Allowed

G.Arockia Mary v. the Govt. of Tamil Nadu

Madras HC14 Mar 2013WP/7816/2006

Case brief

AI extract

What is this about?

A single judge of the Madras High Court allowed a writ petition challenging an order directed recovery of salary. The judgment held that salary paid at a higher scale due to the Government's error, without employee misrepresentation, cannot be recovered, and the impugned order was set aside.

What did the court decide?

Impugned order directing recovery of salary dated 06.03.2006 is set aside; respondents directed to continue paying salary with all attendant benefits.

G.Arockia Mary Vs the Govt. of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 14.03.2013

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CORAM :

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.No.7816 of 2006 and W.P.M.P.No.8644 of 2006

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G.Arockia Mary ... Petitioner
Vs.
1. The Government of Tamil Nadu
Rep. by its Secretary
School Education Department,
Fort St. George, Chennai.
2. The Director of Elementary Education
DPI Campus,
College Road, Chennai.
3. The District Elementary Educational Officer
Cuddalore – 607 001.
4. The Assistant Elementary Educational Officer
Kattumannarkoil,
Cuddalore District.
5. The Correspondent
St. Antony's Primary School,
Aranthangi Post,
Kattumanarkoil – 608 301.
Cuddalore District. ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a writ of certiorarified mandamus, calling for the records pertaining to the proceedings in Na.Ka.No.337/A2/03, dated 06.03.2006 on the file of the third respondent, quash the same and consequently, direct the respondents 1 to 4 to continue to pay the salary with all attendant benefits to the petitioner.

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https://hcservices.ecourts.gov.in/hcservices/

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For Petitioner : Fr.A.Xavier Arulraj For Respondents : Mr.S.Navaneethan, AGP for R1 to R4 Mr.A.Arulmany for R5

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O R D E R

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the order, dated 06.03.2006 on the file of the third respondent, quash the same and consequently, direct the respondents 1 to 4 to continue to pay the salary with all attendant benefits to the petitioner.

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It is an admitted fact that the writ petitioner herein, having passed S.S.L.C in the year 1982 and Higher Secondary Examination in the year 1984, subsequently, joined Pre-school Teacher Training course, and did two year Diploma course from 1988 to 1990 in Brindhavan training school and passed the same under Registration No.038/98, as approved by the Department of Government Examinations. As per the order, dated 12.08.1996 in Na.Ka.No.18310/ED3/96, the Director of Elementary Education, the second respondent herein, appointed the petitioner as secondary grade teacher on 20.03.1998 in the fifth respondent school, which is a minority educational Institution, declared under Article 30 (1) of the Constitution of India, as the management was run by Roman Catholic Diocese of Thanjavur.

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The second respondent has recognised Pre-school Teacher Training certificate as a qualifying certificate for the said post. The third respondent, by his proceeding dated 24.06.1998 in M.M.No.2668/A2/98, accorded approval to the said appointment subject to certain other conditions that the same would be liable to be cancelled, if the certificate was not found to be equivalent to the secondary grade teacher training certificate. The petitioner was fixed on the pay scale of Rs.1200-30-1560-40-2040 as that of a Secondary Grade Teacher with effect from 20.03.1998, accordingly, the petitioner was receiving salary and other attendant benefits for about 8 years. Subsequently, the petitioner passed the Secondary Grade Teacher Training course also during September 2003 and got the Diploma Certificate on 19.11.2003. However, the third respondent stopped two increments, by orders, dated 01.01.2005 and 01.01.2006 for the petitioner, on the ground that complaint was received and which caused an enquiry. The petitioner has further stated that her service register was also returned by the respondents

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https://hcservices.ecourts.gov.in/hcservices/

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3 and 4 and the said respondents, withhold the attendant benefits in respect of Medical Leave, E.L., etc.

