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2014 DIGILAW 2337 (MAD)

S. Subbaiah v. Hon'ble District Judge

2014-08-04

M.JAICHANDREN, R.MAHADEVAN

body2014
Judgment : R. Mahadevan, J. 1. The Writ Petition in W.P.(MD).No.7416 of 2007 has been filed praying for the issuance of a Writ of Certiorari to call for the records on the file of the first respondent dated 06.08.2007, which was issued for recovering the excess amount paid to the petitioner herein, following the audit report of the second respondent, dated 18.07.2006, and quash the same. Similarly, the Writ Petition in W.P.(MD).No.9744 of 2009 has been filed for the issuance of a Writ of Certiorari to call for the records on the file of the first respondent dated 15.09.2009 in D.No.4455/09 dated 16.09.2009, which had been issued pursuant to the audit report of the second respondent and quash the same. 2. Since the issue involved in these Writ Petitions are one and the same, they are taken up together and decided by a common order. 3. Both the petitioners started their carrier as an Office Assistant in the year 1981 and 1982, respectively. While they were working as Junior Bailiffs under the first respondent, based on the inspection of the second respondent, the excess payment made to the petitioners herein, was sought to be recovered by the first respondent. Challenging the same, the present Writ Petitions have been filed. 4. The learned counsel appearing on behalf of the petitioners submitted that as per G.O.Ms.No.210 dated 11.03.1987, if the pay of selection grade of lower post is identical to that of an ordinary grade of higher post, then the service rendered in selection grade of lower post has to be computed for awarding selection grade for higher post. It means that if the services rendered in two posts and the pay scale are identical, then such services are to be counted for advancement to selection grade. Further, it is settled principle that benefits conferred not due to misrepresentation or fraud by the petitioner cannot be recovered. 5. The respondents have filed their respective counter. Though the first respondent in both the Writ Petitions reiterated that they are entitled to recover the excess payment made to their employees and justifying their stand, interestingly, the second respondent in his counter affidavits, has stated that they had not issued any order to effect recovery against the petitioners. 5. The respondents have filed their respective counter. Though the first respondent in both the Writ Petitions reiterated that they are entitled to recover the excess payment made to their employees and justifying their stand, interestingly, the second respondent in his counter affidavits, has stated that they had not issued any order to effect recovery against the petitioners. The audit objection raised by the second respondent with regard to expenditure from Government funds was to point out any deficiency in drawing and disbursement office and not against any individual Government Servant. 6. De hors the counter affidavits, it is pertinent to point out that in the decision of the Supreme Court reported in AIR 2012 SCC 2955, Chandi Prasad Uniyal Vs. State of Uttarakhand, the Full Bench of the Supreme Court made in (1994) 2 SCC 521 , Shyam Babu Verma Vs. Union of India, was referred to and ultimately, it was held that recovery can be made from the employees. Curiously, in the subsequent judgment, reported in 2013 (6) MLJ 736(SC), Union of India and others Vs Shri Bhanwar Lal Mundan, in paragraph:23, the Supreme Court has held as follows :- “Consequently, the appeal is allowed in part and the orders passed by the Tribunal as well as by the High Court are set aside directing fixation of pension on the base of pay drawn by the respondent. However, as conceded to by Mr. Singh, there shall be no recovery from the excess amount paid to the respondent. There shall be no order as to costs.” It is not the case of the respondents that there was misrepresentation or suppression of fact. Therefore, we are fortified by a latest judgment of the Supreme Court reported in 2013 (6) MLJ 736(SC), Union of India and others Vs Shri Bhanwar Lal Mundan. 7. In view of the judgment cited supra, the orders impugned in these Writ Petitions are quashed and the Writ Petitions stand allowed. Consequently, the connected miscellaneous petitions are closed. No costs.