Madras High Court
S.Maharaja vs The Director on 14 June, 2019
Author: R.Mahadevan
Bench: R.Mahadevan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 29.04.2019
PRONOUNCED ON : 14.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
W.P(MD)Nos.8032 of 2015, 4044, 6929, 10287 & 19207 of 2016,
9412, 17042, 12977 & 12978 of 2017, 8936, 8937, 8938, 15302, 15303,
17860 & 20254 of 2018 & 6937 of 2019 (17 cases)
and
W.M.P(MD)Nos.16929 of 2018, 1, 3 & 4 of 2015, 3630, 3631, 5930, 5931,
80
36, 8037, 8038, 13862 & 13863 of 2016, 7159, 7160, 10061, 10062,
10063, 10064, 10065 & 10066 of 2017, 8349, 8350, 8351, 8352, 8353,
8354, 8355, 8356 & 8357 of 2018, 13814, 13815, 13816, 13817, 13818,
13819, 15740, 15741, 15742, 18019, 18020, 18021 & 18022 of 2018 &
5529 of 2019
and
Cont.P(MD)Nos.4 of 2017, 1009, 1010 & 1011 of 2018 (4 cases)
in
W.M.P(MD)Nos.8038 of 2016, 8351, 8354 & 8357 of 2018
in
W.P(MD)Nos.10287 of 2016, 8936, 8937 & 8938 of 2018
W.P(MD)No.8032 of 2015:-
1.S.Maharaja
2.R.Alamelu
3.S.Maheswari
4.S.Shanthi
5.R.Naseema
6.C.Kaladevi
7.W.Christopher Suresh
8.S.Lakshmi
9.R.Chitra
10.A.Faritha
11.S.Sathyavathy
12.M.Uma Rani
13.A.Vasantha
14.E.Roseline Lobo
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15.Gerrad C V Diamond
16.V.Ragini Devi
17.V.Kannan
18.M.Maragathamani
19.S.Thirumalai
20.T.Oppayee
21.S.Manimekala
22.G.Kumaresan
23.R.Jeyaseeli
24.R.Gowri
25.R.Krishnaveni
26.S.Soundravalli
27.R.Sureshkumar
28.M.Nallathambi
29.S.Usha Rani
30.S.Uma Maheswari
31.D.Somasundaram
32.S.Ramkumar
33.A.Alagesan
34.S.Muruganandam
35.S.Sivanadham
36.M.Suthanthirachelvan
37.A.Govindaraju
38.S.Elango
39.T.Ravichandran
40.S.Balasubramiam
41.R.Sridevi
42.R.Manoharan
43.S.Shanmugam
44.N.Sellam
45.S.Ramasamy
46.T.Punniaymoorthi
47.P.Jayanthi
48.S.Padmini
49.M.Pushpalatha
50.N.T.Ganesh Babu
51.C.Muthulakshmi
52.A.Muthu
53.K.Gunavalagan
54.T.Thilagam
55.S.Sumathi
56.M.Paneerselvam
57.V.Usharani
58.R.Sridhar
59.N.Amarjothi
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60.G.Tharasing
61.K.Ramachandran
62.G.Rajakumari
63.N.Manimozhi
64.M.M.Kathamuthu
65.C.Kumar
66.N.Muralidharan
67.G.Kandasamy
68.M.Philip Kumar
69.P.R.Srinivasan
70.R.Thamayanthi ... Petitioners
Vs.
1.The Director,
Local Fund Audit Department,
Kuralagam,
Chennai.
2.The Regional Joint Director,
Local Fund Audit Department,
Trichirappalli Corporation Water Tank Complex,
1st Floor, Dindigul Road,
Trichirappalli – 620 001.
3.The Assistant Director,
Local Fund Audit Department,
Bharathidasan University,
Palkalaiperur,
Tiruchirappalli – 620 024.
4.The Bharathidasan University,
Rep. by its Registrar,
Palkalaiperur,
Tiruchirappalli – 620 024. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
relating to the impugned proceedings of the second respondent in Na.Ka.No.
