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2009 Supreme(Mad) 3919
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. CHANDRU
D. Devagnanam Suresh Jayakumar
Versus
The Government of Tamilnadu represented by the Secretary to the Government & Others
W.P.No.36128 of 2006 (O.A.No.1882 of 1998)
Decided on: 30-09-2009
For the Petitioner:P. Mohanraj, Advocate.
For the Respondents: R. Neelakantan, GA.
The legality of recovery without prior notice and the circumstances under which relief against recovery is granted.
Headnote:
Certiorari - Employment Dispute - G.O.Ms.No.2258 Agriculture Department, Rule 5.3 - The court discussed the relaxation of educational qualifications for the post of Laboratory Assistant and the legality of recovery without prior notice. The court referred to the Supreme Court judgment in Syed Abdul Qadir v. State of Bihar to determine the legality of recovery without notice and the circumstances under which relief against recovery is granted.
Fact of the Case:
The petitioner, a Laboratory Assistant, sought a writ of certiorari to quash an order of recovery issued by the second respondent. The petitioner had received relaxation from the educational qualification prescribed under the adhoc rules for the post of Laboratory Assistant.
Finding of the Court:
The court set aside the impugned order solely on the ground of non-issuance of notice, allowing the writ petition. The respondents were given the option to issue appropriate notice before effecting recoveries.
Issues: The main issue was the legality of the recovery order issued without prior notice to the petitioner.
Ratio Decidendi: The court relied on the Supreme Court judgment in Syed Abdul Qadir v. State of Bihar to determine the legality of recovery without notice and the circumstances under which relief against recovery is granted.
Final Decision: The writ petition was allowed, and the impugned order was set aside on the ground of non-issuance of notice. The respondents were given the option to issue appropriate notice before effecting recoveries.
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.
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 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 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 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 110. 86, 9. 88 and 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 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 applicants plea that he has not been given any notice and he was also not furnished a copy of the G.O.Ms.No.39, Animal Husbandry & Fisheries Department, dated 22. 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. 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 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 11. 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 296. "
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. 56. Rule 5.3 reads as follows:
Rule 5 – By direct recruitment:
iii) A c
