IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-7-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.11731 of 2006 P. Paramasivan ... Petitioner Vs 1. The State of Tamil Nadu, rep.by its Secretary to Government, School Education Department, Fort St. George, Chennai 600 009. 2. The Director of Government Examinations, College Road, Chennai 600 006. 3. The Regional Deputy Director of Government Examinations, College Road, Chennai 600 006. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of certiorarified mandamus calling for the records connected in Lr.No.6386/V1/2005, dated 13.6.2005 of the first respondent and quash the same and direct the respondents to regularise the service of the petitioner in the post of Section Writer (or) in the equivalent post in any one of the vacancies from the date of first appointment with all consequential benefits and pay pension and pensionary benefits as the petitioner already retired from service on 30.4.2005. For Petitioner : Mr.G.Elanchezhiyan For Respondents : Mr.R.Murali, Government Advocate O R D E R
The prayer in the writ petition is to quash the order dated 13.6.2005 passed by the first respondent and direct the respondents to regularise the services of the petitioner in the post of Section Writer or in the equivalent post in any one of the vacancies from the date of his first appointment with all consequential benefits and pay pension and pensionary benefits as the petitioner has already attained the age of superannuation and retired on 30.4.2005.
2. The case of the petitioner is that he was initially appointed as Section Writer on daily wage basis in the year 1987 and he continuously worked till his date of retirement on 30.4.2005 with some artificial break. Petitioner was paid daily wage of Rs.88/- per day. Petitioner studied upto SSLC, registered his name in the Employment Exchange and after sponsorship through the Employment Exchange, he was appointed as Section writer in the third respondent office. As no action was taken to regularise the petitioner’s service and the similarly placed persons, some of the similarly placed persons approached the Tamil Nadu Administrative Tribunal by filing O.A.Nos.6048 of 1992, 6872 and 6873 of 1993 and the Tribunal directed the Government to take decision within a period of three months with direction to take careful assessment of the workload and the number of regular employment identified and norms laid down for additional employment in terms of increasing workload, etc. Against the said order of the Tribunal the respondents filed SLP, which was dismissed by the Supreme Court on 29.5.1995.
3. The respondents having disobeyed the order of the Tribunal, contempt applications were filed before the Tribunal in C.A.Nos.570 and 571 of 1995. After issuance of notice in the contempt applications, respondents sanctioned 91 posts of Record Clerk to absorb the Section Writers and also prepared a seniority list among the Section Writers and filled up 91 Record Clerk posts as per the seniority. Even thereafter several vacancies arose, however no action was taken to fill up the posts from 1996. Petitioner made representation to the respondents and prayed for regularisation. The Director of Government Examinations submitted a proposal on 30.3.1998 to sanction 108 posts in order to absorb the Section Writers worked at that time as Record Clerk. The first respondent while considering the said proposal sought for certain clarifications on 28.7.1998, which was also suitably clarified on 3.11.1998 by the second respondent and requested the Government to relax special rules in Part-II in Class XXII in sub-rule (b) of Rule 2. No action having been taken, further representation was submitted by the Association on 25.4.1999 before the Petition Committee of Tamil Nadu Legislative Assembly Secretariat. The Deputy Secretary of the Tamil Nadu Legislative Assembly Secretariat initiated action pursuant to which the second respondent again sent proposal to absorb the 108 Section Writers temporarily employed on daily wage basis in the Directorate of Government Examinations and in its Regional Office in the post of Record Clerk. No action having been taken again further representation was submitted by the Association to the Chief Minister’s Cell for which the second respondent sent a reply on 12.6.1999 stating that the proposal dated 30.3.1998 seeking absorption of 108 Section Writers working for more than 14 years is under consideration of the Government.
4. The petitioner submitted a representation on 4.4.2002, which was also recommended by the second respondent on 21.6.2002. Since no order was passed, the association filed O.A.No.410 of 2004 before this Court. On 5.2.2004 the Tribunal passed an order giving direction to the first respondent to consider the proposal and pass an appropriate order as early as possible. Petitioner filed W.P.No.5471 of 2005 and prayed for direction to regularise him and the same was disposed of on 28.4.2005. Thereafter the impugned order was passed by the first respondent stating that the petitioner was appointed purely temporarily on daily wage basis and he having been relieved from service on 29.4.2005 the request for regularisation cannot be considered.
5. The learned counsel for the petitioner submitted that merely because the petitioner retired from service, he cannot be denied regularisation and by regularising his services, he will get retirement benefits. The learned counsel for the petitioner also relied upon the judgment of the Division Bench of this Court made in W.A.No.230 of 2009 dated 3.8.2009 and several other unreported judgments in support of his contention.
