This judgment shall dispose of the writ petitions, viz.,

Sl.No. Case No. Name of the Petitioners

1. W.P.No.10329 of 2009 S. Arulraj

2. W.P.No.25695 of 2009 D. Arul Mary

As common question of law and facts are involved in both the writ petitions. However, for the sake of brevity, the facts are taken from W.P.No.10329 of 2009.

2. The petitioners have approached this Court with a prayer for issuance of a Writ in the nature of certiorari, to quash the impugned order Mu.Mu.No.11284/G2/05 dated 10.11.08 passed by 1st respondent and the consequential order passed by the third respondent Na.Ka.No.2743/A3/05 dated 27.4.2009 and also the order of the second respondent Na.Ka.No.8630/A5/2009 dated 28.5.2009.

3. The petitioner was appointed as Secondary Grade Teacher on 18.7.2005 and subsequently promoted to the post of Middle School Head Master on 12.12.2001. The school was upgraded as High School on 1.1.2003 and from June 2004 onwards it became the Higher Secondary School. Consequent to the upgradation of School as High School the petitioner was posted as B.T. Assistant (History) on 1.1.2003, since he possessed requisite qualification for the post of B.T. Assistant (History).

4. The petitioner had completed B.A. Degree in 1980 and B.Ed in December 1986 in English and Social Studies. The petitioner acquired M.A History in May 1992 and M.Ed in May 1994 therefore was entitled to hold the post of B.T. Assistant (History).

5. The respondent school is a minority institution. The appointment of the petitioner as Middle School Head Master was approved by the District Elementary Educational Officer, Kanchipuram on 26.12.2001 and accordingly, his pay was fixed by the competent authority.

6. One Smt. Arul Mary filed a complaint to challenge the appointment of the petitioner, as Middle School Head Master on 12.12.2001 as also the grant of incentive increments for additional qualifications. The petitioner, for the reason best known, has not impleaded the Tmt. Arul Mary as a party to this writ petition. However, on the application by the Tmt. Arul Mary, she has been impleaded as party to this writ petition.

7. It is on the complaint filed by the fifth respondent D. Arul Mary, that the impugned order was passed holding that the appointment of the petitioner as Middle School Head Master was wrong on the ground that D. Arul Mary was senior to the petitioner. The respondent has also ordered that the increment and the salary paid to petitioner be recovered.

8. The petitioner claims himself to be senior to D. Arul Mary, and submits that impugned order are totally arbitrary.

9. The impugned order is challenged by the petitioner on the ground, that before passing the impugned order, no opportunity of hearing was given to the petitioner, nor the copy of the order was supplied to the petitioner. Therefore, impugned order suffers from violation of principle of natural justice.

10. The second ground of challenge is that the order of recovery cannot be sustained, in view of the settled law that the benefit, even if wrongly given, then in absence of allegations of fraud or misrepresentation against the employee, cannot be withdrawn with retrospective effect, and recovery effected.

11. The learned counsel for the fifth respondent vehemently contends, that the notice was issued to the petitioner and that copy of the impugned order was also supplied.

12. It is also the contention of the learned counsel for the fifth respondent that the petitioner was ineligible for appointment as the subject, in which, the petitioner was qualified, was not an approved subject for a person to be appointed as Middle School Head Master. Therefore, the appointment of the petitioner itself was illegal. It is however not disputed, that it was on the appeal by the fifth respondent, that proceedings were initiated against the petitioner, which resulted in passing of the impugned order.

13. On consideration, this Court finds that writ petition deserves to be allowed.

14. The translate