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Judgment
Honourable Mr. Justice D. Hari Paranthaman
The petitioner seeks for issuance of a writ of certiorarified mandamus to quash the proceedings passed by the second respondent / the Deputy Commissioner (Commercial Taxes), Erode, in Na.Ka. No. 4311/2008/A1, dated 30.07.2012, ordering a recovery of Rs. 2,99,807/-, by calling for the records connected thereto and consequently to direct the respondents to pay the arrears of Rs. 1,47,636/- due to the petitioner. The petitioner was appointed as Typist on temporary basis from 16.03.1991. She possessed qualification of typewriting higher in English and Tamil and she also passed the District Office Manual test.
The petitioner filed O.A.No. 2266 of 1996 before the Tamil Nadu Administrative Tribunal seeking regularisation of her services. On abolition of the Tribunal, the same was transferred to the file of this Court and re-numbered as W.P.No. 26897 of 2006. This Court, by order dated 15.04.2008, allowed the writ petition directing the respondents therein to regularise the services of the petitioner as Typist.
Thereafter, the petitioner as well as 11 others were regularised by the first respondent in his Letter No. H2/33785/1996, dated 28.05.2010, from the date of their appointment and the scale of pay as well as increment were given from the date of their appointment.
While so, the impugned order dated 30.07.2012 was passed seeking to recover the increment paid to the petitioner from 1991 upto 12.09.2009, the date of passing of G.O.Ms.No. 124, Personnel and Administrative Reforms (P) Department, dated 12.09.2009.
The aforesaid impugned order is put to challenge in the present writ petition.
Heard both sides.
Learned counsel for the petitioner assailed the impugned order on the following grounds:
i. Before passing the impugned order, the petitioner was not given any opportunity or notice to put forth his claim and thereby, the second respondent violated the principles of natural justice.
ii. Since there was no misrepresentation on the part of the petitioner in getting the increment from 1991, there is no reason for recovering the increment paid from 1991.
iii. Pursuant to the order passed by this Court in W.P.No. 26897 of 2006, dated 15.04.2008, the petitioner along with 11 others were regularised by the first respondent. But, the second respondent passed the impugned order dated 30.07.2012 for recovery only in respect of the petitioner alone and no order is made in respect of other persons. Hence, the action of the second respondent in passing the impugned order is discriminatory.
Though the learned Additional Government Pleader appearing for the respondents has sought to sustain the impugned order stating that the recovery is made pursuant to G.O.Ms.No. 124, dated 12.09.2009, I am not inclined to accept the submission made by him, for, as rightly contended by the learned counsel for petitioner, the first respondent, in his letter dated 28.05.2010, regularised 12 persons including the petitioner on the basis of the order passed by this Court in W.P.No. 26897 of 2006, dated 15.04.2008. Whileso, the impugned order in the case of the petitioner alone cannot be passed. Hence, the order of second respondent is discriminatory.
Furthermore, before passing the impugned order, the petitioner was not heard. The Apex Court has time and again pronounced that no decision affecting the rights of any party adversely can be taken without giving an opportunity of hearing to such party.
When the first respondent, in his letter dated 28.05.2010, regularised the services of the petitioner and also granted the scale of pay and increment from the date of his appointment, the second respondent on his own passed the impugned order when there was no misrepresentation on the part of the petitioner.
In these circumstances, as rightly submitted by the learned counsel for the petitioner, as per the decision of the Division Bench of this Court in The Chief Engineer(General) Public Works Department, The Chief Engineer (Buildings) Public Works Department and The Executive Engineer, Public Works Department Vs. M. Thanasekaran, that if the excess payment is made by the State even though by mistake, such excess payment cannot be recovered, the respondents are directed to pay the arrears of Rs. 1,47,636/- due to the petitioner within a period of six weeks from the date of receipt of a copy of this order. In fine, for the reasons stated above, the writ petition is allowed by setting aside the impugned order passed by the second respondent. No Costs. M.P. No. 1 of 2012 is closed.