IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 11.05.2011 Coram: The Hon'ble Mr.Justice M.VENUGOPAL Writ Petition No.33236 of 2003 G.Ramasami ... Petitioner Versus 1. The Government of Tamil Nadu, rep. by its Secretary, Rural Development Department, Fort St. George, Chennai 600 009. 2. The Director, Rural Development Department, Panagal Building, Saidapet, Chennai-600 015. 3.The District Collector, Ramnad District. 4.The Commissioner, Kadaladi Panchayat Union, Muthukulathur, Ramnad District. ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus in the nature of calling for the records of the 3rd Respondent in his proceeding Rc.V6.2311/2000 dated 13.11.2000, the Order of the 4th Respondent in Rc.A6/810/2000 dated 15.12.2000, the Order of the 3rd Respondent in Rc.V6/49899/2003 dated 5.8.2003, the Order of the 4th Respondent in Rc.A1/3685/2003 dated 17.9.2003, and the Order of the 4th Respondent in Rc.A1/3685/2003 dated 30.9.2003 and quash the same and consequently direct the Respondents herein to regularise the Petitioner's service as Attender (MNO) with effect from 24.4.1984 and fix the Petitioner's time scale of pay with effect from 24.4.1984 with all monetary and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner .. Mr.K.Raja For Respondents .. Mr.V.Manoharan, for R1 to R3 Mr.V.Subbarayan for R4. O R D E R The Petitioner has filed the present Writ of Certiorarified Mandamus in calling for the records of the 3rd Respondent/District Collector, Ramanathapuram District, in Proceedings No. Rc.V6.2311/2000 dated 13.11.2000, the Order of the 4th Respondent/Commissioner, Kadaladi Panchayat Union, Muthukalathur , in Rc.A6/810/2000 dated 15.12.2000, the Order of the 3rd Respondent/District Collector, Ramanathapuram District, in Rc.V6/49899/2003 dated 5.8.2003, the Order of the 4th Respondent/District Collector, Ramanathapuram District, in Rc.A1/3685/2003 dated 17.9.2003, and the Order of the 4th Respondent/District Collector, Ramanathapuram District, in Rc.A1/3685/2003 dated 30.9.2003 and quash the same and further, the Petitioner has sought for the issuance of a direction by this Court in directing the Respondents to regularise the Petitioner's service as Attender (MNO) with effect from 24.4.1984 and fix the Petitioner's time scale of pay with effect from 24.4.1984 with all monetary and other attendant benefits. 2. The Petitioner's father was working as Attender in Kadaladi Panchayat Union, Sikkal Siddha Rural Dispensary, Ramnad District. On 16.11.1983, he died in harness, while he was in service. Subsequently, the Petitioner applied for Compassionate Appointment as Attender (MNO), Siddha Rural Dispensary. He had passed SSLC also. On his application, the 4th Respondent/Commissioner, Kadaladi Panchayat Union, Multhukalathur, appointed him as Attender (MNO) in the Sikkal Siddha Rural Dispensary, Ramnad District, as per the Appointment Order dated 23.4.1984. 3. The Petitioner's father R.Gurusami was working as Attender in Sikkal Siddha Rural Dispensary, Kadaladi Panchayat Union from 6.5.1962 on contingency basis and he was brought into regular establishment with effect from 1.4.1981 as per G.O.Ms.No.878, RD&LA Department, dated 15.05.1981. An Order was also issued by the 2nd Respondent/Director, Rural Development, Panagal Building, Saidapet as Proceedings dated 31.7.1986. 4. In the said regular post, which was sanctioned as early as in the year 1981, the Petitioner was appointed as Attender (MNO). Although the Petitioner was appointed in the regular post as early as on 23.4.1984, he was not paid regular scale of pay applicable to the post of Attender. Hence, he preferred a representation to the 4th Respondent/ Commissioner, Kadaladi Panchayat Union. The 4th Respondent as per his Proceedings dated 24.9.1999, recommended to the https://hcservices.ecourts.gov.in/hcservices/ 3rd Respondent/District Collector, Ramanathapuram District for sanction of his time scale of pay. 5. On the basis of the 4th Respondent's recommendation, the 3rd Respondent/Commissioner, Kadaladi Panchayat Union, by means of his Proceedings dated 19.9.1999, passed an order to the effect that the Petitioner is entitled to get time scale of pay as the post he was holding was already sanctioned by the Government. Based on the orders of the 3rd Respondent/District Collector, Ramanathapuram, the 4th Respondent/Commissioner, Kadaladi Panchayat Union, sanctioned time scale of pay to him with effect from 1.11.1999 as per the Proceedings dated 25.11.1999. 