Madrasdated High Court · 2025

W.P. Nos. 25567 to 25570 of 2014G.O.(4D) No.11, Public Health and Family Welfare (No.2) Department dated 29.06.2012 insofar as the petitioner is concerned and the order of recovery passed by the fourth respondent in pursuant to the above G.O., in his proceedings No.Na.Ka.No.508/A1/2014 dated 25.07.2014 and quash the same and consequently direct the first respondent to regularise the service of the petitioner from the date of her initial appointment as Village Health Nurse with effect from 26.10.2006.For Petitioner:Mr. JagadeesanFor Respondents :Mr. K. Tippu Sultan,Government AdvocateW.P. No. 25568 of 2014P. Indira Gandhi...PetitionerVersus1.The State of Tamilnadu, Rep., by its Principal Secretary, Public Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Public and Preventive Medicine, D.M.S. Campus, Chennai – 600 006.3.The Deputy Director of Health Services, Kallakurichi, Villupuram Disrict.4.The Medical Officer, Primary Health Centre, Iruvelpattu, Thirukoviloor Taluk, Villupuram District. ...Respondents2/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014Writ Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus, to call for the records connected with the impugned order passed by the first respondent in G.O.(4D) No.11, Public Health and Family Welfare (No.2) Department dated 29.06.2012 insofar as the petitioner is concerned and the order of recovery passed by the third respondent in his Letter No.Na.Ka.No.3648/A3/2012 dated 25.07.2014 and quash the same and consequently direct the first respondent to regularise the service of the petitioner from the date of initial appointment from 01.11.2006.For Petitioner:Mr. JagadeesanFor Respondents :Mr. K. Tippu Sultan,Government AdvocateW.P. No. 25569 of 2014P. Sumathi...PetitionerVersus1.The State of Tamilnadu, Rep., by its Principal Secretary, Public Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Public and Preventive Medicine, D.M.S. Campus, Chennai – 600 006.3.The Deputy Director of Health Services, Kallakurichi, Villupuram Disrict.3/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 20144.The Medical Officer, Primary Health Centre, Iruvelpattu, Thirukoviloor Taluk, Villupuram District. ...RespondentsWrit Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus, to call for the records connected with the impugned order passed by the first respondent in G.O.(4D) No.11, Public Health and Family Welfare (No.2) Department dated 29.06.2012 insofar as the petitioner is concerned and the order of recovery passed by the third respondent in his Letter No. Na.Ka.No.3648/A3/2012 dated 25.07.2014 and quash the same and consequently direct the first respondent to regularise the service of the petitioner from the date of initial appointment from 27.10.2006.For Petitioner:Mr. JagadeesanFor Respondents :Mr. K. Tippu Sultan,Government AdvocateW.P. No. 25570 of 2014M. Ponmalar...PetitionerVersus1.The State of Tamilnadu, Rep., by its Principal Secretary, Public Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Public and Preventive Medicine, D.M.S. Campus, Chennai – 600 006.4/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 20143.The Deputy Director of Health Services, Kallakurichi, Villupuram Disrict.4.The Medical Officer, Primary Health Centre, Iruvelpattu, Thirukoviloor Taluk, Villupuram District. ...RespondentsWrit Petition is filed under Article 226 of the Constitution of India praying for issuance of a writ of certiorarified mandamus, to call for the records connected with the impugned order passed by the first respondent in G.O.(4D) No.11, Public Health and Family Welfare (No.2) Department dated 29.06.2012 insofar as the petitioner is concerned and the order of recovery passed by the third respondent in his Letter No.Na.Ka.No.3648/A3/2012 dated 25.07.2014 and quash the same and consequently direct the first respondent to regularise the service of the petitioner from the date of initial appointment from 01.11.2006.For Petitioner:Mr. JagadeesanFor Respondents :Mr. K. Tippu Sultan,Government AdvocateC O M M O N O R D E RIn all these writ petitions, the respective petitioners are challenging the impugned communications of the 1st, 3rd and 4th respondents seeking to recover excess increment paid to the petitioners.5/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 20142. The operative portion of the impugned G.O.