6. The learned Government Advocate appearing for the respondents on the other hand relying upon the counter affidavit contended that the Section Writers, who were in service as on 1.1.2006 and who have completed ten years of service as on 1.1.2006 were regularised as per G.O.Ms.No.22 P&AR Department dated 28.2.2006 while implementing the orders made by the Tamil Nadu Administrative Tribunal in O.A.No.410 of 2004 and as the petitioner’s turn did not come, he was not made permanent.
7. I have considered the rival submissions made by the learned counsel for the petitioner as well as the learned Government Advocate for the respondents.
8. The petitioner was appointed as Section Writer in the year 1987 after his name was sponsored through the Employment Exchange. Similarly placed persons were already regularised pursuant to the order passed by the Tribunal in O.A.No.410 of 2004 in the year 1996 as per the earlier order of the Tribunal. Petitioner’s name was also sent for regularisation in the proposal submitted by the second respondent dated 30.3.1998. Merely because there was delay in considering the proposal by the Government and during pendency of the matter before the Government the petitioner retired from service, cannot be a ground to deny regularisation of the petitioner, if he is otherwise eligible.
9. I had an occasion to consider similar issue in W.P(MD)No.11707 of 2006 dated 22.12.2006, which order was challenged by the Department in W.A(MD)No.391 of 2007 and the same was dismissed by the Division Bench of Madurai Bench by order dated 25.10.2007 and the said order was complied with by the Department on 30.11.2007. Following the said orders W.P.No.18126 of 2008 was allowed by order dated 29.7.2008, as against which also the Department filed W.A.No.230 of 2009. The Division Bench confirmed the said order taking note of G.O.Ms.No.22 dated 28.2.2006 and held that on completion of ten years of service, services of a part time employment shall be regularised by the department from the date of completion of ten years. In paragraphs 7 to 9 of the said judgment the Division Bench held as follows:
“7. The main submission of the learned Government Advocate is that the proposals for regularisation of the part time employees are pending before the Government. When the proposals are pending under consideration before the Government, there is no need to give any direction to the Government to regularise the services of the respondent.
8. We do not find any force in the said submission made by the learned Government Advocate. On a perusal of the entire materials, it could be seen that the respondent was working for the past 13 years as a part time employee in a Higher Secondary School. Para 3 of G.O.Ms.No.22 P&AR(F) Department, dated 28.2.2002 reads as follows:
“3. The Departments of Secretariat may therefore, be directed to pursue action to regularise the services of the daily wages employees working in all Government Department, who have rendered 10 years of service as on 1.4.2006. ….”
9. Though in the letter dated 20.02.1995 it has been stated that the regularisation shall not apply to the appointment on daily wages employees, if any, made on or after 01.03.1993, in G.O.Ms.No.22 P&AR(F) Department, dated 28.02.2006, it was made clear by the Government to regularise the part time employees, who had completed 10 years of service. In fact, the services of some of the part time employees were regularised pursuant to the orders passed by this Court in the earlier writ petitions. Under those circumstances, we do not find any justification in delaying the regularisation of the services of the respondent by saying that the proposal for regularisation of part time employees is pending for consideration before the Government. On that ground, the respondent cannot be made to wait for a long period, especially when he had completed 13 years of service, which is more than that of the required service mentioned in G.O.Ms.22 dated 28.02.2006. Under such circumstances, we do not find any infirmity in the directions given by the learned single Judge. Hence, we are not inclined to entertain this appeal.
Accordingly, this appeal fails and is dismissed. No costs. Consequently, connected M.Ps are closed. A copy of this order shall be communicated to the State Government (Secretary), School Education Department, to issue the necessary orders in compliance with the order, passed by the learned single judge, within a period of two months from the date of receipt of a copy of this order.”
10. Applying the said judgment to the facts of this case, the impugned order dated 13.6.2005 is set aside and the first respondent is directed to regularise the services of the petitioner from the date of completion of ten years of service in the department and sanction all benefits arising out of such regularisation by counting 50% of earlier period of ten years as the petitioner served as full time Section Writer in accordance with Rule 11(2) of the Tamil Nadu Pension Rules, 1978. Necessary order is directed to be passed by the first respondent within a period of eight weeks from the date of receipt of copy of this order.
The writ petition is ordered with the above direction. No costs.
Index : Yes/No.
Website : Yes/No. 30-7-2010 vr To 1. The Secretary to Government, School Education Department, Fort St. George, Chennai 600 009. 2. The Director of Government Examinations, College Road, Chennai 600 006. 3. The Regional Deputy Director of Government Examinations, College Road, Chennai 600 006. N.PAUL VASANTHAKUMAR,J. vr Pre-Delivery Order in W.P.No.11731 of 2006 30.7.2010