6. The 3rd Respondent/District Collector, Ramanathapuram District, in his Proceedings dated 13.11.1999, referred to G.O.Ms.No.267, dated 22.12.1999 and treated as if the Petitioner was working in contingency establishment, he completed 10 years of service and hence his service was regularised with effect from 24.4.1994. As such, regular scale of pay was given to him with effect from 25.4.1994 by the 4th Respondent as per the Proceedings dated 15.12.2000. 7. To the shock of the Petitioner, all of a sudden, the 3rd Respondent/District Collector, Ramanathapuram District, cancelled the regularisation order given by him as per the Proceedings dated 13.9.2000, through the impugned Proceedings dated 5.8.2003. In the said impugned Proceedings, it was stated that even though his service was regularised with effect from 24.4.1994, he was entitled to get time scale of pay only with effect from 26.6.2000. The 3rd Respondent/District Collector, Ramanathapuram District, therefore, directed the 4th Respondent/Commissioner, Kadaladi Panchayat Union, to recover the time scale of pay granted to him with effect from 25.4.1994. Hence, the 4th Respondent by placing reliance on the 3rd Respondent's impugned order, had cancelled the fixation of pay and passed the impugned order to recover a sum of Rs.75,336/- from his salary. 8. The stand taken by the 4th Respondent/Commissioner, Kadaladi Panchayat Union, is that the Petitioner's father R.Gurusami was working as Attender in Kaladi Panchayat Union, Sikkal Siddha Rural Dispensary, Ramnad District and he died while he was in service, on 16.11.1983. Thereafter, the Petitioner applied for Compassionate Appointment as Attender (MNO), Siddha Rural Dispensary. The Petitioner had passed SSLC only. On his application, the 4th Respondent/Commissioner, Kadaladi Panchayat Union, appointed him as Attender (MNO) in the Sikkal Siddha Rural Dispensary as per the Appointment Order dated 23.4.1984. 9. The Petitioner's father R.Gurusami was working as Attender in https://hcservices.ecourts.gov.in/hcservices/ Sikkal Siddha Rural Dispensary, on contingent basis and he was brought into regular establishment with effect from 1.4.1981 as per G.O.Ms.No.878 RD & LA Department, dated 15.5.1981. The Petitioner was not paid regular scale of pay applicable to the post of Attender. Subsequently, the Petitioner preferred a representation to the 4th Respondent/Commissioner, Kadaladi Panchayat Union, and the 4th Respondent as per the Proceedings dated 24.9.1999, recommended to the 3rd Respondent/District Collector, Ramanathapuram to sanction time scale of pay to the Petitioner. The 3rd Respondent as per the Proceedings dated 19.9.1999, based on the recommendation of the 4th Respondent, passed an order stating that the Petitioner was entitled to get time scale of pay as the post was already sanctioned by the Government. The 4th Respondent based on the said orders, sanctioned time scale of pay to the Petitioner with effect from 1.11.1999 as per the Proceedings dated 25.11.1999. 10. The 3rd Respondent, as per the Proceedings dated 13.11.1999, referred to the G.O.Ms.No.267, dated 22.12.1999 and treated as if the Petitioner was working in the Contingency Establishment and his service was regularised with effect from 24.4.1994, as he has completed 10 years of service. As such, the regular scale of pay was given to him with effect from 25.4.1994 by the 4th Respondent as per the Proceedings dated 15.12.2000. The 3rd Respondent/District Collector, Ramanathapuram, cancelled the regularisation order given by him as per the Proceedings dated 13.9.2000 through the impugned Proceedings dated 5.8.2003. In the said impugned Proceedings, it was stated that even though his service was regularised with effect from 24.4.1994, he was entitled to get time scale of pay only with effect from 26.6.2000. Therefore, the 3rd Respondent/District Collector, Ramnad District, has directed the 4th Respondent/Commissioner, Kadaladi Panchayat Union, to recover the time scale of pay granted to the Petitioner with effect from 25.4.1994. The 4th Respondent had cancelled the fixation of pay by relying upon the order of the 3rd Respondent and passed an impugned order to recover a sum of Rs.75,336/- from the Petitioner's salary. 