Madras High Court
Unknown vs A.Thiru Kumaran
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)Nos.392 of 2025 and batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved On Judgment Pronounced On
21.04.2025 22.08.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)Nos.392, 393 of 2025, 1944 to 1950 of 2023
and
C.M.P.(MD)Nos.3138, 3139 of 2025, 15070 to 15073, 15076 to 15078 of
2023
W.A.(MD)No.392 of 2025:
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,
Pudhukottai District, Pudhukottai.
4. The Zonal Accounts Officer (Audits)
School Education Department,
Madurai - 2.
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W.A.(MD)Nos.392 of 2025 and batch
5. The Headmaster,
Government Higher Secondary School,
Kallakottai, Gandarvakottai Taluk,
Pudhukottai District. ... Appellants
-Vs-
A.Thiru Kumaran ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the
order of this Court in W.P.(MD)No.5909 of 2017, dated 17.08.2023.
In all cases:
For Appellants :Mr.J.Ashok
Additional Government Pleader
In W.A(MD)Nos.392 of 2025, 1944 to 1950 of 2023:
For Respondent :Mr.M.Jothi Basu
******
COMMON JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.) The batch of writ appeals are filed regarding common issue, hence all the writ appeals are taken up together and a common order is passed.
2. The W.A.(MD)No.392 of 2025 is filed by the respondents in the writ petition challenging the order dated 17.08.2023 passed in W.P.(MD).No.5909 of 2017. The writ petition was filed by A. Thiru Kumaran for issuance of Writ 2/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.06/2017 dated 11.01.2017. The brief facts are that the petitioner was appointed as a Graduate Teacher in Government Higher Secondary School, Veeralimalai, Pudhukottai District. In the year 2008-2009, the petitioner got permission from the 5th respondent to study M.Phil. degree. On the basis of the same, the 5th respondent revised the pay scale of the petitioner and granted second incentive, which was subsequently approved by the 3rd respondent. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
3. The W.A.(MD)No.393 of 2025 is filed by the respondents in the writ petition challenging the order dated 17.08.2023 passed in W.P.(MD).No.5910 3/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch of 2017. The writ petition was filed by B.Tamilmani for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.06/2017 dated 11.01.2017. The brief facts are that the petitioner was appointed as a Block Resource Teacher in Government Higher Secondary School, Gandarvakottai, Pudhukottai District. In the year 2008-2009, the petitioner got permission from the 5th respondent to study M.Phil. degree. On the basis of the same, the 5th respondent revised the pay scale of the petitioner and granted second incentive, which was subsequently approved by the 3rd respondent. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
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4. The W.A.(MD)No.1944 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16100 of 2016. The writ petition was filed by M.Thirumurugan for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.108/2016 dated 29.06.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government Boys High School, Karambakudi, Pudhukottai District. At the time of appointment itself the petitioner was having the qualification of M.Phil. degree and incentive increment was granted on the date of appointment. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
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5. The W.A.(MD)No.1945 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16101 of 2016. The writ petition was filed by A.Selvakumar for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.108/2016 dated 29.06.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government High School, Karambakudi, Pudhukottai District. At the time of appointment itself the petitioner was having the qualification of M.Phil. degree and incentive increment was granted on the date of appointment. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
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6. The W.A.(MD)No.1946 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16102 of 2016. The writ petition was filed by B.Muthumani for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.123/2015 dated 30.06.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government Girls High School, Arimalam, Pudhukottai District. On 05.01.2009 the petitioner got higher qualification of M.Phil. degree and the incentive increment was granted on 05.01.2009. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed. 7/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch
7. The W.A.(MD)No.1947 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16103 of 2016. The writ petition was filed by S.Radhakrishnan for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.112/2016 dated 05.07.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government High School, Kavarampatti, Pudhukottai District. On 09.03.2009 the petitioner got higher qualification of M.Phil. degree and got incentive increment on 09.03.2009. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
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8. The W.A.(MD)No.1948 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16104 of 2016. The writ petition was filed by K.Priya for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.96/2016 dated 14.07.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government High School, Kodumbalur, Pudhukottai District. At the time of appointment itself the petitioner was having the qualification of M.Phil. degree and incentive increment was granted on the date of appointment. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed.
