M.Thirumurugan, v. The Sec. To Govt.,
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.07.2023
CORAM:
THE HONOURABLE Mr.JUSTICE BATTU DEVANAND and W.M.P.(MD) Nos.10780, 10781 and 13287 of 2016 M.Thirumurugan .. Petitioner 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, Ramanathapuram District, Ramanathapuram.
4.The Zonal Accounts Officer (Audits), School Education Department, Madurai-2.
5.The Headmaster, Government High School, Keeranur, Ramanathapuram District.
.. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India, praying for issuance of 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 third respondent in his proceedings Ou.Mu.3420/Aa5/2016 dated 24.06.2016. For Petitioner :
Mr.M.Jothi Basu For Respondents :
Mr.V.Nirmal Kumar Government Advocate
ORDER
Heard Mr.M.Jothi Basu, learned counsel for the petitioner and Mr.V.Nirmal Kumar, learned Government Advocate for the respondents.
2. The challenge in this matter is the order of recovery dated 24.06.2016. The petitioner was appointed as B.T.Assistant in Government High Secondary School, Keeranur, Ramanathapuram District. In June, 2008, the petitioner got higher qualification of M.Phil degree. The incentive was granted in June, 2008. 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 order has come to be passed on the date as aforesaid seeking recovery of the incentive granted earlier.
4. Straight away the impugned order is 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 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. 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 2008, whereas the impugned order has been passed only in 2016, based on a clarification issued in 2013. Thus, the order is far beyond the time limit as prescribed and thus fails.
6. As the petitioner restricts his prayer to challenge to the recovery order dated 24.06.2016 only, the order of recovery dated 24.06.2016 alone is quashed. This Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. 28.07.2023 NCC : Yes/No Index : Yes/No Internet : Yes abr
BATTU DEVANAND, J.
abr 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.
3.The Chief Educational Officer, Ramanathapuram District, Ramanathapuram.
4.The Zonal Accounts Officer (Audits), School Education Department, Madurai-2.
5.The Headmaster, Government High School, Keeranur, Ramanathapuram District.
Dated : 28.07.2023