The Original Application in O.A.No.1628 of 2001 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2. The petitioner joined the service as Higher Grade Teacher on 20.12.1967. He was promoted as Secondary Grade Teacher and posted as Elementary School Headmaster at Nesanoor Elementary School, he worked there upto 29.03.1971. Thereafter he was transferred to Periya Negapudi Middle School as Secondary Grade Teacher. While working in the said School, the School got upgraded as Government High School on 16.07.1980. He came to Government Service from Panchayat Union service.
3. While so, the petitioner filed O.A.No.6761 of 1993 before the Tamil Nadu Administrative Tribunal seeking for a direction to re-fix the pay scale at Rs.2000-3200 from 01.06.1988, as his juniors were in receipt of the said scale as Middle School Headmasters. The Tribunal passed an order dated 04.01.1993 directing the respondent to revert the petitioner to the Panchayat Union Service and to appoint him as a Headmaster with reference to his seniority in the available vacancy.
4. The above said order was implemented by the respondent by an order dated 01.06.1994 by promoting him as Headmaster and he was given the scale of pay of Rs.1640-3200. While so, the impugned order dated 19.06.2000 was issued by the second respondent. This order is based on Audit Report. It is stated that the petitioner was erroneously given the scale of Rs.1640-3200 which is the Selection Grade scale of pay of the Middle School Headmaster. According to the impugned order, the petitioner should have been fixed at the ordinary Grade at Rs.1400-2600. It is further stated that the order of the Tribunal was not properly understood and accordingly, a wrong fixation was made. In view of wrong fixation, the petitioner was paid an excess amount of Rs.1,12,490/- as per the calculation sheet enclosed with said impugned order dated 19.06.2000. Based on the said order, the second respondent directed for recovery of Rs.1,12,490. Aggrieved by the same, the petitioner filed the Original Application in O.A.No.1628 of 2001 (W.P.No.2755 of 2007) to quash the order dated 19.06.2000 of the second respondent and the order dated 27.12.2000 of the third respondent.
5. Heard Mr.R.Ramesh, learned counsel for the petitioner and Mrs.C.K.Vishnu Priya, learned Additional Government Pleader for the respondents
6. The learned Additional Government Pleader made her submissions based on instructions.
7. The learned counsel for the petitioner made the following submissions:-
(i) It is stated that the impugned order of recovery dated 27.12.2000 of the third respondent is based on the order of the second respondent, dated 19.06.2000. But, the said order dated 19.06.2000 was not furnished to the petitioner and his views were not sought for before seeking to effect recovery. Hence, the same is violative of principles of natural justice.
(ii) The impugned order proceeds that the pay of petitioner was fixed by an order dated 01.06.1994 erroneously at Rs.1640-3200, while implementing the order of the Tribunal and if the Department erroneously fixed the pay and paid excess payment, later the same could not be recovered from the Teacher as held by the Hon'ble Supreme Court in SAHIB RAM VS. STATE OF HARYANA AND OTHERS reported in 1995 Supp (1) SCC 18. Para 5 of the said judgment is extracted here-under:
"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."
8. On the other hand, the learned Additional Government Pleader submits that when excess payment was made, the respondents are justified in effecting the recovery.
9. The impugned order of recovery was passed in violation of the principal of natural justice, as the petitioner was not heard, before passing the order of recovery.
10. The impugned order results in serious civil consequences. It has been categorically held by the Hon'ble Supreme Court in BHAGVAN SHUKLA VS. UNION OF INDIA reported in 1994 (6) SCC 154 that no order could be passed by an authority against any one resulting in civil consequences without hearing the concerned person. The relevant para from the said judgment is extracted here-under:
"3.We have heard learned counsel for the parties. That the petitioner's basic pay had been fixed since 1970 at Rs.190 p.m. is not disputed. There is also no dispute that the basic pay of the appellant was reduced to Rs.181 p.m. from Rs.190 p.m. in 1991 retrospectively w.e.f. 18.12.1970. The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the other came to be made behind his back without following any procedure known to law. There has, thus, been a flagrant violation of the principles of natural justice and the appellant has been made to suffer huge financial loss without being heard. Fair play in action warrants that no such order which has the effect of an employee suffering civil consequences should be passed without putting the (sic employee) concerned to notice and giving him a hearing in the matter. Since, that was not done, the order (memorandum) dated 25.07.1991, which was impugned before the Tribunal could not certainly be sustained and the Central Administrative Tribunal fell in error in dismissing the petition of the appellant. The order of the Tribunal deserves to be set aside. We, accordingly, accept this appeal and set aside the order of the Central Administrative Tribunal dated 17.09.1993 as well as the order (memorandum) impugned before the Tribunal dated 25.07.1991 reducing the basic pay of the appellant from Rs.190 to Rs.181 w.e.f. 18.12.1970."
Hence, the impugned order was passed against the dictum laid down by the Hon'ble Apex Court and is therefore liable to quashed.
11. Further, as rightly contended by the learned counsel for the petitioner, the fixation of pay at Rs.1640-2300 was not due to any misrepresentation from the petitioner. The grievance of the petitioner is that he is entitled to the scale of pay of Rs.2000-3200. In any event since the Department fixed the payment at Rs.1640-3200, while implementing the order of the Tribunal, later they could not effect recovery by stating that the fixation was wrong and excess payments were made. If the fixation was not due to any misrepresentation, no recovery could be made. The learned counsel relies on a decision of the Hon'ble Supreme Court in SAHIB RAM VS. STATE OF HARYANA AND OTHERS reported in 1995 Supp (1) SCC 18. The said judgment squarely applies to facts of this case and hence the impugned order is quashed and the writ petition is allowed. No costs.
rns To
1. District Elementary Education Officer Kancheepuram
2. Assistant Director Legal Fund (Audit) Kancheepuram
3. The Additional Assistant Elementary Education Officer R.K.Pet, Panchayat Union Pallipet Taluk, Tiruvallur District