Judgment :- 1. The petitioner has come forward with this petition, challenging the order of the first respondent dated 17.11.2004 bearing ref.Pen 12/IV/M121-1117/Retd./04-05/ADK/144, the order of the first respondent bearing No.AG(A&E) Pen P12/5/M152-1395/RTD/2004-2005/347 dated 03.02.2005 and the consequential order of the second respondent dated 14.03.2005 bearing Na.Ka.No.724/A/04, with a prayer to quash the same as illegal, arbitrary, contrary to law and in violation of the principles of natural justice and consequently, direct the respondents 1 and 2 to fix the pension and gratuity by taking into account of the entire service of 34 years rendered by the petitioner and by refunding Rs.1,71,804/- which had been recovered from the petitioner along with interest at the rate of 12 % per annum. 2. The case of the petitioner is that she joined as a Junior Basic Assistant Teacher in Ubai Bas Girls Elementary School, Tirupattur and she worked in the said School till 08.05.1982. Thereafter, the petitioner has been removed from service by the said School. The said removal was pursuant to the resignation of the petitioner tendered owing to her inability to continue in employment. However, the School authorities, on the basis of the charge of unauthorized absence, removed the petitioner from service. As the said removal of the petitioner from service is not a disqualification for future employment, the petitioner joined as Secondary Grade Teacher in Tirupattur Municipality and she worked in the third respondent School till her retirement on 31.08.2004. 3. The Commissioner of Tirupattur Municipality had addressed a letter dated 08.07.1986 to the District Educational Officer in respect of granting Selection Grade to the petitioner by taking into account of her earlier service period from 2.10.1973 to 08.05.1982. Pursuant to the approval granted by the District Educational Officer, the Commissioner, Tiruppattur Municipality by his proceedings dated 19.08.1987 granted Selection Grade to the petitioner with effect from 26.10.1983 and fixed her pay. Thereafter, the second respondent by his proceedings dated 27.03.1995 granted Special Grade to the petitioner with effect from 26.10.1993. The petitioner ultimately retired on 31.08.2004. 4. However, after the retirement, the salary for the period from March 2004 to August 2004 was not paid to the petitioner without any basis. Thereafter, the second respondent by his proceedings dated 27.03.1995 granted Special Grade to the petitioner with effect from 26.10.1993. The petitioner ultimately retired on 31.08.2004. 4. However, after the retirement, the salary for the period from March 2004 to August 2004 was not paid to the petitioner without any basis. The pension proposal was sent by the second respondent to the first respondent and the same was returned as per the impugned order dated 17.11.2004 on the ground that the past service of the petitioner ought not to have been taken while giving Selection Grade and Special Grade with effect from 26.10.1983 to 26.10.1993 respectively. Thereafter, the first respondent passed the impugned order dated 03.02.2005 arriving at the gratuity and pension by ignoring the period of service rendered by the petitioner from 07.12.1970 to 08.05.1982. Consequently, the total year of service taken into account for gratuity and pension was only 22 years and 3 months instead of 34 years of service. By omitting to take the earlier service, the petitioner's gratuity and pension were also reduced. 5. The second respondent by its order dated 14.03.2005, consequent to the direction of the first respondent, arrived at Rs.1,73,777/-to be the excess payment and recovered the entire gratuity sum of Rs.1,26,113/- and recovered a sum of Rs.45,691/- from the salary for the month of September 2004 to January 2005. A total sum of Rs.1,71,804/-was recovered and the balance amount sought to be recovered was Rs.1,973/-. In view of such action of the respondents 1 and 2, a sum of Rs.1,71,804/-has been recovered. Challenging the said orders, the present writ petition has been filed by the petitioner with the above said prayer. 6. Mr.Balan Haridas, learned counsel appearing for the petitioner contended that the respondents ought to have included the past service rendered by the petitioner from 07.12.1970 to 08.05.1982 and there is no reason for denying such benefit. It is contended that Rule 21 of the Tamil Nadu Pension Rules, 1978 [hereinafter referred to as 'Rules'] for the forfeiture of the past service rendered by the petitioner is not applicable to the facts of this case as the petitioner immediately joined in another School. It is further contended that the recovery orders have been passed without issuing notice and without affording any opportunity to the petitioner and as such, the said orders are liable to be quashed. It is further contended that the recovery orders have been passed without issuing notice and without affording any opportunity to the petitioner and as such, the said orders are liable to be quashed. The learned counsel for the petitioner, in support of his contentions, would place reliance on the decision of the Hon'ble Apex Court in Syed Abdul Qadir & Others v. State of Bihar & Others reported in 7. Per contra, learned Standing Counsel for the first respondent contended that the past service rendered by the petitioner from 07.12.1970 to 08.05.1982 cannot be included in view of the removal of the petitioner from service from the earlier school. In support of such contention, learned Standing Counsel for the first respondent would place reliance on Rule 21 of the Rules and as per the said Rule, if a Government servant has been dismissed or removed from service, the service rendered by them is liable for forfeiture and the said past service cannot be included while computing pension and other benefits. 