Allowed

R.Venkatesan, v. the State of Tamil Nadu

Madras HC7 Apr 2014WP/27814/2011

Case brief

AI extract

What is this about?

The High Court allowed four writ petitions filed by retired Junior Inspectors who were regularised but failed to pass a departmental test. The Court set aside an order directing recovery of salary/increments wrongly paid due to departmental error and directed the State to process their pension proposals with Earned Leave Salary, DCRG, and Commutation Value Pension.

What did the court decide?

Impugned order of recovery set aside. Direction to send pension proposal with Earned Leave Salary, DCRG, and Commutation Value Pension within four weeks.

R.Venkatesan, Vs the State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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CORAM

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DATED : 07.04.2014

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THE HON'BLE MR.JUSTICE T.RAJA

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W.P.Nos.27814 to 27817 of 2011

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and

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M.P.Nos.1 to 1 of 2011 in W.P.Nos.27814 to 27817 of 2011

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R.Venkatesan .. Petitioner in W.P.No27814/2011 2.A.Vadivelu .. Petitioner in W.P.No.27815/2011 3.R.Raju .. Petitioner in W.P.No.27816/2011 4.M.G.Ramadas .. Petitioner in W.P.No.27817/2011

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Vs.

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1.State of Tamil Nadu rep. By its Secretary Finance (Pension Department), Fort.St.George, Chennai - 600 009.

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2.The Director of Co operative Audit, Kamarajar Salai, Chennai - 600 005.

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.. Respondents in W.P.Nos.27816 & 27817/ 2011

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3.The Accountant General, Accountant General Office, Teynampet, Chennai - 600 018. .. Respondents 1to 3 in W.P.Nos.27814, 27815of 2011

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Writ Petitions filed under Article 226 of the Constitution of India for issuance of a writs of certiorarified mandamus to call for the records relating to the order passed by the 2^nd respondent in Na.Ka.No.33801/2005/P.N.1, dated 07.10.2011 in (W.P.No.27814 of 2011), in Na.Ka.No.40206/2010/P.N.1, dated 27.09.2011, in (W.P.No.27815 of 2011), in Na.Ka.No.19276/2011/p.n2, dated 03.10.2011, in (W.P.No.27816 of 2011), and in Na.Ka.No.15527/2011/P.N.2, dated 04.10.2011 in (W.P.No.27817 of 2011), quash the same and direct the respondents to pay all the

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benefits including increment for 4 years and to send the pension proposal with Earned Leave Salary to pay DCRG, Commutation Value Pension as per the letter of the Petitioners dated 08/09/2011,30/08/2011,30/8/2011,and 30/8/2011 respectively

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For the first respondent: Mr.S.V.Duraisolaimalai Additional Government Pleader

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For the second respondent: Mr.P.Rajalakshmi Government Advocate

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For the third Respondent : Mr.T.S.Selvarani (in W.P.Nos.27814 & 27815 /2011) COMMON ORDER

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The writ petitioners herein, viz., R.Venkatesan, A.Vadivelu, R. Raju and M.G.Ramadas, who were appointed as Junior Inspector of Co operative Societies under Rule 10(a) (i) in the year 18.10.1976 and continued employment in temporary capactity till 1988, have filed these writ petitions for a common relief.

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Since all these writ petitions are interconnected on identical issue, they are disposed of by this Common Order.

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The case of the petitioners, in brief, is as follows:-

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The petitioners were recruited through Employment Exchange with effect from 15.05.1969 F.N. 25.09.1976 F.N. 18.10.1976 A.N, and 07.02.1977 F.N respectively under rule 10(a)(1) of the General Rules of the Tamil Nadu State and Subordinate Services Rules against the vacancies in the category of Junior Inspector of Co-operative Societies. Though the post of Junior Inspector of Cooperative Societies comes under the purview of the Tamil Nadu Public Service Commission, in view of persistent demands from the Service Associations and the temporary Junior Inspectors of Co-operative Societies for regularising their services, the Government considered their request on humanitarian grounds and took a policy decision in the year 1988 and decided to absorb them into the regular vacancies after giving them an opportunity for selection by the Tamil Nadu Public Service Commission. Accordingly, a special qaualifying examination of Higher Secondary Standard for Group III services was conducted in the year 1989 (15.10.1989). In so far as the petitioners are concerned, they were directed to appear before the Tamil Nadu Public Service Commission for selection through Special

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qualifying examination of Higher Secondary Standard so as to absorb them on regular basis in the existing vacancies or future vacancies. The petitioners were unable to pass the examination conducted by the Tamil Nadu Public Service Commission, however, they were not ousted from service and allowed to continue in the service.

