Headmaster,
Government Higher Secondary School,
Kuniamuthur,
Coimbatore District 641 008.
11. The Headmaster,
Government Boys Higher Secondary School,
Thondamuthur,
Coimbatore District 641 109.
12. The Headmaster,
Presentation Convent Girls Higher Secondary School,
Near Head Post Office,
Coimbatore 641 001.
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BATTU DEVANAND.J.,
pvs
Pre-delivery order in
28.10.2024
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