Madras High Court
A.Rajammal vs The District Elementary Educational ... on 18 July, 2025
2025:MHC:1690
W.P.(MD) No.24395 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 11.07.2025
Pronounced On : 18.07.2025
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
W.P. (MD) No.24395 of 2016
and
W.M.P. (MD) No.17616 of 2016
A.Rajammal,
No.2/482B9, Vasanthapuram East Street,
Madurai-Mandapam Main road,
Paramakudi-623707,
Ramanathapuram District. ... Petitioner
Vs.
1.The District Elementary Educational Officer,
Sivagangai District.
2.The Additional Assistant Elementary Educational Officer,
Ilaiyangudi,
Sivagangai District. ... Respondents
PRAYER in W.P.:
To issue a Writ of Certiorari or any other appropriate Writ or
Order or Direction in the nature of Writ, calling for the records pertaining
to the order passed by the 2nd respondent in his proceedings in Na.Ka.
No.683/A2/2016 dated 23.11.2016 and quash the same, and pass such
further or other orders as may deem fit and thus render justice.
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W.P.(MD) No.24395 of 2016
PRAYER IN W.M.P.:
To grant an interim stay of the operation of the order passed by the
2nd respondent in his proceedings in Na.Ka.No.683/A2/2016 dated
23.11.2016 pending disposal of the writ petition and thus render justice.
APPEARANCE OF PARTIES:
For Petitioner : Mr. K.Kalyana Kumar
for Mr.V.Panneer Selvam
For Respondents : Mr.J.Ashok,
Additional Government Pleader
JUDGMENT
Heard.
2. The petitioner, A. Rajammal, challenges the proceedings of the
second respondent dated 23.11.2016 bearing Na.Ka.No.683/A2/2016,
whereby a recovery was ordered on the ground that she had allegedly
received excess pay due to erroneous pay fixation. The legality of that
order is under scrutiny in this writ petition.
3. The brief facts are not in dispute. The petitioner was appointed
as a Secondary Grade Teacher on 29.06.1988. She was granted selection
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grade in that post on 28.06.1998 and was thereafter promoted as
Elementary School Headmistress on 09.07.1998 and later as Middle
School Headmistress on 26.06.2006. According to the petitioner, the
selection grade pay applicable to the lower post was higher than the pay
scale of the promotional post, resulting in an anomaly. Accordingly, she
requested that the anomaly be rectified through representation dated
02.01.2013.
4. Acting on this representation, the Department passed an order
dated 14.06.2013 and revised her pay scale purportedly under Rule 4(3)
of the Tamil Nadu Revised Scales of Pay Rules. It must be noted that the
petitioner did not assert that she had already earned selection grade in the
post of Elementary School Headmistress or that she had completed ten
years of service in that post. Rather, her case was premised on a
hypothetical assumption namely, that had she not opted for promotion in
2006, she would have continued in the lower post and become eligible
for selection grade by 08.07.2008. This hypothetical basis for re-fixation
was accepted by the department without objection at that time and
remained in force for more than three years.
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5. However, according to the respondents, an objection was raised
during the audit of accounts by the District Elementary Educational
Officer, pointing out that the petitioner’s pay had been wrongly fixed
under a non-existent Rule 4(3) of the Tamil Nadu Revised Scales of Pay
Rules, 2009. This led the second respondent to pass the impugned order
dated 23.11.2016, directing recovery of the alleged excess amount. The
relevant portion of the counter affidavit (paragraphs 4 and 6) reads:
“4. …the 2nd respondent without carefully reading the
Tamil Nadu Revised Scales of Pay Rules, 2009 and the
Government Letter No.14483/CMPC/2011-1 dated
05.01.2012… has wrongly stepped up the pay of the
petitioner on 09.07.2008…”
“6. …the petitioner was put on notice by the 2nd
respondent in his R.C.No.683/A2/2016 dated 23.11.2016
that the fixation of pay of the petitioner under Rule 4(3) is
objected to by the District Elementary Educational
Officer, during the course of audit of accounts of his
office and she was requested to refund her excess amount
drawn by her only”.
The audit objection itself is not annexed, but the State relies on it as the
principal justification for initiating recovery.
6. Learned counsel for the petitioner submitted that the recovery is
violative of principles of natural justice, inasmuch as no notice or hearing
was provided prior to issuance of the recovery order. It was further
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submitted that the petitioner belongs to Class B service, had no role in
the erroneous fixation and that she merely acted on a legitimate
grievance through formal representation. The decision in State of
Punjab v. Rafiq Masih, reported in (2015) 4 SCC 334, was relied upon
to argue that such recoveries from Class III employees are impermissible
in law.
