Madras High Court
K.Subramaniam vs The State Of Tamil Nadu on 24 March, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.1399 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.03.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.1399 of 2024
K.Subramaniam ... Appellant
Vs.
1.The State of Tamil Nadu,
Represented by its Secretary,
Health and Family Welfare Department,
Secretariat, Chennai.
2.The Director of Pubic Health and Preventive
Medicine,
Chennai-6.
3.The Deputy Director of Health Services,
Dindigul District. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.8470 of 2020, dated 06.01.2023.
For Appellants :Mr.V.Panner Selvam
For Respondents :Mr.M.Sarangan
Additional Government Pleader
***
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1/11
W.A.(MD)No.1399 of 2024
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The present writ appeal is preferred against the order, dated 06.01.2023,
passed in W.P.(MD)No.8470 of 2020.
2.The writ petition was filed for issuance of a Writ of Certiorarified
Mandamus, to quash the order, dated 17.04.2020 and to direct the respondents to
sanction yearly increments and selection grade in the cadre of Technical Personal
Assistant Grade I with all consequential benefits and also to refund the recovered
amount of Rs.51,234/- to the petitioner in the light of the order made in W.A.
(MD)No.149 of 2019, dated 06.02.2019.
3.The brief facts as stated in the writ petition are that the writ petitioner
was appointed as Health Inspector in the year 1967 and he was awarded selection
grade in the year 1977 and special grade in the year 1987. Thereafter, he was
promoted as Block Health Supervisor in the year 1996. Thereafter, by transfer of
service, he was appointed as Technical Personal Assistant Grade I in the year
1999 and his pay was fixed in the post of Technical Personal Assistant Grade I
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with effect from 01.10.1999. Thereafter, he retired from service on 30.04.2005.
While disbursing the terminal benefits, the accounts department raised an
objection that the writ petitioner had not passed the account test for Executive
Officer and deducted Rs.51,234/-. In the meanwhile, one other similar person
namely C.Thangappan had filed W.P.(MD)No.6234 of 2008 for the same relief
and the same was allowed. Against the order the department filed appeal in W.A.
(MD)No.149 of 2019 and the same was dismissed. Based on the said order the
present writ petitioner had submitted a representation dated 19.09.2019 to grant
yearly increments and selection grade in the cadre of Technical Personal Assistant
Grade I and also to refund the amount. The contention of the petitioner is that the
promotion to the executive post does not require any departmental test. Since the
representation was not considered, W.P.(MD)No.1498 of 2020 was filed and this
Court disposed the case by directing the respondents to consider and pass orders.
Therefore, the order, dated 17.04.2020, was passed which is impugned in the
present writ petition in W.P.(MD)No.8470 of 2020.
4. After considering the rival submissions, the Writ Court has held that
the writ petitioner retired from service on 30.04.2005. At the time of retirement,
the amount Rs.51,234/- was deducted. After two decades, the writ petitioner has
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come up with the representations seeking to refund. Admittedly, the writ
petitioner did not possess the account test in the post of Executive Officer hence,
he is not entitled to increment. Even though the petitioner submitted that he had
submitted a representation as early as 2005, no proof was submitted that he had
submitted such application. On these two grounds the Writ Court dismissed the
petition. Aggrieved over the same, the present writ appeal is filed by the writ
petitioner.
5. The contention of the appellant / writ petitioner is that it is not
necessary to possess the account test to the post of Executive Officer. Further,
submitted that the passing of account test is already relaxed for several persons
and the same issue was considered in several writ petitions and the writ petitions
were allowed. One such petition is filed by one C.Thangappan in W.P.(MD)No.
6234 of 2008 for the same relief and the said writ petition was allowed. Against
the order the department filed appeal in W.A.(MD)No.149 of 2019 and the same
was dismissed. Hence, the writ petitioner claims he is entitled to relaxation and
also refund of Rs.51,234/-.
6. On the other hand, the Learned Additional Government Pleader
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submitted that the account test is compulsory as per Adhoc Rules issued in
G.O.Ms.No.1883, Health Indian Medicine and Homeopathy and Family Welfare
Department, dated 26.09.1988. The relevant portion is extracted hereunder:
“Rule.6 Test.- Every person appointed to the posts shall pass
the account test for Executive Officers within a period of two years from
the date of appointment, failing which his second and subsequent
increment shall be stopped without cumulative effect till he passes the
said test.”
Hence the Learned Additional Government Pleader submitted that the contention
of the appellant that he need not possess account test is erroneous and such claim
is against the Adhoc rules.
7. On perusing the Adhoc rules it is clearly stated that the Executive
Officer shall possess account test. Further it is stated that the candidate shall pass
within a period of two years from the date of appointment. The petitioner was
appointed on 15.05.1999 and he has to pass the test within a period of 14.05.2001.
But the petitioner has not passed the said test within the said two years. And
retired from service on 30.04.2005. As per the said rule the consequence would be
that the petitioner is entitled to first increment but would not be entitled to second
and subsequent increments without cumulative effect.
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8. However, it is brought to the knowledge of this Court that the
relaxation can be granted from pass in the departmental test. In G.O.Ms.No.1120,
Personnel and Administrative Reforms Department, dated 30.10.1984, it is stated
as under:
“rpwg;G kw;Wk; Jiwj; Njh;Tfspy; xU xuR mYtyh;
Njh;r;rp ngWtjpypUe;J tpyf;F mspf;f mth; nghUl;L tpjpfis
jsh;j;j fPo;f;fz;l epge;jidfis mth; G+h;j;jp nra;a Ntz;Lk;.