543/A2/2015, dated .03.2015, signed by him on 30.03.2015 and quash the
same and consequently, direct the respondents 2 and 3 herein to clear the
Audit objections raised by them as against the petitioners.
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For Petitioners : Mr.S.Manikandan
For RR 1 to 3 : Mrs.J.Padmavathy Devi,
Special Government Pleader.
For R – 4 : Mr.V.R.Shanmuganathan
******
Cont.P(MD)No.4 of 2017:-
S.Thirumalai ... Petitioner
Vs.
C.Thiruselvam (In-Charge),
The Registrar,
The Bharathidasan University,
Palkalaiperur,
Tiruchirappalli – 620 024. ... Contemnor/4th Respondent
Prayer: Petition filed under Section 11 of the Contempt of Courts Act, 1971,
to punish the contemnor under the contempt of Courts Act for wilful
disobedience of the interim order passed by this Court in W.M.P(MD)No.8038
of 2016 in W.P(MD)No.10287 of 2016, dated 10.06.2016.
For Petitioner : Mr.S.Manikandan
For Respondent : Mr.V.R.Shanmuganthan
******
Cont.P(MD)Nos.1009, 1010 & 1011 of 2018:-
R.Suresh Kumar ... Petitioner in Cont.P(MD)No.1009/2018
G.Tharasingh ... Petitioner in Cont.P(MD)No.1010/2018
M.Maragathamani ... Petitioner in Cont.P(MD)No.1011/2018
Vs.
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1.V.Raja,
The Assistant Director,
Local Fund Audit Department,
Bharathidasan University,
Palkalaiperur,
Tiruchirappalli – 620 024.
2.Gopinath,
Registrar,
The Bharathidasan University,
Palkalaiperur,
Tiruchirappalli – 620 024. ... Contemnors/Respondents 3 & 4
Common Prayer: Petitions filed under Section 11 of the Contempt of Courts
Act, 1971, to punish the contemnors under the contempt of Courts Act for
wilful disobedience of the interim order passed by this Court in
W.M.P(MD)Nos.8351, 8354 & 8357 of 2018 in W.P(MD)Nos.8936 to 8938 of
2018, dated 23.04.2018.
For Petitioner : Mr.S.Manikandan
(in all Cont.Ps')
For R – 1 : Mrs.J.Padmavathy Devi,
(in all Cont.Ps') Special Government Pleader.
For R – 2 : Mr.V.R.Shanmuganthan
******
COMMON ORDER
W.P(MD)Nos.8032 of 2015, 4044, 6929 & 10287 of 2016, 9412, 12977 & 12978 of 2017, 8936, 8937, 8938, 15302, 15303, 17860 & 20254 of 2018 have been filed seeking a Writ of Certiorarified Mandamus, to quash the impugned orders passed by the respondents concerned and consequently, to direct the respondents concerned to clear the Audit objections raised by them as against the petitioners. http://www.judis.nic.in 6
2.W.P(MD)No.19207 of 2016 has been filed seeking a Writ of Certiorarified Mandamus, to quash the impugned order passed by the fourth respondent/Bharathidasan University and consequently, to direct the respondents 1 to 3 to process the pension proposals of the petitioner by considering the Selection Grade and Special Grade granted to the petitioner.
3.W.P(MD)No.17042 of 2017 has been filed seeking a Writ of Mandamus, to direct the fourth respondent to pay all the retiral benefits of the petitioner and to pay pension continuously without any further delay, as directed by this Court in W.M.P(MD)No.10666 of 2017 in W.P(MD)No.12978 of 2017, dated 13.07.2017.
4.W.P(MD)No.6937 of 2019 has been filed seeking a Writ of Mandamus, to direct the respondents to process the petitioner's pension proposal as submitted by the fourth respondent University and to pay pension to the petitioner.
5.Cont.P(MD)Nos.4 of 2017, 1009, 1010 & 1011 of 2018 have been filed alleging willful disobedience of the orders passed by this Court in W.M.P(MD)No.8038 of 2016 in W.P(MD)No.10287 of 2016, dated 10.06.2016 and W.M.P(MD)Nos.8351, 8354 & 8357 of 2018 in W.P(MD)Nos.8936 to 8938 of 2018, dated 23.04.2018.