7. The learned Additional Government Pleader submitted that the
petitioner was not entitled to the benefit under Rule 4(3), since no such
rule existed under the Tamil Nadu Revised Scales of Pay Rules, 2009,
and that she had not rendered ten years of service in the post of
Elementary School Headmistress to qualify for selection grade in that
cadre. It was contended that the refixation was based on a misreading of
departmental instructions, and the petitioner could not claim any accrued
right under the erroneous fixation. The learned Government Pleader
further submitted that the decision in Rafiq Masih was distinguishable
and inapplicable to the present facts. Additionally, paragraphs 4 and 6 of
the counter affidavit were relied upon to argue that the petitioner was
“put on notice” through the very impugned order dated 23.11.2016.
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8. However, such post-facto justification does not meet the
mandate of law. The so-called notice dated 23.11.2016 is not a prior
notice but the final recovery order itself. It neither sets out any reasons
nor affords the petitioner any opportunity to respond before the liability
is fastened upon her. A final recovery order cannot substitute the
obligation to issue a show cause notice prior to arriving at a decision.
Procedural fairness is a facet of Article 14, and its breach vitiates
administrative action. However, fairly conceding that no prior show
cause notice was issued, the learned Government Pleader submitted that
the matter may be remanded back to the authorities, who are willing to
give the petitioner an opportunity of hearing and proceed in accordance
with law.
9. The petitioner’s representation dated 02.01.2013 itself did not
assert that she had already completed the qualifying service for selection
grade in the post of Elementary School Headmistress. Her grievance was
therefore premised on a hypothetical situation that had she not accepted
promotion to the post of Middle School Headmistress in 2006, she would
have completed the requisite tenure and earned a higher pay scale in the
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lower post by 2008. The department, acting on this reasoning, re-fixed
her pay in 2013 purportedly under Rule 4(3), and the petitioner continued
to draw salary on that basis for over three years, until the audit objection
prompted the present recovery. There is no allegation of
misrepresentation, suppression, or fraud on the petitioner’s part. She
merely articulated a grievance arising from an acknowledged pay
anomaly, and it was the department that acted upon it.
10. Even assuming that the re-fixation was legally erroneous, it is
settled law that recovery of excess salary paid due to employer’s mistake
without any fault on the part of the employee is not permitted in certain
circumstances. In State of Punjab v. Rafiq Masih, the Supreme Court
laid down that no recovery can be made from Class III and IV
employees; Retired employees, or those about to retire within a year;
Employees paid for long periods without objection; Cases where
recovery would cause undue hardship.
11. In the present case, the petitioner is a Class III employee, has
drawn the refixed salary for over three years, and is now about nearing
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retirement. The record discloses no fault or inducement on the part of the
petitioner and the impugned recovery order was issued without even a
pre-decisional notice. In these circumstances, the decision in Rafiq
Masih squarely applies, notwithstanding the fact that the period of
overpayment was slightly less than five years. The Supreme Court did
not lay down an arithmetical rule, but rather a test of equity, hardship,
and absence of fault.
12. The attempt to rely on Chandi Prasad Uniyal v. State of
Uttarakhand, reported in (2012) 8 SCC 417, is misplaced. That decision
does not override Rafiq Masih but is instead to be read harmoniously
with it. Where the facts fall within the exceptions carved out in Rafiq
Masih as in the present case recovery cannot be permitted.
13. This Court refrains from expressing any opinion on the
correctness of the original re-fixation dated 14.06.2013, as the same is
not under challenge in the present writ petition. The limited question
before this Court is whether the subsequent recovery directed by the
order dated 23.11.2016, without prior notice and against a non-faulting
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Class III employee nearing retirement, is legally permissible. On this
issue, the recovery clearly falls foul of the binding principles laid down
by the Hon’ble Supreme Court in Rafiq Masih. In these circumstances,
remanding the matter for fresh notice would serve no purpose, since
recovery from a Class III employee, who was not at fault and drew the
amount for over three years, remains impermissible in law.
14. In light of the above findings, the impugned order dated
23.11.2016 is quashed. As the petitioner is a Class III employee, was not
at fault, and was not served any prior notice before recovery was
effected, the recovery directed against her is contrary to law and
impermissible in terms of the binding principles laid down by the
Hon’ble Supreme Court in State of Punjab v. Rafiq Masih, reported in
(2015) 4 SCC 334. Nothing stated in this order shall prevent the
respondents from addressing any procedural or audit-related
discrepancies through appropriate administrative measures, provided no
recovery is made from the petitioner in violation of settled law.
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15. With the above observations, the Writ Petition is allowed.
There will be no order as to costs. Consequently, the connected
miscellaneous petition is closed.
18.07.2025
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
LS
To
1.The District Elementary Educational Officer,
Sivagangai District.
2.The Additional Assistant Elementary Educational Officer,
Ilaiyangudi,
Sivagangai District.
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DR. A.D. MARIA CLETE, J.
LS
Pre-delivery Judgment made in
and
18.07.2025
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