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9. The W.A.(MD)No.1949 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No.16106 of 2016. The writ petition was filed by M.Muthukaruppan for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5th respondent in his proceedings in Na.Ka.No.50/2016 dated 19.07.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government High School, Andkulam, Pudhukottai District. In February 2007 the petitioner got higher qualification of M.Phil. degree and got incentive increment from February 2007. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed. 10/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch
10. The W.A.(MD)No.1950 of 2023 is filed by the respondents in the writ petition challenging the order dated 20.07.2023 passed in W.P.(MD)No. 16107 of 2016. The writ petition was filed by A.Selvendran for issuance of Writ of Certiorari, to quash the proceedings in Na.Ka.No.42026/H/E2/2016 dated 11.06.2016 and consequential recovery order passed by the 5 th respondent in his proceedings in Na.Ka.No.113/2016 dated 10.08.2016. The brief facts are that the petitioner was appointed as a B.T. Assistant in Government High School, Mandaiyur, Pudhukottai District. On 31.08.2009 the petitioner got higher qualification of M.Phil. degree and got incentive increment on 31.08.2009. While that being so, the State had issued a Letter No.129, dated 17.07.2013, prescribing a cutoff date for the award of incentive relating to M.Phil., degree as 18.01.2013, but the G.O.(ID)No.18, dated 18.01.2013, which was issued prior to the Letter does not prescribe any cut-off date to fix the entitlement for receipt of incentive increment. Further the letter dated 17.07.2013 was issued as a clarification, based on consequent clarification the impugned order in the writ petition was passed directing to recover the incentive increment granted earlier. Hence the writ petition was filed. 11/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch
11. In all the cases the Writ Court had relied on the judgment of the Hon’ble Supreme Court rendered in State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc. reported in 2015 4 SCC 334 and allowed the writ petition. Aggrieved over the same present Writ Appeals are preferred by the State.
12. Heard Mr.J.Ashok, Additional Government Pleader appearing for the appellants in all cases and Mr.M.Jothi Basu, learned Counsel appearing for the respondent in W.A(MD)Nos.392 of 2025, 1944 to 1950 of 2023 and perused the records.
13. The primary contention of the appellant is that the incentive increment for the higher qualification of M.Phil. was granted only in G.O. (ID)No.18 School Education dated 18.01.2013, hence the writ petitioners are entitled to incentive increment from the date of issuance of G.O.(ID)No.18 i.e. 18.01.2013 only and not prior to the said G.O., which is being clarified in the Letter No.129. It is seen for the first time the incentive increment was granted through G.O.Ms.No.42 Education Department dated 10.01.1969. But in the said G.O. there is no provision to grant incentive increment for M.Phil. degree 12/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch at all. The said G.O.Ms.No.42 had granted incentive increment only for the B.T., B.Ed., M.A., M.Sc. and M.Ed. degrees alone. The M.Phil. degree was granted incentive increment for the first time in G.O.(ID)No.18. When teachers started claiming incentive increment for M.Phil. for earlier period i.e. prior to 18.01.2013 the same was granted in some cases. When it was brought to the knowledge of the government, then the government clarified through Letter No.129, dated 17.07.2013 that the teachers are eligible for incentive increment for M.Phil. degree only from 18.01.2013, which is the date on which the G.O.(ID)No.18 was issued. In such circumstances the petitioners would be entitled to incentive increment from 18.01.2013 only.