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6.Since the issue involved in all the writ petitions is inter-connected, these writ petitions are taken up for hearing together and disposed of by this common order.
7.Brief facts leading to the filing of these writ petitions, are as follows:
7.1. The petitioners were appointed as Junior Assistants in the fourth respondent/Bharathidasan University and later promoted as Assistants and thereafter, as Section Officers.
7.2. By this time, one K.Gunalan, since deceased, was appointed as Junior Assistant on 01.01.1987 and he was promoted as Deemed Assistant on 01.01.1994. Further, he continued to hold the post of Deemed Assistant, since he did not pass Account Test – Part I, as mandatorily prescribed under the statute of the fourth respondent-University, for promotion as Regular Assistant. On 08.06.2001, he was promoted as Regular Assistant, granting exemption from passing Account Test Part I, invoking Rule 3 of Chapter VI of Bharathidasan University.
7.3. On the other hand, many employees, including the petitioners, passed Account Test – Part I and got themselves promoted as Regular Assistants prior to the date of exemption granted to K.Gunalan ie., on 08.06.2001. The petitioners are seniors to the said K.Gunalan in the cadre of Assistant. On 09.06.2001, the said K.Gunalan was awarded Selection Grade in the post of Regular Assistant by calculating his service in the post of deemed Assistant ie., from 01.01.1994 and he died on 13.07.2011 and his http://www.judis.nic.in 8 wife had received all the retiral benefits.
7.4. According to the petitioners, as per G.O.Ms.No.68, Personnel and Administrative (Per.M) Department, dated 23.01.1986, the employees, who were promoted and working as Regular Assistants, prior to the promotion of the said K.Gunalan as Regular Assistants and who were seniors to the said K.Gunalan in the cadre of Regular Assistant, were granted Selection Grade in the post of Regular Assistant with effect from 09.06.2001 ie., the date on which the said K.Gunalan was awarded Selection Grade.
7.5. While so, during the Audit Report for the period 2008-09, an objection has been raised stating that the said K.Gunalan has been wrongly exempted from passing Accounts Test Part – I and based on such wrong exemption, he has been wrongly awarded Selection Grade in the post of Regular Assistant, based on which, the petitioners and others have also been wrongly awarded Selection Grade by placing reliance on G.O.Ms.No.68, Personnel and Administrative (Per.M) Department, dated 23.01.1986.
7.6. Since the reply of the fourth respondent-University to the audit objections has not been considered, the fourth respondent-University appointed an Adhoc Committee, which in-turn gave a report, dated 09.06.2010 and recommended to the Local Fund Audit Department to remove the Audit Objections. The syndicate, in its meeting, dated 13.08.2010, accepted the committee report and forwarded the same to the first respondent, however, respondents 2 and 3, having not been satisfied with the reply and reports, continued to sustain the audit objections.
http://www.judis.nic.in 9 7.7. In the meantime, the second respondent, vide impugned proceedings dated 28.03.2015, addressed to the third respondent, had refused to remove the audit objections. Based on the said proceedings, the fourth respondent-University, by proceedings dated 22.04.2015 and 08.05.2015, had re-fixed scale-of-pay to S.Vaidyanathan and V.Vijayalakshmi, who attained the age of superannuation on 30.04.2015 and 08.05.2015 respectively, and initiated recovery proceedings.
7.8. Since the petitioners are similarly placed persons along with the above said persons, apprehending revision of pay and initiation of recovery proceedings, the petitioners have filed a Writ Petition in W.P(MD)No.8032 of 2015 (present writ petition) questioning the proceedings dated ...03.2015 signed on 30.03.2015.
7.9. Pending Writ Petition in W.P(MD)No.8032 of 2015, this Court, by order dated 25.06.2015, granted an order of interim stay.
