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2011 Supreme(Mad) 3945
High Court of Judicature at Madras
K. CHANDRU
K. Gnanamoorthy
Versus
The Secretary to Government Micro, Small and Medium Enterprises (E1-2) Department & Others
W.P.No.21582 of 2009
Decided on : 15-09-2011
For the Petitioner:R. Muthukkannu, Advocate.
For the Respondents:R.M. Muthukumar, Government Advocate.
The court emphasized the necessity of following the rules for regular appointment and the employer's right to recover excess payments under certain conditions.
Headnote:
Regularisation - Government Service - Rule 26A(vii) of the Fundamental Rules - G.O.(4D) No.56, Small Industries Department - Rule 3, Rule 4, and Rule 22(aa) of the Ad hoc Rules - Recovery of Excess Payments
Fact of the Case:
The petitioner sought to challenge the rejection of his request for regularisation of services as a Junior Engineer (Industries) from 13.8.1986 by the State Government. The State Government rejected the request based on Rule 26A(vii) of the Fundamental Rules and informed the petitioner of his entitlement to regularisation only from 11.8.1990. Subsequently, the third respondent ordered the recovery of increments and difference in payment due to erroneous payments.
Finding of the Court:
The court found that the impugned orders did not suffer from any irregularity or illegality. It noted that the petitioner's appointment was made on a temporary basis and that the relaxation of rules governing regular appointment was necessary for regularising his services. The court also cited a Supreme Court case to support the recovery of excess payments by the employer under certain conditions.
Issues: The main issue was whether the impugned orders suffered from any irregularity or illegality.
Ratio Decidendi: The court held that the petitioner's appointment was temporary and the relaxation of rules for regular appointment was necessary for regularising his services. It also emphasized the employer's right to recover excess payments under certain conditions, citing a Supreme Court case.
Final Decision: The writ petition was dismissed with no costs.
1. The petitioner has filed the present writ petition seeking to challenge an order dated 16.10.2008 passed by the State Government as well as the order dated 10.9.2009 passed by the third respondent. By the impugned order dated 16.10.2008, the State Government rejected the case of the petitioner seeking to regularise his services in the post of Junior Engineer (Industries) with effect from 13.8.1986, namely the date of his temporary appointment, by relying upon Rule 26A(vii) of the Fundamental Rules, which reads as follows:
"Rule 26A(vii) Government servants in temporary service including of those recruited through Employment Exchange will be eligible to count their temporary service in a post towards increment only if they satisfy all the rules prescribed for holding that post in a regular capacity."
And informed the petitioner that he is entitled to regularisation only from 11.8.1990, the day on which he became fully qualified to hold the post of Junior Engineer in regular capacity. Thereafter, the third respondent, by his proceedings dated 10.9.2009, ordered that the increments paid to him from 13.8.1987 to 10.8.1990 as well as the difference in payment of higher rate of pay and allowances from the date of regularisation till the revised rate of increments ordered by the office of the third respondent will stand recovered from him.
2. The petitioner earlier filed a writ petition, being W.P.No.13291 of 2006, challenging an order of second respondent, namely the Director of Industries and Commerce, dated 8.8.1996, but however, subsequently, withdrew the writ petition on 4.2.2008 and preferred an appeal before the State Government, which was rejected on 16.10.2008, as already stated.
3. The regularisation order of the service of the petitioner dated 18.7.1996 made in G.O. (4D) No.56, Small Industries (Estt.I) Department is also enclosed in the typed set in pages [9] to [12] and as per paragraph [4] of the order, the petitioner got his regularisation only by relaxing Rule 3 of the Ad hoc Rules regarding method of appointment, Rule 4 of the Ad hoc Rules regarding rule of reservation, and Rule 22(aa) of the General Rules regarding retrospective regularisation in his favour. The relaxation order in the post of Junior Engineer (Industries) was made and he was appointed with effect from 11.8.1990.
4. It is subsequent to the regularisation, the question of the petitioner drawing increments without regard to the relevant rules came to be noticed and therefore, by the impugned orders, the claim of the petitioner seeking regularisation of his services in the post of Junior Engineer (Industries) with effect from 13.8.1986 was rejected and the petitioner was informed about the erroneous payment and the intention of the department to re-fix and recover the amount.
5. Therefore, the only question that arises is whether the impugned orders suffer from any irregularity or illegality.
6. The writ petition was admitted on 23.10.2009. Pending the writ petition, this Court granted interim stay against any recovery and subsequently made the stay absolute with liberty to the respondents to file counter and seek modification of the said order. Though counter affidavit dated 17.6.2010 was filed, no petition to modify the stay order was filed and hence, the writ petition came up in the normal course.
7. Resisting the case of the petitioner, in paragraphs [7] to [10] it was averred as follows:
"7. It is submitted that the Government had rejected the appeal filed by the petitioner herein to restore his date of regularisation from 13.8.1986 as he had not satisfied the rules provided in the Ad hoc Rules governing the appointment to the post of Junior Engineer (Industries). Therefore, the services of the petitioner were regularized with effect from 11.8.1990 in the G.O.(4D) No.56, Small Industries Department, dated 18.7.1996, only after relaxing the Ad hoc Rules governing the appointment to the post of Junior Engineer (Industries).
8. It is submitte
