Madras High Court
R.Gandhi vs Government Of Tamilnadu on 4 September, 2023
WP.No.27785 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 04.09.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.27785 of 2016
and
WMP.Nos.23970& 23971 of 2016 and 14781/2017
R.Gandhi ... Petitioner
Versus
1.Government of Tamilnadu
Represented by Agricultural Production
Commissioner and Secretary to Government,
Agriculture(OS) Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture,
Chepauk, Chennai – 600 005.
3.The Production Officer,
Agricultural Extension Wing,
Office of the Commissioner of Agriculture,
Chepauk, Chennai – 600 005.
4.The Accounts Officer / Pension 7,
Office of the Accountant General (A & E),
Tamilnadu, Chennai – 600 018. ... Respondents
1
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WP.No.27785 of 2016
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of Certiorarified Mandamus, calling for
the records relating to the orders in (1) Government letter
No.29112/OS/2014-8, Agriculture (OS) Department, dated 16.09.2015 of
the first respondent and (2) Lr.No.Pen.7/II/10714001/Retd/15-16/361, dated
09.12.2015 of the 4th respondent and Pro.Na.Ka.No.53346/A2/2015/Ve.Vi-
P, dated 26.07.2016 and Na.Ka.No.53346/A2/2015/Ve.Vi-P, dated
27.07.2016 of the second respondent and to quash the same and to issue
consequential directions to the respondents to restore the Selection Grade of
the Petitioner as Assistant from 14.02.2006 and desist from recovering any
amount from his DCRG and further direct the respondents to grant forthwith
all retirement and pensionary benefits to the petitioner and disburse all
arrears with interest within a time frame.
For Petitioner : Mr.M.Ravi
For RR 1 to 3 : Mr.U.Baranidharan, AGP
For R4 : M/s.Hema Murali Krishna
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records relating to the orders of the 1st respondent
dated 16.09.2015 and of the 4th respondent dated 26.07.2016 and of
the 2nd respondent dated 27.07.2016 and to quash the same and to
direct the respondents to restore the selection grade of the petitioner
as Assistant from 14.02.2006 and to quash the order directing
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WP.No.27785 of 2016
recovery of amount from DCRG amount of the petitioner herein. The
petitioner also seeks grant of all retirement and pensionary benefits to
the petitioner along with arrears.
(2) The petitioner had joined the service on 22.05.2005 in the Tamil
Nadu Cooperative Oil Seeds Growers Federation Limited
[TANCOF]. The petitioner was then absorbed in the Agricultural
Extension Wing of the Department of Agriculture from 01.04.2002.
He had been earlier promoted as Assistant on 14.02.1996 in
TANCOF and had been granted Selection Grade from 13.02.2006
with effect from 14.02.2006 by proceedings dated 20.03.2007. He
was drawing Selection Grade of Pay till 30.09.2015 when he retired
from service on attaining the age of superannuation. Thereafter, the
respondents had forwarded the pension proposals to the Accountant
General [A&E], Tamil Nadu, by a letter dated 05.10.2015. It was
returned and the correspondences were going to and fro for sanction
of pension. Finally, the Impugned Order came to be passed claiming
that the petitioner was not entitled for Selection Grade pay and that
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WP.No.27785 of 2016
therefore, having been granted Selection Grade of pay with effect
from 14.02.2006, the excess pay paid to him should be recovered.
The pensionary benefits of the petitioner had also not been released.
Questioning these orders passed, the writ petitioner had filed the
present writ petition.
(3) The learned counsel for the petitioner placed very strong reliance on
the judgment of the Hon'ble Supreme Court reported in 2015 [4] SCC
334 [State of Punjab Vs. Rafiq Masiah [White Washer case]], which
had been quite often used whenever there is recovery of amounts
already drawn by a public servant. The Hon'ble Supreme Court had
examined various categories of such recovery and had laid emphasis
on the fact that the recovery should normally be within a period of
five years. It was also stated that if it is after more than five years and
if the same had accumulated, then such recovery would be iniquitous
and would place a burden on the public servant.
