Madras High Court
P.Simson vs The Director Of Rural Development And ... on 29 September, 2023
W.P.(MD).No.13752 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.08.2023
PRONOUNCED ON : 29.09.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)No.13752 of 2022
and
W.M.P(MD)Nos.9761 & 17573 of 2022
P.Simson ... Petitioner
Vs.
1.The Director of Rural Development and Panchayat Raj,
Panagal Building,
Chennai – 600 015.
2.The District Collector,
Virudhunagar District,
Virudhunagar.
3.The Commissioner,
Panchayat Union,
Srivilliputhur,
Virudhunagar District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, to call for the
records of the third respondent ie., the Commissioner, Panchayat
Union, Srivilliputhur in proceedings in R.C.No.A8/537/2022, dated
06.05.2022 and quash the same and consequently direct the third
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W.P.(MD).No.13752 of 2022
respondent not to effect any further recovery on the ground of
mistaken sanction of increment and to refund the amount already
recovered.
For Petitioner : Mr.S.Viswalingam
For Respondents : Mr.R.Baskaran
Additional Advocate General
Assisted by
Mr.M.Prakash
Additional Government Pleader
ORDER
The present Writ Petition has been filed for issuance of a Writ of Certiorarified Mandamus, to quash the proceedings of the third respondent, dated 06.05.2022 and consequently direct the third respondent not to effect any further recovery on the ground of mistaken sanction of increment and to refund the amount already recovered.
2.Heard Mr.S.Viswalingam, learned counsel appearing for the petitioner and Mr.R.Baskaran, learned Additional Advocate General appearing for the respondents and perused the materials available on record.
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3.The petitioner is serving as a Junior Assistant in the Panchayat Office, Srivilliputhur. Based on the proceedings of the first respondent, dated 17.08.2021, the third respondent has issued orders of recovery of a sum of Rs.11,68,020/- by cancelling the sanction of increment for the period from 01.10.2007 to 01.10.2020 and refixation of pay on the ground that the petitioner did not pass the prescribed tests fully in the post of Junior Assistant. The petitioner was recruited through District Employment Exchange, Virudhunagar and was posted as Night Watchman at the first instance only on 20.11.1990 and joined duty on 21.11.1990 in the Panchayat Development Section of the Collector's Office, Virudhunagar. Thereafter, he was promoted as Junior Assistant on 13.10.2005 and till date, he is continuing as Junior Assistant in the same Panchayat. The date of superannuation of the petitioner is 31.05.2025. The sanction of increment for the period from 01.10.2007 to 01.10.2020, if considered to be a mistake on the part of the Government, recovery is impermissible in law as per the law settled by the Hon'ble Supreme Court in the case of the State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334.
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4.The second respondent has filed a counter-affidavit along with a vacate stay petition. The learned Additional Advocate General appearing for the respondents vehemently contended that as per G.O.Ms.No.97, Personnel and Administrative Reforms (M) Department, dated 14.02.1996, for declaration of satisfactory completion of probation of two years within three years of service as per Rule 32 of the Tamil Nadu Ministerial Service Rules, the prescribed requisites are
(i) a person ought to have passed all the departmental tests pertaining to Rural Development Department and (ii) ought to have passed the Foundation Training Course conducted at the Bhavanisagar Training Institute. Even after five years after being given promotion as Junior Assistant, the petitioner did not pass all the requisite tests. Without declaration of successful completion of period of probation, no one is entitled to get annual increment from second year onwards. The petitioner is not entitled for the increment from the second year, contrived to obtain the same till the year 2021. Hence, the third respondent vide impugned order, dated 06.05.2022 ordered recovery of the excess amount of Rs.11,68,920/- paid to him from the salary of the petitioner from 05/2022 to 05/2025 at the rate of Rs.5,000/- per month and to recover the remaining amount of Rs.9,83,920/- from the 4/12 https://www.mhc.tn.gov.in/judis W.P.(MD).No.13752 of 2022 DCRG of the petitioner. The Hon'ble Supreme Court of India in the case of India Vs. Sujatha Vedachalam reported in 2000 (9) SCC 187, held that there is no bar in recovering excess pay, but directed that the recovery must be in easy installments. It is a well settled proposition that an earlier dictum made by a co-ordinate bench will prevail over subsequent decisions.
