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2007 DIGILAW 3485 (MAD)

Kannabiran v. Accountant General Office & Another

2007-11-05

K.CHANDRU

body2007
Judgment :- I have hoard the arguments of Mr. A.R. Nixon learned counsel appearing for the petitioner and Ms. T.S. Selvarani, learned counsel representing the respondents and have perused the records. 2. The petitioner is a pensioner. He was working as Middle School Headmaster and retired from service on 35. 1988. He is now 76 years old. 3. However, by the impugned order dated 20.7.2006, the second respondent has ordered for recovery of certain amounts on the alleged ground of excess payment and wrong fixation. This order is challenged in this writ petition. A counter affidavit dated 20.7.2007 has been filed by the first respondent. 4. It is seen from the records that the petitioner had not been heard before passing the impugned order and on this short ground, the writ petition is liable to be allowed. 5. The Supreme Court in the case of Sahib Ram vs. State of Haryana & and others [1995 Supp. (1) SCC 18] has held in paragraph 5, which reads as follows: Para 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. 6. Subsequent to the said judgment a Division Bench of the Court in the case relating to D. Palavesanuthu vs. Tamil Nadu Administrative-Tribunal [ (2006) 1 M.L.J. 143 ), after following the judgment of the aforesaid judgment in paragraph 8 held as follows: Para 8: " The learned counsel appearing for the petitioner has also brought to our notice that the Department has not issued notice or given opportunity before ordering recovery, but proceeded merely on the basis of the report of the Accountant General. According to him, reduction of pay and recovery of pay without hearing him are illegal. According to him, reduction of pay and recovery of pay without hearing him are illegal. In support of the said argument, he relied on the judgment of the Supreme Court in the case of Divisional Superintendent, Eastern Railway, Dinapur and others vs. L. N. Kashri end others [A.I.R. 1974 SC 1889]. In similar circumstances, their lordships have held that, The appellants, having fixed the scale and confirmed the respondents, could not reduce the scale without giving any opportunity to the respondents to be heard. Further more, the respondents on confirmation became entitled to rights to the post and to the scale of pay fixed by the Board." The said decision is applicable in all force to the case on hand. The above principles and material aspects have not been considered by the Tribunal and the Tribunal has committed an error in dismissing the application of the petitioner." 7. The Supreme Court vide its decision in Shyam Babu Verma vs. Union of India (1994) 2 SCC 521 } in paragraph 11 held as follows: Para 11: Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs.330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no Steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." 8. In the light of the above, the writ petition will stand allowed. The impugned order will stand quashed. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.