K.Hemalatha v. The Director Of School Education
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2020
CORAM
THE HONOURABLE Ms.JUSTICE R.N.MANJULA W.P. No.17659 of 2020 and W.M.P.No.21904 of 2020 K.Hemalatha D/o.T.S.Krishnamurthy Music Teacher Kalyanam Girls Higher Secondary School Chindadripet Chennai 600 002 ... Petitioner /Vs/ 1.The Director of School Education DPI Campus, College Road Chennai 600 006 2.The Chief Educational Officer Chennai District Egmore, Chennai 600 008 3.The District Educational Officer Chennai South Education District Egmore, Chennai 600 008 4.The Secretary Kalyanam Girls Higher Secondary School Chindadripet Chennai 600 002 ... Respondents 1/8
Writ Petition is filed under Article 226 of the Constitution of India for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the third Respondent in Na.Ka.No.4142/A3/2016 dated 05.01.2017 and to quash the same and consequently direct the Respondents to restore the scale of pay of the Petitioner in the post of Music Teacher in the 4th Respondent School with basic pay of Rs.4500-125-7000 as on 01.06.2009 FN with consequential revision of scale of pay and to refund the salary recovered from the Petitioner forthwith including the payment of arrears of salary, within a time frame fixed by this Court. For Petitioner :
Mr.S.Nedunchezhiyan For Respondents :
Mr.T.Arunkumar Additional Government Pleader
ORDER
This Writ Petition has been filed for issuance of Writ of Certiorarified Mandamus to call for the records relating to the impugned proceedings issued by the third Respondent in Na.Ka.No.4142/A3/2016 dated 05.01.2017 and to quash the same and consequently direct the Respondents to restore the scale of pay of the Petitioner in the post of Music Teacher in the 4th Respondent School with basic pay of Rs.4500-125-7000 as on 01.06.2009 FN with consequential revision of scale of pay and to refund the salary recovered from the Petitioner forthwith including the payment of arrears of salary. 2/8
2.Heard Mr.S.Nedunchezhiyan, learned counsel for the Petitioner and Mr.T.Arunkumar, learned Additional Government Pleader for the Respondents. 3.Mr.S.Nedunchezhiyan, learned counsel for the Petitioner submitted that the Petitioner joined as a Music Teacher on 01.06.2009 in the fourth Respondent School. The claim of the Petitioner is that her salary has to be fixed as per the sixth pay commission in the pay scale of Rs.4500-125-7000. Her scale is revised in PV1 of Rs.5200 - 20200 +2800 GP with fixation of basic salary as Rs.11,170/-. The impugned order has been issued on 05.01.2017 to recover the excess payment made to her between the period from 01.06.2009 to 31.03.2015, stating that the salary has been wrongly fixed in the pay scale of Rs.8370 + 2800 instead of Rs.5470 + 2800.
The Petitioner claims that the salary drawn by her is appropriate to her post and hence the recovery itself is illegal. The Petitioner places his reliance on G.O.Ms.No.340 Finance (Pay Cell) Department, dated 26.08.2010. The said G.O.Ms.No.340 Finance (Pay Cell) Department, dated 26.08.2010 has been issued to set right anomalies that has arisen subsequent to the fixation of sixth pay commission.
prior to 01.06.2009. The Government has considered the request of the Union and had issued orders to rectify the anomaly. The relevant part of the G.O.Ms.No.340 Finance (Pay Cell) Department, dated 26.08.2010 is extracted as under:
"4.The Government has carefully examined the above recommendations of the One Man Commission and decided to rectify the anomaly as pointed out by the powers conferred under Rule - 13 of the Tamil Nadu Revised Scales of Pay Rules, 2009 relax the Rule - 9 of the Tamil Nadu Revised Scales of Pay Rules, 2009 in favour of the incumbents recruited as Junior Assistants from among the Contract Assistants/Agricultural Officers and any other similar categories of posts recruited by the Tamil Nadu Public Service Commission in the same batch prior to 01.06.2009 and joined/appointed on a subsequent dated on or after 01.06.2009 due to administrative reasons duly allowing the fitment benefit to the individual employees concerned as a special case. However, Government direct that the above fixation benefit shall be given notional effect from the date of appointment of the individual employees concerned with monetary benefit from 01.08.2010."
4.The above Government Order clarifies that the G.O.Ms.No.340 Finance (Pay Cell) Department, dated 26.08.2010 goes to the benefit of those person 4/8
who have been recruited through TNPSC in the same batch prior to 01.06.2009 and who had joined on or after 01.06.2009 due to administrative delay. So far as this petitioner is concerned, she has been selected/recruited before 01.06.2009. So the Petitioner can claim parity with those person who have been recruited before 01.06.2009. So far as this Petitioner is concerned, she participated in the interview on 19.02.2009 and her appointment has also been made on 01.06.2009 itself. Since initial fixation was made by the authorities concerned, the Petitioner cannot be blamed for any wrong or mistake committed by someone else. So far as this Petitioner is concerned, she has not misrepresented or suppressed any material facts in order to get her pay fixed at Rs.4500-125-7000.
It is up to the Respondent to refix her salary if the fixation found to be wrong at any point time. So far as recovery is concerned that cannot be made when the excess payment was made not due to the mistake on the part of the Petitioner but due to the mistake on the part of the authorities. 5.The Hon'ble Apex Court in State of Punjab and others Vs. Rafiq Masih (White Washer) reported in (2015) 4 Supreme Court Cases 334, held that recovery is not permissible from any person belonging to Class III and Class IV Service (Group C and D service).
squarely applicable.
6.In view of the same, this Writ Petition is partly allowed, so as to quash the impugned proceedings issued by the third Respondent in Na.Ka.No.4142/A3/2016 dated 05.01.2017 in respect of recovery alone, with a direction to the third respondent to release the amount already recovered from the Petitioner to her. No costs. Consequently, connected Miscellaneous Petition is closed.
28.11.2023 Index : Yes/No : Yes/No Speaking Order/Non-Speaking Order sai 6/8
To 1.The Director of School Education DPI Campus, College Road Chennai 600 006 2.The Chief Educational Officer Chennai District Egmore, Chennai 600 008 3.The District Educational Officer Chennai South Education District Egmore, Chennai 600 008 4.The Secretary Kalyanam Girls Higher Secondary School Chindadripet Chennai 600 002 7/8
R.N.MANJULA, J.
sai W.P. No.17659 of 2020 and W.M.P.No.21904 of 2020 28.11.2023 8/8