Madras High Court
The Director Of Family Welfare vs S.Poornachandran on 31 August, 2020
Author: C.Saravanan
Bench: R.Subbiah, C.Saravanan
W.A.No.1068 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 18.08.2020
Pronounced On 31.08.2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
AND
THE HON'BLE MR.JUSTICE C.SARAVANAN
W.A.No.1068 of 2019
and
C.M.P.No.7858 of 2019
(Through Video Conferencing)
1.The Director of Family Welfare,
DMS Annexe,
Chennai – 600 006.
2.The Deputy Director,
Medical and Rural Health Services
and Family Welfare,
Pudukottai – 622 001.
3.State of Tamil Nadu,
Secretary,
Department of Health and Family Welfare,
Fort St.George,
Chennai – 600 009. ... Appellants
Vs.
S.Poornachandran ... Respondent
____________
http://www.judis.nic.in
Page No 1 of 21
W.A.No.1068 of 2019
Writ Appeal filed under Clause 15 of Letters Patent, to set aside
the order dated 22.08.2017 passed by the learned Single Judge in
W.P.No.27157 of 2012.
For Appellants : Mrs.A.Srijayanthi
Spl. Govt. Pleader
For Respondent : Mr.Vasudevan
******
JUDGMENT
C.SARAVANAN, J.
The appellants are aggrieved by the impugned order dated 22.08.2017 passed by the learned Single Judge in W.P.No.27157 of 2012. The said writ petition was disposed along with W.P.No.29074 of 2012.
2. W.P.No.27157 of 2012 was filed for a writ of certiorari mandamus to call for the records relating to the impugned order passed by the 2nd appellant in proceedings in Mu.Mu.No.471/2012/A1 dated 20.09.2012 and to quash the same insofar as it cancels increments given to the respondent and to direct the appellants to confirm the services of ____________ http://www.judis.nic.in Page No 2 of 21 W.A.No.1068 of 2019 the respondent as Statistical Assistant in the Health and Family Welfare Department with retrospective effect i.e., from 17.10.2007.
3. W.P.No.29074 of 2012 was filed by the respondent for a writ of certiorari to call for the records relating to the impugned orders passed by the 1st appellant in Na.Ka.No.4768/FW/N2/2012 dated 11.10.2012 and consequential reliving order passed by the 2nd appellant in Na.Ka.No.471/2012/A1 dated 16.10.2012 and to quash the same.
4. Though both the writ petitions were disposed by a common order, this writ appeal has been filed only against the order passed in W.P.No.27157 of 2012. The operative portion of the impugned common order reads as under:-
7. As regards the other writ petition in W.P.No.27157 of 2012 is concerned, Mr.Vasudevan, learned counsel for the petitioner would submit that in any event, the so-called recovery of excess payment cannot be made and any action on the part of the authorities concerned in lieu of the factual position that the petitioner was offered the post of Statistical Assistant and the increments and the allowances earned by him, was admissible to the said post and therefore, ____________ http://www.judis.nic.in Page No 3 of 21 W.A.No.1068 of 2019 such payment cannot be construed as the excess payment.
8.The learned counsel has relied upon the decision of this Court dated 28.11.2013 in W.P.No.36507 of 2006, in which, this Court has held in similar circumstances that such recovery is invalid.
9.Considering the submissions made by the learned Counsels for the parties, this Court finds that the arguments putforth by the learned counsel for the petitioner that the recovery in the circumstances of the case cannot be countenanced both on law and on facts and therefore, this Court has no hesitation in allowing the writ petition in W.P.No.27157 of 2012.
10.In such circumstances, the recovery order passed by the authorities dated 20.09.2012 is quashed and if any recovery has been made pursuant to the impugned order dated 20.09.2012, the same is to be refunded to the writ petitioner forthwith. As regards the writ petition in W.P.No29074 of 2012 is concerned, since the petitioner has completed 53 years of age, he had submitted applications on 29.03.2016 & 12.07.2017, the first respondent is directed to dispose of the said representations of the petitioner on merits and in accordance with law, after taking note of the completion of 53 years of age by the petitioner on the date when he submitted applications with reference to G.O.(Ms)No.1120, Personnel & Administrative Reforms Department dated 30.10.1984 and grant the benefit of exemption based on the said Government Order, within a period of two months from the date of receipt of a copy of this order.
____________ http://www.judis.nic.in Page No 4 of 21 W.A.No.1068 of 2019
5. In this appeal, the appellants contend that the learned Single Judge erred in allowing the relief in W.P.No.27157 of 2012 even though the respondent had not qualified in the mandatory departmental examinations.
6. It was submitted that the respondent was not only liable to be reverted back to the post of Block Health Statistician from which he was promoted as Statistical Assistant on temporary basis but also the increments received by the respondent in the promotional post of Statistical Assistant were liable to be recovered.
