K MALLIGA Vs. DISTRICT ELEMENTARY EDUCATIONAL OFFICER

JUDGEMENT

(1.) The prayer in the writ petition is for issuance of Writ of Certiorarified Mandamus to quash the order passed by the first respondent dated 31.05.2006 and consequently, to direct the respondents to grant salary to the petitioner for a period from 01.02.2005 to 14.04.2005, in the scale of pay of Rs.4500-7000/- for she worked as Secondary Grade teacher in the third respondent School, in the place of incumbent - S.Arokiamary.

(2.) The facts leading to the filing of the writ petition are that the petitioner was appointed as Secondary Grade Teacher as a substitute in the place of E.Ganapushpam, for a period from 04.06.2004 to 30.11.2004, in the third respondent School, as the said teacher had gone on leave on loss of pay. The respondent-Department also approved the said appointment in the leave vacancy and the petitioner was also paid the salary in the scale of pay of Rs.4,500- 7,000/-. Subsequently, the petitioner was appointed as the substitute Secondary Grade Teacher in the place of T.S.Arokiamary, for a period from 17.01.2005 to 14.04.2005, in the third respondent School, as the said teacher went on maternity leave. The petitioner was paid the salary in the scale of pay of Rs.4,500/- 7,000/- . Subsequently, by an order dated 31.05.2006, the first respondent directed the third respondent to recover a sum of Rs.28,179/- from the petitioner stating that it is an excess amount paid, since as per G.O.Ms.No.125 dated 12.11.2003 and G.O.Ms.No.4 dated 19.01.2004, the vacancies in the Secondary Grade Teacher post with effect from 01.06.2003 , shall be considered as Junior Grade post and the incumbent can be paid only a consolidated pay of Rs.3,000/-. This order dated 31.05.2006, is impugned in the present writ petition.

(3.) The learned counsel for the petitioner would submit that the impugned order is liable to be set aside, since no notice was issued to the petitioner before the same was passed. Further, the appointment of the petitioner was only for a temporary period in respect of leave vacancy which arose in a sanctioned existing post and therefore, the same is not affected by G.O.Ms.No.100 dated 27.06.2003 and the consequential amendment issued in G.O.Ms.No.125 dated 12.11.2003 and the Government orders have no application. Further, it is contended that the petitioner was appointed in leave vacancy for two spells i.e., from 04.06.2004 to 30.11.2004 and from 01.02.2005 to 14.04.2005,. In respect of the first spell, no recovery has been ordered and recovery for the second spell is illegal. Further, the learned counsel would contend that in the absence of any fraud or misrepresentation by the petitioner, the question of recovery does not arise. Moreso, when the petitioner had discharged her duties as Secondary Grade Teacher for a period from 01.02.2005 to 14.04.2005, she is entitled for the salary in the approved scale of pay. The learned counsel relied upon the decision of the Hon'ble Supreme Court rendered in Syed Abdul Quadir and others Vs. State of Bihar and others reported in 2009 (3) SCC 475.