ORDER :

1. Since the issue raised in both the writ petitions is one and the same, with the consent of the learned counsel appearing for the parties, these writ petitions were heard together and are disposed off by this common order.

2. In both the writ petitions, the respective original writ petitioners were erstwhile Secondary Grade Teachers and subsequently, promoted as Elementary School Headmasters and in that capacity, they retired from service on 31.08.1987 and 31.10.1985 respectively.

3. Insofar as W.P. No. 13630 of 2008 is concerned, during the pendency of the writ petition, the retired Teacher died, therefore, his wife is impleaded as party petitioner.

4. These Teachers, at the time of retiring, as stated above, though worked as Elementary School Headmasters, they received the pay of Secondary Grade Teacher (Special Grade) pay, which is nothing but Rs. 5,900-200-9,900/- and also received a duty pay for the post they held as Secondary Grade Headmasters.

5. It is to be noted that, during that period i.e. before 01.06.1988, there was no separate pay scale for Elementary School Headmaster and the pay scale which are available for the Secondary Grade Teacher alone was the pay scale for the Elementary School Headmaster also apart from the duty pay.

6. Since these two petitioners at the time of retirement were working as Elementary School Headmasters and on superannuation, retired from service in the year 1987 and 1985 respectively, they were never worked as Elementary School Headmaster with different pay scale for such post which came into effect only from 01.06.1988.

7. However, unmindful of the said fact, it seems that, after the retirement of these Teachers, the pension proposal was considered and accordingly pension was fixed by taking into account the Special Grade Pay Scale for Headmaster of Elementary School i.e. Rs. 8,000-275-13,500/- instead of Special Grade Secondary Grade Teacher pay i.e. Rs. 5,900-200-9,900/-.

8. Therefore, there had been an excess payment for these Teachers and therefore, the said payment was directed to be recovered by the orders impugned passed by the office of the first respondent or his subordinates and in this regard, recovery was started to be effected and therefore, challenging the same, the present writ petitions have been filed.

9. Heard Mr. A.R. Nixon, learned counsel appearing for the petitioners, who would submit that, the said fixation was made only by the respondents where, these petitioners/retired Teachers had been paid the pension by taking into account the fixation of pay for Elementary School Headmasters and the same cannot be recovered back after their retirement from the pension and in this context, he would also submit that, one of the employee's wife is now contesting the case, therefore, from her no recovery could be made as she would be getting only a family pension, therefore, such recovery is wrong, he contended.

10. In this regard, the learned counsel would also submit that, the Government Order in G.O.Ms. No. 200 dated 18.05.1999, as quoted by the respondents, for passing the impugned order of recovery is not related to the case of the petitioners, therefore, by wrongly quoting the said Government Orders, they ought not to have passed these impugned orders for recovery of the alleged excess payment of pension, therefore, the learned counsel seeks indulgence of this Court.

11. However, Mr. P. Mano Ranjan, learned Standing Counsel appearing for the first respondent has relied upon the following averments made in the counter affidavit:

“6. Hence, it is submitted that as per the clarification of Government, Secondary Grade Teachers who have functioned as Headmasters and were in receipt of duty allowance and retired before 1.6.88 are entitled to have their pension received in Secondary Grade Teacher scale of pay of Rs. 4500-125-7000 (ordinary), 5300-150-8300 (Selection Grade) and 5900-200- 9900 (Special Grade) as the case may be, and not in the scale of pay relevant to that of Headma