BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/09/2011 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.(MD)No.4068 of 2009 and M.P(MD)No.3 of 2009 1.C.Philip Antony 2.S.Nagarajan 3.S.Sorimuthu Patta Raja 4.S.Sankara Narayanan 5.D.Sivasubramanian 6.W.Antony 7.T.Rajendran 8.S.Stanly 9.Ali Fathima ... Petitioners Vs. 1.The State of Tamil Nadu, represented by the Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai - 600 009. 2.The Commissioner of Municipal Administration, Chepauk, Chennai - 600 005. 3.The Commissioner, Tirunelveli Municipal Corporation, Tirunelveli. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent in G.O.No.21 Municipal Administration and Water Supply Department dated 23.02.2006 and the impugned order of the third respondent in Ref.Na.Ka.No.6475 97 C1 dated 26.04.2006 and quash the same insofar as regularising the services of the petitioners as Skilled Assistant Grade-II with effect from 23.02.2006 and consequently, direct the respondents herein to regularise the petitioners herein from the date of their appointment on 08.04.2000 in the post of Skilled Assistant Grade-II with all arrears of salary and other monetary benefits accrued thereon, within a reasonable time to be fixed by this Court. !For Petitioners ... Mr.F.Deepak ^For Respondents ... Mr.M.Govindan, Special Government Pleader for R.1 and R.2 Mr.S.P.Maharajan for R.3 * * * * * :ORDER
This writ petition has been filed by the petitioner to issue a writ of
Certiorarified Mandamus to call for the records relating to the impugned order
of the first respondent in G.O.No.21 Municipal Administration and Water Supply
Department dated 23.02.2006 and the impugned order of the third respondent in
Ref.Na.Ka.No.6475 97 C1 dated 26.04.2006 and quash the same insofar as
regularising the services of the petitioners as Skilled Assistant Grade-II with
effect from 23.02.2006 and consequently, direct the respondents herein to
regularise the petitioners herein from the date of their appointment on
08.04.2000 in the post of Skilled Assistant Grade-II with all arrears of salary
and other monetary benefits accrued thereon, within a reasonable time to be
fixed by this Court.
2. Heard Mr.F.Deepak, learned Counsel appearing for the petitioners,
Mr.M.Govindan, learned Special Government Pleader appearing for the respondents
1 and 2 and Mr.S.P.Maharajan, learned Counsel appearing for the third
respondent.
3. All the nine petitioners were appointed as Nominal Muster Roll
Employees, hereinafter called “NMRs” under the third respondent Corporation
prior to October 1996. The petitioners and similarly placed persons have been
repeatedly requesting the authorities to regularise their services. The
Government based on the recommendation by various authorities, considered the
plight of these persons and passed the G.O.Ms.No.125 Municipal Administration
and Water Supply Department dated 27.05.1999. In the said G.O., the Municipal
authorities were directed to prepare a list of Nominal Muster Roll Employees
(NMRs) who were appointed and serving prior to October 1996. Thereafter, as per
paragraph 3(ii) of G.O.Ms.No.125 Municipal Administration and Water Supply
Department dated 27.05.1999, the NMRs serving prior to October 1996 became
eligible to be appointed in the Entry Level Post and regularised together with
service benefit. They were to be appointed on consolidated pay. After serving
in the said post for one year on consolidated pay, they became entitled to be
appointed under the Regular Time Scale of Pay. Paragraph 3(ii) of
G.O.Ms.No.125 Municipal Administration and Water Supply Department dated
27.05.1999, reads as follows:
“ii) Bkw;fz;l gl;oaypy; nlk; bgw;Ws;s jpdf;Typg; gzpahsh;fis mth;fspd;
jFjpf;Bfw;g rk;ke;jg;gl;l efuhl;rpfs;/khefuhl;rpfs;/BgUuhl;rpfs; mt;tg;BghJ
Vw;gLk; fhypg; gzpaplA;fspy; (Entry level posts only) epakdk; bra;J, mt;thW
epakdk; bra;ag;gl;l ehspypUe;J mth;fsJ, gzptud;Kiw bra;ag;gLtJld; gzpf;fhyg;
gad;fSk; fzf;fplg;gl Btz;Lk;. gzptud;Kiw bra;ag;gLk; fhyj;jpypUe;J Xuhz;L tiu
nth;fs; khjk; U.2000/- vd;w bjhFg;g{jpaj;jpy; mkh;j;jg;gLthh;fs;. Xuhz;Lf;Fg;
gpwF fhyKiw Cjpaj;jpy; bfhz;L tug;gLthh;fs;. jpdf;Typg; gzpahsh;fs; Kiwahf
gzpaplj;jpy; epakdk; bra;ag;gLtjw;F Kd;g[ gzpg[hpe;j fhyk; gzpgad;fSf;F vLj;Jf;
bfhs;sg;gl khl;lhJ. jpdf;Typg; gzpahsh;fs; BkBy gj;jp 3(1) y; Twg;gl;Ls;s
gl;oaypy; fz;Ls;s fhypaplA;fspy; epakdk; bra;ag;gLk; tiuapy; Btiytha;g;g[
mYtyfk; Kyk; g[jpa epakdA;fs; bra;ag;glf;TlhJ.”