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The petitioners filed Original Applications for regularisation of their services before the Tamil Nadu Administrative Tribunal. By a common order dated 18.12.2003 and 24.12.2003, the Tribunal allowed all the original applications with a direction to the second respondent to regularise the services of the petitioners by making it clear that they were not entitled to any arrears. In view of the above order, the Government had passed G.O.Ms.445 (Finance Co-op Audit) Department, dated 20.12.2005. The Government by passing another Government Order in G.O.Ms.446 / Fiance Co.op Audit) Department dated 30.12.2010, relaxed the rule prescribed for age, educational qualification for intitial appointment and directed for pay fixation and increments for the period from the date of temporary appointement of Junior Cooperative Auditors upto 15.10.1989 i.e., the date before their regularisation.

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In view of the above G.O.Ms.Nos.445 and 446 Finance (CA) Department dated 20.12.2005 and 30.12.2010 respectively, 21 persons including the petitioners were allowed to continue in service and to get the benefits of regularisation. During their service, some of them were able to pass Part - 1 Departmental Test. But, the petitioners were not able to pass the said Test. However, they were paid salary along with increment. After the petitioners retired from service on reaching the age of superannuation, they were not paid any pension. Therefore, the petitioners submitted representations to the second respondent to pay all the pensionary benefits including increment, but in vain. Though the Government passed G.O.Ms.Nos.446 Finance (CA) Department, dated 30.12.2010 for payment of increment and other benefits, the respondents failed to pay the same. Therefore, the petitioners had filed writ petitions in W.P.Nos.14800, 14812, 14831 and 14843 of 2011 seeking for a direction to the respondents to implement G.O.Ms.No.446 Finance (CA) Department, dated 30.12.2010 and to pay all the pensionary benefits including increment for 3 years, Earned Leave Salary, DCRG, Commutation Value Pension as per the letter of the petitioners dated 26.04.2011 and 02.05.2011. After disposal of those writ petitions by common order dated 18.08.2011, the present impugned order has been passed by the second respondent stating that they have wrongly sanctioned increment and that they decided to recover the same. Since the said order was passed without application of mind and without following the principles of natural justice, the petitioners have filed the present writ petitions to quash the impugned order and for a direction to the respondents to pay the pensionary benefits due to them.

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The learned counsel appearing for the petitioners submitted that once the petitioners were paid salary and the increment during their services subsequent to regularisation of their service, the respondents cannot deny the benefits flowing from their services by passing the impugned order particularly seeking to recover the amount alreay paid. Never there was any mis -represenation or fraud committed by the petitioners for getting payment towards increment already paid to them. In support of the said submission, he relied upon a judgment of 1995 Supp (1) Supreme Court Cases 18 Sahib Ram Vs. State of Haryana and others to highlight the proposition that when there was no mis-represenation made by the petitioners in seeking the benefit of pension and increment and if the respondent / authorities had sanctioned the benefits by misunderstanding the rules, it is not open for them to recover the increments already paid or to withhold the pension due to them. The learned counsel for the petitioners also relied upon another judgment reported in (2007) 6 Supreme Court Cases 180 (Babulal Jain Vs. State of M.P. and others) on the same preposition that recovery of excess payment made to the petitioners on misconception of law and not due to any mistake, mis represenation or fraud on the part of the petitioners, is not justified without issuing any show cause notice. That being so, when the petitioner's “permenant status“ was recognized by the Government by passing the G.O above mentioned to regularise their services and consequently, they have been enjoying the financial benefits by virtue of G.O.Ms.No.446, the respondents are legally not justified in treating them otherwise and denying to extend the pensionary benefits due to them, and at any rate, the order of recovery has no legal basis at all. Hence, it is a deserving case to quash the impugned order of recovery and for issuance of a consequential direction to settle the pensionary benefits due to the petitioners.

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The learned Additional Government Pleader for the first respondent and the learned Government Advocate appearing for the second respondent would submit that not only the petitioners but other similarly placed persons were made to pay back the increments wrongly paid to them by the respondent. When 21 persons including the petitioners were unable to pass through the special examination conducted by the Tamil Nadu Public Service Commission to absorb in the post of Junior Inspector of Co-operative Socieity which post comes under the purview of the Tamil Nadu Public Service Commission, the second respondent allowed them to continue in service. Even though the second respondent was entitled to terminate their services on the ground that they were unable to fulfill the qualification fixed, by taking into consideration the long service rendered by the petitioners in the respondent department, they were allowed to continue in the service. The Government have passed G.O.Ms.No.445 Finance (CA) Department dated 20.12.2005 granting the benefit of

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regularisation of service of 21 persons. As per Rule 23(A), the petitioners were required to pass the Departmental Test. But unfortunately, the above said 21 persons, in whose favour the G.O for regularisation was issued, did not pass through the departmental test. In the meanwhile, the respondents granted increment. After noticing it by the Department, regular order was passed in respect of all 21 persons. Out of 21 employees, four of them already died and two of them died during their service and several other persons passed departmental test, except the four petitioners herein. Since they have not passed the Part 1 Departmental Test, the second respondent has already initiated proceedings to recover the excess amount paid to them. When all the other persons excepting the petitioners agreed for recovery of the amount, the four petitioners herein did not agree for recovery. On this basis he prayed for interference. The third respondent adopted the above arguments advanced on behalf of by the respondents 1 and 2.