7. The brief facts of the case are that the respondent joint as a Block Health Statistician in the District Health Statistical Department on 20.08.1987. Thereafter, on 17.10.2007, the respondent was promoted as Statistical Assistant (SA) on temporary basis with the condition that he should pass the departmental test within five attempts within a period of three years. Since the respondent did not qualify in any of the departmental exams, he was reverted back. ____________ http://www.judis.nic.in Page No 5 of 21 W.A.No.1068 of 2019
8. The appellants have ordered recovery of a sum of Rs.70,423/- from the respondent since the respondent had failed to pass the departmental exams despite five attempts.
9. On the other hand, it was the contention of the respondent that he was entitled for exemption from passing written tests in terms of the notification and the applicable subordinate service rules.
10. The contention of the appellants was that the respondent was appointed as the Statistical Assistant on promotion on temporary basis and that the respondent had to pass the qualifying departmental exam within a period of three years from the date of promotion, failing which, he would be reverted back to feeder category.
11. According to the respondent, he was exempted from such conditions in terms of G.O.(Ms.)No.1120, Personnel & Administration Reforms Department, dated 30.10.1984 which in turn refers to G.O.(Ms).No 1398 Gen. (Emp.), dated 29.05.1972, wherein, it has been ____________ http://www.judis.nic.in Page No 6 of 21 W.A.No.1068 of 2019 clarified that for getting exemption, an employee who could not pass in the departmental test for promotion (i) should at least be below 53 years of age; (ii) should have at least attempted test five times to pass exam and should have been registered in the Service Register; and (iii) should be satisfied through his/her works to get concession.
12. It was the submission of the respondent that when an employee seeks for an exemption, he is only required to furnish the proof as set out in the said G.O for obtaining the benefit of the exemption.
13. There are no disputes as far as the facts are concerned. The respondent sat for the accounts test for the 1st time during May 2009, and thereafter during December 2009, during May 2010, during May 2011 and finally during December 2011. However, he could not pass the test.
14. Therefore, he applied for exemption in terms of G.O.No.1120 of 1984 and sent a representation to the appellants and sought for exemption of G.O (Ms.).No.1398 Gen. (Emp.) dated 29.05.1972. ____________ http://www.judis.nic.in Page No 7 of 21 W.A.No.1068 of 2019
15. Pursuant to the representation given by the respondent, the impugned order dated 20.09.2012 bearing reference Mu.Mu.No.471/2012/A1 of the 2nd appellant was issued, wherein, recovery of increments given to the respondent on 01.10.2009, 01.10.2010 and 01.10.2011 were ordered.
16. Thus, an amount of Rs.70,423/- was sought to be recovered from the respondent in 21 monthly installments starting with rupees Rs.423/- and thereafter at Rs.3,500/- for the next 20 months.
17. Today when the case was taken up for final hearing, the learned Special Government Pleader drew our attention to G.O.Ms.No.196, Personnel and Administrative Reforms (Per.M) Department, dated 03.03.1981, as per which, the Government had ordered that maximum period up to which the probation of a Government Servant may be extended so as to enable him to acquire the qualification was five years.
18. It was therefore submitted that since the respondent did not acquire the required qualification within the extended period of ____________ http://www.judis.nic.in Page No 8 of 21 W.A.No.1068 of 2019 probation, he was to be reverted back and the qualified and eligible juniors were to be considered for promotion.
19. The learned Special Government Pleader for the appellants also referred to the G.O.(Ms).No.240, Health and Family Welfare Department,dated 30.04.1996.
20. We have considered the arguments advanced by the learned Special Government Pleader for the appellants and the learned counsel for the respondent.
21. We have also considered G.O.(Ms.).No.240, dated 30.04.1996 and order dated 09.10.2007 of the 1st appellant Director of Family Welfare bearing reference No.7709/FW/A2/07.
22. G.O.(Ms.).No.240, dated 30.04.1996 was issued by the Government of Tamil Nadu in the exercise of powers conferred under Article 309 of the Constitution of India. It was issued in suppression of the Rules published under the erstwhile Health and Family Planning ____________ http://www.judis.nic.in Page No 9 of 21 W.A.No.1068 of 2019 Department Notification S.R.O.No.A 357/1969 at page 412 of Part V of G.O. dated 09.07.1969.
23. It was re-issued specifically for the Post of Statistical Assistants when the Government decided to re-issue it for the Post of Statistical Assistants by bringing the Post under the Tamil Nadu Medical Subordinate Service.
24. It was issued in the background of the Rules framed for Temporary Post of Statistical Assistant in the Family Welfare Department vide G.O.(Ms).No.219, Health dated 10.02.1969 and the subsequent amendments to the same.