7.10. At this juncture, when the petitioners made enquiry about their pension proposals, the third respondent, vide impugned proceedings, rejected their pension proposals citing the pendency of the Writ Petition in W.P(MD)No.8032 of 2015. Questioning the said proceedings, W.P(MD)Nos. 4044, 6929 & 10287 of 2016, 9412, 12977 & 12978 of 2017, 8936, 8937, 8938, 15302, 15303, 17860 & 20254 of 2018 have been filed.
7.11. In some of the Writ Petitions, this Court passed the following interim order:-
“There shall be a direction to the respondents 1 to 3 to process http://www.judis.nic.in 10 the pension proposals of the respective petitioners and pay the retiral benefits, which shall be subject to the result of W.P(MD)No. 8032 of 2015.” 7.12. Subsequent to the interim order passed by this Court, W.P(MD)Nos.17042 of 2017 and 6937 of 2019 have been filed to direct the respondents to process the petitioners' pension proposals as submitted by the fourth respondent University and to pay pension to the petitioners.
8. Alleging willful disobedience on the part of the respondents in complying with the interim direction issued by this Court dated 10.06.2016 and 23.04.2018, Cont.P(MD)Nos.4 of 2017, 1009, 1010 & 1011 of 2018 have been filed.
9. With the above factual background, the respective learned counsel for the petitioners submitted that as per the syndicate resolution of the fourth respondent-University, if an employee works in a particular cadre for 7 years, he will be granted deemed promotion; based on One Man Commission, which was approved by the syndicate on 08.06.2001, the said deemed promotions were modified as Selection Grade and if they rendered 20 years of service, they would be granted Special Grade.
10. The learned counsel appearing for the petitioners submitted that the petitioners being seniors to the said K.Gunalan in the cadre of Assistant http://www.judis.nic.in 11 are entitled to selection grade and as there was no audit objection raised in respect of the said K.Gunalan, raising objection in the case of the petitioners alone is discriminatory and violative of Article 14 of the Constitution of India.
Thus, the impugned proceedings are liable to be set aside.
11. The learned counsel appearing for the petitioners further submitted that the petitioners have served under the University for more than 20 years and granted Selection Grade with effect from 09.06.2001. Now, by way of the impugned proceedings, the fourth respondent / University proposed to refix the scale of pay and recover the amount paid in excess, that too, without issuing any notice or conducting any enquiry. Thus, the impugned proceedings cannot stand in the eye of law and the same need to be interfered with.
12. Per contra, the learned Special Government Pleader appearing for respondents 1 to 3, through the counter-affidavit filed by the Local Fund Audit Department, submitted that the University Syndicate has approved the resolution regarding the award of Selection Grade for completing 7 years of service and Special Grade for completing 20 years of service totally to the non-teaching staff of Bharathidasan University. The Government's instruction of awarding selection grade in 10 years and special grade in 20 years was adopted only in recent years by the University. Thus, non-adherence of Government Rules was objected to in the audit. As per sub-Section (2) of http://www.judis.nic.in 12 Section 28 of Chapter IV of the Bharathidasan University Act, 1981, the University should carry out such instructions as may be issued by the Government based on the Audit Report.
13. The learned Special Government Pleader appearing for respondents 1 to 3 further submitted that as per the proceedings, dated 31.07.2001, the said K.Gunalan was promoted as regular Assistant with effect from 08.06.2001 with the condition that he would draw the pay already fixed in the post of the Deemed Assistant. The exemption granted and the consequent promotion given to the said K.Gunalan were not at all correct. An objection was raised in the Audit Report for the year 2001-2002 and in the subsequent years also.
14. The learned Special Government Pleader appearing for respondents 1 to 3 submitted that the said K.Gunalan is senior to all the Assistants who have claimed anomaly in the original post of Junior Assistant. The actual senior was overlooked for promotion to the higher post due to non-possession of the qualification. But the discrepancy was removed, when he was given exemption and promoted as Assistant on 08.06.2001 and again as Deemed Superintendent on 09.06.2001. The petitioners are not seniors to K.Gunalan. Though the exemption was given by the Syndicate, it becomes imperative on the part of the audit department to point out the gross violation of the Act and as per the provision under Section 52-A of the http://www.judis.nic.in 13 Bharathidasan University Act, 1981 (hereinafter referred to as "the Act"), the Government directed the Registrars of all Universities to strictly take suitable action to re-fix the pay/reverse the wrong promotions/increments given as objected to in the audit, so as to avoid recurrence of such objections, which will consequently lead to excess expenditure in subsequent years and also to recover the excess payment from the individual staff concerned. As the fourth respondent has not taken any action to rectify the defects, pension proposals were returned to revise the pay, which was wrongly fixed due to pay anomaly, by respondents 1 to 3 and prayed for dismissal of the Writ Petitions.
