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2013 DIGILAW 885 (MAD)

R. Pandiyan v. District Collector Villupuram

2013-02-12

VINOD K.SHARMA

body2013
Judgment :- 1. The petitioner has invoked the equitable extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with the prayer for issuance of a writ in the nature of certiorari to quash the order passed by the third respondent vide Na. Ka. No. Aaa2/ 3543/06 dated 8.1.2007, and also the consequential resolution of the fourth respondent No.21 dated 12.1.2007, in terminating the services of the petitioner, as Part Time Panchayat Assistant. 2. The admitted facts leading to the filing of this case, are that the petitioner appeared for X Standard in the year 1986, but failed. The petitioner did not continue with his studies thereafter. The petitioner was appointed as Panchayat Assistant on 27.2.1998, by the respondent No.4, and papers were sent for approval. But, it was not approved for want of qualification of X Standard. 3. It is the case of the petitioner that in the year 1998, the petitioner passed X Standard and his case was again placed before the Panchayat Board where the fourth respondent passed a resolution No.5/99 appointing the petitioner as Part Time Panchayat Assistant on consolidated salary of Rs.350/-(Rupees three hundred and fifty only) per month. 4. It is submitted that a Circular was issued to all the Panchayats pointing out that for appointment to the post of Panchayat Assistant/Clerks, the candidate should hold qualification of X Standard and should be below the age of 33 years. 5. On receipt of the circular, it was noticed that the appointment of the petitioner was not in accordance with the Rules, as he was over-age on the date of acquiring X Standard qualification, therefore, was not eligible for being appointed as Part Time Panchayat Assistant. Consequent thereto, the petitioner was relieved from the post. 6. The fourth respondent while cancelling the appointment of the petitioner, also ordered the recovery of salary paid to the petitioner, for the services rendered as Panchayat Assistant. 7. Learned Counsel for the petitioner challenged the impugned order of termination, primarily on the ground that on the date of appointment of the petitioner, was below the age of 33 years and while in service, had acquired the requisite qualification making him eligible for appointment, therefore, it was not open to the respondents to cancel his appointment. 8. 7. Learned Counsel for the petitioner challenged the impugned order of termination, primarily on the ground that on the date of appointment of the petitioner, was below the age of 33 years and while in service, had acquired the requisite qualification making him eligible for appointment, therefore, it was not open to the respondents to cancel his appointment. 8. It is thus contended, that the impugned order, therefore on the face of it, is arbitrary, therefore violative of Article 14 of the Constitution of India. 9. The petitioner has also challenged the order of recovery of salary on the ground that the part of the impugned order ordering recovery cannot be sustained, being against the settled law that the benefit once given, even if wrongly, cannot be withdrawn with retrospective effect. It is submitted that the petitioner was paid salary for the duties performed by him, in pursuance of the appointment, by competent authority, which has been cancelled subsequently. Therefore, no recovery can be ordered of salary paid for the duty performed. 10. It is the contention of the learned Counsel for the petitioner, that the petitioner was not informed about the Circular laying down the qualification and age for appointment, therefore, the impugned order also deserves to be set aside being violative of principles of natural justice. 11. On consideration, I find that the impugned order cancelling the appointment of the petitioner as Part Time Panchayat Assistant, calls for no interference, as it is the admitted case of the petitioner that the petitioner was not qualified to hold the post on the date of appointment for want of the requisite qualification of X Standard. Whereas on the date of acquiring qualification, he was over-aged, thus not eligible for appointment. It is settled law that eligibility is to be seen on the date of appointment, subsequent acquirement of qualification cannot be ground to justify illegal appointment. It is the admitted case of the petitioner that though resolution was passed by the Panchayat, his appointment was not approved by the competent authority. 12. However, there is force in the contention of the learned Counsel for the petitioner that no recovery can be effected. It is not disputed that in pursuance of the appointment of the petitioner, he performed duty and was paid salary as per terms of appointment. 12. However, there is force in the contention of the learned Counsel for the petitioner that no recovery can be effected. It is not disputed that in pursuance of the appointment of the petitioner, he performed duty and was paid salary as per terms of appointment. The respondents having appointed the petitioner, now cannot take benefit of their own wrong in ordering recovery of the paid salary. The impugned order of recovery, therefore on the face of it, is arbitrary, thus violative of Article 14 of the Constitution of India, therefore, cannot be sustained in law. 13. Consequently, the writ petition is partly allowed. While upholding the order of cancellation of appointment of the petitioner, the order of recovery is ordered to be quashed. 14. No costs. Consequently, connected MPs are closed.