14. Further it is settled principle that any G.O. would come into effect from the date of issuance of the said G.O. and prospective effect can be granted. In other words, retrospective effect cannot be granted unless it is explicitly stated in the provisions. In the present G.O. there is no explicit provision to hold that the G.O. is applicable retrospectively. Therefore, this Court is of the considered opinion that the G.O.(ID)No.18 dated 18.01.2013 is applicable prospectively only i.e. from 18.01.2013 and the incentive increment for M.Phil. degree is applicable prospectively only from 18.01.2013. 13/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch
15. It is pertinent to state that the said G.O.(ID)No.18 was issued for the reason that the teachers were granted incentive increment for M.Ed. degree all these years. The said course was offered in distance education, but the said course was not offered and stopped by the institutions from 2012 onwards. Further the said institutions have offered M.Phil. degree course instead of M.Ed. degree course. Due to this the teachers who would be expecting to get incentive increment for M.Ed. would not get any incentive increment. Hence the government had decided to grant incentive increment for the M.Phil. degree through G.O.(ID)No.18 and the said G.O. is extracted hereunder:
"gs;spf; fy;tp - gl;ljhup Mrpupau;fs; vk;.V./vk;v];rp.> gl;lg;gbg;gpw;F ngWk; Kjy; Cf;f Cjpa cau;tpw;Fg; gpd; ,uz;lhtJ Cf;f Cjpa cau;T ngw jFjpahf cau;fy;tp vk;.vl;.> cld;> vk;.gpy;. kw;Wk; gp.n`r;.b.> gl;lq;fis Nru;j;jy; - Miz ntspaplg;gLfpwJ.
gs;spf; fy;tpj;Jiw
murhiz (1b) vz;.18 ehs;: 18.01.2013
jpUts;Stuhz;L 2044> ij 5
gbf;fg;gl;lit:-
1.murhiz (epiy) vz;. 1024> fy;tp mwptpay; kw;Wk;
njhopy;El;gj; Jiw>
ehs; 09.12.1993.
2.gs;spf;fy;tp ,af;Feu; fbj vz;. 98543/Nf/,1/10 ehs; 08.12.2010 ***** 14/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch Miz:
NkNy Kjyhtjhf gbf;fg;gl;l murhizapy;> gl;ljhup Mrpupau;fs; vk;V.> vk;v];rp Nju;T ngw;w gpwF ngWk; Kjy; Cf;f Cjpa cau;Tld; gl;ljhup Mrpupau; gjtp kw;Wk; jiyikahrpupau;
gjtpapy; gzpGupAk;NghJ vk;.vl;.> gl;lj; jFjp
ngw;wpUe;jhy; ,uz;lhtJ Cf;f Cjpa cau;T ngw
jFjpAilatuhfpwhu; vd Miz ntspaplg;gl;Ls;sJ.
2. gs;spf; fy;tp ,af;Feu; jdJ fbjj;jpy;> jw;NghJ
gyfiyf; fofq;fs; njhiyJ}uf; fy;tpj; Jiw. gy;fiyf; fofg; ghlg; gFjpfspypUe;J vk;.vl;.-I ePf;fptpl;ljhy;> vk;.vl;. fy;tpj;
jFjpia njhiyJ}uf; fy;tp %yk; ngw ,ayhj R+o;epiy
cs;sJ. vk;.gpy; my;yJ gp.n`r;.b Nghd;w cau; fy;tpfis
njhiyJ}uf; fy;tp %yk; ngWk; epiy cs;sjhy; xU Mrpupau; jkJ nkhj;jg; gzpf;fhyj;jpy; cau; fy;tpf;fhf 2 Cf;f Cjpa cau;Tfs; kl;LNk ngw KbAk; vd;w tiuaiwf;Fl;gl;Ls;s epiyapy;> jw;NghJ gl;ljhup Mrpupau;fspd; ePz;l ehs; Nfhupf;ifahd> gl;ljhup Mrpupau;fs; vk;.V.>vk;.v];.rp.-f;F cau;fy;tpahd vk;.vl;. kl;LNk vd NkNy xd;wpy; gbf;fg;gl;l murhizapy; Fwpg;gpl;Ls;sjw;F gjpyhf vk;.vl;. gl;lj;NjhL vk;.gpy;. my;yJ gp.n`r;.b. gl;lq;fs; ngw;whYk; mtu;fSf;F kw;nwhU Cjpa cau;T toq;fyhnkd gs;spf; fy;tp ,af;Feu; muRf;F gupe;Jiuj;Js;shu;.
