Madras High Court
D.Selvasingh vs The Secretary on 1 February, 2010
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.No.8095 of 2003 D.Selvasingh ... Petitioner vs. 1.The Secretary, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai 600 002. 2.The Superintending Engineer, Purchase & Administration, Tuticorin Thermal Power Station, Tuticorin 628 004. ... Respondents Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records relating to the impugned order passed by the second respondent in his Proceedings O.O.No.34129/Adm.IV/AI/F.HBA /D.No.12 of 1999/2003 dated 29.1.2003 and quash the same and consequently direct the second respondent to recover the House Building Advance amount as per the terms and conditions of the Sanctioned Order No.34129 ADM.IV, AI/F, HBA, PNO.12/99/2002 dated 7.2.2002. For Petitioner : Mr.K.Mayura Priyam for Mr.P.Chandrasekaran For Respondents : Mr.B.Sekar (TNEB) O R D E R
The petitioner has filed this writ petition for issuance of a writ of Certiorarified mandamus in calling for the records pertaining to the impugned order passed by the second respondent in proceedings No.O.O.No.34129/Adm.IV/AI/F.HBA /D.No.12 of 1999/2003 dated 29.1.2003 and to quash the same and resultantly in issuing directions to the second respondent to recover the House Building Advance amount as per the terms and conditions of the Sanctioned Order No.34129 ADM.IV, AI/F, HBA, PNO.12/99/2002 dated 7.2.2002.
2. The petitioner on 08.08.1988 was appointed as a Technical Assistant in the Meter and Relay Test/Tuticorin Electricity Distribution Circle of the first respondent/Electricity Board with a pay scale of Rs.1,200/- per month. Later he was promoted as a Junior Engineer Grade II Electrical and was transferred to Operation and Efficiency Division-I, Tuticorin Thermal Power Station on a pay scale of Rs.9,998/-.
3. The petitioner availed a House Building Advance for a sum of Rs.3,28,000/- from the second respondent by means of an Office Order No.34129 ADM.IV, FI/F, HBA, PNO 12/99/2002 dated 7.2.2002 and entered into a Bilateral Agreement dated 11.02.2002 agreeing to repay the said House Building Advance in 180 instalments. He mortgaged his land in S.No.337 comprised in R.S.No.102 Part, Sankaraperi Village, Tuticorin Taluk and District as security for the repayment of the aforesaid House Building Advance.
4. The Sanctioned order dated 7.2.2002 refers to the recovery of House Building Advance in paras.4 and 5 and the same is mentioned below:-
"4(a) The recovery of House Building Advance (Principal) shall be at the rates given below:-
1st to 179 instalments Rs.1,820/- P.M. Rs.3,25,780.00 180 and Final Instalment Rs.2,220/- Rs. 2,220.00
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Total Rs.3,28,000.00 ------------------ b) The recovery towards Tamilnadu Electricity Board House Building Advance Special Family Benefit Fund Scheme shall be at Rs.19/- p.m. Commencing from the date of payment of first instalment House Building Advance. 5) The Advance shall bear interest at the rate prevalent at the time of drawal of the first instalment. The actual interest will be worked out only on completion of recovery of principal amount and the same will be arranged for affecting the recovery from his/her pay in 60 monthly instalments and balance from his/her D.C.R.G. Gratuity."
5. The second respondent in proceedings O.O.No.34129/Adm.IV/AI/F.HBA/D.No.12 of 1999/03 dated 29.1.2003 issued a Modification Order reducing the number of instalments of the House Building Advance from 180 to 107 and also directed the petitioner to pay Rs.4,568/- per month (Principal instalments with interest) from the month of December 2002 and further directed the petitioner to pay a sum of Rs.9,136/- towards the recovery of House Building Advance immediately without issuance of any show cause notice. The petitioner submitted his representation to the second respondent mentioning his incapacity to effect the payment at the modified rate of instalment towards his House Building Advance and the same was not considered and recovery was made from the month of February.