11. The Petitioner was appointed as an Attender on temporary basis as per the Commissioner's Proceedings Roc.No.A6/457/84, dated 23.4.1984. In the said Order, it was clearly mentioned that the post was purely temporary and he would be ousted from the post at any time without notice. The Sikkal Siddha Rural Dispensary is not a full-fledged regular hospital or even like a Primary Health Centre by the Health Department, it is not functioning throughout the day. As and when the Medical Officer is available at the Dispensary, the Petitioner attends the work whenever required. The Dispensary in the Village was functioning during morning and evening at fixed hours, as per the Dispensary timings. The Petitioner was not working in the Dispensary throughout the day. The establishment charges and https://hcservices.ecourts.gov.in/hcservices/ maintenance cost of Rural Dispensary were met from the Panchayat Union General Funds, operated under the purview of Panchayat Union Council as per the Tamil Nadu Panchayat Act and Rules. The Panchayat Union Council was the competent authority for the review and functioning of Rural Dispensary. 12. The expenditure relating to the establishment matter are vested with the Panchayat Union Council as per the Tamil Nadu Panchayat Act and Rules. The Respondents, as per the Government Order, are entitled to grant monetary benefits only from the date of Government Order. The Respondents wrongly granted the benefits to the Petitioner from 24.4.1994 and thereby the wrong order was set aside and an appropriate order granting the same benefits was passed by the Respondents on 5.8.2003 and thereby the order of cancellation of the earlier order was only rectification of the defect and thereby no notice was necessary and the same was not in violation of principles of natural justice. The benefits wrongly granted to the Petitioner were rectified by passing the impugned order on 5.8.2003. 13. The 4th Respondent/Commissioner, Kadaladi Panchayat Union, is entitled to recover the arrears amount wrongly paid to the Petitioner and thereby, the action taken by the 4th Respondent/Commissioner, Kadaladi Panchayat Union, to recover a sum of Rs.75,336/- is not an illegal one and the same is well within law. 14. The contention of the Petitioner that the service ought to be regularised with effect from 24.4.1984 with all monetary and other benefits since he was appointed on 24.4.1984 is not true and justifiable one, inasmuch as the person appointed in a Government Service ought to complete probationary period for the service to be regularised. In fact the Petitioner was appointed in the contingent post and therefore, as per the Government Order, a person working in the contingent post must complete 10 years for regularisation of service. Therefore, the demand of the Petitioner to regularise his service from 1984 is not correct in law. Since G.O.Ms.No.161 (E5), Rural Development Department, dated 26.6.2000 is in force, the grant of service benefits to the Petitioner from 1984, does not arise. Therefore, the order passed by the 3rd Respondent in Proceedings Rc.V6/23211/2000 dated 13.11.2000, the Order of the 4th Respondent in Rc.A6/816/2000 dated 15.12.2000, the Order of the 3rd Respondent in V6/49/899/2003 dated 5.8.2003 and the Order of the 4th Respondent in Rc.A1/3685/2003 dated 17.9.2003 and the Order of the 4th Respondent in Rc.A1/3685/2003, dated 30.9.2003 are sustainable in law. 15. A perusal of the appointment order of the Petitioner dated 23.4.1984, issued by the 4th Respondent/Commissioner of Kadaladi Panchayat Union, shows