JUDGMENT : R. VIJAYAKUMAR, J. Prayer: This Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned proceedings issued by the second respondent Accountant General in No. P11/1/11128945/ADK/27 dated 21.04.2022 (returning the pension proposal of the petitioner) and the consequential impugned proceedings issued by the 7th respondent Headmaster in Na. Ka. No. 22/2022 dated 07.05.2022 (ordering recovery to the petitioner to a tune of Rs. 33,92,045/- and quash the same and direct the 2nd respondent to process the pension proposal of the petitioner dated 30.03.2022 as forwarded by the 7th respondent vide proceedings in Na. Ka. No. 22/2022 dated 31.05.2022 and disburse the pension and other retirement benefits admissible to the petitioner within a time frame as fixed by this Hon'ble Court. 1. The present writ petition has been filed challenging the order passed by the second respondent herein on 21.04.2022 and the consequential order passed by the seventh respondent on 07.05.2022. (A) Facts leading to the filing of this writ petition are as follows: 1.1 The petitioner herein was initially appointed as a Secondary Grade Teacher in an Aided Middle School on 02.06.1982. He was later appointed as a Secondary Grade Teacher in a Government High School on 28.12.1989. Considering the past services of the petitioner in the Aided School, he was conferred with selection grade in the cadre in Secondary Grade Teacher with effect from 16.11.1992. On completion of 20 years as Secondary Grade Teacher, the petitioner was conferred with special grade scale of pay with effect from 16.11.2002. 2. The petitioner was promoted as B.T. Assistant in Tamil vide proceedings dated 23.12.2005. Since the pay scale of the petitioner in the cadre of Secondary Grade Teacher (special grade) was higher than the pay scale as B.T. Assistant, the petitioner was permitted to retain the scale of pay which is more beneficial to him. 3. The petitioner was conferred with selection grade in the cadre of B.T. Assistant on 30.09.2009 and special grade of B.T. Assistant on 30.09.2019. The petitioner was promoted as P.G. Assistant on 18.11.2019. The petitioner attained superannuation on 31.05.2022. The second respondent under the impugned order dated 21.04.2022 had returned the pension proposal citing the following reason: (i) As SGA (spl. The petitioner was conferred with selection grade in the cadre of B.T. Assistant on 30.09.2009 and special grade of B.T. Assistant on 30.09.2019. The petitioner was promoted as P.G. Assistant on 18.11.2019. The petitioner attained superannuation on 31.05.2022. The second respondent under the impugned order dated 21.04.2022 had returned the pension proposal citing the following reason: (i) As SGA (spl. grade) w.e.f 16.11.02 has been promoted as B.T. Assistant on 06.01.06, drawing in the scale of pay of Rs. 5900-200-9900, hence eligible for selection grade on completion of 10 years ie., on 06.01.16 only. Hence, sel./spl.grade awarded on 30.09.09/30.09.19 respectively are not in order. (pg.64 & 26/Vol.II). However, a GP of Rs. 4600/- as per G.O.23 is found admissible and on promotion as P.G.Assistant pay is to be fixed at level 18. (ii) Revised pay fixaion made in pg.74/Vol.II based on G.O.62 dated 09.03.15 is not in order, since the G.O.62 has not come into force. Hence, revised pay fixation may be made in SR and recovery of excess paid Pay & Allowances may be reviewed. After effecting necessary corrections on the above lines, SR and pension proposal may be retransmitted to this office. 4. On 07.05.2022, the seventh respondent had passed the consequential impugned order wherein the pay scale of the petitioner was revised for the period between 16.11.1992 to 30.04.2022 and a sum of Rs. 33,92,045/- was directed to be remitted to the Government account. These two orders are under challenge in the present writ petition. (B) Submissions made by the learned counsel appearing for the writ petitioner are as follows: 5. The learned counsel appearing for the writ petitioner had contended that when the petitioner was promoted as B.T. Assistant, his basic scale of pay was Rs. 5500-175-9000. However, he was drawing salary in the pay band of Rs. 5900-200-9900 in the post of Secondary Grade Teacher (special grade). Since he was drawing more pay than the basic pay in the promotional post, he had opted to continue in the same pay. 6. The learned counsel had further contended that the petitioner is entitled to draw selection grade pay in the post of B.T. Assistant at the time of promotion itself. However, such benefit was conferred upon him only belatedly with effect from 30.09.2009 vide proceedings dated 09.02.2010. 