25. The Director of Family Welfare had earlier proposed few modifications in the method of appointment to the post of Statistical Assistants. Taking into account of all these aspects, the Government issued Ad Hoc Rules for the post of Statistical Assistants by bringing the post under Tamil Nadu Medical Subordinate Service. ____________ http://www.judis.nic.in Page No 10 of 21 W.A.No.1068 of 2019
26. By virtue of the above G.O.(Ms).No.240 dated 30.04.1996, the General and Special Rules applicable to the holders of the Permanent Post in the Tamil Nadu Medical Subordinate Service was made applicable to holders of temporary post of Statistical Assistants attached to the State Family Welfare Bureau and District Family Welfare Bureau under the Family Welfare Department, subject to modification specified in the aforesaid Rules.
27. Thus, persons holding temporary post of Statistical Assistant attached to the State Family Welfare Bureau and District Family Welfare Bureau were to be governed by the General and Special Rules applicable to the holders of permanent Post in the Tamil Nadu Medical Subordinate Service with modification in G.O.(Ms.) No.240, dated 30.04.1996. The Rules were to come into force with effect from 30.04.1996.
28. In the facts of the present case, it is noted that the respondent joined as a Block Health Statistician on 20.08.1987. Thereafter, he was promoted as a Statistical Assistant on 17.10.2007 as per the 1 st appellant Director of Family Welfare bearing reference No.7709/FW/A2/07. ____________ http://www.judis.nic.in Page No 11 of 21 W.A.No.1068 of 2019
29. In terms of G.O.(Ms.) No.240 dated 30.04.1996, the appointments are to be made from the following 3 feeder category:-
i. by promotion among the holders of post of Block Health Statisticians, or ii. by recruitment by transfer among the members of the Tamil Nadu Ministerial Service in the Medical Department and from the Tamil Nadu Public Health Subordinate Service; or iii. by direct recruitment.
30. As a promotee, the respondent had the required qualification as per serial No.1 to Table to Rule 5.In case of appointment to the post by direct recruitment, the candidate should not have completed 35 years of age as on the 1st day of July of the year in which the selection for appointment is made.
31. Qualifications applicable to the candidates from the respective feeder category are prescribed under Rule 5 (b) of the Rules as notified by G.O.(Ms.) No.240 dated 30.04.1996. They are as follows:-
____________ http://www.judis.nic.in Page No 12 of 21 W.A.No.1068 of 2019 1 By promotion or by A degree in statistics, Or Mathematics recruitment by transfer: or Economics with statistics as an ancillary subject, of the University recognised by the University Grants Commission for the purpose of its grant of its equivalent 2 By direct recruitment Master degree in Statistics, or Mathematics or Economics with Statistics as an ancillary subject of University recognised by the University Grants Commissions for the purpose of its grant or its equivalent
32. The respondent was governed by Serial No.1. The aforesaid Rules also prescribed the probation to the persons appointed to the post of Statistical Assistants. The respondent was also eligible for reservation for the appointment as per Rule 6. As per Rule 7, a person appointed by direct recruitment has to undergo probation for a period of two years within a continuous period of three years from the date on which he joins the duty.
33. The probation of persons who were appointed to the post by recruitment by transfer, was to be for a total period of one year on duty within continuous period of two years from the date joining. ____________ http://www.judis.nic.in Page No 13 of 21 W.A.No.1068 of 2019
34. As per Rule 8, every person appointed to the post had to pass the Accounts Test for Executive Officers and the Tamil Nadu Medical Code within a period of three years of such appointment failing which his increment will be stopped without cumulative effect till he passes the said Test. Text of Rule 8 is reproduced:-
8.Test: Every person appointed to the post shall pass the Accounts Test for Executive Officers and the Tamil Nadu Medical Code within a period of three years failing which his increment will be stopped without cumulative effect till he passes the said test.
35. As per order dated 09.10.2007 of the 1st appellant Director of Family Welfare bearing reference No.7709/FW/A2/07, it was specified that the appointment was to be on temporary basis and that the employeehad pass the Accounts Test for Executive Officers and Tamil Nadu Medical Code within five years failing which their 2nd and subsequent increment shall be stopped without cumulative effect till they pass the said Test.
36. It further stated that if a candidate does not pass the above Test ____________ http://www.judis.nic.in Page No 14 of 21 W.A.No.1068 of 2019 within a period of five years from the date of joining as Statistical Assistants and Statistical Investigators, he/she shall be reverted back to the feeder category.
37. The order dated 09.10.2007 bearing reference No.7709/FW/A2/06 of the 1st appellant incorporating the conditions of G.O.Ms.No.196, Personnel and Administrative Reforms (Per.M) Department, dated 03.03.1981 was contrary to G.O.(Ms.) No.240 dated 30.04.1996.
38. There was no scope for either reverting a person promoted under the aforesaid Rules or recovering the amounts paid in the promotional post of Statistical Assistant. Under the aforesaid Rules, such employees were required to clear Accounts Test for Executive Officers and the Tamil Nadu Medical Code within a period of three years failing which increment will be stopped without cumulative effect till he passes the said test.