15. The learned counsel appearing for the fourth respondent / University, by relying upon the averments made in the counter-affidavit filed by the fourth respondent, submitted that if an employee was unable to pass the Account Test Part-I after attempting 5 times, he can be exempted to pass the test. Accordingly as a special case the Syndicate granted exemption to the said K.Gunalan and six others subject to the condition that this should not be quoted as precedent in future cases and awarded Selection Grade in the post of Assistant with effect from 09.06.2001. Based on the same, the claim of the petitioners to pay anomaly and award of Selection Grade on par with their junior K.Gunalan, was considered by the University and stepped up the pay and awarded the Selection Grade on par with K.Gunalan. http://www.judis.nic.in 14
16. The learned counsel appearing for the fourth respondent further submitted that the Local Fund Audit, Bharathidasan University Wing, Tiruchirappalli, has objected the rectification of the pay anomaly and also the award of Selection Grade to the petitioners on par with the said K.Gunalan. The University requested the Joint Director of Local Fund Audit to drop the above audit objection, but the Joint Director of Local Fund Audit rejected the request. Thus, the learned counsel for the fourth respondent justified the impugned proceedings.
17. The learned counsel appearing for the fourth respondent further submitted that in view of the interim order granted by this Court, the fourth respondent University is not in a position to proceed further in these cases and hence, he prayed for appropriate relief.
18. I have considered the rival submissions and perused the materials available on record.
19. The claim of the petitioners herein revolves around the awarding of selection grade to one Mr.K.Gunalan. Hence, the validity or otherwise of the the selection grade awarded to Mr.K.Gunalan, who has completed only 7 years of service in the cadre, instead of 10 years, by way of Resolution of University Syndicate, which was objected to by the Local Fund Audit Department, would give a quietus to the issue.
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20. The case of K.Gunalan was that he was appointed as Junior Assistant on 01.01.1987 and he, along with five others, were promoted as Deemed Assistant from 01.01.1994 subject to the condition that they could move to the regular cadre of Assistant only after acquiring the qualification of passing the Accounts Test for Subordinate Officers Part I. Hence, they were exempted from passing the said Test as a special case as per Syndicate Resolution No.2001/38 dated 08.06.2001 and as per the Proceedings of the fourth respondent / University, dated 31.07.2001. The said individuals were promoted as Regular Assistants with effect from 08.06.2001 with a condition that they would draw the pay already fixed in the post of Deemed Assistant. Subsequently, an order dated 09.02.2010 has been passed by the Vice- Chancellor of the University stating that exemption granted to K.Gunalan cannot, as a matter of equity, be claimed by any employees of the University. In the meantime, the said K.Gunalan was given promotion on 09.06.2001 as Deemed Superintendent by taking into account the past services rendered in the post of Deemed Assistant. Thiru K.Gunalan passed away on 13.07.2011 and family pension was awarded by the fourth respondent, vide letter dated 18.10.2011.
21. Basing reliance on the exemption granted in the selection grade to Thiru K.Gunalan, as an opening of flood gate, the petitioners and 90 other staff claimed the same benefit as granted to Mr.K.Gunalan. The same has http://www.judis.nic.in 16 been granted to the petitioners and other staff also. However, an objection was raised in the Audit Report for the year 2001-02 and in the subsequent years, by quoting FR 22 B Rule 2 (1) wherein it states that both the Junior and Senior Officers should belong to the same cadre and the post in which they have been promoted or appointed and should be in identical scale of pay and also in the same cadre.
