This Writ Petition has been filed praying for a Writ of Certiorarified Mandamus to call for the records relating to the order of the third respondent, dated 04.11.2003, made in Na.Ka.No.4408/03/A1 and to quash the same and to permit the petitioners to draw the original scale of pay fixed in the year 2001 and for other monetary benefits.
2. It has been stated that the third respondent fixed the revised scale of pay for the petitioners on the basis of the audit report from Rs.4300-100-6000 to that of Rs.4000-100-6000 by the impugned order, dated 04.11.2003. The petitioners have been working as Record Clerks in the third respondent temple, in the scale of pay originally fixed, without any avenue for promotions.
3. Based on the representations made by the petitioners, the petitioners had been granted selection grade of pay pursuant to the order, dated 09.07.1991. However, since the pay scales fixed by various temples in the State of Tamil Nadu, for persons holding similar posts, were not uniform in nature, the question of re-fixation of pay scales, in terms of the Fifth Pay Commission recommendations, had arisen for consideration. Hence, a committee had been constituted, to suggest modifications in the pay scales of employees employed in the various temples in the State of Tamil Nadu, in accordance with G.O.Ms.No.257, Tamil Development, Cultural and Charitable Endowments Department, dated 10.06.1998.
4. In view of the recommendations made by the said committee, the pay scales had been revised, with effect from 01.07.1997. With regard to the petitioners, who were holding the post of Record Clerks, the third respondent had directed the fixation of their pay, with effect from 01.07.2001, in the selection grade pay of Rs.4300/-. The petitioners were also granted the arrears of selection grade scale fixed in the year 2001. However, without issuing any prior notice to the petitioners, the impugned order had been passed based seeking to recover the amounts paid to the petitioners, in accordance with the revised pay scale. The impugned order is said to have been passed on certain audit objections. However, no opportunity had been given to the petitioners to put forth their case. In such circumstances, the present writ petition has been preferred by the petitioners before this Court, under
Article 226 of the Constitution of India.
5. In the counter affidavit filed on behalf of the third respondent, it has been stated that the writ petition filed by the petitioners is not maintainable, either in law or on facts, since the petitioners have suppressed the material facts. Further, the petitioners have not availed the provisions of Section 21 of the Hindu Religious and Charitable Endowments Act, by exhausting the alternative remedies available under law. The second and the third petitioners have already given a written request, on 15.12.2003, to the third respondent to recover the excess salary received by them from their Provident Fund. Since the petitioners are not having the necessary educational qualifications for their promotion as Junior Assistants, they had not been promoted to the said post and only those persons who are having the necessary educational qualifications were covered under G.O.Ms.No.257, Tamil Development, Cultural and Charitable Endowments Department, dated 10.06.1998. Since the petitioners did not possess the minimum educational qualifications, as prescribed therein, the said Government Order is not applicable to them and therefore, they are not entitled to the benefits of the said Government Order. Further, they do not have the prescribed experience, as well as the educational qualifications, as per G.O.Ms.No.257, Tamil Development, Cultural and Charitable Endowments Department, dated 10.06.1998.
6. It has been further stated that the pay of the petitioners, from 01.07.2001, in the selection grade, at the rate of Rs.4300/-, had been fixed by mistake and the same had been pointed out in the audit report. As per the audit objections, the third respondent had taken necessary steps to recover the excess salary paid to the petitioners, after intimating them, as per the proceedings, dated 04.11.2003. Instead of submitting a reply or an objection, they have preferred the present writ petition before this Court, under
Article 226 of the Constitution of India.
7. In the auditor's report, dated 17.10.2003, it has been clearly pointed out that the petitioners are eligible only for the scale of pay of Rs.4000-100-6000. The error committed in computing the scale of pay for the petitioners has been rectified by the impugned order of the third respondent, dated 4.11.2003. As far as the other similarly placed employees are concerned, the excess pay made to them have been recovered, either from their salaries or from their provident fund. Having given their consent to recover the excess pay made to them, the second and the third petitioners have preferred the present writ petition by suppressing the said fact. Since the mistake in revising the scale of pay with regard to the petitioners was apparent on the face of the records, as made out by the auditor's report, no notice had been issued to the petitioners. Hence, the proceedings, dated 04.11.2003, issued by the third respondent, is valid in law and the writ petition is liable to be dismissed as devoid of merits.
8. The learned counsel appearing on behalf of the petitioners had submitted that even if the petitioners had been paid certain amounts in excess of the salaries due to them, in accordance with the revised pay scales, it was not due to any fraud committed by them or due to their misrepresentation. Further, no notice had been issued to the petitioners by the respondents before the impugned order had been passed. The impugned order of the third respondent, dated 4.11.2003, had been passed based on certain audit objections raised with regard to the fixation of the pay scales of the petitioners. While so, it is not open to the respondents to raise the issue with regard to their qualifications. Therefore, the impugned order of the third respondent, dated 4.11.2003, made in Na.Ka.No.4408/03/A1, is liable to be set aside, as invalid in the eye of law.
