IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.01.2010 CORAM: THE HONOURABLE MR. JUSTICE M. VENUGOPAL W.P.No.20943 of 2004 P.Rathnam .... Petitioner Vs. 1. The Government of Tamilnadu rep by its Secretary Department of Municipal Administration and Water Supply Fort St.George, Chennai-600 009 2. The Director of Town Panchayats Kuralagam Chennai-600 108 3. The District Collector Collectorate Compound Villupuram District 4. The Executive Officer Town Panchayat Thyagathuruvam-606 206 Kallakurichi Tk.Villupuram District ... respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of the writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr. S.R.Balasubramaniam For Respondents : Mr.N.Senthilkumar Addl.Govt.Pleader-RR1 to 3 Mr.R.Chandrasekaran-R4 O R D E R The petitioner has filed this writ petition praying for issuance of a writ of certiorarified mandamus, to call for the records of the Recovery Order of the fourth respondent in Roc .No.41/2004/A1 dated 31.5.2004 and to quash the same and further to direct the 4th https://hcservices.ecourts.gov.in/hcservices/ respondent to revise the scale of pay after regularising the service from the date of appointment on 19.3.1976 with all attendant service and monetary benefits with interest. 2. The case of the petitioner is that the petitioner was appointed in the Tamil Nadu Water Supply Board from 19.3.1976 to 31.10.1977 in the office at Thyagathuruvam and subsequently, he has been appointed as Electrician in the 4th respondent's Town Panchayat on 31.10.1977 on the basis of transfer cum appointment without break in service in the post sanctioned by the third respondent Collector. It is to be noted that the District Collector, South Arcot, Cuddalore-1 in his proceedings in Na.Ka.Pa.6.60414/82 dated 30.11.1982 sanctioned the post of Electrician Grade II and other posts to the fourth respondent/Town Panchayat and accorded permission for the appointment of suitable candidates to the said posts on a temporary basis for a period of one year. Accordingly, as per proceeding of the fourth respondent/The Executive Officer, Town Panchayat, Thyagathuruvam,Kallakurichi in Roc.No.A1/670/80 dated 8.7.1983, the petitioner was appointed as Electrician Grade II in fourth respondent/Town Panchayat Office from 19.3.1976 to 31.10.1977 F.N. in the scale of pay of Rs.295-5-315-10-475 on a temporary basis in the sanctioned post and he joined the office on 15.7.1983 F.N. 3. The stand of the petitioner is that from the date of his appointment as Electrician in the Tamil Nadu Water Supply Board from 19.3.1976 onwards since he was working continuously as Electrician in the fourth respondent and he made a request to the fourth respondent to regularise his service from the date of his appointment ie.. on 19.3.1976 and also requested the fourth respondent to fix the pay, but the same was not considered and to his dismay, without regularising his service and revising the pay scales by awarding selection grade ie,ten years after the date of appointment, the fourth respondent issued impugned order dated 31.5.2004 by revising his scale of pay from 1.4.1995 onwards by reducing the salary and issued an order of recovery of a sum of Rs.37,202/- which was to be recovered in 50 monthly equal instalments ie., 49th instalments at the rate of Rs.740/- p.m., and 50th instalment, a sum of Rs.942/- starting from the month of June, 2004 onwards. 4. Continuing further, it is the further stand of the petitioner that the pay certificate issued by the fourth respondent dated 3.5.2004 showing the present salary of Rs.6,721/- itself was not correct because the same was arrived at without taking into consideration of his initial service at Thygathuruam Water Supply Board from 19.3.1976 to 31.10.1977 and from 31.10.1977 to 8.7.1983 in the fourth respondent Board in a total period of seven years which he had put in service in the fourth respondent's office as an electrician continuously on daily wage basis which has been confirmed and accepted by the fourth respondent. https://hcservices.ecourts.gov.in/hcservices/ 5. The contention of the learned counsel for the petitioner is that the recovery order dated 31.5.2004 issued by the fourth respondent's Town Panchayat was issued without giving any notice or opportunity to the petitioner and the same was illegal because of the simple fact that any order affecting the monetary benefits pertaining to the individual is to be passed by following the principles of natural justice and in the instant case, the same was not followed and that vitiates the order simpliciter in the eye of law. 6. A perusal of the fourth respondent's proceeding in Roc.No.41/2004/A1 dated 31.5.2004 indicates that not only the petitioner's salary has been refixed but also the recovery of sum of Rs.37,202/- was ordered in 49 instalments and 50th instalment at the rate of Rs.740 and Rs.942/- per month respectively which was referred to earlier. 