22. As per sub-section (2) Section 28 of Chapter IV of the Bharathidasan University Act of 1981, "the University should carryout such instructions as may be issued by the Government based on the Audit Report". But the University failed to adhere to the objections raised in the audit and carryout such instructions. On the other hand, based on One Man Commission's report, Thiru K.Gunalan was given promotion on 09.06.2001 as Deemed Superintendent. On 03.03.2003, the then Assistant Director of Bharathidasan University / fourth respondent has clarified that exemption given for not passing the Account Test for Subordinate officers Part I and the award of selection grade in the cadre of ASO to Mr.K.Gunalan is an action against the rules of the University and not valid. Towards avoiding future financial burden of the fourth respondent / University, the order of the Vice- Chancellor dated 09.02.2010 also came to be issued. Thus, the administration of the fourth respondent / University is solely responsible for the violation of the Rules, which resulted in exorbitant financial crunch to the University in the subsequent years.
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23. A perusal of the materials available on record would disclose that Thiru K.Gunalan is senior to all the Junior Assistants, who have claimed anomaly in the post of Assistants and Assistant Section officers. The actual senior, Gunalan, was overlooked for promotion to the higher post due to non-possession of the qualification, i.e., a pass in Accounts Test for Subordinate Officers Part I. The discrepancy was removed when he was given exemption, promotion and further promotion. In view of the above, the award of exemption from passing the qualifying examination for promotion and then rectifying the so called anomaly arising out of such wrong promotion are not tenable.
24. The next issue that has to be dealt with by this Court is with regard to the legality of the effect of recovery of excess pay given due to anomaly.
25. Though exemption was given by the Syndicate of the R-4 / University, it becomes imperative on the part of the R-1 to R-3 / audit department to point out the gross violation of provisions of the Act and the provisions of the University and Government Rules and the University has to follow the provisions as envisaged under the Act. Section 52-A of the Bharathidasan University Act, 1981, reads thus:-
"The Government may from time to time issue such directions to the University, as they may deem fit and it shall http://www.judis.nic.in 18 be the duty of the University to comply with such directions".
26. Accordingly, the Government, in its letter No.174, Higher Education (K1) Department dated 25.09.2013 has directed the Registrars of all Universities to strictly take suitable action to re-fix the pay / reverse the wrong promotions / increments given as objected to in the audit so as to avoid recurrence of such objections which will consequently lead to excess expenditure in the subsequent years and also to recover the excess payment from the individual staff concerned. The Registrars of all Universities were also requested in the same letter to recover the financial losses from the officials concerned who have authorized such excess / wrong pay fixation etc., and to settle all the audit objections including those related to administration by furnishing appropriate replies with connected records of audit, as the audit objections were raised as per the provisions of the Act only. Hence, the third respondent carried out the instruction of the second respondent and insisted upon the recovery of excess payment made due to award of wrong pay anomaly from the retirement benefits through the Audit Certificate.
27. In the meanwhile, 70 Non-Teaching Staff of University have filed these batch of writ petitions against the recovery of excess pay effected due to pay anomaly in their retirement benefits and an order of interim stay was granted on 25.06.2015.
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28. The learned counsel for the fourth respondent / University relied upon the decision reported in the case of State of Punjab and others v. Rafiq Masih (White Washer) and others, (2015) 4 SCC 334, the Apex Court, in paragraph-18, has held as follows:-
“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 herein above, we may, as a ready reference, summarise the following few situations wherein recoveries by the employers, would be impermissible in law:-
[1] Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
[2] Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
[3] 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.
[4] 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. [5] 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 http://www.judis.nic.in 20 outweigh the equitable balance of the employer's right to recover.”
29. There is no quarrel over the said proposition laid down. Also, this Court wishes to point out that, in a catena of decisions, the Courts have 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.
30. Also in the case of Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur, it has been held that 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 http://www.judis.nic.in 21 discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.