4. In accordance with the above G.O, in proceedings Roc.No.C1/6475/97
dated 08.04.2000, all the petitioners found to be technically qualified were
appointed to the Entry level post, namely, Skilled Assistant Grade II on
consolidated pay of Rs.2,000/- p.m. Therefore, on and from 08.04.2000, the
petitioners became regular appointees to the Entry level post. On completion of
one year thereafter, the petitioners should be brought under regular time scale
of pay. However, the same did not happen due to certain circumstances which
happened thereafter. It is stated that the Government imposed a ban in
G.O.Ms.212 dated 29.11.2001 and consequently, the petitioners were not given
the regular time scale of pay.
5. The petitioners and similarly placed persons were agitating their
rights to get the regular time scale of pay as per G.O.Ms.No.125 Municipal
Administration and Water Supply Department dated 27.5.1999. In G.O.Ms.No.21
Municipal Administration and Water Supply (MC.3) Department dated 23.02.2006,
(i.e.) after more than five years, the Government directed the regularisation
of the NMRs who are on the Daily Wages Rolls as on 01.10.1996 from the date of
issuance of the order. The date of order, according to the G.O., is 23.02.2006.
6. Consequent to G.O.Ms.No.21 Municipal Administration and Water Supply
(MC.3) Department dated 23.02.2006, by proceedings in Na.Ka.No.6475 97 C1 dated
26.04.2006, the petitioners were brought under the regular time scale of pay
with effect from 23.02.2006.
7. The writ petitioners challenge the G.O.Ms.No.21 Municipal
Administration and Water Supply (MC.3) Department dated 23.02.2006 and the
consequential orders, stating that they are entitled to the benefit of regular
time scale of pay in accordance with G.O.Ms.No.125 Municipal Administration and
Water Supply Department dated 27.05.1999 and the date on which the
regularisation was made pursuant to the impugned G.O.Ms.No.21 Municipal
Administration and Water Supply (MC.3) Department dated 23.02.2006 and the
proceedings in Na.Ka.No.6475 97 C1 dated 26.04.2006, is inapplicable and of no
consequence and erroneous in view of the earlier G.O.Ms.No.125 Municipal
Administration and Water Supply Department dated 27.05.1999, which provides for
regularisation in time scale of pay on completion of one year from 8.4.2000.
8. The learned Counsel for the petitioners pleaded that the writ petition
has been filed challenging G.O.Ms.No.21 Municipal Administration and Water
Supply (MC.3) Department dated 23.02.2006 and the consequential order, as the
said Government Order determines an alternate date for grant of regular time
scale of pay contrary to earlier G.O. Petitioners’ right flow from
G.O.Ms.No.125 Municipal Administration and Water Supply Department dated
27.05.1999, which has not been withdrawn or rescinded. It is further
submitted that the reason for not bringing the petitioners on regular time scale
of pay is only because of the ban order issued by the Government in G.O.Ms.212
dated 29.11.2001, which G.O will not apply to the case of grant of regular time
scale of pay, a benefit, which has been given in the earlier G.O. viz.,
G.O.Ms.No.125 Municipal Administration and Water Supply Department dated
27.05.1999. The benefit that had accrued cannot be denied.
9. The learned Counsel for the third respondent referred to paragraph 4 of
the counter-affidavit filed by him and pointed out that in view of G.O.Ms.No.21
Municipal Administration and Water Supply (MC.3) Department dated 23.02.2006,
the authority had no other option but to appoint the petitioners on regular time
scale of pay with effect from 23.02.2006. He justified the impugned proceedings
of the third respondent. No counter is filed by the State even at the time of
final hearing.