3. gs;spf; fy;tp ,af;Feupd; gupe;Jiu murhy; ftdKld; Ma;T nra;ag;gl;L mjid Vw;W> gl;ljhup Mrpupau;fs; cau; fy;tp jFjpahd vk;.V.>vk;.v];.rp.-f;F ngWk; Kjy; Cf;f Cjpa 15/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch cau;itj; jtpu NkYk; ,uz;lhtJ Cf;f Cjpa cau;Tngw murhiz vz;. 1024> fy;tp> mwptpay; kw;Wk; njhopy;El;gj; Jiw> ehs; 09.12.1993-d;gb mDkjpf;fg;gl;l jFjpahd cau;fy;tp vk;.vl;. vd;gjw;F gjpyhf> vk;.vl;. my;yJ vk;.gpy;> my;yJ gp.n`r;.b. gl;lk; ngw;wpUe;jhy; ,uz;lhtJ Cf;f Cjpa cau;tpw;fhd cau;fy;tpj; jFjpahf fUjp> mjhtJ xU Mrpupaupd; nkhj;jg;
gzpf;fhyj;jpy; mjpfg;gl;rkhf ,U Cf;f Cjpa cau;TfNs
mDkjpf;fg;gl Ntz;Lk; vd;fpd;w
epge;jidfSf;Fl;gl;L ,uz;lhtJ Cjpa cau;T mspf;fyhk; vd KbT vLj;J mt;thNw muR Miz ntspapLfpwJ.
4.,t;thiz epjpj;Jiwapd; m.rh.vz;.1436/Edn:11/2013> ehs; 11.01.2013y; ngw;w ,irTld; ntspaplg;gLfpwJ.
(MSeupd; Mizg;gb) j.rgpjh muR Kjd;ikr; nrayhsu;"
From the contents of the aforesaid G.O.(ID)No.18 it is evident that due to change in the offering of course from M.Ed. to M.Phil. in distance education the government also changed the policy to grant incentive increment to M.Phil. degree instead of M.Ed. degree. Therefore, the said policy decision would come into effect from the date of issuance of the G.O.(ID)No.18 i.e. from 18.01.2013 and not prior to the said G.O. 16/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch
16. This Court is of the considered opinion that the Writ Court failed to consider the contents of the G.O. and its prospective nature, hence the impugned order passed in the writ petitions are liable to be set aside. In the present cases the writ petitioners were granted from 2008-2009 onwards, but the writ petitioners are entitled to incentive increment from 18.01.2013 onwards and not prior to 18.01.2013.
17. As far as recovery is concerned the Learned Counsel appearing for the petitioner submitted that the recovery cannot be made based on the judgment passed by the Hon'ble Supreme Court in the case of State of Punjab and others etc., vs. Rafiq Masih (White Washer) etc., reported in (2015) 4 SCC 334. The relevant portion of the judgment is extracted hereunder:
“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).17/24
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(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.” The writ petitioners are drawing salary more than one lakh per month and they are coming under the category of “Group B”. As per Rafiq Masih’s judgment recovery cannot be made from Group C and D alone. Moreover, the petitioners are still in service, hence the aforesaid judgment is not applicable to the present case.
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18. Further the Rafiq Mashi case was distinguished and clarified in another case in High Court of Punjab and Haryana and others VS Jagdev Singh reported in 2016 (14) SCC 267 relevant portion culled out as under:
“11. The principle enunciated in proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.