31. Undoubtedly, in these cases, the excess amount that has been paid to the petitioners was because of the representation (based on the case of K.Gunalan) on their part and the petitioners also had knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the first respondent had, in its counter-affidavit, admitted that it was a mistake on the part of the fourth respondent. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials of the fourth respondent. The fourth respondent / University is well aware of the audit objection of the third respondent and they were informed well in advance by Audit through various letters also. The respondents, after 15 years of inaction in revising the pay wrongly fixed, have now ordered to recover the excess payment from the pensionary benefits of the petitioners.
32. Learned counsel appearing on behalf of the petitioners submitted that majority of the beneficiaries have either retired or are on the verge of it.
33. The concept of fraud or misrepresentation is being brought in such situations that the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have http://www.judis.nic.in 22 effected overpayment nor to the recipients. The question to be asked is whether excess money has been paid or not, may be due to a mistake, bonafide or intention. Possibly, effecting excess payment of public money by the Government Officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then 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. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. Hence, this Court is of the view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.
34. The petitioners will not fall in any of these exceptional categories, over and above, there was a stipulation in the fixation order that in the condition of irregular/wrong pay fixation, the institution in which the petitioners are/were working would be responsible for recovery of the amount received in excess from the salary/pension. In such circumstances, this Court finds no reason to interfere with the order impugned. However, http://www.judis.nic.in 23 this Court orders that the excess payment already made be recovered from the petitioners' salary / pension in equal monthly instalments.
35. An argument was advanced by the learned counsel for the fourth respondent that the University, which is created under a statute, is entitled to prescribe its own conditions of service to its employees and the role of State Government is excluded in those matters, as per the judgment passed by this Court in W.P.Nos.49 of 2008 etc., dated 04.04.2012 (Madras University Staff Association v. State of Tamil Nadu and others), wherein among other things, basing reliance on Article 162 of the Constitution of India, it was held that the power of the Executive shall stand to matters with respect to which the legislature of the State has power to make laws.
36. The facts of the said case and the facts of the case on hand are entirely different. In the cases on hand, the authorities of the University made repeated efforts to settle the audit objection which had resulted in vain. Further the authorities convened a joint sitting with the Joint Director of Local Fund Audit Wing to set right and drop the audit objection. The Joint Director, after perusing the records, finally rejected the request. In the said circumstance, these writ petitions came to be filed and interim stay has been granted in some of the writ petitions. Since stay has been granted, the University is put to suffer grave prejudice mounting financial hardship, which will ultimately drain the funds of the University, by payment on irregular http://www.judis.nic.in 24 monetary benefits occurs till the retirement of the petitioners. Hence, the reported case and the cases on hand stand on a different footing.
37. Apart from the above, in G.O.Ms.No.68, dated 23.01.1986, the Government have decided to accept the recommendations of the Tamil Nadu Fourth Pay Commission and they have directed that the guidelines already issued in erstwhile 9 Government Orders be superseded and the following fresh guidelines be followed hereafter, while moving the Government employees to selection / special grades:-
"For advancement to selection grade / special grades, all employees, who have put in 10/20 years of satisfactory service and who satisfy all the qualifications prescribed under the Special Rules / Adhoc Rules prescribed for promotion to the higher post shall be eligible.
...
(iii) (a) For the purpose of advancement to selection / special grades, a panel of all eligible employees, who will be completing ten years / twenty years of service between 1st January to 31st December in a year, shall be prepared before the 15th December of the preceding year and got approved by the appointing authority in accordance with the guidelines in sub-para (i) and (ii) above. The actual orders of appointment to selection / special grade of the employees concerned shall be issued immediately after the date on which the individual completes 10/20 years of service...."
http://www.judis.nic.in 25
38. As per the said Government Order, the employee completing 10 years of service in the ordinary grade shall be moved to selection grade and the same employee, if completes 10 years in selection grade shall be moved to special grade. Contrary to the said Government Order, the University Syndicate has approved vide its resolution No.96.11.2 dated 24.02.1996 regarding the award of selection grade for completing 7 years of service totally to the Non-teaching staff or the University. Hence, the non adherence of the Government Rules by the University was objected to in the audit report. Based on the audit objection, the Government had issued directions to the University to settle the audit objections by adopting the Government Orders. The act of the respondents 1 to 3 / Government, in this regard is well within their realm and this Court finds no reason to interfere with the same.