7. 6. The learned counsel had further contended that the petitioner is entitled to draw selection grade pay in the post of B.T. Assistant at the time of promotion itself. However, such benefit was conferred upon him only belatedly with effect from 30.09.2009 vide proceedings dated 09.02.2010. 7. The learned counsel had further stated that the Government of Tamil Nadu had issued the Tamil Nadu Revised Scales of Pay Rules 2009 vide G.O.Ms. No. 234 Finance (Pay Cell) Department dated 01.06.2009. In view of various pay anomalies, the Government appointed One Man Commission to set right the pay anomalies. Consequently, the State Government issued G.O. (Ms) No. 23 Finance (Pay Commission) Department, dated 12.01.2011 revising the scale of pay of various teaching categories notionally from 01.01.2006 with monetary benefits from 01.01.2011. 8. After issuance G.O. (Ms) No. 23 referred above, various associations requested for a clarification on the fixation of pay in the selection grade/special grade scale of pay. The State Government issued a Clarificatory Letter on 05.01.2012 revising the selection grade/special grade pay scale for teaching categories. 9. The learned counsel had further submitted that as per Rule 22-B of the Fundamental Rules, when the ordinary pay in the promotional post is lesser than the pay drawn by the incumbent in the lower cadres post, his/her pay has to be fixed on par with the pay he/she was already drawing with one increment. Therefore, there is no illegality in granting of selection grade pay on 30.09.2009 and the consequential special grade pay from 30.09.2019. 10. The learned counsel had further contended that G.O.Ms. No. 62 Finance (CMPC) Department, dated 09.03.2015 was issued in order to have uniformity in the pay of Secondary Grade Teacher serving in Elementary Education and School Education Department in continuation of G.O.Ms. No. 304 Finance (PC) Department dated 28.03.1990, the seventh respondent has extended the benefit to the petitioner vide his proceedings dated 04.09.2015. 11. The learned counsel had further relied upon G.O.Ms. No. 286, Finance (Pension) Department, dated 28.08.2018 which setsout the guidelines in the matter of recovery of excess payment by following the directions of the Hon'ble Supreme Court. Hence, the petitioner had contended that viewed from any angle, an order of re-fixation of pay and the order of recovery are not in accordance with law and they are liable to be set aside. Hence, the petitioner had contended that viewed from any angle, an order of re-fixation of pay and the order of recovery are not in accordance with law and they are liable to be set aside. (C) Submissions of the learned Government Advocate appearing for the respondents are as follows: 12. The petitioner was promoted as a B.T. Assistant only on 06.01.2006. Therefore, he will be entitled to selection grade and special grade only in the year 2016 and 2026 respectively. However, selection has been conferred upon the petitioner on 30.09.2009 itself. The same is in clearly in violation of the Clarificatory Letter issued by the Government on 09.08.2011. 13. The learned Government Advocate had further contended that G.O.Ms. No. 62, Finance (CMPC) Department, dated 09.03.2015 is applicable only in the selection grade in the cadre of primary schools and not in the special grade, in view of the provisions made in Paragraph No. 7(2) of the Government Order. 14. He had further contended that even in cases where the excess payment have been made due to error, the same could be rectified and the amount could be recovered. The case of the petitioner does not fall within any one of the exception as mentioned in G.O.Ms. No. 286 dated 02.08.2018. Hence, he prayed for dismissal of the writ petition. 15. I have considered the submissions made on either side and perused the material records. (D) Discussion: 16. The petitioner has been promoted as a B.T. Assistant in Tamil vide proceedings dated 23.12.2005 and he joined in the said post on 06.01.2006. Since the special grade pay of the writ petitioner in the cadre of Secondary Grade Teacher was higher than the basic pay of the B.T. Assistant, the petitioner was permitted to retain the higher pay scale on being promoted. These facts are not in dispute. 