that the Petitioner was appointed as an Attender in Sikkal Siddha Rural Dispensary. In the said order of appointment, it was mentioned that the Petitioner's father R.Gurusami died while he was in service on 16.11.1983 and his family was in https://hcservices.ecourts.gov.in/hcservices/ difficult circumstance etc. 16. The proceedings of the 2nd Respondent/Director of Rural Development, Madras, dated 31.7.1986, in Roc.No.88590/86 B1 E5, among other things, reads as follows:- ".....The contingent staff brought regular Establishment upto 1.4.1981 will be governed by the scale of pay of Rs.200-5-300 and from 1.10.84 they will be governed by the scale of pay of Rs.450-10-570-15-720. The contingent staff brought to regular establishment from 1.4.81 onwards may be allowed to draw only upto minimum in the time scale of pay applicable to them. As regards their mode of fixation of their pay orders will be issued. In respect of conductresses working in Panchayat Unions, proposals have been sent to Government to treat them as full time contingent staff and orders of Government are awaited. Only on receipt of Government orders the question of bringing the conductresses working in Panchayat Unions Schools will be taken up. Further in G.O.Ms.No.1279, Education Department dt.12.6.91, Government have announced the night watchman working in Panchayar Union Schools as Government servants with effect from 1.6.81. (i.e. on the date of taking over of Panchayat Union Schools by Government) Hence the question of bringing the Panchayat Union School watchman by this Department on or after 1.6.81 will not come under the purview of this Department." 17. In the annexure relating to the contingent staff brought in to regular establishment as on 1.4.1981 the name of the Petitioner's father namely R.Gurusami, is found in Serial No.11 in the category of Attender (MNO) and his date of appointment is shown as 6.5.1962 and the date of completion of 10 years of service is mentioned as 5.5.1972. 18. The 3rd Respondent/District Collector, Ramnad District, as per the Proceedings dated 9.9.1999, addressed to the 4th Respondent/Commissioner, Kadaladi Panchayat Union, has stated that the Petitioner's father R.Gurusamy as per the Proceedings of the Director of Rural Development, Chennai, dated 31.7.1986 in Na.Ka.No.88590/96/E5, has been brought into regular establishment from 1.4.1981 as seen from his service register. Therefore, if any person is to be appointed in that regular post, then the said person is also entitled to get the same benefits and therefore, necessary action will have to be taken by the 4th Respondent in this regard. https://hcservices.ecourts.gov.in/hcservices/ 19. The 4th Respondent/Commissioner, Kadaladi Panchayat Union, as per the Proceedings dated 25.11.1999, has issued Proceedings determining the time scale of pay from 1.11.1999 to the Petitioner as Rs.2550/- in the time scale of 2550-55-2660-60-3200 and the next date of increment is on 1.10.2000. 20. The Secretary to the Government, in G.O.Ms.No.267, Rural Development (E7) Department, dated 22.12.1999, has ordered that 218 persons who have been appointed after 1.4.1981 and has completed 10 years of service continuously and who have been working as daily wages and receiving consolidated pay under contingency establishment have been brought into regular establishment. 21. As per the Proceedings dated 13.11.2000 of the 3rd Respondent/District Collector,Ramnad District, the Petitioner who has been appointed on 25.4.1984 and completed 10 years of service on 24.4.1994 has been regularised with effect from 24.4.1994 After Noon. 22. The 4th Respondent/Commissioner, Panchayat Union, as per the Proceedings in Na.Ka.No.A6/810/2000 dated 15.12.2000, has fixed the time scale of pay of the Petitioner after his service has been regularised and this Proceedings fixes the Petitioner's pay from 25.4.1994 as detailed therein. 23. The 3rd Respondent/District Collector, as per the Proceedings dated 5.8.2003, in terms of G.O.Ms.No.161, Rural Development (E5) Department, dated 26.6.2000, had fixed (Night Watchman) Petitioner's time scale of pay as Rs.2550-55-2650-60-3200 and the date of time scale of pay fixed has been stated as 26.6.2000. Further time scale of pay determined in pursuance to regularisation in respect of the Petitioner and three others were cancelled. Also in the said letter concerned the Commissioners of Panchayat Union were directed to make entries in the Service Registers of individuals and to pass orders for recover excess salary amount and other benefits received by the concerned persons. 24. A reading of G.O.Ms.No.161 Rural Development (E7) Department dated 26.6.2000 unheedingly points out that 218 employees who were to be brought into regular establishment and as mentioned in the Rural Development Director's letter dated 24.4.2000 wherein the G.O. has been referred to and those 218 persons posts were to be construed as sanctioned posts and for 171 persons who have completed 10 years of service 171 night watchman posts were created for 3 years period from the date of passing of the G.O. and the expenditure to be incurred in this regard would be met from the Local Body Funds of the Panchayat Union General Funds. 25. In the annexure to the said G.O. the Petitioner's name at https://hcservices.ecourts.gov.in/hcservices/ Kadaladi is found in Serial No.76 and the date of completion of 10 years of service is mentioned as 24.4.1994. 26. Be that as it may, in the instant case on hand the Petitioner has not challenged the G.O.Ms.No.161 Rural Development (E7) Department, dated 26.6.2000 and sought a relief thereto. It is clearly mentioned in paragraph 3 by the second Respondent/Director of Rural Development, Madras in Roc.No.88590/86 B1 E5, dated 31.7.1986 interalia that "since the particulars furnished subsequent to 1.4.1981 were also defective special staff have been deputed and particulars in respect of contingent staff who have completed 10 years of service for the period between 1.4.1981 to 1.4.1986 have been collected from Ramanathapuram District and on the basis of the data collected in suppercession of the orders issued in the proceedings of the Director of Rural Development, Madras Pro.76545/81, dated 19.7.1982 the contingent staff detailed in the Annexure are brought to regular Establishment from 1.4.1981 to 1.4.1986. 27. The father of the Petitioner was brought into regular service as per the proceedings of the 2nd Respondent dated 31.7.1986 in Na.Ka.No.88590/86 B1 E5, from 1.4.1981 and the Petitioner is also entitled to get the benefit of regular sanctioned post and therefore his service is to be regularised from the date of his initial appointment namely on 24.4.1984 and not with effect from 24.4.1994. Though the Petitioner was appointed temporarily as per the proceedings dated 23.4.1984 of the 4th Respondent/Commissioner, Kadaladi Panchayat Union, Muthukalathur, it is to be borne in mind that the Petitioner was actually holding the regular sanctioned post and the issue of contingency will arise only if there was no such sanctioned post in the category of Attender (MNO), in the considered opinion of this Court viewed in that perspective as a logical corollary the Petitioner is entitled to get regularisation of service in the sanctioned post and as such his service is directed to be regularised by this Court from the date of his appointment namely 24.4.1984 and not with effect from 24.4.1994. 28. Ordinarily, the excess payment received by a Government Employee is liable to be refunded by him because in law, as per Section 72 of the Indian Contract Act one is not permitted to enrich himself unlawfully. Ordinarily, the employee receiving the monthly pay packet from his employer, from out of the receipt of the salary sum is inclined to spend on his family needs and his daily personal needs and after spending the pay packet there will be too little amount is available with him. The Petitioner by any means cannot be found fault with. There has been no misrepresentation or fraud committed by the Petitioner in regard to the purported wrong benefits granted to the Petitioner. If at all, the Respondents alone are responsible for grant of such benefits. When the Petitioner is not responsible for the defect that has crept in or occurred, then he is https://hcservices.ecourts.gov.in/hcservices/ not responsible for the consequences arising thereto. Recovery of excess sum affects the civil consequences of an employee viz., the Petitioner and that too touching the monetary aspects. Therefore, the Petitioner ought to have been put on notice before issuing cancellation order dated 5.8.2003 by the 3rd Respondent/Commissioner, Kadaladi Panchayat Union, Muthukalathur. Non-issuance of notice in regard to the recovery prior to the issuing of the order dated 5.8.2003 passed by the 3rd Respondent is a case of violation of principles of natural justice. On this score also, the order dated 5.8.2003 passed by the 3rd Respondent has no legs to stand in the eye of law, as opined by this Court. Moreover, if there is some lapse of time before mistake is detected, over paid sums/monies cannot be recovered in law. 29. This Court worth recalls the decision of the Hon'ble Supreme Court of India in Bhagwan Sukla Vs. Union of India (AIR 1994 (SC) 1480) wherein it is held that "over payment recovery to an employee by the State or its agency or by an employer on account of its mistake cannot be recovered." Also in Sahib Ram Vs. State of Haryana (1995 SCC (L&S) at page 248), the Hon'ble Supreme Court of India, has held that 'the amount paid may not be recovered.' However, in Ramgopal Agarwal's case 1998 (2) SCC at page 589 the Hon'ble Supreme Court of India has held that 'the recovery cause hardship and hence recovery has not been effected.' 30. It is to be noted the Petitioner initially has been appointed on 23.4.1984, as per the proceedings dated 23.4.1984 of the 4th Respondent/Commissioner, Kadaladi Panchayat Union, Muthukalathur as Attender (MNO), temporarily, obviously on compassionate ground, considering the G.O.Ms.No.993, Labour & Employment Department dated 2.5.1983 (after the death of his father R.Gurusami, Attender, who died in harness and his family is in difficult circumstance). 31. Accordingly, to prevent the inoperation of justice this Court sets aside the order of the 3rd Respondent in his proceedings Rc.V6.2311/2000 dated 13.11.2000. It is also to be remembered that the Petitioner is not a night watchman and the reason mentioned for the post of night watchman is certainly not at all applicable to the Petitioner. Hence, on that count also the Order of the 3rd Respondent dated 13.11.2000 is clearly held as unsustainable in the eye of law by this Court. Consequently, placing reliance on the Order of the 3rd Respondent the Order of the the Order of the 4th Respondent in cancelling the fixation of time scale of pay with effect from 25.11.1994 as per the Order in Rc.A6/810/2000 dated 15.12.2000, the impugned Order of the 3rd Respondent in Rc.V6/49899/2003 dated 5.8.2003, the Order of the 4th Respondent in Rc.A1/3685/2003 dated 17.9.2003, and the Order of the 4th Respondent in Rc.A1/3685/2003 dated 30.9.2003 in ordering the recovery of a sum of Rs.75,336/- commencing from October 2003 from the salary of the Petitioner are all quashed. Further, the Respondents are directed to regularise the https://hcservices.ecourts.gov.in/hcservices/ Petitioner's service as Attender (MNO) with effect from 24.4.1984 and to determine the Petitioner's time scale of pay from 24.4.1984 and to grant him all monetary and other attendant benefits in the manner known to law. The Respondents are directed to complete this exercise within a period of 8 weeks from the date of receipt of copy of this order. 32. This writ petition is allowed on the above terms, leaving the parties to bear their own costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. gr. To 1. The Secretary, Rural Development Department, Fort St. George, Chennai 600 009. 2. The Director, Rural Development Department, Panagal Building, Saidapet, Chennai-600 015. 3.The District Collector, Ramnad District. 4.The Commissioner, Kadaladi Panchayat Union, Muthukulathur, Ramnad District. IN W.P.NO.33236 OF 2003 NG(CO) Eu 24.5.11 https://hcservices.ecourts.gov.in/hcservices/