L.Stanly Kenin Xavier v. The Secretary To Govt.,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:07.01.2022
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH W.P.(MD).Nos.18109 and 18110 of 2018 and W.M.P(MD).Nos.16010 to 16013 of 2018, 1893 and 1895 of 2019 L.Stanly Kenin Xavier ... Petitioner in W.P.(MD).No.18109 of 2018 G.P.Anitha Jasmine ... Petitioner in W.P.(MD).No.18110 of 2018 vs.
1.The Secretary to Government, School Education Department, Government of Tamil Nadu, Fort St. George, Chennai -9.
2.The Director of School Education, Office of the Director of School Education, Chennai -6.
3.The Chief Educational Officer, Pudukottai District, Pudukottai.
4.The Zonal Accounts Officer (Audits), School Educational Department, Madurai -2.
5.The Headmaster, Government Girls Higher Secondary School, Thirumayam, Pudukottai District.
... Respondents in both the petitions PRAYER: Writ Petitions are filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari to call for the records of the second respondent in his proceedings in Na.Ka.No.42026/H/E2/2016, dated 11.06.2016 and consequential order passed by the 5th respondent in his proceedings in Na.Ka.No.129/2018, dated 31.07.2018 and Na.Ka.No.226 of 2017, dated 13.12.2017 and quash the same as illegal, arbitrary, violation of principles of law.
For Petitioners : Mr.M.Jothibasu For Respondents : Mr.K.S.Selvaganesan Additional Government Pleader 1/4
C O M M O N O R D E R Heard Mr.M.Jothibasu, learned counsel for the petitioners and Mr.K.S.Selvaganesan, learned Additional Government Pleader for the respondents.
2. The challenge in these matters is the orders of recovery dated 31.07.2018 and 13.12.2017. The petitioners were appointed as B.T.Assistant in Government Girls Higher Secondary School, Thirumayam, Pudukottai District. They had completed their degrees on award of incentive. The incentive was granted on 24.08.2008, in regard to petitioner in W.P.(MD).No.18109 of 2018 and 01.06.2006 in regard to petitioner in W.P.(MD).No.18110 of 2018. While this is so, it appears that the State had issued a Letter bearing No.129, dated 17.07.2013, prescribing a cut off date for the award of incentive relating to M.Phil., degree as 18.01.2013. In fact, a Government Order issued prior thereto in G.O.(ID).No.18, dated 18.01.2013 did not prescribe any cut off date to fix the entitlement for receipt of incentive and the Letter dated 17.07.2013 had been issued as a clarification thereto.
3. Thus, as a consequent of clarification dated 17.07.2013, the impugned orders have come to be passed on the dates as aforesaid seeking recovery of the incentive granted earlier.
4. Straight away the impugned orders are liable to be quashed on the strength of the directions issued in the case of State of Punjab and others etc., vs. Rafiq Masih (White Washer) etc., (2015
(4) SCC 334). At paragraph - 12 thereof the Hon'ble Supreme Court prescribes the following directions:
"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:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(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.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher 2/4
post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(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 employers right to recover."
5. The one of the guidelines, as relevant to the present case is that no recovery to be initiated beyond the period of five years from the allegedly offending event. In the present case, the incentives have been awarded as early as in 2006 and 2008, whereas the impugned orders have been passed only in 2017, based on a clarification issued in 2017. Thus, the orders are far beyond the time limit as prescribed and thus fail.
6. As the petitioners restrict their prayer to challenge to the order of recovery passed in these cases dated 13.12.2017 and 31.07.2018 only, the order of recovery dated 13.12.2017 and 31.07.2018 alone are quashed. These Writ Petitions are allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(CS-I) /TRUE COPY/ / /2022 Sub Assistant Registrar (CS) akv Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To 1.The Secretary to Government, School Education Department, Government of Tamil Nadu, Fort St. George, Chennai -9.
2.The Director of School Education, Office of the Director of School Education, Chennai -6.
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3.The Chief Educational Officer, Pudukottai District, Pudukottai.
4.The Zonal Accounts Officer (Audits), School Educational Department, Madurai -2.
5.The Headmaster, Government Girls Higher Secondary School, Thirumayam, Pudukottai District.
+1 CC to M/s.G.M.LAW OFFICE, Advocate ( SR-909[F] dated 10/01/2022 ) +1 CC to M/s.SPL.GP ( SR-986[F] dated 10/01/2022 ) ORDER MADE IN W.P.(MD).No.13575 of 2018 07.01.2022 MK/25.02.2022/4P/8C 4/4