9. The learned counsel appearing on behalf of the third respondent had submitted that the second and the third petitioners, having requested the third respondent to recover the excess salary paid to them from their provident fund, cannot contend that the respondents should be prevented from recovering the excess payments made to them. Since the petitioners are not having necessary educational qualifications for their promotion as Junior assistants, the Government Order, in G.O.Ms.No.257, Tamil Development, Cultural and Charitable Endowments Department, dated 10.6.1998, would not be applicable to them. The excess amounts paid to certain other similarly placed persons have been recovered and since such recovery had become final, it may not be appropriate for this Court to grant an order in favour of the petitioners, by quashing the impugned order of the third respondent, dated 4.11.2003. It has also been submitted that the petitioners 1 to 3 have already retired from service during the pendency of the writ petition and the fourth petitioner had died, on 7.1.2007.
10. In view of the submissions made by the learned counsels appearing for the petitioners, as well as the respondents, it is clear that even if certain excess amounts had been paid to the petitioners, such amounts cannot be recovered since there was no misrepresentation or fraud committed by the petitioners, based on which such excess amounts had been paid to them.
11. Further, the recovery of the excess amount said to have been paid to the petitioners cannot be made, as held by this Court in its order, dated 27.6.2008, made in W.P.No.16150 of 2006 and as held in the following decisions:
11.1) In Shyam Babu Verma V. Union of India ((1994) 2 SCC 521), the Supreme Court had held that it is not just and proper to recover any excess amounts already paid to the petitioner, since the petitioners have received the higher scale of pay due to no fault of theirs.
11.2) The Supreme Court, in SAHIB RAM Vs. STATE OF HARYANA ((1995) Supp (1) SCC 18), had held that the recovery of excess payment given by the authorities concerned, by wrong construction of the relevant orders, without any misrepresentation by the employee, cannot be made.
11.3) The Supreme Court, in BIHAR STATE ELECTRICITY BOARD Vs. BIJAY BHADUR ((2000) 10 SCC 99), had held that the recovery of the increments given, not on account of any representation or misrepresentation, cannot be sustained, as it would not be in consonance with equity, good conscience, justice and fairness.
11.4) In UNION OF INDIA Vs. REKHA MAJHI ((2000) 10 SCC 659), the Supreme Court had refused to permit the recovery of excess payment made, since the person against whom the recovery was to be made was the only breadwinner of the family and as she was, financially, not in a position to pay back the excess dearness relief drawn.
11.5) In PURSHOTTAM LAL DAS Vs. STATE OF BIHAR ((2006) 11 SCC 492) , the Supreme Court had held that the recovery of the excess amounts paid to the employees could be recovered only in such cases where they have been found guilty of producing forged certificates or their appointments had been secured on non-permissible grounds.
11.6) In the decision of the Supreme Court, in BABULAL JAIN Vs. STATE OF M.P. ((2007) 6 SCC 180), it was held that since the excess payment had been made on misconception of law and not due to any mistake or misrepresentation on the part of the appellant, the recovery of the excess amount, without issuing any show cause notice, is not justified.
11.7) In the decision of the Supreme Court, in State of Bihar and Ors Vs. Pandey Jagdishwar Prasad (2008(1) UJ 197(SC), it has been held that where due to confusion in date of birth due to negligence and lapses on the part of the authorities due to which a service holder worked beyond his service tenure and was paid for it, no deduction could be made for that period from the retiral dues."
11.8) In the decision of a Division Bench of this Court in P.ARUMUGAM Vs. REGISTRAR, TAMIL UNIVERSITY ((2006) 3 M.L.J.1025), it was held that when the employee was not responsible for the wrong fixation, the excess payment made cannot be recovered, especially, after the retirement of the employee and when the recovery was sought for after 17 years of service.
11.9) In D.PALAVESAMUTHU Vs. T.N. ADMINISTRATIVE TRIBUNAL ((2006) (3) L.L.N.461), a Division Bench of this Court had held that when the fault of excess payment was committed by the Department and their officers and it was not due to the petitioner, the petitioner cannot be penalised after the lapse of number of years, that too after his retirement.
11.10) In KANTHIMATHI, S.A. Vs. DIRECTOR OF SCHOOL EDUCATION, MADRAS ((2006) 1 M.L.J. 695), this Court had held that the recovery of excess amount paid cannot be recovered when it was not due to the fault of the petitioner and when no opportunity had been given to her before the order of recovery was passed. Since the salary paid to the petitioner was not on account of any misrepresentation and when the order had been passed without giving any opportunity to the petitioner to put forth her case, the impugned order of recovery was quashed.
12. In view of the decisions of the supreme Court cited supra, the respondents cannot be permitted to recover the excess amounts paid to the petitioners, even if such payments have been made by mistake. However, if any amount paid, as excess, has already been recovered, there would be no duty cast on the respondents to refund the same, pursuant to this order. Since it has been submitted that the petitioners 1 to 3 have already retired from service and the fourth petitioner had died, on 7.1.2007, during the pendency of the writ petition, the question of recovery of the amounts paid to them would not arise, at this stage. Accordingly, the impugned order of the third respondent, dated 4.11.2003, shall stand quashed in so far as the petitioners are concerned.
13. However, with regard to the prayer of the petitioners to draw the revised scale of pay, as fixed in the year 2001, it is made clear that it would be open to the respondents to refix the scale of pay of the fifth petitioner, in accordance with the relevant provisions of law applicable to him, after giving him sufficient opportunity to put forth his case.
Hence, the writ petition is partly allowed. No costs.
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