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The fifth respondent, Correspondent of the School, wrote a letter, dated 06.01.2006 to the fourth respondent, explaining the circumstances, under which the petitioner was accorded approval. Though the second respondent has not disposed of the representation of the petitioner, dated 14.07.2005, the third respondent, by his proceedings, dated 06.03.2006 in Na.Ka.No.337/A2/03, has cancelled approval, dated 21.03.1998 accorded for the petitioner, after eight years and accorded approval only from 31.10.2002 as a junior grade teacher. The third respondent also ordered that the petitioner can be accorded approval as a secondary grade teacher only with effect from 20.11.2003, the date of acquiring qualification as secondary grade teacher and ordered for the recovery of salary already paid to the petitioner from 20.03.1998 to 31.10.2002.

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The said impugned order was passed, referring G.O.Ms.No.172, School Education (U1) Department, dated 31.10.2002. Four years after the passing of the said G.O., only at present, the third respondent has chosen to question the appointment of the petitioner. In G.O.Ms.No.172, dated 31.10.2002, the first respondent has stated that there was a ban period from 16.07.1996 under G.O.Ms.No.447, during which the pre school teacher training course certificate holders cannot be appointed in the vacancies of secondary grade teachers. The said G.O has further stipulated that they could be appointed as Junior Grade Teachers for teaching students of standard I and II in primary schools on the pay scale of 3050-75-3950-4500. The rule 8 of the Tamil Nadu Monitory Schools (Regulation and payment of Grant) Rules 1977 stipulates that the qualification for the appointment of a secondary Grade Teacher in the minority schools, as specified in Annexure II appended to the Tamil Nadu Minority Schools (Regulation and payment of Grant) Rules, wherein for the appointment of secondary grade teacher, the required qualification is S.S.L.C and T.S.L.C of secondary grade Teacher training or its equivalent, provided that the teachers who have passed the Nursery, Montessori and Kindergarten school leaving certificate examination of secondary grade shall be employed to handle standards I and II only. It is seen that the petitioner has challenged the order, dated 06.03.2006 referred to above passed by the third respondent.

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The impugned order reads that she was appointed on 20.03.1998, after the implementation of the G.O.Ms.No.447, Education Department, dated 06.07.1996, prior to the lifting of the ban, by G.O.Ms.No.172, School Education (U1) Department, dated 31.10.2002. As per G.O.Ms.No.172, Education Department, teachers possessing the preschool teacher training course certificate are eligible to be

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https://hcservices.ecourts.gov.in/hcservices/

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appointed as secondary grade teacher and draw the pay scale at Rs.3050-75-3950-4500. Though the petitioner was only a pre-school teacher, she was permitted to draw the scale of secondary grade teacher and she was eligible for the salary only from 20.11.2003, accordingly, the recovery was ordered against the petitioner to recover the excess amount paid to the petitioner, which is payable to a secondary grade teacher. Challenging the order, this writ petition has been filed by the petitioner.

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Learned Additional Government Pleader appearing for the respondents 1 to 4 submitted that the respondents are empowered to pass the impugned order, since there was excess payment made to the petitioner as secondary grade teacher, though she was only a preschool teacher. Learned Additional Government Pleader further submitted that the petitioner became eligible to draw the salary that was available only from 20.11.2003, prior to the date being a preschool teacher, she was eligible to draw lesser pay scale, that was applicable to any pre-school teacher. On the aforesaid reason, the learned Additional Government Pleader, pleaded for the dismissal of the writ petition.

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Learned counsel appearing for the petitioner, in support of his contention, relied on the following decisions rendered by the Hon'ble Supreme Court and this Court :

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Babulal Jain vs. State of M.P., (2007) 6 SCC 180

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Sahib Ram vs. State of Haryana, 1995 Supp (1) SCC 18

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P.Arumugam vs. Registrar, Tamil University, (2006) 3 MLJ 1025

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Kanthimathi, S.A., vs. Director of School Education, Madras, (2006) 1 MLJ 695

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State of Tamil Nadu vs. B.Kamatchi, (206) 4 MLJ 671

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Jemima vs. State of Tamil Nadu, 1999 (III) CTC 760