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In fact, in the impugned order, the authority has mentioned that since the petitioners did not pass the Department Account Test, the increments already granted shall have to be recovered and therefore, recovery should be given effect to and pension cannot be sanctioned. But, it should not be lost sight of that the petitioners were not guily of any mis-representation. Nowhere, the respondents have mentioned that on the mis-represenation of the petitioners, the increment, which is payable only after passing the account test, was sanctioned to them. Admittedly, when there is no mis-representation on the part of the petitioners, the respondents are not entitled to recover the same. The Apex Court in Babulal Jain Vs. State of M.P and others reported in (2007) 6 Supreme Court Cases 180 categorically held that excess payments made by allowing higher pay on misconception of law and not due to any mistake or mis-represenation or fraud on the part of the petitioners cannot be recovered. It is in this context, it is useful to refer the observation made in paragraph 15 of the above mentioned judgment which is as follows:

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" 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 issing any show cause notice. His case on merit in this behalf has not been

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considered by the Government and even by the Tribunal."

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In another judgment, viz., P.Arumugam Vs. Registrar, Tamil University, Thanjavur, reported in 2006 3 MLJ 1025, it has been held as follows:-

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11.6. Having regard to all the above factors, we are of the considered opinion that the respondent is not estopped from attempting to reverse the whole process of pay fixation made and the payment of salary made to the appellant right from the date of his appoinment til the date of his superannuation. For whatever excess payment made to the appellant, even if the same was due to wrong fixation of pay contrary to the provisions contained in Rule 44(4) (i) of the Tamil Nadu Pension Rules, the whole liability will have to be borne by the respondent or if need be, the said liability to be recovered from the concerned authorities who was / were responsible for the commission of such lapses which resulted in any excess payment of salary. Certainly, in our considered view, the appellant cannot be made to bear such a huge liability and recovery of the same to be permitted, that too from the terminal benefits payable to the appellant. Such a course, as rightly held by the singe Judge, would be highly inequitable and will be totally unjustified.

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From the above case laws, the proposition is clear that recovery of excess payment sought after retirement of an employee cannot be allowed since, for the wrong done by the authorities, it is upto the State to take action against them. The above observation by the Apex Court as well as this Court in the above mentioned jugments clearly shows that the respondents are now estopped from attempting to reverse the whole process of pay fixation made and the payment of salary/increments made to the petitioners right from the date of their appoinment till the date of their superannuation. Whatever excess payment was made to the petitioners, even if the same was due to any wrong fixation contrary to the provisions, the whole liability will have to be fastened upon the officials concerned or if need be, the recovery shall be made from the concerned authorities who were responsibile for the commission of such lapses, which resulted in any excess payment of salary. Further, once the services of the petitioners were regularised and they retired in such permenant employment, there cannot be any justification to deny the pension for any ommision or Commission on the part of the authorities .

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In view of the above, the impugned order which not even mentions the quantum of recovery against the petitioners, is set aside and the writ petitions stand allowed. It is made clear that the amount wrongly paid to the petitioners shall not be recovered and resultantly, they are not entitled to the same benefit as prayed for in the writ petition except to which they are otherwise eligible in terms of the judgment. Consequently the respondents are directed to send the pension proposal with Earned Leave Salary to pay DCRG, Commutation Value Pension within a period of four weeks from the date of receipt of a copy of this order.

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Writ Petitions are ordered accordingly. No costs. Connected Miscellaneous Petitions stand closed.

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-s/d-
Assistant Registrar(CO)
Dated:19/5/2014
True Copy
Sub-Assistant Registrar
adl.
To
The Secretary
Finance (Pension Department),
Fort.St.George,
Chennai - 600 009.
The Director of Co operative Audit,
Kamarajar Salai,
Chennai - 600 005.
The Accountant General,
Accountant General Office,
Teynampet,
Chennai - 600 018.
+2 ccs to Government Pleader sr.nos.16794,16819
+1 cc to Mr.T.S.Selvarani Advocate sr.16956
+4 ccs to Mr.A.R.Nixon Advocate sr.16839
W.P.Nos.27814 to 27817 of 2011
and
MP.NOs.1 to 1/2011 in
WP.NOs.27814 to 27817 of 2011

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aa19/5/2014

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https://hcservices.ecourts.gov.in/hcservices/

R.Venkatesan, v. the State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

R.Venkatesan, v. the State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

What the court decided

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