7. It is relevant for this Court to make a mention that the petitioner was permitted to retire from service on 31.7.2009 as per the proceeding of the fourth respondent's Executive Officer dated 31.7.2009 in Roc.No.A1/242/2009 and more over, he was directed to hand over the charge of his post to one Raju, Senior Junior Assistant of the said office and as per letter dated 1.8.2002 letter from the Assistant Director Local Fund Audit, Villupuram addressed to the Executive Officer,Town Panchayat,Thyagathuruvam/4th respondent, it is made mention of that the petitioner's post as Electrician Grade II was not sanctioned and when he was not regularised, then the award of Selection Grade was not proper and also that from 15.7.1984 no permission from the Government was obtained for sanction of the post of Electrician Grade II in fourth respondent's office and therefore, the grant of Selection Grade during the month of November 1997 was a wrong one and he should be paid salary only in ordinary grade and therefore, his salary was to be revised accordingly. 8. The stand of the fourth respondent/Town Panchayat is that the petitioner was working as Electrician Grade II in Thyagathuruvam Panchayat from 15.7.1983 on a temporary basis as per the Executive Officer's proceeding in Roc.No.A1/6760/80 dated 8.7.1983 and the post of Electrician Grade II was sanctioned on a temporary basis upto 14.7.1984 for a period of one year but the same was not sanctioned beyond 14.7.1984 till date and therefore, the service of the petitioner was not regularised and the same was being terminated and accordingly, the impugned order was passed by the Executive Officer of the Thyagathuruvam Town Panchayat in cancelling the selection grade awarded earlier and consequently recovery orders were passed in the absence of sanction of the post of Electrician Grade II and the service of the petitioner was not regularised . 9. Added further, notwithstanding the fact that though the petitioner was fully qualified to hold the post, he was not initially recruited through Employment Exchange or through Tamil Nadu Public https://hcservices.ecourts.gov.in/hcservices/ Service Commission properly and he was absorbed from the Office of Tamil Nadu Water Supply Board as an employee working at a daily wage and his appointment as Electrician was questioned by the Collector through his memo Roc. No.1797/87PG2 dated 6.6.1987 and the appointment of the petitioner was not confirmed and his services were not regularised. Moreover, the petitioner's daily wage service rendered in Tamil Nadu Water Supply Board was not at all taken into account as per the orders in force and he was in service of the fourth respondent from 15.7.1983 was only taken as entry into service and allowed the time scale of pay on that itself and as such from 19.3.1976 to 31.10.1977 and upto 14.7.1983 he was paid salary on daily wage basis only. 10. That apart, the petitioner was appointed as Grade II Electrician in the post sanctioned in Collector's proceeding in Roc.No.60414/82 dated 30.11.1982 and he was working in the above said post from the date of actual joining ie., 15.7.1983 and not from 19.3.1976 as stated by the petitioner. 11. The pith and substance of the plea taken by the fourth respondent is that since the service of the petitioner was purely on a temporary basis and not a regular one and since the post of Electrician Grade II in fourth respondent's office was not sanctioned beyond 14.7.1984 and also the petitioner, while in service stayed away from work without any intimation or leave application to the administration from 1.6.1988 and not turned up till 28.11.1991 for more than three years and he had not worked in the said post during the aforesaid period. 