A perusal of the affidavit filed in support of this Writ Petition would discloses that the petitioner was appointed as Typist in the Highways Department, on 07.04.1981. Later on, the Tamil Nadu Public Service Commission has selected him and appointed as Typist in the Government Hospital, Ramanathapuram, on 01.03.1982. According to the petitioner, he is physically challenged.
2. The Government Orders in G.O.Ms.No.45, dated 15.02.1994, creating new category of post ''Typist Grade I'' in the Tamil Nadu Ministrial Service. As per the said Government Orders, the scale of pay of the petitioner was at Rs.5,000-150-8,000. The Director of Medical and Rural Health Department, Chennai -6, in terms of the above said Government Orders, has issued consequential order, on 08.01.2002 and promoted 14 typists as Grade -I, in which, the petitioner was one of the typist.
3. The petitioner had completed 18 years of service and he was given promotion in the above said scale of pay and he has been paid salary accordingly.
4. The petitioner further averred that due to his physical disability, he opted to work as 'Typist Grade I' and opted to draw the salary as stated above. However, to the shock and surprise of the petitioner, the first respondent has issued an order dated 31.10.2008, proposing to recover from the petitioner's future salary stating that the scale of pay in the ''Typist Grade I'' is at Rs.4000-100-6000 and not at Rs.5000-150-8000. It has been indicated in the order that pursuant to the audit objection, mistake was found out and therefore, the re-fixation of salary was done at the time scale of Rs.4000 - 6000.
5. The grievance of the petitioner is that the said impugned order came to be passed without any notice and without affording any opportunity whatsoever.
6. It is the case of the petitioner that he has not misrepresented and he was not at fault in respect of the fixation of scale of pay at Rs.5000-150-8000 and as such, the impugned order of recovery on the verge of the retirement is un-sustainable and therefore, prayed for quashment of the said order.
7. The first respondent has filed counter affidavit. It is stated in the counter that on 08.01.2002, the petitioner was promoted as ''Typist Grade I'' in the time scale of pay at Rs.5000-150-8000/- and his scale of revision with effect from 21.02.2002, by the Hospital Superintendent, Sivaganga.
8. It is further averred by the first respondent as proceedings of the Director of Medical and Rural Health Services, dated 15.12.2006, the scale of pay of Typist Grade I was revised as Rs.4000-100-6000, instead of Rs.5000-150- 8000/-. Due to such revision, the excess pay and allowances paid to the petitioner was ordered to be recovered at Rs.15,580 (for the period from 21.01.2002 to 31.12.2006). Taking into consideration, the difficulties faced by the petitioner, the said excess amount was ordered to be recovered for easy installment at Rs.3,895/- in four equal installments commencing from November 2008. It is further averred in the counter affidavit that the petitioner was also indicated, as to why the recovery was made and as such, it is contended by the first respondent that the order of recovery is in order and therefore, prayed for the dismissal of the Writ Petition.
9. Heard the submissions of Mr.A.Sivaji, learned counsel for the petitioner and Mr.K.Balasubramanian, the learned Additional Government Pleader, appearing for the respondents and this Court has also perused the materials available on record.
10. A perusal of the impugned order would discloses that the wrong fixation was found out in the year 2006 and after two years, the impugned order of recovery came to be passed on 31.10.2008. Admittedly, the petitioner has not made any misrepresentation or practiced fraud regarding fixation of salary in the time scale of pay at Rs.5000-150-8000.
11. The Hon'ble Supreme Court in a number of decisions has held that in the event of lack of misrepresentation or commission of fraud on the part of the employees, who had no knowledge that the amount being paid was more than what they are entitled to, the excess payment made as a result of wrong interpretation of the rule cannot be recovered.
12. This Court in a Judgement reported in 2008 Writ L.R. 164 (A.Chandra Bose and others v. The Executive Engineer), has also considered the Judgements of the Hon'ble Supreme Court of India and held so. This Court is of the considered view that the ratio laid down by the Hon'ble Supreme Court of India in various decisions, it is squarely applicable in this case.
13. In the result, the impugned order dated 31.10.2008, in so far as recovery of Rs.15,580/- is quashed and the Writ Petition is allowed. It is open to the petitioner to submit a representation to the appropriate authorities for re-fixation of his scale of pay at Rs.5000-150-8000. Consequently, connected Miscellaneous Petition is closed. No costs.
vsg To
1. The Joint Director Health and Rural Welfare and family Welfare Department Govt. District Head Quarters Hospital Complex Sivagangai
2. The Director of Medical and Rural Health Services Teynampet Chennai - 600 006