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In Jemima vs. State of Tamil Nadu, reported in 1999 (III) CTC 760, this Court (P.D.Dinakaran, J), has held that as a policy decision, decided to abolish the post, higher grade teachers, to improve standard of education and to enable the teachers to improve their qualifications suitably, unless and until qualifications prescribed under Class 3 Annexure III of Tamil Nadu Minority Schools (Recognition & Payment of Grant) Rules read with Rule 8 of the said Rules are suitably amended by the Government. Hence, the petitioner therein, who was having necessary qualification for the post of secondary grade teacher and having been appointed as secondary grade teacher under the minority school could not be deprived of her salary payable to the secondary grade teachers, merely because she has not completed any inservice training and she was entitled to the salary payable to the secondary grade teacher continuously until suitable amendments are made in the qualification prescribed for the secondary

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https://hcservices.ecourts.gov.in/hcservices/

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grade teacher under the Rules.

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In State of Tamil Nadu vs. B.Kamatchi, reported in (2006) 4 MLJ 671, a Division Bench of this Court (P.Sathasivam and V.Dhanapalan, JJ) laid down a ratio decidendi that the pre-school teachers training certificate has been recognised by the State Government and is issued after proper conduct of examination. It is therefore, legally valid for consideration of appointment as Secondary Grade teacher. It is further held by the Division Bench as follows :

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"17. A plain reading of the portions which are extracted above would make it clear that though the Government had not included the above course under the Act, it has stated that the candidates holding Pre-Primary Certificates shall also be permitted to sit for screening test to be conducted by the Director of Government Examinations subject to the condition that such candidates selected for appointment will be permitted to handle classes I to III only. Therefore, it is clear that the Pre-Primary Certificate is a valid one and the Pre-School Teachers Training Course has been recognised by the Government and the State, on proper conduct of examination, has issued the certificate and the same is legally valid for consideration of appointment."

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11.In P.Arumugam vs. Registrar, Tamil University, reported in (2006) 3 MLJ 1025, a Division Bench of this Court (F.M.Ibrahim Kalifullah and P.Murugesan, JJ) has held that while interpreting the scope of Tamil Nadu Pension Rules, rule 44 (4) (i), that recovery of excess payment on the wrong fixation of pay for the employee at the time of entry into the service, when the employee was not responsible for the wrong fixation and the excess payment made, the same could not be recovered from the employee.

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Learned counsel appearing for the petitioner submitted that those decision refers to for recovery of excess payment, after retirement of the petitioner therein, however, the analogy is applicable to the facts and circumstances of this case. It is not in dispute that the petitioner herein was no way responsible for the alleged excess payment made and the learned counsel for petitioner further contended that the payment made in favour of the petitioner was not excess payment and even if there is any excess payment, in the absence of any misrepresentation by the petitioner, it could not be recovered.

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https://hcservices.ecourts.gov.in/hcservices/

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In Kanthimathi, S.A vs. Director of School Education, Madras, reported in (2006) 1 MLJ 695, this Court (N.Paul Vasanthakumar, J), relying on the decision, Sahib Ram vs. State of Haryana, reported in (1995) Supp (1) SCC 18, held that the impugned order therein would disclose that the petitioner had not misrepresented or suppressed anything for the receipt of excess scale of pay and further, there was no notice or opportunity given to the petitioner therein and therefore, the impugned order for the recovery of the excess amount was not legally sustainable.

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In Sahib Ram vs. State of Haryana, reported in 1995 Supp (1) SCC 18, the Hon'ble Apex Court has ruled that in a case of recovery proceeding initiated for the excess payment made, as upgraded pay scale was given due to wrong construction of relevant order by the authority concerned, without any misrepresentation by the employee, the recovery proceeding is unsustainable in law. In the aforesaid decision, it has been held as follows :

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"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."