17. The petitioner has been conferred with selection grade in the cadre of B.T. Assistant on 30.09.2009 and the special grade on 30.09.2019. This conferment of selection grade and the special grade upon the writ petitioner in the cadre of B.T. Assistant is being questioned by the respondent authorities. 18. These facts are not in dispute. 17. The petitioner has been conferred with selection grade in the cadre of B.T. Assistant on 30.09.2009 and the special grade on 30.09.2019. This conferment of selection grade and the special grade upon the writ petitioner in the cadre of B.T. Assistant is being questioned by the respondent authorities. 18. A perusal of the objection raised by the second respondent in his impugned proceedings on 21.04.2022 reveals that the petitioner is entitled to selection grade in the cadre of B.T. Assistant only on 06.01.2016 and therefore, the selection grade and the special grade awarded to the writ petitioner on 30.09.2009 and 30.09.2019 are not in order. However, the learned counsel appearing for the writ petitioner had relied upon Rule 22-B of the Fundamental Rules to contend that such a benefit can be conferred upon him as per the above said rules. 19. A perusal of Rule 22-B of the Fundamental Rules reveals that the said rules is applicable only in cases where a Government servant is promoted to another post, his initial pay in the level of higher post in the pay matrix shall be fixed by granting one increment in pay in the level of the lower post. Therefore, it is clear that the said fundamental rule is applicable only in cases where an order of promotion is granted. In the present case, when the petitioner was promoted as a B.T. Assistant from the cadre of Secondary Grade Teacher (special grade), he enjoyed the benefit under F.R. 22-B. However, the said benefit cannot be extended for granting of selection grade and the special grade in the same category, because F.R.22-B is applicable only in cases where promotion orders are passed. Therefore, the contention of the learned counsel for the writ petitioner that in view of F.R.22-B, he is entitled for conferment of selection grade and the special grade even before completion of 10 years and 20 years respectively is not legally sustainable. 20. The Government has issued a Clarificatory Letter in Letter No. 23373/S/2011-2, dated 09.08.2011 wherein it has been clarified in Paragraph No. 2 as follows: “2. In the revised pay scales implemented with effect from 01.01.2006, no separate scales of pay have been provided for selection grade/special grade posts. 20. The Government has issued a Clarificatory Letter in Letter No. 23373/S/2011-2, dated 09.08.2011 wherein it has been clarified in Paragraph No. 2 as follows: “2. In the revised pay scales implemented with effect from 01.01.2006, no separate scales of pay have been provided for selection grade/special grade posts. Only one increment equal to three percent of the basic pay including grade pay in the same pay band is allowed to the employees on award of selection grade/special grade. Therefore, the question of counting the services rendered in the selection grade/special grade of the lower post for awarding selection grade/special grade in the promotion post does not arise. Hence, the orders issued in the Government Order/Letters first to third cited cannot be made applicable in the revised scales of pay implemented with effect from 01.01.2006.” 21. A perusal of the said Clarificatory Letter will clearly indicate that in view of the introduction of the revised pay scale from 01.01.2006, no separate pay scales are provided for selection grade or special grade. Only one increment equal to 3% of the basic pay is allowed to the employees. The said Government Order has further clarified that counting the services rendered in the selection grade/special grade of the lower post for awarding selection grade/special grade in the promotion post does not arise. In the present case, the petitioner is receiving the revised pay scale with effect from 01.01.2006. The petitioner has been conferred with the selection grade and the special grade in the cadre of B.T. Assistant even before completion of 10 years period relying upon his past services in the lower cadre namely Secondary Grade Teacher. This conferment of selection grade and the special grade is clearly in violation of the Clarificatory Letter issued by the Government on 09.08.2011. 