39. As such the stipulation in the order dated 09.10.2007 bearing reference No.7709/FW/A2/06 of the Director of Family Welfare-I/C was ____________ http://www.judis.nic.in Page No 15 of 21 W.A.No.1068 of 2019 contrary to the Rules notified vide G.O.(Ms.) No.240 dated 30.04.1996.
40. In our view, the said Rules as notified vide a G.O.(Ms.) No.240 dated 30.4.1996 was a special dispensation and is to be read only in conjunction with General and Special Rules applicable to the holders of the permanent Post in the Tamil Nadu Medical Subordinate Service subject to such modification in the Rules.
41. Appellants cannot impose additional conditions which were not there in the Rules. Though the General and Special Rules applicable to the holders of the permanent Post in the Tamil Nadu Medical Subordinate Service were made applicable to the holders of the temporary post of Statistical Assistants, it was subject to only those modifications specified in the Rules notified vide a G.O.(Ms.)No.240 dated 30.04.1996 alone.
42. Further, it is noticed that respondent had submitted representations dated 29.03.2016 and 12.07.2017 with a request was made to grant exemption to the respondent in terms of G.O.(Ms.) No.1120, Personnel and Administrative Reforms Department, dated ____________ http://www.judis.nic.in Page No 16 of 21 W.A.No.1068 of 2019 30.10.1984.
43. By an order dated 22.08.2017 in W.P.No.29074 of 2012, learned Single Jude directed the appellants to consider the same. It is not clear whether the said order has been complied with by the 1st appellant.
44. The appellants have also not challenged the impugned order passed by the learned Single Judge in W.P.No.29074 of 2012 directing them to dispose the representation of the respondent in the light of G.O.(Ms.) No.1120, Personnel & Administration Reforms Department, dated 30.10.1984.
45. We are therefore of the view that there was no question of reverting the respondent to the post of Block Health Statistician from which he was promoted.
46. It is also noticed that in the facts of the present case, the respondent could not pass the Executive Officers Test. Thus, at the end of three years if the respondent had failed to pass Executive Officers Test, the appellants were entitled to stop increment without cumulative effect ____________ http://www.judis.nic.in Page No 17 of 21 W.A.No.1068 of 2019 till the respondent cleared the said test.
47. The three years period from the date of his appointment on 17.10.2007 of the respondent to clear the Executive Officers Test would have expired on 16.10.2010. The respondent was not entitled to further increment thereafter. If any increment was given to the respondent after 16.10.2010, it would be contrary to the Rules notified by the Government vide G.O.(Ms).No.240 dated 30.04.1996.
48. However, as per the decision of the Hon’ble Supreme Court in Babulal Jain Vs. State of M.P, (2007) 6 SCC 180 no recovery can be made. The Hon’ble Supreme Court held as follows:-
15. We, however, are of the opinion that in a case of this nature, no recovery should be directed to be made.
The appellant has discharged higher responsibilities. It is not a case where he obtained higher salary on committing any fraud or misrepresentation. The mistake, if any, took place on a misconception of law. He was at least entitled to some allowances. In refixing his pay, his claim to that effect has not been considered. He has since retired. A sum of Rs 22,000 has been recovered from him. Such recovery has been effected without issuing any show-cause notice. His case on ____________ http://www.judis.nic.in Page No 18 of 21 W.A.No.1068 of 2019 merit in this behalf had not been considered by the Government and even by the Tribunal.
49. In our view, the appellants cannot take a contrary view in the facts of the present case in the light of the observation. Further, the amount that is subject to recovery is a meagre amount. Therefore, we are inclined to uphold the order of the learned Single Judge and dismiss this appeal.
50. We therefore dismiss the present Writ Appeal filed by the appellants. No cost. Consequently, connected Miscellaneous Petition is also closed.
(R.P.S., J.) (C.S.N.,J.)
31.08.2020
jen
Index : Yes / No
Internet : Yes / No
Notes:-In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
____________ http://www.judis.nic.in Page No 19 of 21 W.A.No.1068 of 2019 To.
1.The Director of Family Welfare, DMS Annexe, Chennai – 600 006.
2.The Deputy Director, Medical and Rural Health Services and Family Welfare, Pudukottai – 622 001.
3.The Secretary, State of Tamil Nadu, Department of Health and Family Welfare, Fort St.George, Chennai – 600 009.
____________ http://www.judis.nic.in Page No 20 of 21 W.A.No.1068 of 2019 R.SUBBIAH, J.
and C.SARAVANAN, J.
jen Pre-Delivery Judgment in W.A.No.1068 of 2019 and C.M.P.No.7858 of 2019 31.08.2020 ____________ http://www.judis.nic.in Page No 21 of 21