12. For these reasons, the judgment of the High Court which set aside the action for the recovery is unsustainable. However, we are the view that the recovery should be made in reasonable installments. We direct that the recovery be made in equated monthly installments spread over a period of two years” Since the condition was imposed while granting the payment, the Jagdev Singh’s case is applicable and the recovery order is legally valid."
In the present case the petitioners were granted the incentive increment with a condition that the same is paid subject to the audit objection. When the said amount is paid subject to audit objection, then the judgment rendered in Jagdev Singh’s case is applicable to the present case also, consequently the appellants are empowered to recover the amount.
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19. Apart from the above condition of audit objection, the appellants are empowered to recover vide the G.O.Ms.No.702 Finance (P) Department dated 07.10.1988, wherein the Treasury Authorities are empowered to recover the government dues if any excess payment are made to the employees including the over payment of annual increment, incentive increment, pension / family pension etc. In the present case the petitioner was disbursed ineligible amount of incentive increment, then as per the aforesaid G.O. the same can be recovered. Further as per Jagdev Singh’s stated supra the amount shall be recovered. In such circumstances the order directing the petitioner to remit the excess amount is in accordance to law.
20. It is seen under Rule 35 of General Provident Fund Rules and it has been held as under:
“(1) As soon as possible after the close of each year, the Accounts Officer shall send to each subscriber a statement of his account in the Fund showing the opening balance as on the 1st April of the year, the total amounts credited or debited during the year, the total amount of interest credited as on the 31st March of the year and the closing balance on that date. The Accounts Officer shall attach to the statement of account an enquiry as to whether the subscriber-20/24
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(a) desire to make any alteration in any nomination made under rule 7 or under the corresponding rule heretofore in force.
(b) has acquired a family in cases where the subscriber has made nomination in favour of a member of his family under the proviso to sub-rule (1) of rule 7.
(2) Subscribers should satisfy themselves as to the correctness of the annual statement and errors should be brought to the notice of the Accounts Officer within three months from the date of receipt of the statement.
(3) The Accounts Officer shall, if required by a subscriber once but not more than once, in a year inform the subscriber of the total amount standing to this credit in the fund at the end of the last month for which his account has been written up”.
Even though the above rule is applicable for payment of Provident Fund, the said rule may be applied to the extent that the petitioner also has some responsibility to inform if there is any excess payment is made to the petitioner.
21. It is pertinent to observe that in Education Department the payment of salary and other benefits payable to the teaching and non-teaching staffs are drawn by the Head Master of the school or Correspondent of the school or 21/24 https://www.mhc.tn.gov.in/judis ( Uploaded on: 28/08/2025 02:32:03 pm ) W.A.(MD)Nos.392 of 2025 and batch Secretary of school. If the said procedure is followed to pay the existing salary, then there would not be any problem. However, if any benefits like annual increments, incentive increments, increase in salary or any other benefits apart from regular salary then the same ought to be paid after approval by the higher authority namely Chief Educational Officer or Joint Director. If this is followed then there will not be any disputes regarding payment of benefits. Therefore, this Court is directing the respondents to pass appropriate orders in the said issue.
22. With the above said observations and directions, the impugned orders passed in the writ petitions are set aside and the writ appeals are allowed. No costs. Consequently, connected civil miscellaneous petitions are closed.
[J.N.B., J.] [S.S.Y., J.]
22.08.2025
Index : Yes / No
Tmg
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W.A.(MD)Nos.392 of 2025 and batch
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,
Pudhukottai District, Pudhukottai.
4. The Zonal Accounts Officer (Audits)
School Education Department,
Madurai - 2.
5. The Headmaster,
Government Higher Secondary School,
Kallakottai, Gandarvakottai Taluk,
Pudhukottai District.
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W.A.(MD)Nos.392 of 2025 and batch
J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
W.A.(MD)Nos.392 of 2025 and batch
22.08.2025
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