IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.36128 OF 2006 (O.A.NO.1882 OF 1998) D.Devagnanam Suresh Jayakumar ..Petitioner Vs. 1.The Government of Tamilnadu represented by the Secretary to the Government, Animal Husbandry and Fisheries Department, Fort St. George, Chennai-9. 2.The Director of Animal Husbandry, Chennai-600 006. 3.The Assistant Director of Animal Husbandry, Animal Husbandry, Animal Disease and Intelligence Unit, Uthagamandalam, The Nilgiris District ..Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records relating to the impugned order of the second respondent in Na.Ka.72759/EE 2/95-2, dated 6.11.1997 and to quash the same insofar as the applicant is concerned. For Petitioner : Mr.P.Mohanraj For Respondents : Mr.R.Neelakantan, GA ORDER Heard both sides. 2.This writ petition arose out of O.A.No.1882 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.36128 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner sought for the issuance of a writ of certiorari to call for the records relating to the impugned order of the second respondent in Na.Ka.72759/EE 2/95-2, dated 6.11.1997 and to quash the same insofar as the applicant is concerned. 4.The petitioner who was working as a Laboratory Assistant moved the Tribunal aggrieved by the order of recovery, dated 6.11.1997 issued by the second respondent. Pending the OA, the Tribunal granted an interim order forestalling the recovery as it had not been preceded with any prior notice. Though the respondents filed MA No.6200/98 for vacating the interim order, the same was not taken up by the Tribunal for reason best known to it. Thereafter, the first respondent has filed a reply affidavit, dated 3.8.98. In paragraph Nos.7 and 10, the following averments have been made: "7....It is also submitted that on receipt of the representation from the individuals, the second respondent has sent necessary proposals to Government in his Office letter Roc No.110037/E3/86, dated 13.10.86, 8.9.88 and 2.11.88, to reappoint Thiru Gunasekaran, Tmt. Laskshmi and Tmt.Franklin Chandra as Laboratory Assistants in relaxation of qualifications prescribed in the adhoc rules for the post of Laboratory Assistants including nine other Laboratory Assistants, who do not possess the qualification of certificate of certified Laboratory Assistant and Government in their letter No.66296/AH6/88- 5, Animal Husbandry and Fisheries Department, dated 2.1.89, have permitted all 12 Laboratory Assistants (including the applicants in the above Original Application) be continued in service subject to the condition that the qualification obtained by him in a private institution can be considered as equivalent to that of the qualification prescribed in the rules even though it is not recognised. It is submitted that the Government have ordered to take necessary disciplinary action against the Officers concerned, who had made irregular appointment and action has also been initiated against the Officers, who had made irregular appointment and punishments awarded to them as per rules. 10....it is submitted that the applicant's plea that he has not been given https://hcservices.ecourts.gov.in/hcservices/ any notice and he was also not furnished a copy of the G.O.Ms.No.39, Animal Husbandry & Fisheries Department, dated 28.2.96 is not correct. The applicant is also aware of the fact that his appointment as Laboratory Assistant is irregular well in advance as he has been instructed by the third respondent, Assistant Director of Animal Husbandry, Animal Disease & Intelligence Unit, Ooty, in his memo Roc No.152/B/93, dated 2.2.93 to furnish his certificates and he has also acknowledged the contents in the letter itself. Based on the instruction of the second respondent in his memo Roc.No.72759/EE2/95-2 dated 6.11.97, the third respondent, Assistant Director of Animal Husbandry, Animal Disease & Intelligence Unit, Ooty, has issued orders to the applicants refixing his scale of pay from the date of their entry into service in his memo Roc.No.1263/B/94, dated 13.1.98 and the third respondent has not at all issued any recovery orders to the applicant so far, as the above applicant have already been granted with usual annual increments every year from the date of appointment to January, 1998, event after the receipt of the G.O.Ms.No.39, Animal Husbandry & Fisheries Department, dated 28.2.96." 5.In the present case, it is an admitted case that the petitioner got relaxation from having the educational qualification prescribed under the adhoc rules framed for the post of Laboratory Assistant issued in G.O.Ms.No.2258 Agriculture Department, dated 19.9.56. Rule 5.3 reads as follows: Rule 5 – By direct recruitment: iii)A certificate of certified Laboratory Technician provided that if a candidate with the certificate of certified Laboratory Technicians is not available, a candidate with the certificate of certified Laboratory Attendants may be appointed but he shall pass the certified Laboratory Technicians Course within a period of probation." 6.The petitioner got training in an unrecognised institution, i.e Cochin School of Paramedicals. It is only due to the efforts taken by the second respondent, the petitioner got necessary relaxation. He cannot feign ignorance about the https://hcservices.ecourts.gov.in/hcservices/ very order which gave the relaxation to continue in the post. 7.However, it is an admitted fact that before issuing the impugned order, no notice was given. The Supreme Court vide its judgment in Syed Abdul Qadir v. State of Bihar reported in 2009 3 SCC 475 considered the question of recovery from the pay of Government servants being done without notice as illegal. However, the in the same judgment, it was stated that if the recovery was made within a short period, the court can decline to grant the relief in such cases. In the present case, the petitioner had by getting stay against recovery had forestalled the action taken by the respondents. In this context, it is necessary to refer to the following passage found in paragraph 57 and 58 from the said judgment in Syed Abdul Qadir's case, which is as follows: 57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram v. State of Haryana, Shyam Babu Verma v. Union of India, Union of India v. M. Bhaskar, V. Gangaram v. Director, Col. B.J. Akkara (Retd.) v. Govt. of India, Purshottam Lal Das v. State of Bihar, Punjab National Bank v. Manjeet Singh and Bihar SEB v. Bijay Bhadur. (Emphasis added) https://hcservices.ecourts.gov.in/hcservices/ 8.Therefore, in the light of the above, the impugned order stands set aside only on the ground of non issuance of notice. The writ petition is allowed to the extent indicated above. However, it is open to the respondents to issue appropriate notice before effecting such recoveries. No costs. vvk Sd/- Asst. Registrar /True Copy/ Sub Asst.Registrar To 1.The Secretary to the Government, The Government of Tamilnadu Animal Husbandry and Fisheries Department, Fort St. George, Chennai-9. 2.The Director of Animal Husbandry, Chennai-600 006. 3.The Assistant Director of Animal Husbandry, Animal Husbandry, Animal Disease and Intelligence Unit, Uthagamandalam, The Nilgiris District. +1 cc to Mr. P. Rajendran, Advocate, SR.No.49826. PRE DELIVERY ORDER IN W.P.NO.36128 OF 2006 PA (CO) AR/8.10.2009. https://hcservices.ecourts.gov.in/hcservices/