(4D) No.11 dated 29.06.2012 of the 1st respondent is extracted hereunder: - “ghh;it ,uz;oy; fhQqk; fojj;jpy;. 2004?k; Mz;L $dthp khjj;jpy; Jiw K:ykhf gynehf;F Rfhjhu (bgz;) gzpahsh; gapw;rp bgw;w m';fd;tho gzpahsh;fspy; jFjptha;e;j egh;fs; 536 ngUf;F fpuhk Rfhjhu brtpypah; - Jiz brtpypah; gzp epakdk; tH';fg;gl;lJ vd;Wk;. mt;thW gzp epakdk; bgw;wth;fSs; 40 taijf; fle;jth;fSk; ,lk;bgw;Ws;sdh; vd;W bghJ Rfhjhuk; kw;Wk; neha;j; jLg;g[ kUe;Jj; Jiw ,af;Feh; bjhptpj;Js;shh;/2/ fpuhk Rfhjhu brtpypah;fs; - Jiz brtpypah;fs; gjtpf;F ghh;it xd;wpy; fhQqk; murhizapy; btspaplg;gl;l jw;fhypf tpjpfspy;. tpjp 5(a)?d; go gzp epakdk; bgWgth;fs;. epakdk; bgWk; tUlj;jpd; $^iy Kjy; njjpapy; 40 taij epiwtilguhfnth my;yJ md;iwa njjpapy; 40 taJ epiwe;jtuhfnth ,Uj;jy; TlhJ vd;Wk;. Jiw K:ykhfnt gynehf;F Rfhjhu (bgz;) gzpahsh; gapw;rp bgw;W. fhj;jpUe;J fhypg;gzpaplk; cUthFk; nghJ gzp epakdk; bra;ag;gl;L tUk; Kiwapy;. eph;thff; fhuz';fspdhy; 236 egh;fSf;F 40 taJ fle;J tpl;lJ vd;Wk;. ,Ug;gpDk; nkw;go egh;fs;. fpuhk Rfhjhu brtpypah; - Jiz brtpypah; gjtpf;Fhpa gynehf;F Rfhjhu (bgz;) gzpahsh; gapw;rpf;Fj; njh;e;bjLf;Fk;nghJ chpa taJ tuk;gpw;Fs;shfnt gapw;rp mspf;fg;gl;Ls;sdh; vd;gjhy;. 236 egh;fSf;Fk; taJ tpjpapid jsh;t[ bra;J Miz tH';FkhW bghJ Rfhjhuk; kw;Wk; neha;j; jLg;g[ kUe;Jj; Jiw ,af;Feh; muirf; nfl;Lf; bfhz;Ls;shh;/ 3/ bghJ Rfhjhuk; kw;Wk; neha;j; jLg;g[ kUe;Jj; Jiw ,af;Feuhd fUj;JUit muR ftdKld; ghprPypj;J ,izg;gpy; cs;s 40 taijf; fle;j 236 fpuhk Rfhjhu brtpypah; - Jiz brtpypah;fSf;F mg;gjtpf;fhd taJ tuk;g[ Fwpj;j jw;fhypf tpjpfspy;. tpjp 5(a)I jsh;j;jp. Miz btspaplg;gLk; ehd; Kjy; (Date of issue of order) mth;fsJ gzpapid tud;Kiw bra;a Kot[ bra;Js;sJ/4/ jkpH;ehL 1987Mk; Mz;L eilKiw E}ypd; gFjp IIy; cs;s jkpH;ehL khepy kw;Wk; rhh;epiyg;gzp bghJ tpjpfspy;. tpjp 48d; fPH; tH';fg;gl;l mjpfhu';fspd;go nkjF jkpH;ehL MSeh; mth;fs; fpuhk Rfhjhu brtpypah;fs; - Jiz brtpypah;fshf gzp epakdk; bra;ag;gl;L. gzp epakd ehspy; chpa taJ tuk;ghd 40 taij fle;j ,t;turhizapd; ,izg;gpy; Fwpg;gplg;gl;Ls;s 236 egh;fSf;F mg;gjtpf;fhd jw;fhypf tpjpfspy;. tpjp 5(a)I jsh;t[ bra;J. ,t;turhiz btspaplg;gLk; ehs; Kjy; (Date of issue of order) mth;fsJ gzpapid tud;Kiw bra;a MizapLfpwhh;/3. The writ petitioners were originally appointed as Anganwadi workers and later observed as Village Health Nurse in accordance with the 6/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014provisions of Tamilnadu Public Health Subordinate Service Rules. 4. It is stated that the 2nd respondent had appointed 536 candidates from out of the eligible qualified Anganwadi Workers, in accordance with their seniority as Multipurpose Health Workers (Female). Among the 536 Multi-purpose Health Workers (Female) about 236 Candidates had crossed the age limit of 40 years at the time of their initial appointment. But however at the time of selection to the post of Multi-purpose Health Workers (Female) by the 2nd respondent they were within the age limit of 40 years and also at the time of completion of training for the post of Multi-purpose Health Workers (Female) they were within the age limit of 40 years. Therefore, the 2nd respondent had sent proposals to the 1st respondent for the relaxation of the Rules relating to the age at the time of appointment.5. Therefore, by virtue of G.O.Ms.(4D) No.11, Public Health and Family Welfare Department (No.2) Department dated 29.06.2012, the Government had relaxed the age criteria under the aforesaid Rules.6. Though the 236 Multi-purpose Health Workers (Female) including 7/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014the petitioners had joined on various dates from 02.02.2004 to 18.07.2007 in accordance with their seniority, by virtue of the aforesaid G.O., their services were regularised only with effect from the date of issuance of aforesaid G.O., i.e., with effect from 29.06.2012 and not from the date of their initial appointment.7. In accordance to the aforesaid G.O.Ms.