D.Devagnanam Suresh Jayakumar v. The Government of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.09.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.36128 OF 2006(O.A.NO.1882 OF 1998)D.Devagnanam Suresh Jayakumar ..PetitionerVs.1.The Government of Tamilnadu represented by the Secretary to the Government, Animal Husbandry and Fisheries Department, Fort St. George, Chennai-9.2.The Director of Animal Husbandry, Chennai-600 006.3.The Assistant Director of Animal Husbandry, Animal Husbandry, Animal Disease and Intelligence Unit, Uthagamandalam, The Nilgiris District ..RespondentsThis writ petition is preferred under Article 226 ofthe Constitution of India praying for the issue of a writ ofcertiorari to call for the records relating to the impugnedorder of the second respondent in Na.Ka.72759/EE 2/95-2, dated6.11.1997 and to quash the same insofar as the applicant isconcerned. For Petitioner : Mr.P.MohanrajFor Respondents : Mr.R.Neelakantan, GAORDERHeard both sides.2.This writ petition arose out of O.A.No.1882 of 1998filed by the petitioner before the Tamil Nadu AdministrativeTribunal. In view of the abolition of the Tribunal, it wastransferred to this court and was renumbered as W.P.No.36128of 2006. https://hcservices.ecourts.gov.in/hcservices/

3.The petitioner sought for the issuance of a writ ofcertiorari to call for the records relating to the impugnedorder of the second respondent in Na.Ka.72759/EE 2/95-2, dated6.11.1997 and to quash the same insofar as the applicant isconcerned. 4.The petitioner who was working as a LaboratoryAssistant moved the Tribunal aggrieved by the order ofrecovery, dated 6.11.1997 issued by the second respondent.Pending the OA, the Tribunal granted an interim orderforestalling the recovery as it had not been preceded with anyprior notice. Though the respondents filed MA No.6200/98 forvacating the interim order, the same was not taken up by theTribunal for reason best known to it. Thereafter, the firstrespondent has filed a reply affidavit, dated 3.8.98. Inparagraph Nos.7 and 10, the following averments have beenmade:"7....It is also submitted that onreceipt of the representation from theindividuals, the second respondent has sentnecessary proposals to Government in hisOffice letter Roc No.110037/E3/86, dated13.10.86, 8.9.88 and 2.11.88, to reappointThiru Gunasekaran, Tmt. Laskshmi andTmt.Franklin Chandra as LaboratoryAssistants in relaxation of qualificationsprescribed in the adhoc rules for the postof Laboratory Assistants including nineother Laboratory Assistants, who do notpossess the qualification of certificate ofcertified Laboratory Assistant andGovernment in their letter No.66296/AH6/88-5, Animal Husbandry and FisheriesDepartment, dated 2.1.89, have permitted all12 Laboratory Assistants (including theapplicants in the above OriginalApplication) be continued in service subjectto the condition that the qualificationobtained by him in a private institution canbe considered as equivalent to that of thequalification prescribed in the rules eventhough it is not recognised. It is submittedthat the Government have ordered to takenecessary disciplinary action against theOfficers concerned, who had made irregularappointment and action has also beeninitiated against the Officers, who had madeirregular appointment and punishmentsawarded to them as per rules.10....it is submitted that theapplicant's plea that he has not been given https://hcservices.ecourts.gov.in/hcservices/ any notice and he was also not furnished acopy of the G.O.Ms.No.39, Animal Husbandry &Fisheries Department, dated 28.2.96 is notcorrect. The applicant is also aware of thefact that his appointment as LaboratoryAssistant is irregular well in advance as hehas been instructed by the third respondent,Assistant Director of Animal Husbandry,Animal Disease & Intelligence Unit, Ooty, inhis memo Roc No.152/B/93, dated 2.2.93 tofurnish his certificates and he has alsoacknowledged the contents in the letteritself. Based on the instruction of thesecond respondent in his memoRoc.No.72759/EE2/95-2 dated 6.11.97, thethird respondent, Assistant Director ofAnimal Husbandry, Animal Disease &Intelligence Unit, Ooty, has issued ordersto the applicants refixing his scale of payfrom the date of their entry into