12. It is not in dispute that the petitioner was allowed to join duty by the erstwhile Executive Officer of the fourth respondent/Thyagathuruvam Town Panchayat as per proceeding dated 29.11.1991 and also the period from 1.6.1988 to 28.11.1991 was ordered to be treated as leave on loss of pay. 13. In the counter filed by the fourth respondent, it is specifically averred that the petitioner as per the entries made in the Service Register, he has rendered the service in the post of Grade II Electrician and not from the previous dates as stated by the petitioner and also that as per G.O.Ms.No.68 Personnel & Administrative Reforms Department dated 23.1.1986, the date of regularisation is only the criteria to count the service for 10 years on the particular post and to award selection grade and the connected monetary benefits and therefore, the recovery order passed by the Executive Officer was based on the connected orders in force and the objection raised on that is perfectly legal and maintainable. 14. The learned Additional Government Pleader appearing for respondents 1 to 3 submits that the petitioner's appointment itself at the initial period of one year and that too a temporary basis and https://hcservices.ecourts.gov.in/hcservices/ since he was not appointed through Employment Exchange or through the Tamil Nadu Public Service Commission, then the petitioner is not entitled to claim any relief as prayed for by him in the writ petition. 15. As far as the present case is concerned, it is to be noted that though the petitioner's appointment was initially for a period of one year on a temporary basis and though the time and again the audit has raised objections in regard to his post not being made sanctioned one yet the fact which floats on the surface of the present case is that the petitioner was allowed to work as Grade II Electrician in the fourth respondent's Office and also he was permitted to retire on 31.7.2009. 16.Interestingly, the fourth respondent/Thyagathuruvam Town Panchayat raises a plea that the objection in regard to the sanction of post of Electrician Grade II was raised from 8.4.1985 to 2000- 2001, the year by year till the year of completion of audit and the period of break in service of the petitioner which was more than six months or one year need to be ratified by the Government as per the Tamil Nadu Leave Rules 1933 Sub Rule 18, failing which his past service will have to be terminated etc. 17. Expatiating his submissions, the learned counsel for the petitioner brings it to the notice of this Court that in Kallakurichi Town Panchayat by means of G.O.Ms.No.431 Department of Municipal Administration and Water Supply dated 10.8.1998 in respect of the same employees, who have been handed over by the Tamil Nadu Water Supply Board, when the sanctioned posts have not been available from 1.4.1981 till 31.3.1997 for keeping them continuously, the ratification order has been issued in respect of three persons viz., 1)A.Kaliyanchetti,Fitter Grade II,2) M.Thavapillai, Electrician Grade II and 3)K.Nagamuthu, Watchman and they have been handed over from the Tamil Nadu Water Supply Board on 1.4.1977,1.4.1977 and 1.4.1978 respectively and in the present case on hand, the petitioner is similarly placed and therefore, the said Government Order applies in all force to the petitioner's case and accordingly, the same may be applied by this Court in the present case also. 18. Again, for the same three persons mentioned supra in respect of the period from 1.4.1998 to 31.12.2002, the sanction for keeping the post has been ratified and also from 1.1.2003 to 31.12.2003 for a period of one year, the same was extended and accordingly, G.O.Ms.No.197 Municipal Administration and Water Supply, dated 26.6.2003 has been issued in this regard and this Government Order also will come to the aid of the petitioner. 19. It transpires from the proceeding of the fourth respondent's Executive Officer in Roc.No.A1/242/2009 dated 31.7.2009 wherein the petitioner was permitted to retire from 31.7.2009 A.N on attainment https://hcservices.ecourts.gov.in/hcservices/ of superannuation in reference No.4 to the letter dated 15.6.1998, 10.5.2005 and 24.2.2009 which according to the learned counsel for the petitioner, the fourth respondent has recommended to the Government in regard to the sanction of the post of Electrician Grade II in respect of the petitioner retrospectively from 1984 onwards and also to regularise his service and fixed his pay subsequently other benefits which he is entitled to and in the retirement proceeding dated 31.7.2009 issued by the fourth respondent, there has been a reference to these letters cryptically. 