22. The learned counsel for the petitioner had further relied upon G.O.Ms. No. 62, Finance (CMPC) Department, dated 09.03.2015 to attack the orders impugned in the writ petition. A perusal of the said Government Order clearly indicate that the benefit under G.O.Ms. No. 216, Finance (Pay Cell) Department, dated 22.03.1993 shall be made applicable only to the cases of the Secondary Grade Teachers and other employees who were awarded selection grade/special grade between 01.06.1988 and 31.12.1995 and the same cannot be extended beyond this date as subsequent pay commission revisions were implemented with effect from 01.01.1996 and 01.01.2006 respectively. No. 216, Finance (Pay Cell) Department, dated 22.03.1993 shall be made applicable only to the cases of the Secondary Grade Teachers and other employees who were awarded selection grade/special grade between 01.06.1988 and 31.12.1995 and the same cannot be extended beyond this date as subsequent pay commission revisions were implemented with effect from 01.01.1996 and 01.01.2006 respectively. Therefore, the Government Order is not applicable to the case of the writ petitioner. 23. In view of the said deliberations, the second respondent herein has rightly returned the pension proposal submitted by the seventh respondent herein. This Court does not find any illegality or infirmity in the order dated 21.04.2022. 24. The learned counsel for the petitioner had submitted that in view of G.O.Ms. No. 286 Finance (Pension) Department, dated 28.08.2018, any excess amount paid to a Government servant cannot be recovered, unless it is established that the said excess payment made is due to the misrepresentation on the part of the Government servant. In the present case, admittedly, due to some erroneous understanding of the Government Order, excess payment have been awarded to the writ petitioner and admittedly, there is no misrepresentation or fraud on the part of the petitioner. The petitioner was about to retire on 31.05.2022. When the pension proposals were forwarded to the second respondent, he had passed the impugned order on 21.04.2022 just one month prior to the date of superannuation. Consequential order has been passed on 07.05.2022 seeking to recover a huge sum of Rs. 33,92,045/-. 25. The Hon'ble Supreme Court in a judgment reported in State of Punjab and Others vs. Rafiq Masih (White Washer), (2015) 4 SCC 334 and others has held that recovery from the retired employees or the employees who are due to retire within one year, of the order of the recovery, would be impermissible in law. The Hon'ble Supreme Court had further held that recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued is also impermissible in law. In the present case, the petitioner was about to retire on 31.05.2022 and the impugned orders have been passed on 21.04.2022 and 07.05.2022. Therefore, it is clear that the recovery orders have been passed within one year prior to the date of retirement. 26. In the present case, the petitioner was about to retire on 31.05.2022 and the impugned orders have been passed on 21.04.2022 and 07.05.2022. Therefore, it is clear that the recovery orders have been passed within one year prior to the date of retirement. 26. In view of the judgment of the Hon'ble Supreme Court, the recovery orders passed are impermissible in law. However, the authorities are always at liberty to revise the pay scale whenever they find that erroneously a higher pay scale has been fixed or an excess amount has been paid. (E) Conclusion: 27. In view of the above said discussions, this Court is inclined to pass the following orders: (i) The order dated 21.04.2022 passed by the second respondent herein is confirmed. The seventh respondent herein is directed to forward the pension proposal on the basis of pay scale which is revised based on the objection raised by the second respondent herein in his order dated 21.04.2022. (ii) The seventh respondent herein is directed to forward the revised pension proposal to the second respondent herein within a period of four weeks from the date of receipt of a copy of this order. (iii) The order of the seventh respondent dated 07.05.2022 seeking to recover a sum of Rs. 33,92,045/- is hereby set aside. 28. The writ petition is partly allowed to the extent as stated above. No costs. Consequently, connected miscellaneous petitions are closed.