M.Swamynathasn Vs The Director of School

Prayer in W.P.No.26216 of 2014: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records relating to the impugned proceedings issued by the 2^nd

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.26216 and 26217 of 2014

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respondent in Na.Ka.No.9657/A1/2014 dated 09.06.2014 and to quash the same.

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Prayer in W.P.No.26217 of 2014: Writ Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorari, to call for the records relating to the impugned proceedings issued by the 2^nd respondent in Na.Ka.No.4462/A1/2014 dated 19.09.2014 and to quash the same.

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For Petitioner : Mr.G.Murugan (in both W.Ps) for Mr.S.Nedunchezhiyan For Respondents : Mr.S.Prabhakaran (in both W.Ps) Government Advocate

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COMMON ORDER

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These Writ Petitions are being disposed of by way of this common

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order.

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The Petitioner in W.P.No.26216 of 2014 has challenged the Order dated 09.06.2014 in Na.Ka.No.9657/A1/2014 passed by the 2^nd Respondent. Similarly, the Petitioner in W.P.No.26217 of 2014 has challenged the Order dated 19.09.2014 in Na.Ka.No.4462/A1/2014

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.26216 and 26217 of 2014

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passed by the 2^nd Respondent (hereinafter referred to as 'Impugned

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Orders'). The details of the Impugned Orders in these Writ Petitions are as follows:

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Sl.No.	Writ Petition No.	Name of the	Date of the
		Petitioner	Impugned Order
1	W.P.No.26216 of 2014	M.Swamynathan	09.06.2014
2	W.P.No.26217 of 2014	T.Munusamy	19.09.2014

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By the Impugned Orders, the 2^nd Respondent cancelled the

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awarding of Selection Grade Scale of Pay to the Petitioners, who were appointed to the post of Higher Secondary School Headmaster and consequently, ordered for recovery of salary stated to be paid in excess to the Petitioners.

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For the sake of clarity, relevant portion of the Impugned Order

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dated 09.06.2014 in W.P.No.26216 of 2014 alone is extracted below:-

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<nuhL khtl;lk;. kiyag;ghisak; muR nky;epiyg;gs;spj; jiyik Mrphpah; jpU/vk;/Rthkpehjd; vd;ghUf;F ghh;it 2y; fz;Ls;s bray;Kiw fojj;jpd;go 30/06/2009 Kjy; fPH;epiyg; gjtpapd; njh;t[epiy gzpf;fhyj;ij fzf;fpy; bfhz;L cah; gjtpahd nky;epiyg;gs;sp jiyik Mrphpah; epiyapy; njh;t[ epiy tH';fp Mizaplg;gl;lJ tpjpfSf;F g[wk;ghdJ vd;Wk;. ,jdhy; Vw;gLk; gzg;gyd;fis chpa muRf; fzf;fpy; brYj;jg;gl ntz;Lk; vdt[k; ghh;it 1y; fz;Ls;s bray;Kiwf; fojj;jpy; bjhptpf;fg;gl;Ls;sij bjhlh;e;J md;dhUf;F Cjpak; kW eph;zak; bra;J Mizaplg;gLfpwJ/

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.26216 and 26217 of 2014

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murhiz vz; 23-epjp Jiw ehs; 12/01/2011z; go

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1	31.08.2008	vk;/gpy; Cf;f Cjpak;	31320+940+940=3320 0
2	01.01.2009	Mz;L Cjpa cah;t[	33200+1000=34200
3	01.01.2010	Mz;L Cjpa cah;t[	34200+1030=35230
4	01.01.2010	Jiyik Mrphpah; gjtp cah;t[f;fhd Cjpa eph;zak; (tpUg;gj;jpd;go)	; 35230+1060=36290
5	01.01.2011	Mz;L Cjpa cah;t[	36290+1090=37380
6	01.01.2012	Mz;L Cjpa cah;t[	37380+1130=38510
7	01.01.2013	Mz;L Cjpa cah;t[	38510+1160=39670
8	01.01.2014	Mz;L Cjpa cah;t[	39670+1190=40860
9	MLj;j Mz;L ;[ ;	; ; Cjpa cah;t[ ehs;	01.01.2015

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In these Writ Petitions, the Petitioners have sought for the Selection Grade Scale of Pay that was sanctioned to the Petitioners during the period when they were serving as Higher Secondary School Head Master.