39. Also, there is a Government Order issued by the Government of Tamil Nadu in G.O.Ms.No.286, Finance (Pension) Department dated 28.08.2018. A perusal of the said Government Order would show that the Government has implemented the abovesaid decision and issued a Government Order. The relevant portion of the said Government Order, http://www.judis.nic.in 26 reads as under.
"ORDER The Hon'ble Supreme Court in the case of State of Punjab & Others etc vs. Rafiq Mashi (White Washer) etc in CA No.11527 of 2014 (Arising out of SLP (C) No.11684 of 2012) wherein Hon'ble Court on 18.12.2014 decided a bunch of cases in which monetary benefits were given to employees in excess of their entitlement due to unintentional mistakes committed by the concerned competent authorities, in determining the emoluments payable to them, and the employees were not guilty of furnishing any incorrect information / misrepresentation / fraud, which had led the concerned authorities to commit the mistake of making the higher payment to the employees. The employees were as innocent as their employers in the wrongful determination of their inflated emoluments.
....
7. The Government also directs that the procedure on recovery of overpaid amounts shall be as follows:-
(1) Wherever any overpayments are noticed, the action for fixing the responsibility on erring officials be initiated by the Secretary to Government, Administrative Department in Secretariat / Head of Departments / Heads of Offices concerned immediately.
(2) Endeavour should be made to recover the overpaid amount from the recipient of the said amount.
(3) In case the reasons of overpayment are attributable to the employee / pensioner / family pensioner or the http://www.judis.nic.in 27 establishment concerned, legal action other follow up actions be initiated against such member or establishment for recovery of the overpaid amount.
(4) The recovery of over payments from the officials will be made only when responsibility of such over payments are fixed by the Secretary to Government, Administrative Departments in Secretariat / Head of Departments / Heads of Offices on the concerned officials. In these cases also, efforts should be made to recover the amounts from the recipients to the extent possible and permissible under law."
39.1. Once the Government has passed the above mentioned Government Order, after considering the law and reported decisions on the subject, this Court is of the opinion that excess payment made be recovered from the petitioners' salary / pension.
40. In view of the foregoing reasonings, this Court finds absolutely no reason to interfere with the impugned orders. Hence, all the writ petitions filed by the present as well erstwhile staff of the Bharathidasan University stand dismissed. All the Contempt Petitions stand closed. However, as the matter involves payment of pension, all the respondents are directed to take a decision on the Audit objections raised. Respondents 1 to 3 are directed to take action to process the pension proposals of the retired employees of the fourth respondent / University with correct pay for which they are entitled and to pay pension http://www.judis.nic.in 28 continuously without any further delay, more specifically, within a period of four weeks from the date of receipt of a copy of this order. However, as stated in paragraph 34 supra, this Court orders that the excess payment made be recovered from the petitioners' salary / pension in equal monthly instalments, starting from August 2019. No costs. Consequently the connected WMPs are closed.
14.06.2019
Index :Yes/No
Internet :Yes/No
ps / srk
http://www.judis.nic.in
29
To
1.The Director,
Local Fund Audit Department,
Kuralagam,
Chennai.
2.The Regional Joint Director,
Local Fund Audit Department,
Trichirappalli Corporation Water Tank Complex, 1st Floor, Dindigul Road, Trichirappalli – 620 001.
3.The Assistant Director, Local Fund Audit Department, Bharathidasan University, Palkalaiperur, Tiruchirappalli – 620 024.
4.The Bharathidasan University, Rep. by its Registrar, Palkalaiperur, Tiruchirappalli – 620 024.
http://www.judis.nic.in 30 R.MAHADEVAN, J., ps / srk W.P(MD)Nos.8032 of 2015, 4044, 6929, 10287 & 19207 of 2016, 9412, 17042, 12977 & 12978 of 2017, 8936, 8937, 8938, 15302, 15303, 17860 & 20254 of 2018 & 6937 of 2019 and Cont.P(MD)Nos.4 of 2017, 1009, 1010 & 1011 of 2018 14.06.2019 http://www.judis.nic.in