1.rk;ke;jg;gl;l muR mYtyh; 53 tajpw;Ff;
Fiwahjtuhf ,Uf;f Ntz;Lk;.
2.mth; Njh;Tfspy; Njh;r;rp ngw Fiwe;jJ Ie;J
jlitfshtJ Kaw;rp nra;jpUf;f Ntz;Lk;. ,jw;F
mj;jhl;rpahf gzpg;gjpNtl;by; (Service Register) tpguk; ,Uf;f
Ntz;Lk.; my;yJ ,J Fwpj;J EioTr;rPl;Lfis (Hall Tickets)
itj;J rk;ke;jg;gl;l mYtyh; mDg;g Ntz;Lk;.
3.mth; ,e;j rYifia milaj;jf;f mstpw;F
mtUila gzpf;Fwpg;Gfs; kdepiwT mspg;gjhf ,Uf;f Ntz;Lk;.
3)NkNy gj;jp 2-y; Fwpg;gpl;Ls;s epge;jidfis rpwg;G
kw;Wk; Jiwj; Njh;TfspypUe;J tpjptpyf;F mspf;f tpjpfis
jsh;j;jf; NfhUk; Nfhhpf;iffis ghpe;Jiu nra;Ak; NghJ
fUj;jpw;nfhs;SkhW midj;J nrayfj; Jiwfs; kw;Wk; Jiwj;
jiyikfis Nfl;Lf; nfhs;sg;gLfpwJ.”
However, for granting exemptions from passing the departmental test, conditions
are prescribed. The employee ought to have attained 53 years of age and above
and he should have attempted to write the departmental exams at least 5 times for
which he should produce evidence like service register or hall tickets. Further, his
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service to the department should be unblemished. The concerned authority while
recommending the case for exemptions should clearly indicate the above three
factors.
9. The learned Additional Government Pleader vehemently opposed for
invoking the above G.O.Ms.No.1120. The contention of the AGP is that the
G.O.Ms.No.1883, Health Indian Medicine and Homeopathy and Family Welfare
Department, dated 26.09.1988, is Special Rules. Whereas G.O.Ms.No.1120,
Personnel and Administrative Reforms Department, dated 30.10.1984, is a
General Rule. On the principle of “Special Rule would prevail over the General
Rule”, the G.O.Ms.No.1883 prescribing qualifications would prevail over the
relaxation granted under G.O.Ms.No.1120. The contention of AGP is incorrect,
since prescription of qualification is general rule and any relaxation is special
rule. Therefore, the G.O.Ms.No.1883 prescribing qualifications is general rule and
prescribing relaxation in G.O.Ms.No.1120 is special rule.
10. But it is seen to grant such relaxation there are certain conditions.
The writ petitioner would be 52 years at the time of promotion in the year 1999
and at the age of 58 had retired from service in 2005. Then the writ petitioner
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would be 53 years of age in the year 2000. And the petitioner ought to have
completed the account test within a period of two years i.e. within 2001. From the
above facts it is evident the petitioner is possessing the first condition stated in the
said G.O.Ms.No.1120.
11. The next condition is that the petitioner ought to have attempted to
write the exams for five times. It is not the case of the petitioner that he attempted
to write the test for five times. But it is the case of the writ petitioner / appellant
that he need not write the said test at all. From this it is evident that the petitioner
had not attempted to write the test at all. Hence the petitioner had not attempted to
write the test for five times, thereby the petitioner is not fulfilling the second
condition.
12. The next condition is that the candidate seeking such exemption
ought to have unblemished record of service. Prima facie it is seen there is no
disciplinary proceedings against the petitioner. But the service record of the
petitioner was not produced to ascertain the said fact, hence the said condition is
left open.
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13. From the above discussion, it is seen that the petitioner / appellant
has not complied with the second condition of “attempted to write the exams for
five times”, therefore this Court is of the considered opinion that the petitioner /
appellant is not entitled to relaxation from writing the test. Consequently, the
petitioner is not entitled to second increment and subsequently increments in the
post of Technical Personal Assistant Grade I.
14. On merits this Court has held the petitioner / appellant is not
entitled to second increment and subsequently increments. On delay also the
petitioner is not entitled to the relief. In the present case the petitioner / appellant
had retired on 30.04.2005 and the petitioner had submitted representation on
19.09.2019, nearly after 14 years. Such belated claims cannot be entertained and
the same is hit by the principles of delay and latches.
15. It is pertinent to record that frequently the retired employees are
filing cases and seeking relief after lapse of so many years and such stale claims
cannot be entertained as held by a Division Bench in the order dated 09.12.2015
passed in W.A. (MD) No. 312 of 2011.
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16. For the reasons stated supra, the writ appeal is dismissed and the
order passed by the Writ Court is confirmed. No costs.
[J.N.B., J.] [S.S.Y., J.]
24.03.2025
Index : Yes / No
Tmg
To:
1.The Secretary,
Health and Family Welfare Department,
Secretariat, Chennai.
2.The Director of Pubic Health and Preventive Medicine,
Chennai-6.
3.The Deputy Director of Health Services,
Dindigul District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
24.03.2025
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