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Assailing the Impugned Orders, the learned counsel for the Petitioner(s) placed reliance on Paragraph No.2 of G.O.Ms.No.210 Personnel and Administrative Reforms (PER.S) Department dated

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11.03.1987, wherein, it has been stated as follows:

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https://www.mhc.tn.gov.in/judis

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W.P.Nos.26216 and 26217 of 2014

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“2. The Government after careful examination accept the recommendation of the One Man Committee and direct that the service in the Selection Grade of the lower post shall be counted for Selection Grade of the lower post is identical to the ordinary grade of the higher post and that the concession be allowed only at the first promotion level. Government also direct that in the case of posts with different grades one who has put in 10 years or more of service in the lower post (eg.Grade II) shall be advanced to the next higher post (i.e.Grade I) under the scheme of Flexible Complementing and one with a service of 20 years or more be advanced to Selection Grade of the higher post (i.e.Grade I) wherever it has already been provided.”

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On the other hand, the Respondents have defended the

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Impugned Orders by stating that in the revised pay structure, no separate scale of pay have been provided for the Selection Grade / Special Grade holders. Further, it is stated that based on the recommendation of One Man Commission, 2010 orders were issued by the Government vide Letter dated 08.11.2010 bearing reference No.63305/2010-1 Finance (PC) Department to provide separate scale of pay to the persons who were availing the benefit of Selection Grade / Special Grade Scale of Pay in the pre-revised structure between the period from 01.01.2006 to 31.05.2009.

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The instructions which have been issued by the Government in

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the aforesaid Letter dated 08.11.2010 are as follows:-

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W.P.Nos.26216 and 26217 of 2014

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“ ................ The above revised Selection Grade / Special Grade scales of pay is not applicable to the employees moving to Selection Grade / Special Grade posts on or after 01.06.2009 since these employees are awarded Selection Grade / Special Grade directly in the revised scales of pay.”

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The learned counsel for the Respondent stated that the instructions issued in Government Letter dated 09.08.2011 bearing Reference No.23373/8/2011-2 Personal and Administrative Reforms (S) Department in respect of counting of the services rendered in the Selection Grade / Special Grade of the lower post for awarding Selection Grade Scale of Pay in terms of promotion to the higher post have been specified as follows:

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“2. .............. Therefore, the question of counting of the services rendered in the Selection Grade / Special Grade of the lower post for awarding Selection Grade / Special Grade in the promotion post does not arise. Hence, the orders issued in the government order / letters first to third cited cannot be made applicable in the revised scales of pay implemented with effect from 01.01.2006.”

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The Respondents in Paragraph No.4 of the Counter Affidavit,

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states that based on the Government Order in G.O.(Ms).No.210, Personnel and Administrative Reforms(S) Department dated 11.03.1987, certain instructions were given by the 1^st Respondent vide Letter dated 04.08.2014 bearing reference No.R.C.No.52615/A1/E3/2014 and

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W.P.Nos.26216 and 26217 of 2014

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therefore, the service register of the 1^st Respondent was revived Petitioners and defects were found in the service of the Petitioners. Hence, the Selection Grade/Special Grade Scale of Pay that was awarded to the Petitioners was cancelled and the pay was re-fixed according to the existing Government Order vide Proceedings in Rc.No.4462/A1/2014 dated 19.09.2014 by the 2^nd Respondent.

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I have considered the arguments advanced by the learned counsel on either side and have also perused the materials placed before this Court.

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As far as recovery of excess salary from government

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employees is concerned, the issue involved herein is no longer res integra and is squarely covered by the decision of this Court dated 21.02.2024 rendered in W.P.Nos.12290 & 12292 of 2021 in K.Elumalai and others Vs. The State of Tamil Nadu and Ors , wherein, it has been held as under:

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“12. Even for any extraneous reasons, it is presumed that the recovery is not on a legally sustainable order, the recovery cannot be made as against the petitioners who have already retired from service.