20. Taking note of the fact that the petitioner has been appointed initially on 19.3.1976 and worked till 31.10.1977 in the Tamil Nadu Water Supply and later was appointed temporarily as per proceeding dated 8.7.1983 of the fourth respondent and also bearing in mind the fact that the petitioner has been permitted to retire on 31.7.2009, this Court is of the considered view that the petitioner has to be conferred with a permanent status of an employee and because of long and continued uninterrupted service and consequently, his pay has to be revised and the services have to be regularised by the appropriate authorities to meet the ends of justice as a deserving case. 21. Be that as it may, on a careful consideration of respective contentions, this Court is of the considered view that the recovery order of the fourth respondent in Roc.No.41/2004/A1 dated 31.5.2004 in revising the salary of the petitioner unilaterally without issuance of notice to the petitioner or calling any objection is certainly not valid in law especially when it affects the monetary benefits resulting in civil consequences and resultantly the order of recovery made to that effect is also not sustainable and the same is liable to be set aside and accordingly, the same is also quashed. 22. Since the petitioner has served as Electrician Grade II in the Tamil Nadu Water Supply Board from 19.3.1976 to 31.10.1977 in the office of fourth respondent and later he was appointed by transfer in fourth respondent Panchayat on 31.10.19777 to 8.7.1983 and taking note of the fact earlier that the post of Electrician Grade II was sanctioned by the South Arcot District Collector as per proceeding for a period of one year and later on the said post being not sanctioned for which the petitioner was not to be made an innocent victim on the basis that he was not in any way concerned with that or responsible for the precarious situation and certainly, this Court at this juncture is of the considered view that it is for the competent authority to get the post sanctioned within a reasonable time where the petitioner worked as Electrician Grade II as per the Rules and when the correspondence of the fourth respondent indicates that it has written to concerned authorities on 15.6.1998, 10.5.2005 and 24.2.2009 and also taking note of the fact that the petitioner in the meanwhile attained his superannuation and since he was permitted to retire on 31.7.2009 F.N.,he is legitimately entitled to be https://hcservices.ecourts.gov.in/hcservices/ regularised from the date of his appointment ie., from 19.3.1976 (though he worked in TWAD Board from 19.3.1976 to 31.10.1977 continuously and appointed by means of the proceedings of the Executive Officer of fourth respondent dated 8.7.1983 temporarily and his services admittedly have been utilised by the fourth respondent till his superannuation inspite of periodical audit objections) and consequently, he is entitled to get all monetary and other attendant benefits. However, it is made clear that the petitioner is not entitled to claim interest, though the petitioner has made a claim for interest in regard to the delayed payments, on the basis of the facts and circumstances of the case and also taking note of the fact earlier, the post of the petitioner as Electrician Grade II in the office of the fourth respondent was sanctioned only for a period of one year etc., this Court holds that the petitioner is not entitled to claim interest because of the peculiar facts and circumstances and accordingly, this Court negatives the plea of interest outrightly. 23. In the result, this writ petition is allowed and the order of recovery of the fourth respondent in Roc NO.41/2004/A1 dated 31.5.2004 is set aside. This Court taking note of the subsequent development viz., retirement of the petitioner on 31.7.2009 on the basis of Equity, Fairplay, Good Conscience and as an equitable relief, directs the first respondent to consider the petitioner's case sympathetically and to pass orders in revising the scale of pay of the petitioner and regularise his service from the date of appointment ie, 19.3.1976 and to confer all monetary and attendant benefits thereto, within a period of eight weeks from the date of receipt of a copy of this order. No costs. sg Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To 1. The Secretary The Government of Tamilnadu Department of Municipal Administration and Water Supply, Fort St.George, Chennai-600 009 2. The Director of Town Panchayats Kuralagam Chennai-600 108 https://hcservices.ecourts.gov.in/hcservices/ 3. The District Collector Collectorate Compound Villupuram District 4. The Executive Officer Town Panchayat Thyagathuruvam-606 206 Kallakurichi Tk.Villupuram District + 1 cc to Mr.S.R.Balasubramaniam, Advocate SR.3254 + 1 cc to M.R.Chandrasekaran, Advocate SR.3431 + 1 cc to Government Pleader SR.4023 W.P.No.20943/2004 PUR(CO) EU 1.02.2010. https://hcservices.ecourts.gov.in/hcservices/