6. According to the learned counsel for the petitioner, the petitioner has to maintain his two school children, his aged mother, wife and he is spending Rs.4,500/- towards them and also he is spending Rs.400/- towards maintenance of his motor cycle and he is also cope up with other related functions and that he has no other source of income and only on the basis of the sanctioned order dated 07.02.2002 and the bilateral agreement dated 11.2.2002, the petitioner planned his 20 years of future income but to his shock and dismay, the second respondent passed the impugned order dated 29.01.2003 specifying the recovery of HBA principal together with interest at the rates viz., Ist to 107 instalments @ Rs.4568/- -Rs.4,88,776/-per month from 12/2002
108 & final instalment -Rs. 1,928/-
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Rs.4,90,704/-
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and the same was received by the petitioner on 05.02.2003 and since the impugned order is contrary to law and arbitrary one, the same cannot be sustained and also that the impugned order dated 29.01.2003 has been passed by the second respondent office violating the terms and conditions of House Building Advance agreement and Bilateral Agreement and as such the impugned order amounts to Promissory Estoppel in law and in the absence of notice being issued to the petitioner in regard to the impugned order dated 29.01.2003 pertaining to the Modification of House Building Advance, the same is in negation of the principles of natural justice and in short, the said impugned order is a self serving and unilateral one affecting petitioner's livelihood, which is violative of Art.21 of the Constitution of India.
7. Advancing his arguments, the learned counsel for the petitioner submits that after the modification of the House Building Advance, the petitioner is constrained to pay a sum of Rs.4,568/- and the balance of Rs.58 will be Take Home Salary and this aspect of the matter has not been appreciated resulting in miscarriage of justice and the entire family of the petitioner is depending upon his income since he has no other source of income except the monthly salary and indeed the petitioner is a physically handicapped person and his mother is 65 years old, etc., and since the financial plight of the petitioner has not been taken into account by the second respondent at the time of passing of the impugned order of modification of the House Building Advance dated 29.01.2003, the writ petition filed by the petitioner has to be allowed to secure the ends of justice.
8. Per contra, the learned counsel for the respondents contends that the second respondent by means of a sanction order dated 07.02.2002 has sanctioned loan for a sum of Rs.3,28,000/- for construction of house to the petitioner subject to certain terms and conditions and that bilateral agreement was entered into between the petitioner and the second respondent subject to the terms and conditions as per the House Building Advance Rules and one of the conditions in the said agreement is that the petitioner has agreed for recovery of monthly instalments at the rate of 50% of pay plus D.A. subject to upward revision during the currency of the loan in order that no part of the loan and interest thereon is outstanding after retirement and in respect of the House Building Advance, the first respondent/Electricity Board has issued a memo No.11179/01/79-6 dated 02.12.1980 to the effect that if the Board's employee is having more than 20 years of net service for the repayment of the House Building Advance, the House Building Advance is sanctioned at 60 times of his pay and Dearness Allowance and the principal amount of the advance must be recovered within 15 years from the due date of commencement of the recovery of the advance at the monthly rate of not less than one third of his pay and D.A. at the time of sanction of the advance and the interest accrued on the advance should be recovered within 5 years from the date of commencement of the recovery and orders on the rate of recovery of interest on the principal amount of the advance must be issued only after completion of repayment of the principal amount or preferably just after the last but two instalments of the principal amount have been recovered, etc., and later a clarification has been sought from the first respondent Board, Chennai by the Superintending Engineer, Civil and General, Kadamparai P.S.H.E. Project, Minparai, Coimbatore District in his letter dated 31.10.1983 that some loanee employees of the Board who are having more than 20 years of net service have represented to revise the rate of recovery of principal amount from their pay as the amount of recovery is more than the rate calculated at 180 months on the principal amount and a clarification has been issued by means of an instructions vide Memo No.11179 01/79-6 dated 02.12.80 to the effect that the request of the loanee employees who are having more than 20 years of net service, for the reduction in the original rate of recovery may be considered and the recovery rate rescheduled even though recovery of House Building Advance might have commenced already in their cases vide Letter No.51920/N1/83-3 dated 31.10.1983.