(4) It was also held that recovery should not be normally resorted after
five years after the date of retirement of the public servant unless it is
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WP.No.27785 of 2016
being glaringly found that owing to misrepresentations given by the
Government servant, excess pay had been drawn by him. In the
instant case, records are clear. The petitioner had not misrepresented
seeking grant of Selection Grade, but, rather Selection Grade had
been granted by the respondents themselves by proceedings in
Rc.AEW/Estt/240/A1/2006 dated 30.03.2007 passed by the
Production Officer, Agricultural Extension Wing, Department of
Agriculture, Chennai. Therefore, consciously Selection Grade pay
was granted to the petitioner herein. The relevant portions of the
above cited judgment of the Hon'ble Supreme Court are as follows:-
''15...The apparent explanation for the aforesaid
conclusion is, that the employees in lower rung of
service would spend their entire earnings in the upkeep
and welfare of their family, and if such excess payment
is allowed to be recovered from them, it would cause
them far more hardship, than the reciprocal gains to
the employer. We are therefore satisfied in concluding,
that such recovery from employees belonging to the
lower rungs (i.e. Class III and Class IV—sometimes
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WP.No.27785 of 2016
denoted as Group C and Group D) of service, should
not be subjected to the ordeal of any recovery, even
though they were beneficiaries of receiving higher
emoluments, than were due to them. Such recovery
would be iniquitous and arbitrary and therefore would
also breach the mandate contained in Article 14 of the
Constitution of India.
.....
18.It is not possible to postulate all situations of
hardship which would govern employees on the issue of
recovery, where payments have mistakenly been made
by the employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
hereinabove, we may, as a ready reference, summarise
the following few situations, wherein recoveries by the
employers, would be impermissible in law:
(i)Recovery from the employees belonging to
Class III and Class IV service (or Group C and Group
D service).
(ii)Recovery from the retired employees, or the
employees who are due to retire within one year, of the
order of recovery.
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WP.No.27785 of 2016
(iii)Recovery from the employees, when the
excess payment has been made for a period in excess of
five years, before the order of recovery is issued.
(iv)Recovery in cases where an employee has
wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to work
against an inferior post.
(v)In any other case, where the court arrives at
the conclusion, that recovery if made from the
employee, would be iniquitous or harsh or arbitrary to
such an extent, as would far outweigh the equitable
balance of the employer's right to recover.''
(5) Heard the learned Additional Government Pleader appearing for the
respondents 1 to 3 and the learned Standing counsel appearing for the
4th respondent.
(6) The learned Additional Government Pleader raised his objections and
stated that since grant of Selection Grade was not proper, there should
be recovery and the period of delay of more than 10 years should not
come in the way of recovery being effected from DCRG of the
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WP.No.27785 of 2016
petitioner herein. However, the judgment of the Hon'ble Supreme
Court is binding on this Court. As stated above, it had been very
clearly held that if recovery is iniquitous and more particularly if it is
resorted to after a period of five years, then Courts can interfere with
it. The judgment also has specific reference to Class III and IV
employees and the petitioner who is Assistant, would normally be
categorised as Class III employee. The ratio laid therein therefore,
would enure to the petitioner herein.
(7) The writ petition stands allowed and the Impugned Orders passed by
the respondents 1, 4 and 2 dated 16.09.2015, 09.12.2015, 26.07.2016
and 27.07.2016 respectively are quashed. The retirement benefits to
be issued to the petitioner by the respondents. Such proceedings to
be issued within a period of twelve weeks from the date of receipt of
a copy of this order.
(8) I would leave the issue of Special Grade open and the respondents
may examine whether the petitioner is entitled for Special Grade of
pay during his service and pass necessary proceedings in that regard.
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WP.No.27785 of 2016
No costs. Consequently, connected miscellaneous petitions are
closed.
04.09.2023
AP
Internet : Yes
To
1.The Agricultural Production Commissioner
and Secretary to Government,
Government of Tamilnadu,
Agriculture(OS) Department,
Secretariat, Chennai – 600 009.
2.The Commissioner of Agriculture,
Chepauk, Chennai – 600 005.
3.The Production Officer,
Agricultural Extension Wing,
Office of the Commissioner of Agriculture,
Chepauk, Chennai – 600 005.
4.The Accounts Officer / Pension 7,
Office of the Accountant General (A & E),
Tamilnadu, Chennai – 600 018.
https://www.mhc.tn.gov.in/judis
WP.No.27785 of 2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.27785 of 2016
04.09.2023
https://www.mhc.tn.gov.in/judis
