IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.2.2010
CORAM:
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
W.P.No.5683 of 2005
S.Karthikeyan .. Petitioner
Vs.
1. The Chief Engineer (General)
Highways, Chepauk
Chennai 600 005.
2. The Divisional Engineer
Highways, Vellore 9. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the order in proceeding No.Nir 4(i)42174/2003-2, dated 13.5.2004 of the first respondent and the consequential order of the second respondent in proceeding No.3475/2004-Pi-2, dated 12.1.2005, quash the same and to consequently direct the respondents to restore the petitioner's scale of pay and salary with arrears and all other consequential benefits.
For Petitioner : Mr.R.Krishnasamy
for Mr.V.Ajay Khose
For Respondents : Mr.A.Edwin Prabhakar
Additional Government Pleader
ORDER
Heard the learned counsel for the petitioner and the respondents. The respondents have also filed counter affidavit.
2. The writ petition is directed against the order of the first respondent dated 13.5.2004 by which the first respondent has cancelled the selection grade scale granted to the petitioner in the post of Typist by his proceedings dated 23.6.1987 with effect from 7.12.1982.
3. A reference to the impugned order shows that the selection grade scale which has been granted to the petitioner with effect from 7.12.1982 in the order of the first respondent dated 23.6.1987 is sought to be taken away nearly after 17 years of conferring of such benefits and the order also shows that the same is on the basis of certain corrections made in regularising the services of the petitioner in the post of Typist based on the proceedings of the first respondent dated 13.5.2004, which is stated to be on the basis of G.O.Ms.No.1016, Personnel and Administrative Reforms (Personnel) Department, dated 15.10.1986. The order further proceeds to recover the excess salary stated to have been received by the petitioner for the year from 7.12.1982 to 27.12.1987. Therefore, under the impugned order the civil right which has accrued to the petitioner in the post of selection grade Typist is sought to be taken away without even following the basic principles of natural justice and without even giving notice to the petitioner. Such fact having not been disputed the impugned order has to be set aside on the sole ground of violation of principles of natural justice and at this juncture it has to be taken note that pending disposal of the writ petition there has been an order of stay of recovery.
4. When a pay scale has been granted to a civil servant which has been enjoyed by the civil servant, a civil right has accrued to him and after many years even if it is found that by mistake of the authorities the amount has been paid, as long as there is no misrepresentation or fraud played by the civil servant concerned in receiving the excess amount, no recovery can be made. That has been an established judicial precedent as enunciated by the Supreme Court in Sahib Ram v. State of Haryana and others, 1995 Supp (1) SCC 18. That was a case where a person was not having the required educational qualification and in fact he was not entitled to relaxation of qualification and the Principal has by error granted him relaxation based on which revised salary has been paid. On finding that the amount has been paid without misrepresentation on the part of the government servant, the Supreme Court held that the amount paid cannot be recovered. The operative portion of the said judgment is as follows:
“5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.”
5. That was also the view taken by the Apex Court in Shyam Babu Verma and others v. Union of India and others, 1994 (I) LLJ 815=[1994] 2 SCC 521. In that case while holding that the prescription of two different scales of pay for Pharmacists Grade-B depending upon academic qualifications is not arbitrary or unreasonable, the Supreme Court has directed that no steps should be taken for recovery or adjustment of any amount paid to the petitioners therein due to the fault of the respondents, the petitioners being in no way responsible for the same.
6. The Apex Court in yet another decision in Col.B.J.Akkara (Retd.) v. Government of India, [2006] 11 SCC 709, referring to the decisions in Sahib Ram case and Shyam Babu Verma case, referred supra, has held as under:
“27. … This Court has consistently granted relief against recovery of excess wrong payment of emoluments/allowances from an employee, if the following conditions are fulfilled (vide Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar and V. Gangaram v. Regional Jt. Director):
(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee.
(b) Such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
28. Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.”
7. In Syed Abdul Qadir and others v. State of Bihar and others, [2009] 3 SCC 475, even though it was held that in a given case it is open to the Court to decide that the excess amount paid wrongly should be recovered if the error was deducted within a short span of time, on the facts of the said case, there was direction to refund the amount recovered. The following portion of the judgment of the Supreme Court would be relevant to enlighten on the issue:
58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, 1995 Supp (1) SCC 18; Shyam Babu Verma v. Union of India, [1994] 2 SCC 521; Union of India v. M. Bhaskar, (1996) 4 SCC 416; V. Ganga Ram v. Regional Jt. Director, [1997] 6 SCC 139; Col. B.J. Akkara (Retd.) v. Government of India and Ors., [2006] 11 SCC 709; Purshottam Lal Das and Ors. v. State of Bihar, (2006) 11 SCC492; Punjab National Bank and Ors. v. Manjeet Singh and Anr., AIR 2007 SC 262 and Bihar State Electricity Board and Anr. v. Bijay Bahadur and Anr., (2000) 10 SCC 99 .
59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made.
***
61. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants – teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.
8. The Division Bench of this Court consisting of P.Sathasivam and S.K.Krishnan,JJ., as they then were, in D.Palavesamuthu v. Tamil Nadu Administrative Tribunal, rep. by its Registrar, Chennai and others, [2006] 1 MLJ 143 held that even if the fixation of scale of pay was made by mistake by the authorities and if the teacher concerned was not at fault he should not be penalized, based on the principle enunciated by the Supreme Court in Sahib Ram case referred supra and Divisional Superintendent, Eastern Railway, Dinapur and others v. L.N.Kashri and others, AIR 1974 SC 1889. The Division Bench has held as follows:
6. .. Even if it is accepted for the argument sake that salary of the petitioner is fixed in a wrong scale of pay, it is the fault committed by the Department and their Officers, for which the petitioner should not be penalised after a lapse of number of years that too after retirement of the petitioner.
9. In cases where fixation of pay has been made in accordance with law by which certain benefits have been conferred, subsequently if certain mistakes were found, such amount which was paid cannot be recovered without giving opportunity to the teacher concerned. That was the view taken by me in Y.Chellammal and others v. State of Tamil Nadu, rep. by its Secretary, School Education Department and others, [2008] 1 MLJ 97.
10. That apart in the present case it is not in dispute that while passing the impugned order no opportunity has been given to the petitioner. Therefore, for violation of principles of natural justice also the impugned order is liable to be set aside and it is not the case of the respondents, as it is seen in the counter affidavit, that the petitioner has misrepresented or played fraud in obtaining the selection grade scale.
P.JYOTHIMANI,J.
[sasi]
In such circumstances, the writ petition stands allowed and the impugned order of the first respondent stands set aside. No costs. Consequently, W.P.M.P.No.6282 of 2005 is closed.
11.2.2010
Index : Yes
Internet : Yes
sasi
To:
1. The Chief Engineer (General)
Highways, Chepauk
Chennai 600 005.
2. The Divisional Engineer
Highways, Vellore 9.
W.P.No.5683 of 2005