9. The stand of the respondents is that the principal amount of Rs.1820 must be recovered from salary, from December 2002 onwards as per the House Building Advance Rules and mistakenly the second respondent by order dated 07.02.2002 has ordered for recovery of House Building Advance at 180 instalments and later a clarification letter has been issued by the second respondent to the first respondent. The first respondent has instructed in his Memo No.9174/A7/A72/2002-5 dated 7.11.2002 to revise the rate of recovery of 50% of pay plus D.A. in respect of the petitioner and 17 others and the second respondent has rectified the mistake in the earlier order dated 07.02.2002 and has passed the partial modification order to the petitioner on 29.01.2003 which is impugned in the present writ petition and the recovery of House building Advance principal with interest for first 107 instalments will be at the rate of Rs.4,568 per month from 12/2002 made and 108 and Final instalment will be at Rs.1,928/- aggregated in all a sum of Rs.4,90,704/- .
10. Inasmuch as the petitioner has entered into an agreement with the Board whereby and whereunder he has accepted for the recovery of monthly instalments of 50% of pay plus D.A. subject to upward revision during the currency of loan in order that no part of the loan and interest thereon to remain as outstanding after retirement, the request of the petitioner has not been acceded to and he has been informed accordingly on 04.03.2003 and therefore the petitioner cannot have any real grievance in the matter, as contended by the learned counsel for the respondents.
11. At this stage, the learned counsel for the respondents brings it to the notice of this Court that the first respondent Board in Memo No. 95675/A.7/A.72/2000-1 dated 11.12.2000 has issued instructions to the effect that while sanctioning loan and advance to the employers/officers the carry Home Salary need not be issued for sanction and hence the aspect of taking into account the quantum of Take Home salary of the petitioner may not arise in the present case on hand and in short, the impugned order passed by the second respondent is in accordance with the House Building Rules of the Electricity Board.
12. This Court has paid its anxious consideration to the arguments projected by the learned counsel appearing for the parties and noticed the same.
13. Added further, the learned counsel for the respondents submits that pay of the petitioner has since been revised as per the recommendations of the Sixth Pay Commission and therefore the petitioner has not anyway prejudice about the impugned order dated 29.01.2003 which has been passed by the Authority in a proper manner strictly following the House Building Rules of the Electricity Board without any violation or deviation whatsoever.
14. On a careful consideration of respective contentions and taking note of the fact that the second respondent has earlier by his order dated 07.02.2002 mistakenly ordered for recovery of House Building Advance at 180 instalments and later on the basis of the second respondent's letter seeking clarification from the first respondent, the first respondent has issued Memo No. 9174/A7/A72/2002-5 dated 7.11.2002 giving suitable instructions to revise the rate of recovery of 50% of pay, D.A. in respect of the petitioner and 17 others and only after rectifying the mistake that has crept in the earlier order dated 07.02.2002, the impugned partial clarification order dated 29.01.2003 has been passed by the second respondent and suffice it for this Court to point out that the said impugned order dated 29.01.2003 does not suffer from any material irregularity or patent illegality and further there is no arbitrariness or unreasonableness in the impugned order passed by the second respondent and in short, the impugned order does not suffer from any capriciousness or illegality and though a plea has been taken on the side of the petitioner that his livelihood has been affected by means of the impugned order dated 29.01.2003, which according to him, is in violation of Art.21 of the Constitution of India, this Court based on the conspectus and overall assessment of the facts and circumstances of the case in a cumulative fashion does not find any negation of Art.21 of the Constitution of India since the impugned order dated 29.01.2003 is a just, fair, reasonable one passed in good faith in reducing the number of House Building Advance from 180 to 107 instalments, etc., and further the right to livelihood cannot be stretched too far in the present case to apply the same in a generous and a casual approach and consequently the writ petition is devoid of merits and the same fails.
15. In the result, the writ petition is dismissed leaving the parties to bear their own costs.
vri To
1.The Secretary, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai 600 002.
2.The Superintending Engineer, Purchase & Administration, Tuticorin Thermal Power Station, Tuticorin 628 004