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In Babulal Jain vs. State of M.P, reported in (2007) 6 SCC 180, it was held by the Hon'ble Supreme Court that the excess payment, having been made by allowing higher pay to the appellant therein, by misconception of law and not due to any mistake or misrepresentation on the part of the appellant, recovery of the excess payment without issuing any show-cause notice to appellant is not justifiable.

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Learned counsel appearing for the petitioner submitted that as per G.O.Ms.No.477, School Education Department, dated 16.07.1996, it is prohibited that pre-school teacher training institute would not be sufficient to appoint a teacher in the vacancy available for secondary grade teacher, though subsequently that was lifted, by way of G.O.Ms.No.172, School Education (U1) Department, dated 31.10.2002.

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https://hcservices.ecourts.gov.in/hcservices/

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It is seen that the petitioner herein was appointed during the period between the aforesaid two G.Os.

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Learned counsel appearing for the petitioner drew the attention of this Court to Tamil Nadu Minority Schools (Regulation and payment of Grant) Rules, Annexure-III, wherein qualification for appointment as teachers in minority schools has been prescribed, accordingly, as per Rule 3, for secondary grade teacher, the required qualification is

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(i) S.S.L.C

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(ii) T.S.L.C of secondary grade or its equivalent provided that the teachers who have passed the Nursery, Montessori and Kindergarten School Leaving Certificate Examination of Secondary Grade shall be employed to handle standards I and II only.

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The petitioner was admittedly appointed as primary teacher, as per the provision to handle Class 1 and 2, subsequently, she passed S.S.L.C and qualified to be a secondary grade teacher and on 20.11.2003, she was appointed as a secondary grade teacher. However, on 06.03.2006, as per the impugned order, the third respondent directed the petitioner to refund the excess amount received by the petitioner.

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It is crystal clear that if there is any payment made by the employer, by a wrong calculation or wrong understanding of any legal provision, in the absence of any misrepresentation or mistake committed by the employer, the recovery proceeding would not be sustainable in law.

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In the instant case, the respondents have not disputed the fact that the petitioner has not made any misrepresentation. It is an admitted fact that the alleged overdue was paid to the petitioner, though he was only a pre-school teacher, on par with secondary grade teacher and subsequently, became a secondary grade teacher. When there is no error or misrepresentation from the petitioner, in view of the decisions rendered by the Hon'ble Supreme Court and this Court, it is not open to the respondents to recover the said amount and further, as contended by the learned counsel appearing for the petitioner, the Government Orders, which are subordinate legislation would not have over-riding effect on the statute. Here Rule 3 (ii) of Annexure III is very clear and she was legally appointed and the payment was regularly made. Even if there was any mistake, in the excess payment made, in the absence of any misrepresentation by the employee, the same could not be recovered by the respondents, in view of the ratio laid down by the Hon'ble Apex Court and accordingly, the impugned order is liable to be set aside.

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https://hcservices.ecourts.gov.in/hcservices/

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In the result, this writ petition is allowed and the impugned order, dated 06.03.2006 made in Na.Ka.No.337/A2/03 on the file of the third respondent is set aside and the respondents 1 to 4 shall continue to pay the salary with all attendant benefits to the petitioner. Consequently, connected W.P.M.P.No.8644 of 2006 is closed. No costs.

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Sd/Deputy Registrar.

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/true copy/
Sub Asst. Registrar.
tsvn
To
1. The Secretary
Government of Tamil Nadu
School Education Department,
Fort St. George, Chennai.
2. The Director of Elementary Education
DPI Campus, College Road, Chennai.
3. The District Elementary Educational Officer
Cuddalore – 607 001.
4. The Assistant Elementary Educational Officer
Kattumannarkoil, Cuddalore District.
2 CCs To Fr.Xavier Arulraj, Advocate SR NO.15426
1 CC to Government Pleader SR 15793
W.P.No.7816 of 2006
sp[co]
gp/4.6

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https://hcservices.ecourts.gov.in/hcservices/

G.Arockia Mary v. the Govt. of Tamil Nadu

Case brief

What is this about?

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G.Arockia Mary v. the Govt. of Tamil Nadu

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