10. The contention of the learned Counsel for the third respondent can be
justified as the authority is bound to obey the instructions given by the
Government in G.O.Ms.No.21 Municipal Administration and Water Supply (MC.3)
Department dated 23.02.2006. However, that will not bind on the petitioners who
are the beneficiaries of earlier G.O., viz., G.O.Ms.No.125 Municipal
Administration and Water Supply Department dated 27.05.1999 which is still in
force and has not been withdrawn, rescinded or modified.
11. The petitioners in this case have been appointed as Skilled Assistant
Grade-II in terms of the first part of paragraph 3(ii) of G.O.Ms.No.125
Municipal Administration and Water Supply Department dated 27.05.1999 and their
appointment is regularised by consequent order dated 8.4.2000. Therefore, on
completion of one year in consolidated pay, they are entitled to be brought
under regular time scale of pay. Both the benefits flow out of the same
provisions of G.O.Ms.No.125 Municipal Administration and Water Supply Department
dated 27.05.1999 which still holds the field. Since the petitioners
appointment has been regularised as Skilled Assistant Grade-II, on 8.4.2000, the
petitioners will be entitled to regular time scale of pay on competition of one
year. That is the mandate of the G.O.Ms.No.125 Municipal Administration and
Water Supply Department dated 27.05.1999. There is no need to pass further
Government Order for regular time scale of pay.
12. Assuming for the moment that there was a temporary ban, after lifting
of the ban, the petitioners will be entitled to the benefit that will flow from
the said G.O.Ms.No.125 Municipal Administration and Water Supply Department
dated 27.05.1999 without any restrictions. The ban imposed by the Government,
can operate prospectively and not retrospectively unless so specified. In any
event, the petitioners in all these writ petitions have already been appointed
as Skilled Assistant Grade-II in the Entry level post and regularised and
therefore, the said ban order cannot have any application to the facts of the
present case.
13. The petitioners who have the benefit of G.O.Ms.No.125 Municipal
Administration and Water Supply Department dated 27.05.1999 and have been
appointed in the Entry level post, namely, Skilled Assistant Grade-II on
08.04.2000 on the basis of the above said G.O, are entitled to further relief
granted under the very same G.O. The respondents cannot postpone the
petitioners’ right to regular time scale of pay by virtue of another G.O.,
namely G.O.Ms.No.21 Municipal Administration and Water Supply (MC.3) Department
dated 23.02.2006. There is no justification for specifying the effective date
as 23.02.2006. When G.O.Ms.No.125 Municipal Administration and Water Supply
Department dated 27.05.1999 gives the benefit of regular time scale of pay on
completion of one year in the consolidated scale of pay in terms of paragraph
3(ii), the alternate date stated in G.O.Ms.No.21 Municipal Administration and
Water Supply (MC.3) Department dated 23.02.2006 cannot be justified as the
earlier G.O., is very much in force and has not been rescinded, withdrawn or
modified. When the benefit has already been granted under G.O.Ms.No.125
Municipal Administration and Water Supply Department dated 27.05.1999, it cannot
be denied based on the subsequent G.O., unless the said earlier G.O., has been
specifically and intentionally overruled, modified or withdrawn.
14. Further, in similar cases, this Court has passed several orders
granting the benefit of regular time scale of pay on completion of one year
after the NMRs were brought under Entry level post namely Skilled Assistant
Grade-II. They are:
(i) S.Mariappan v. The Commissioner of Municipal Administration, Chepauk,
Chennai and another decided on 02.12.2010 in W.P(MD)No.5475 of 2008.
(ii) K.Velusamy v. The Commissioner of Municipal Administration, Chepauk,
Chennai – 5, and another decided on 27.09.2010 in W.P(MD)No.8322 of 2008.
15. One of the orders was taken on appeal in W.A.(MD)No.273 of 2011 and
final order has been passed on 02.03.2011 in employees’ favour.
16. In view of the above, G.O.Ms.No.21 Municipal Administration and
Water Supply (MC.3) Department dated 23.02.2006, which fixes the date for
regularisation in the time scale of pay as on 23.2.2006, insofar as the
petitioners are concerned, is set aside and the petitioners will be entitled to
regularisation with effect from the date of their completion of one year (i.e.)
from 08.04.2000 with all consequential benefits.
17. The writ petition is allowed as prayed for. Consequently, the
connected Miscellaneous Petition is closed. No costs.
rsb/ts
To:
1.The Secretary to Government,
The State of Tamil Nadu,
Municipal Administration and Water
Supply Department,
Fort St. George,
Chennai – 600 009.
2.The Commissioner of Municipal Administration,
Chepauk,
Chennai – 600 005.
3.The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli.