1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.08.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.9302 of 2011 and M.P.(MD)No.1 of 2011 M.Manivannan ... Petitioner Vs. 1.The Principal Secretary cum Agricultural Commissioner, Department of Agriculture, St.George Fort, Chennai. 2.The Commissioner, Department of Horticulture, Chepak, Chennai - 5. 3.The Deputy Director, Department of Horticulture, Virudhunagar. ... Respondents Writ Petitions filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, calling for the entire records pertaining to the order issued by the 2nd respondent in se.mu.sa.pa.a.pa1/1099/2010, dated 29.04.2011 and quash the penultimate portion of the same and direct the respondent to settle the retirement benefits without deducting any amount by fixing a time frame by this Court. For Petitioners .. Mr.R.Ramasamy For Respondents .. Mr.S.Chandrasekar 1 to 3 Govt.Advocate O R D E R Seeking for a Certiorari Mandamus, to quash the order dated 29.04.2011 of the Commissioner, Department of Horticulture, Chennai, the 2nd respondent herein, directing recovery of Rs.50,000/-, from his retirement benefits, the petitioner has come forward with the present writ petition. 2.According to the petitioner, he joined the Department of Horticulture, on 24.09.1983. He joined M.Sc., Horticulture in Coimbatore Agriculture College in 1990 with the support of the Government. The Department took a bond from him stating that after completion of M.Sc., Horticulture, he should serve the department, till he attaines the age of superannuation. Gradually, he was promoted to the post of Assistant Director of Horticulture, Virudhunagar. On his request for voluntary retirement, he was relieved from service on 30.04.2011 and that he has still 8 years of remaining service. The Commissioner, Department of Horticulture, Chennai, the second respondent herein, relieved the petitioner on 29.04.2011, with a note that, as per G.O.No.22 Agriculture (T&V) Department, dated 20.01.1992, the petitioner has to serve upto the age of superannuation and that therefore directed deduction of Rs.50,000/- from the retirement benefits. https://hcservices.ecourts.gov.in/hcservices/ 2 3.Inviting the attention of this Court to the subsequent G.O.Ms.No.145, Personnel and Administrative Reforms (FR.IV), dated 14th March 1996, Mr.R.Ramasamy, learned counsel for the petitioner submitted that earlier, the employees, who intend to pursue higher education, were granted financial assistance, subject to the condition that they should serve till they attain the age of the superannuation. But, subsequently, the Government have issued orders to the effect that it is suffice to serve, thrice the period of study, if the higher studies is at the Government cost. He also submitted that an amendment has been issued an exercise of the powers conferred by the proviso to Article 309 r/w 313 of the Constitution of India, effected 22nd December, 1982 and that therefore, when the petitioner had rendered 17 years of service after completion of his M.Sc., Horticulture, i.e., between 1992 to 1994, the Commissioner, Department of Horticulture, Chennai, the second respondent herein, has erroneously ordered recovery, by applying the Government Order viz., G.O.Ms.No.22 Agriculture (T&V) Department, dated 20.01.1992, and by virtue of the latter order, the petitioner should have been allowed to retire, without any deduction. 4.Heard learned counsel appearing for the parties and perused the materials available on record. 5.Admittedly, the petitioner under went M.Sc., Horticulture, Course in Coimbatore Agricultural College, during the period between 1992-1994. Initially, as per G.O.Ms.No.363, Finance, dated 16.04.1999, orders have been issued that Deputation of Government servants for training abroad should be placed in three categories and bonds should be obtained, as indicated therein. Earlier, in Government Order in G.O.Ms.No.1368-A Finance (AII), dated 26.10.1974, orders have been issued regarding the procedures should be followed in forwarding the applications of the officers trained at the cost of Government, within India, and the period upto which they are bound to serve the Government, after the expiry of the training period. The above orders have been issued to dissuade the officers trained at the cost of the Government, from taking new job elsewhere, with a result that the expenses incurred by the Government in training the officers is of no use to Government, due to their resignation, after training. 6.Orders in U.O.Note No:27209/89-2/Personnel and Administrative Reforms (FT.III) dated 25.03.1982 and U.O.Note No.109583/FR.III/82-2 Personnel and Administrative Reforms, dated 22.12.1982 have been issued to the effect that, no one should be allowed to go for training/higher studies within India or abroad, unless they execute a bond to serve the Government till the date of their superannuation. Orders have also been issued by the various administrative departments that if they fail to serve the Government, till the date of their superannuation, after execution of bond, they should pay to Government a sum of Rs.50,000/-, as bond amount. 7.Being aggrieved by the rigid action, representations seemed to have made by the various Officers Associations like the Super Speciality Doctors Forum and Associations of Engineers, for reduction in the binding period (i.e., to work under the Government till superannuation) and the security amount. The said issue has been consulted with the learned Advocate General and orders have been issued in the Office Note, informing the Departments of Secretariat that execution of bonds may be dispensed with by https://hcservices.ecourts.gov.in/hcservices/ 3 Government Servants, who are deputed for Inservice Training, Seminars, Conference, Workshops and other Trainings/Studies within India, as they are fundamental in nature and their absence be treated as "duty". Subsequently, a point has arisen, as to whether the Government Servants in the Departments of Medicine, Engineering, Agriculture, Education, Animal Husbandry etc., who have undergone higher studies within India/abroad at Government costs or at their own coasts, as the case may be, need be exempted from obtaining such bonds. It was felt that, as they are selected for the training / higher study, by virtue of their position, as not Government servants, there was no need to exempt them from execution of bonds. 8.The matter has been examined by the Government and placed before the Secretaries Meeting and in consultation with Law and Finance to Evolve a uniform procedure, for obtaining a bond from the Government servants for pursuing various Trainings / Higher studies either at the cost of Government or at at their own costs, after careful consideration, directed that the procedure of obtaining bonds from the Government servants, was directed to be formulated. 9.In the above said circumstances, the Government have Issued G.O.Ms.No.40, Personnel and Administrative Reforms (FR II) Department, dated 22nd January 1999, to the effect that in case of higher studies, whether the period of absence is treated as duty / study leave other than earned leave without allowances, they must work for thrice a period of training or studies. 10.Subsequently, while considering the question for giving retrospective effect to the orders issued in G.O.Ms.No.40, Personnel and Administrative Reforms (FR.III), dated 22.01.1990, to the case of the Government Servants, who had undergone study, during the period from 22.12.1982 to 22.01.1990, to have the executed bonds binding themselves to serve the Government till the date of superannuation, and in default, to pay Rs.50,000/-, as per the instructions of the Government, was considered and the Government have issued orders in G.O.Ms.No.172, Personnel and Administrative Reforms (FR-III) Department, dated 6th March 1991, to give retrospective effect to the Government Order in G.O.Ms.No.40, Personnel and Administrative Reforms (FR.III), dated 22.01.1990 and accordingly, extended the benefit to those who had undergone the training during the period from 22.12.1982 to 22.01.1990, provided, they have to serve the period prescribed in para 4 of the Government Order in G.O.Ms.No.40, Personnel and Administrative Reforms (FR.III), dated 22.01.1990. 11.Lateron, when instances came to the notice of the Government that the above said orders were not followed while obtaining the bond from Government servants for prosecuting higher studies, Training etc., orders have been issued in Govt.Lr.No.101956/FR.III/91-1 Personnel and Administrative Reforms (FR.3) Department, dated 19.12.1991, to maintain uniformity and parity among the Government servants belonging to various Government departments and that the Departments were directed to follow the orders in G.O.Ms.No.40, Personnel and Administrative Reforms (FR.III), dated 22.01.1990 and G.O.Ms.No.172, Personnel and Administrative Reforms (FR-III) Department, dated 6th March 1991, scrupulously, without any deviation. https://hcservices.ecourts.gov.in/hcservices/ 4 12.Subsequently, the Government have issued G.O.Ms.No.22 Agriculture (T&V) Department, dated 20.01.1992 and in clause No.7 of the Government Order, reads as follows:- “7.The Director of agriculture is requested to get the bonds executed from the officers deputed prior to deputation. An undertaking should also be obtained from the officers to serve in the department till the date of their retirement after completion of studies, failing which the amount of Rs.50,000/- will be recovered.” 13. On the facts of this case, on the basis of Government Order in G.O.Ms.No.22 Agriculture (T&V) Department, dated 20.01.1992, the petitioner has been permitted to pursue his higher education in M.Sc., Horticulture, in Coimbatore Agricultural College. In 1996, Government have considered the issue again and in exercise of powers conferred by the proviso to Article 309 r/w 313 of the Constitution of India, issued G.O.Ms.No.145, Personnel and Administrative Reforms (FR.IV), dated 14th March 1996, has made an amendment to the fundamental rules and leave rules. The amendment has been directed to be given effect from 22nd December 1982. 14.In the fundamental rules, and in the Tamil Nadu State Rules, 1965 in Part-I of the Appendix 2, the amendment has been directed to be given effect from 22nd December 1982. The amendment reads as follows:- "PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT AMENDMENTS TO FUNDAMENTAL RULES AMENDMENT NO.1 OF 1996 (G.O.Ms.No.145, Personnel and Administrative Reforms (FR.IV) 14th March 1996) No.SRO B-107/96- In exercise of the powers conferred by the proviso to Article 309, read with Article 313 of the Constitution of India and all other powers hereunto enabling, the Government of Tamil Nadu hereby makes the following amendments to the Fundamental rules. 2. The amendments hereby made shall be deemed to have come into force on the 22nd December 1982. AMENDMENTS In the said Fundamental Rules,- (1) after Rule 11, the following Rule shall be inserted, namely:- "11-A. Government servants who are deputed for various kinds of training specified in column (2) of the Table below shall execute a bond to serve the Government for the period specified in column (3) and the penalty for breach of the conditions of the bond shall be as specified in column (4) thereof:- https://hcservices.ecourts.gov.in/hcservices/ 5 TABLE S.NO KINDS OF TRAINING PERIOD OF BOND PENALTY 1 Training prescribed as a condition for satisfactory completion of probation 5 years The Government servant shall pay the pay and allowances for the training period and expenditure on training incurred by Government, if any 2. Inservice training or specialised training within India for a period of more than six months at the Government cost. Thrice the period of training The Government servant shall pay the pay and allowances for the period of bond and expenditure on training incurred by Government, if any. 3. Inservice training or specialised training for a period of more than six months within India at his own cost. Twice the period of training -do- 4. Seminars, Conferences, Workshops, Refresher Courses, Inservice training, Specialised Training outside India at Government Costs for - (i) more than 30 days but upto 180 days (ii) more than 180 days Seminars, Conferences, Workshops, Refreshers Courses, Inservice Training, Specialised Training outside India at own cost for - (i) more than 30 days but upto ISO days (ii) more than 180 days Two years Four times of the period One year Twice the period subject to a minimum of two years. The Government servant shall pay the pay and allowances for the period of bond and the expenditure on training incurred if any, by Government. https://hcservices.ecourts.gov.in/hcservices/ 6 Explanation - It any Government servant who has executed a bond to serve the Government for a stipulated period wants to leave Government service in the middle of the binding period on voluntary retirement or on resignation he should remit the Government the bond amount, equivalent to the balance period he is required to serve the Government."; 2.In the Tamil Nadu study Leave Rules, 1965, in Part-I of Appendix-II (i) in rule 17, after sub-rule (2), the following sub-rule shall be added, namely:- (3) Government Servant who are availaing study leave other than extraordinary leave without allowance of the Government servants who are absent and the absence is treated as duty for higher studies specified in column (2) of the Table below shall execute a bond to serve the Government for the period specified in column (3) and the penalty breach of the conditions of the bond shall be as specified in column (4) thereof:- TABLE S.NO KINDS OF STUDIES PERIOD OF BOND PENALTY 1 2. 3. 4. Higher Studies at Government cost within India. Higher studies at own cost within India Higher studies outside India at Government cost for - i) more than 30 days but upto 180 days ii) more than 180 days Higher studies outside India at own cost for i) more than 30 days but upto 180 days ii) more than 180 days Thrice the period of study Twice the period of study Two years Four times of the period of study Two years Twice the period of study subject to a minimum of two years The Government servant shall pay the pay and allowances for the period of bond any expenditure on higher studies incurred by Government, if any. https://hcservices.ecourts.gov.in/hcservices/ 7 Explanation - If any Government servant who has executed a bond to serve the Government for a stipulated period wants to leave Government service in the middle of the binding period on voluntary retirement or on resignation he should remit the Government the bond amount, equivalent to the balance period he is required to serve the Government." ii) in FORM-A and FORM-A1 for the clause starting with the words " Now the condition" and ending with the words " Government Loan", the following clause shall be substituted, namely:- "Now the conditions of the above written obligation is that in the event of my resignation or voluntary retirement from service without returning to duty after the expiry or termination of the period of study leave or in the middle of the binding period, 'I shall forthwith pay to the Government or, as the case may be, directed by the Government, on demand the said sum of Rs. together with interest thereon from the date of demand at the Government rates for the time being in force on Government loan." 15.There is no quarrel that after completion of higher education in 1994, the petitioner has worked in the department for more than 17 years, till he was relieved from service on 30.04.2011, on voluntary retirement. When the amendment is directed to be given retrospective effect, and when the petitioner has completed thrice the period of study, the Commissioner, Department of Horticulture, Chennai, the second respondent herein, ought to have considered the latter Government Order in G.O.Ms.No.145, Personnel and Administrative Reforms (FR.IV), dated 14th March 1996, instead of G.O.No.22 Agriculture (T&V) Department, dated 20.01.1992. There cannot be two classes of servants, who have to serve, till they attain the age of superannuation, and the other to serve, only for thrice the period of study, after acquiring higher qualification, at the cost of Government. That would amount discrimination, violating Art.14 of the Constitution of India. It could also be gathered from the earlier Government Order, G.O.Ms.No.40, Personnel and Administrative Reforms (FR II) Department, dated 22nd January 1999, the Government have granted retrospective effect and extended the benefit to those who had undergone the training period during the period between 22.12.1982 to 22.01.1990 provided they had served the period prescribed in G.O.Ms.No.40. As long as the Government servant, who had availed study leave and pursued higher education, at the cost of the Government, had served thrice the period of study, there is no difference between retirement on attaining the age of superannuation or voluntary retirement. The purpose insisting the Government servant to execute a bond, is only to ensure that the higher education obtained by such Government servants, should be utilized for effective functioning and also to dissuade such officers trained/undergone higher study, at the cost of Government, from taking up new jobs elsewhere. In the result, that the expenses incurred by the Government either for training or pursuing higher education in India or abroad should not be misused, to the advantage of the Government servant. 16.As stated, when the petitioner had continuously worked in the Department for 17 years, after completion of his higher education from 1994 till 31.04.2011, till he was relieved on voluntary retirement, it cannot be said that, he had breached the norms and conditions prescribed in the G.O. or not adhered to the conditions of the bond, executed by him. Having https://hcservices.ecourts.gov.in/hcservices/ 8 allowed the petitioner to get himself relieved from service, on voluntary retirement, after such a long number of service, which is more than thrice the period of study, recovery, by taking into account on earlier G.O., in the opinion of this Court, is unwarranted and hence, liable to be set aside. 17. In the result, the Writ Petition is allowed and the impugned order of recovery, dated 29.04.2011, passed by the Commissioner, Department of Horticulture, Chennai, the second respondent herein, is set aside . Consequently, a direction is issued to the respondents 1 and 2, to settle the retirement retirement benefits, due and payable to the petitioner, without deducting any amount, within a period of three months, from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar (AS) /True copy/ Sub Assistant Registrar(C.S) To 1.The Principal Secretary cum Agricultural Commissioner, Department of Agriculture, St.George Fort, Chennai. 2.The Commissioner, Department of Horticulture, Chepak, Chennai - 5. 3.The Deputy Director, Department of Horticulture, Virudhunagar. MPK W.P.(MD)No.9302 of 2011 and MP(MD)No.1 of 2011 24.08.2011 TR : 28.09.2011: 8p/4c https://hcservices.ecourts.gov.in/hcservices/