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2025 DIGILAW 1664 (MAD)

K. Subramaniam v. State of Tamil Nadu

2025-03-24

J.NISHA BANU, S.SRIMATHY

body2025
JUDGMENT : 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 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 come up with the representations seeking to refund. 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 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 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. 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. 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: 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 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 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. Then the writ petitioner 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. 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. 16. 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. 16. For the reasons stated supra, the writ appeal is dismissed and the order passed by the Writ Court is confirmed. No costs.