8. Ms.V.M.Velumani, learned Special Government Pleader appearing for the second respondent contended that the second respondent has rightly recovered the amount in view of the order of the first respondent, during her service. Therefore, it is contended that there is no illegality in recovering the said amount. 9. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the affidavit filed by the petitioner, counter affidavit filed by the first respondent and the impugned orders. 10. The fact remains that the petitioner who had worked earlier in Ubai Bas Girls Elementary School was removed from service and in view of such removal from service, the past service rendered by the petitioner till 08.05.1982 was not included while fixing the pension and other benefits. It is relevant to refer Rule 21 of the Tamil Nadu Pension Rules,1978 which reads hereunder: “21.Forfeiture of service on dismissal or removal:-Dismissal or removal of a Government servant from a service or post entails forfeiture of his past service.” A reading of the above said provision makes it abundantly clear that in the event of dismissal or removal of a Government servant from service, past service cannot be included for fixing the pension and other benefits in view of the forfeiture of past service as per the above Rule 21. Therefore, I am unable to countenance the contention of the learned counsel for the petitioner for including the past service rendered by the petitioner from 07.12.1970 to 08.05.1982 as the petitioner has been admittedly removed from service while she was employed in Ubai Bas Girls Elementary School, Tirupattur. 11. As far as the impugned orders relating to recovery of the amount of Rs.1,71,804/- is concerned, this Court is of the considered view that there is no justification for recovering the said amount from the DCRG without any notice and without affording any opportunity to the petitioner. It is pertinent to note that there is absolutely no fault on the side of the petitioner and the petitioner has not made any misrepresentation or any false claim and such being the position, the said amount could not have been recovered or withheld by the first respondent from the DCRG amount. The learned counsel for the petitioner also rightly placed reliance on the decision of the Hon'ble Apex Court in Syed Abdul Qadir & Others v. State of Bihar & Others reported in wherein the Hon'ble Apex Court has held as hereunder: “27.This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp. See Sahib Ram vs. State of Haryana, 1995 Supp. (1) SCC 18; Shyam Babu Verma vs. Union of India (1994) 2 SCC 521 ; Union of India vs. M.Bhaskar, (1996) 4 SCC 416 ; V.Ganga Ram vs. Regional Jt., Director, (1997) 6 SCC 139 ; Col. B.J. Akkara (Retd.) vs. Government of India & Ors. (2006) 11 SCC 709 ; Purshottam Lal Das & Ors. vs. State of Bihar (2006) 11 SCC 492 ; Punjab National Bank & Ors. vs. Manjeet Singh & Anr. (2006) 8 SCC 647 ; and Bihar State Electricity Board & Anr vs. Bijay Bahadur & Anr. (2000) 10 SCC 99 . …... 30. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants-teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of a copy of this judgment.” The principle laid down by the Hon'ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case as in this case also, the petitioner admittedly has not made any misrepresentation or false claim and as such, she is entitled to get the refund of the amount of Rs.1,71,804/- which was recovered from the DCRG amount. 12. In view of the aforesaid reasons, this Court is constrained to set aside the impugned orders, namely, order of the first respondent dated 17.11.2004 bearing ref.Pen 12/IV/M121-1117/Retd./04-05/ADK/144, the order of the first respondent bearing No.AG (A&E) Pen P12/5/M152-1395/RTD/2004-2005/347 dated 03.02.2005 and the consequential order of the second respondent dated 14.03.2005, insofar as the recovery is concerned. 12. In view of the aforesaid reasons, this Court is constrained to set aside the impugned orders, namely, order of the first respondent dated 17.11.2004 bearing ref.Pen 12/IV/M121-1117/Retd./04-05/ADK/144, the order of the first respondent bearing No.AG (A&E) Pen P12/5/M152-1395/RTD/2004-2005/347 dated 03.02.2005 and the consequential order of the second respondent dated 14.03.2005, insofar as the recovery is concerned. Consequently, the first respondent herein is directed to pay the amount of Rs.1,71,804/- with interest @ 6% p.a. From 31.08.2004 till the disbursement of the above said amount. It is made clear that the above said exercise shall be completed within a period of eight (8) weeks from the date of receipt of a copy of this order.