(4D) No.11, Public Health and Family Welfare Department (No.2) Department dated 29.06.2012, the 3rd and 4th respondents passed the impugned orders for recovery of the increment paid to the petitioners from the date of initial appointment till 29.06.2012, when their services were regularised by the aforesaid Government order.8. Though these petitioners are Class -I employees as per the aforesaid rules, they are junior rank employees. In a series of cases, this Court has taken a consistent view that recovery should not be made from Class III and Class IV employees. Though, all these petitioners are categorised as Class I employees under the aforesaid Rules, they are Class III employees (Group C) under the Tamil Nadu Government Servants (Conditions of Service) Act, 8/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 20142016). 9. The Hon'ble Supreme Court in the case of State of Punjab and Others v. Rafiq Masih (White Washer) and Others reported in (2015) 4 SCC 334, has held as under: “14. In this context, reference may also be made to the decision rendered by this Court in Shyam Babu Verma v. Union of India (1994) 2 SCC 521, wherein this Court observed as under: (SCC pp.525-26, para 11)"11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. 1-1-1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330-560 but as they have received the scale of Rs 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from 1-1-1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same." (emphasis supplied)It is apparent, that in Shyam Babu Verma's case (1994) 2 SCC 521, the higher pay- scale commenced to be paid 9/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014erroneously in 1973. The same was sought to be recovered in 1984, i.e., after a period of 11 years. In the aforesaid circumstances, this Court felt that the recovery after several years of the implementation of the pay scale would not be just and proper. We therefore hereby hold, recovery of excess payments discovered after five years would be iniquitous and arbitrary, and as such, violative of Article 14 of the Constitution of India.....16. This Court in Syed Abdul Qadir v. State of Bihar(2009) 3 SCC 475 held as follows:(SCC p.491-492, para 59) "59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter- affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should 10/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014be made." (emphasis supplied)Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the conclusions drawn in Syed Abdul Qadir's case, that recovery of excess payments, made from employees who have retired from service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the recovery is sought to be made after the employee's retirement, or within one year of the date of his retirement on superannuation. ....18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law: 11/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”10. This view has also been followed consistently by this Court and also affirmed by the Hon'ble Division Bench of this Court. In this connection, reference is made to the decision of the Division Bench of this Court in The Government of Tamilnadu and Others v. X. Shanthi in W.A.(MD) No.1229 of 2023 vide order dated 31.07.2023.12/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 201411. In view of the above, these writ petitions deserve to be allowed and accordingly, all these Writ Petitions are allowed. Consequently, connected miscellaneous petitions are closed. No costs.06.02.2025 Index : Yes/NoNeutral Citation :Yes/No ATTo1.The Principal Secretary, State of Tamilnadu, Public Health and Family Welfare Department, Secretariat, Chennai – 600 009.2.The Director of Public and Preventive Medicine, D.M.S. Campus, Chennai – 600 006.3.The Deputy Director of Health Services, Salem, Salem District.4.The Medical Officer, Primary Health Centre, Thalaivasal, Salem District.5.The Deputy Director of Health Services, Kallakurichi, Villupuram Disrict.6.The Medical Officer, Primary Health Centre, Iruvelpattu, Thirukoviloor Taluk, Villupuram District.13/14 https://www.mhc.tn.gov.in/judis W.P. Nos. 25567 to 25570 of 2014C.SARAVANAN, J.ATW.P. Nos. 25567 to 25570 of 2014 andM.P. Nos. 1, 1, 1, 1, 2, 2 & 2 of 201406.02.202514/14