Recovery cannot be made after retirement.\

The prayer in the writ petition is to quash the order of the Chief Educational Officer, Sivaganga dated 17.10.1994 directing recovery of the excess amount paid towards salary to the petitioner and stoppage of annual increment, in case of failure to pay the excess amount. During the pendency of the Original Application before the Tribunal, the said order was stayed and the petitioner retired on 31.5.1996.

2. The learned counsel for the petitioner submitted that the salary was fixed by the department on its own and the petitioner has not made any misrepresentation of facts for complying with the said scale of pay. The learned counsel relying on the judgment of the Supreme Court in Sahib Ram v. State of Haryana, (1995) 1 S.C.C (Supp.) 18, represented to this Court to set aside the order of recovery and re-fixation.

3. A perusal of the impugned order of recovery nowhere discloses that the petitioner has misrepresented or suppressed for the receipt of excess scale of pay. Further, no notice or opportunity was given to the petitioner before the impugned order of recovery was passed and as stated, the petitioner also retired from service.

4. In the said judgment of the Supreme Court, it is clearly stated that since the salary is paid not on account of any misrepresentation made by the appellant and the benefit of higher scale of pay was made by the wrong construction made by the Principal for which the appellant cannot be held to be at fault. The facts in the said judgment applies to the facts in this case also and therefore the impugned order of recovery is quashed. The writ petition is allowed. No costs.