service inhis memo Roc.No.1263/B/94, dated 13.1.98 andthe third respondent has not at all issuedany recovery orders to the applicant so far,as the above applicant have already beengranted with usual annual increments everyyear from the date of appointment toJanuary, 1998, event after the receipt ofthe G.O.Ms.No.39, Animal Husbandry &Fisheries Department, dated 28.2.96."5.In the present case, it is an admitted case that thepetitioner got relaxation from having the educationalqualification prescribed under the adhoc rules framed for thepost of Laboratory Assistant issued in G.O.Ms.No.2258Agriculture Department, dated 19.9.56. Rule 5.3 reads asfollows:Rule 5 – By direct recruitment:iii)A certificate of certifiedLaboratory Technician provided that if acandidate with the certificate of certifiedLaboratory Technicians is not available, acandidate with the certificate of certifiedLaboratory Attendants may be appointed buthe shall pass the certified LaboratoryTechnicians Course within a period ofprobation."6.The petitioner got training in an unrecognisedinstitution, i.e Cochin School of Paramedicals. It is only dueto the efforts taken by the second respondent, the petitionergot necessary relaxation. He cannot feign ignorance about the https://hcservices.ecourts.gov.in/hcservices/ very order which gave the relaxation to continue in the post. 7.However, it is an admitted fact that before issuingthe impugned order, no notice was given. The Supreme Courtvide its judgment in Syed Abdul Qadir v. State of Biharreported in 2009 3 SCC 475 considered the question of recoveryfrom the pay of Government servants being done without noticeas illegal. However, the in the same judgment, it was statedthat if the recovery was made within a short period, the courtcan decline to grant the relief in such cases. In the presentcase, the petitioner had by getting stay against recovery hadforestalled the action taken by the respondents. In thiscontext, it is necessary to refer to the following passagefound in paragraph 57 and 58 from the said judgment in SyedAbdul Qadir's case, which is as follows:57. This Court, in a catena ofdecisions, has granted relief againstrecovery of excess payment ofemoluments/allowances if (a) the excessamount was not paid on account of anymisrepresentation or fraud on the part ofthe employee, and (b) if such excess paymentwas made by the employer by applying a wrongprinciple for calculating the pay/allowanceor on the basis of a particularinterpretation of rule/order, which issubsequently found to be erroneous.58. The relief against recovery isgranted by courts not because of any rightin the employees, but in equity, exercisingjudicial discretion to relieve the employeesfrom the hardship that will be caused ifrecovery is ordered. But, if in a givencase, it is proved that the employee hadknowledge that the payment received was inexcess of what was due or wrongly paid, orin cases where the error is detected orcorrected within a short time of wrongpayment, the matter being in the realm ofjudicial discretion, courts may, on thefacts and circumstances of any particularcase, order for recovery of the amount paidin excess. See Sahib Ram v. State ofHaryana, Shyam Babu Verma v. Union of India,Union of India v. M. Bhaskar, V. Gangaram v.Director, Col. B.J. Akkara (Retd.) v. Govt.of India, Purshottam Lal Das v. State ofBihar, Punjab National Bank v. Manjeet Singhand Bihar SEB v. Bijay Bhadur. (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/

8.Therefore, in the light of the above, the impugnedorder stands set aside only on the ground of non issuance ofnotice. The writ petition is allowed to the extent indicatedabove. However, it is open to the respondents to issueappropriate notice before effecting such recoveries. No costs.vvk Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar To1.The Secretary to the Government, The Government of Tamilnadu Animal Husbandry and Fisheries Department, Fort St. George, Chennai-9.2.The Director of Animal Husbandry, Chennai-600 006.3.The Assistant Director of Animal Husbandry, Animal Husbandry, Animal Disease and Intelligence Unit, Uthagamandalam, The Nilgiris District.+1 cc to Mr. P. Rajendran, Advocate, SR.No.49826.PRE DELIVERY ORDER INW.P.NO.36128 OF 2006PA (CO)AR/8.10.2009.