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2014 Supreme(Mad) 770
High Court of Judicature at Madras
D. HARIPARANTHAMAN, J.
K. Syed Razack
Versus
The State of Tamil Nadu Rep. by the Secretary to Government Home Department Fort St. George, & Others
W.P. No. 11851 of 2012 & M.P. No. 1 of 2012
Decided On : 02-04-2014
Advocate Appeared:
For the Petitioner:T.M. Hariharan, Advocate.
For the Respondents:R1 to R3, I. Arockiasamy, Government Advocate, R4, V. Vijay Shankar, Advocate.
Recovery of excess pay, not due to the petitioner's misrepresentation, after a long period and retirement, is unjust and should not be allowed.
Headnote:
Recovery of Excess Payment - Fixation of Pay - FR 22(B) - Division Bench of the Court - Recovery of Excess Pay - Retirement Benefits
Fact of the Case:
The petitioner, a retired police officer, was asked to repay an alleged excess payment due to the wrong fixation of pay during his service. The petitioner challenged the recovery order, arguing that the excess payment, if any, should not be recovered after 17 years and retirement.
Finding of the Court:
The Court found that the recovery of excess pay, not due to any misrepresentation by the petitioner but due to the mistake of the Department, should not be made from the retiral benefits, especially after retirement.
Issues: The main issue was whether the petitioner could be made to repay the alleged excess payment due to the wrong fixation of pay during his service, after 17 years and retirement.
Ratio Decidendi: The Court relied on a Division Bench judgment that held recovery of excess pay, not caused by the petitioner's misrepresentation, after a lapse of years and retirement, is unjust. The Court emphasized that the mistake committed by the Department should not penalize the petitioner after retirement.
Final Decision: The Court quashed the recovery order, directing the respondents not to make any recovery on the ground of wrong fixation during the service, and to refund any amount already recovered from the petitioner.
1. The petitioner was appointed as Grade – II Police Constable on 01.06.1971. He was promoted as Grade – I Police Constable on 28.01.1972. He was further promoted as Head Constable on 06.03.1981. He was included in the "C" list of Head Constables fit for promotion to the post of Sub-Inspector of Police on 22.09.1985. Due to non-availability of vacancy, he was not promoted at that time. Later, he was promoted temporarily as Sub-Inspector of Police on 15.09.1987 and he was also paid salary accordingly by fixing his pay to the post of Sub-Inspector of Police and also giving the benefit under FR 22(B). Later, he was regularised in the post of Sub-Inspector of Police, with effect from 07.08.1992. Thereafter, he was promoted as Inspector of Police on 15.10.2003. He retired from service on 31.01.2009 on reaching the age of superannuation.
2. While so, pension proposals were sent by the Department to the fourth respondent. The fourth respondent opined that the benefit of fixation under FR 22(B) was given from 15.09.1987 and it should be given only from 07.08.1992, that is, on regularisation of service as Sub-Inspector of Police and returned the pension proposals to the Department.
3. In these circumstances, the Joint Commissioner of Police, (Head Quarters) Egmore, Chennai, passed an order dated 08.06.2009 to recover a sum of Rs.36,312/- from the DCRG of the petitioner, towards the alleged excess payment due to the aforesaid fixation.
4. The said order of recovery dated 08.06.2009 was challenged before this Court in W.P.No.16267 of 2009 and this Court allowed the writ petition on 08.11.2010 on the simple ground that no notice was given to the petitioner and the petitioner was not heard before passing the order of recovery.
5. Thereafter, a show cause notice dated 11.05.2011 was issued to the petitioner by the Additional Commissioner of Police (Crime & Head Quarters). Para 6 of the show cause notice is extracted hereunder:
"6.In this connection you are informed that your services have been regularized in the post of Sub-Inspector of Police with effect from 07.08.1992 only and hence you are eligible to get the fixation benefit under FR 22(B) with effect from 07.08.1992 only and not from 01.07.1987 based on your temporary promotion as Sub-Inspector of Police according to the (clarification) orders of FRs. It is therefore decided to refix your pay as advised by the Accountant General in his letter No.P05/S507/AR/2008-2009/528, dated 18.02.2009 and to recover OD pay and allowances from your DCRG with held."
6. The petitioner gave his explanation on 10.06.2011 stating that there is nothing wrong in fixation of pay of the Sub-Inspector of Police, when he assumed office on 15.09.1987. She said fixation was made by the Department on its own volition and it was not due to any misrepresentation from the petitioner. Therefore, even assuming that if any excess amount is paid, the same cannot be recovered after 17 years, that too after retirement. However, the impugned order dated 10.02.2012 was passed by the second respondent, to recover a sum of Rs.36,312/- from the DCRG of the petitioner. Hence, the petitioner has filed the present writ petition.
7. The third and the fourth respondents filed counter affidavits.
8. Heard both sides. With the consent of both parties, the writ petition itself is taken up for final disposal, as counter affidavits of the other respondents are not necessary and a comprehensive counter affidavit is filed by the third respondent.
9. According to the learned counsel for the petitioner, there was no wrong fixation of pay and the petitioner is entitled to the fixation of pay for the promoted post of Sub-Inspector of Police from 15.09.1987. The fixation of pay for the post of Sub-Inspector of Police could not be given from 07.08.1992, that is from the date of regularization, since he was holding the post of Sub-Inspector of Police from 15.09.1987 and that too, after being empanelled in the "C" list as early a