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W.P.Nos.26216 and 26217 of 2014

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13.The position of law on this point has already been well settled by the judgment of the Hon-ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others [reported in (2015) 4 Supreme Court Cases 334], wherein it is held as under and the petitioners fit in under 2nd category:

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“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to ClassIII and ClassIV service (or Group -C- and Group Ty service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer-s right to recover.”

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14. But in the instant case, the petitioners, even without the aid of the preposition laid in the -white washer case-. Because the cancellation of awarding of selection grade in their higher post itself is proved to be illegal. Subsequent to the order of the Hon-ble Supreme Court made in -White Washer case, a Government Order has been issued in G.O.Ms.No.286 dated 28.08.2018. The recovery order is completely in violation of the above said government Order also. Therefore the petitioners are entitled to get the refund of the recovery

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W.P.Nos.26216 and 26217 of 2014

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so far made in connection with the alleged excess payment of salary made to the petitioners. This clarity in the relief is given in view of the fact that recovery appears to have been made as against one of the petitioners on the verge of his retirement.

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15. In view of the above stated reasons, these Writ Petitions are allowed. The impugned orders passed by the 4th respondent in Che.Mu.No.3655/14/Pa dated 16.03.2016 and the impugned Proceedings issued by the 3rd respondent in Proc.No.AA1/19690/2015 dated 17.07.2015 and the consequential impugned order of 4th respondent in Che.Mu.No.8864/2014/Po2 dated 22.07.2015 are all quashed and the respondents are directed to refund the sum of any recovered so far and restore the original fixation of pay and pass orders within a period of six weeks from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.”

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In this connection, the Hon'ble Supreme Court in State of

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Punjab and others Vs. Rafiq Masih (White Washer) and others , [2015]

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4 SCC 334 , has held as under:-

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“12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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W.P.Nos.26216 and 26217 of 2014

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

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It is made clear by the Hon'ble Supreme Court in the aforesaid Paragraph of the Judgment cited supra that no recovery can be made from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service), where payments have mistakenly been made by the employer, in excess of their entitlement.

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The Petitioner is a 'Headmaster' of Government Higher Secondary School, the post of a 'Headmaster' falls under Class II employees under the provisions of the Tamil Nadu State and Subordinate Services Rules. However, it is noticed that as per the decision of the Hon'ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others (cited supra), no recovery can be made from either retired employees or employees who are due to retire within one year, of the order of recovery.

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W.P.Nos.26216 and 26217 of 2014

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In the present case, it is noticed that the impugned orders for

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recovery in these respective writ petitions are dated 09.06.2014 and 19.09.2014 passed by the 2^nd Respondent. The Writ Petitioners were aged about 57 years at the time of filing of these Writ Petitions in the year 2014.

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Thus, the recovery of the excess salary paid to the Petitioners was ordered at the flag end of their service. Therefore, it is not permissible to recover the amount paid to the Petitioner in excess of their entitlement for the period mentioned in the impugned recovery orders in terms of the decision of the Hon'ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others , [2015] 4 SCC 334.

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Thus, following the decision of the Hon'ble Supreme Court in State of Punjab and others Vs. Rafiq Masih (White Washer) and others , [2015] 4 SCC 334 and this Court dated 21.02.2024 in W.P.Nos.12290 & 12292 of 2021 , these Writ Petitions are partly allowed

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W.P.Nos.26216 and 26217 of 2014

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and the order passed by the 2^nd Respondent in respect of recovery of excess salary paid to the Petitioners is hereby quashed, however, revision of pay in accordance to the promotional post for the period post issuance of the impugned orders are sustained.

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In the above circumstances, these Writ Petitions deserve to be allowed and are accordingly allowed. No costs. Consequently, connected miscellaneous petitions are closed.

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26.03.2025

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Index : Yes/No Internet : Yes/No Speaking Order/Non-Speaking Order Neutral Citation : Yes/No jas

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To

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