5.Relying upon the order passed by the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal and others Vs. State of Uttarakhand and others reported in 2012 (8) SCC 417, the learned Additional Advocate General insisted that the respondents are concerned with the excess payment of public money which is often described as “taxpayers money” which belong neither to the officers who have effected overpayment nor to the recipients. Situations may arise where both the payer and payee are at fault and in that case, the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. No doubt any amount paid/received without the authority of law can always be recovered barring few exceptions to extreme hardship, but not as a matter of right in such a situation law implies an obligation on the 5/12 https://www.mhc.tn.gov.in/judis W.P.(MD).No.13752 of 2022 recipients/petitioner to repay the money otherwise it would amount to unjust enrichment. On such ground, the learned Additional Advocate General pressed for dismissal of the Writ Petition.
6.The Hon'ble Division Bench of this Court in W.A(MD)No.834 of 2021, dated 09.04.2021 [The Commissioner of Treasuries and Accounts and others Vs. K.Panchavarnam] has dealt with a similar case, wherein favourable orders passed by the learned Single Judge were upheld and the relevant portion of which is extracted as follows:-
“3.The said writ petition was filed by the respondent herein who was the Assistant Educational Officer, retired on superannuation on 30.09.1992, challenging the order of recovery from his pension on the ground that excess pension was paid with effect from 01.10.2017. The learned Writ Court allowed the writ petition by applying the law laid down by the Hon'ble Supreme Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer) and others reported in (2015) 4 SCC 334, which was followed in W.P.(MD)Nos.
15086 to 15090 of 2016 dated 20.06.2019.” 6/12 https://www.mhc.tn.gov.in/judis W.P.(MD).No.13752 of 2022
7.This Court in W.P(MD)No.19996 of 2015, dated 14.06.2019 [Ramachandran Vs. The Director of Treasuries and others] dealt with a similar case and has passed favourable orders to the petitioner thereat and the relevant portion of which is extracted as follows:-
“3. This Court is of the considered opinion that even in case of any erroneous payment, the same cannot be recovered, after a lapse of many years, that too without issuing any show-cause notice or opportunity to the employee concerned. This apart, there was no misrepresentation on the part of the writ petitioner while fixing the scale of pay by the respondent / Establishment. The respondents are empowered to correct the scale of pay, if any mistake occurred. However, recovery of the excess payment already made cannot be recovered, in view of the legal principles settled by the Apex Court in State of Punjab and others vs. Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334. The relevant paragraph is extracted hereunder:
“18. 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 hereinabove, we may, as a ready reference summarise 7/12 https://www.mhc.tn.gov.in/judis W.P.(MD).No.13752 of 2022 the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).
(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.
(iii) 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.
(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 employer's right to recover.” 8/12 https://www.mhc.tn.gov.in/judis W.P.(MD).No.13752 of 2022
8.The Panchayat Union Commissioner, Srivilliputhur, has effected recovery of a sum of Rs.5,000/- from the petitioner's salary for the month of May, 2022 vide proceedings, dated 06.05.2022. It is pertinent to mention that the said recovery is impermissible in law from the employees belonging to Class-III and Class-IV service (for Group-C and Group-D Service) when the excessive payment has been made for a period of more than five years before the order of recovery is issued. No doubt, the petitioner will fall under the category of Class-
III and the Hon'ble Supreme Court in the guidelines issued in the State of Punjab and others Vs. Rafiq Masih (White Washer) reported in 2015 (4) SCC 334 has categorically mandated that recovery from Class III/Group C & D employees would be impermissible. Hence, in line with the orders passed by the various Courts discussed supra, I am of the view that recovery at such a belated stage is unreasonable and arbitrary and hence, the impugned proceeding of the third respondent, dated 06.05.2022 is hereby quashed and consequently, the third respondent is directed not to effect any further recovery on the ground of mistaken sanction of increment.
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9.Accordingly, the Writ Petition is allowed. There shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.
29.09.2023
(2/2)
NCC : Yes / No
Index : Yes / No
Internet : Yes
ps
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W.P.(MD).No.13752 of 2022
To
1.The Director of Rural Development and Panchayat Raj, Panagal Building, Chennai – 600 015.
2.The District Collector, Virudhunagar District, Virudhunagar.
3.The Commissioner, Panchayat Union, Srivilliputhur, Virudhunagar District.
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