The petitioner joined the Police Services as Grade -II Police Constable on 10.12.1973. He moved to Selection Grade in Grade II Police Constable on completion of 10 years of service. He was further upgraded as Grade I Police Constable on 20.02.1993. He was further upgraded as Head Constable in 1998. Since he completed 20 years of service, the respondent passed an order Rc. No.A2/18722/01, dated 16.03.2001 granting special grade pay for Grade-II Police Constable from 20.12.1993. He was granted the arrears pursuant to the said order. While so, the impugned order dated 12.02.2002 was passed by the respondent stating that the aforesaid fixation in granting special grade to the petitioner from 1993 was opposed to G.O.57/Finance (Pay Cell II) Dept., dated 28.01.1991 and the said G.O. was not considered, while granting special grade to the petitioner, by the order, dated 16.03.2001. The impugned order directs for refixation of pay and also for recovery of the excess amount paid pursuant to the earlier fixation made in the order dated 16.03.2001.
2. The petitioner has filed an Original Application No.1112 of 2002 (W.P.No.5700 of 2007) to quash the aforesaid order refixing his pay and seeking to recover the excess amount paid pursuant to the refixation .
3. Heard, Mr.G.Bala, learned counsel for the petitioner and Mr.P.Muthukumar, Government Advocate for the respondent.
4. The learned counsel for the petitioner states that when the Original Application was admitted, the Tribunal grated Interim Stay of recovery alone. Hence, no recovery was made.
5. Admittedly, the impugned order was passed, without affording an opportunity of hearing to the petitioner. Further, the impugned order is opposed to the decision of the Honourable Supreme Court in SYED ABDUL QADIR AND OTHERS V. STATE OF BIHAR AND OTHERS reported in 2009 (3) SCC 475 wherein, it has been held as follows:-
"57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if 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."
The same is followed by a Division Bench of this Court in N.UTHANDAVAN VS. REGISTRAR, CENTRAL ADMINISTRATIVE TRIBUNAL, MADRAS BENCH, CHENNAI AND OTHERS reported in 2009 (6) MLJ 704.
6. Hence, in the absence of any misrepresentation on the part of the petitioner, the impugned order of recovery passed by the respondent cannot be justified and hence the same is liable to be set aside.
7. It is made clear by a catena of the decisions of this Court and Honourable Supreme Court that recovery of excess amount, pursuant to erroneous fixation of pay, cannot be made, when there is no misrepresentation or fraud on the part of the petitioner, in such fixation. In the present case, the petitioner has been awarded the special grade by proceedings dated 16.03.2001. Hence by way of the impugned order, the petitioner cannot be made to pay back the amount by way of recovery. In such circumstances, the impugned order is liable to be set aside in so far as the recovery is concerned and accordingly the portion of the order that directs recovery of the amount already made, is set aside.
8. With the above direction, the writ petition is disposed of. No Costs.
ogy To The Commissioner of Police, City Police Office, Trichirappalli