IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2010
CORAM:
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.No.30857 of 2006
K.Jesuadimai ... Petitioner
versus
1. The Director of Municipal / Administration,
Chepauk,
Chennai 600 005.
2. The Municipal Commissioner,
Kuzhithurai Municipality,
Kanyakumari District,
Kanyakumar 629 165. ... Respondents
PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8603 of 1997 the file of the Tamil Nadu Administrative Tribunal to direct the respondents herein to regularise the services of the petitioner from the date of his first appointment in the post of Bus-Stand Watchman with effect from 10.03.1984; and direct the respondents herein to pay the arrears of pay and allowances for the period from 10.03.1984 to 11.08.1994 admissible to the posts.
- - -
For Petitioner : Mr.S.Mani
For D.Subramaniam
For Respondent - 1 : Mr.S.Shiva Shanmugam
Government Advocate
For Respondent 2 : Mr.P.I.Thirumurthi
Government Advocate
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O R D E R
The Original Application in O.A.No.8603 of 1997 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2. The petitioner was appointed as Bus-Stand Watchman by an order dated 10.03.1984 in the second respondent Municipality. His appointment was through Employment Exchange. He was on consolidated pay of Rs.60/- per month. He was promoted as helper in the Electrical Department in the Municipality. While so, he was denied work from 30.11.1992. The petitioner filed O.A.No.5860 of 1992 seeking reinstatement with all benefits. The Original Application was disposed of by the Tribunal on 09.11.1993 with certain observations. Based on the order of the Tribunal and the order of the first respondent dated 04.07.1994, the petitioner was reinstated as Helper in the time scale of pay. Thereafter, the second respondent passed an order dated 04.03.1997 regularising the service of the petitioner as Helper with effect from 12.08.1994.
3. Thereafter, the petitioner filed O.A.No.8603 of 1997 (W.P.No.30857 of 2006) praying for a direction to the respondents to regularise the services of the petitioner from the date of his initial appointment in the post of Bus-Stand Watchman with effect from 10.03.1984 with arrears of pay.
4. Heard Mr.S.Mani, learned counsel for the petitioner; Mr.S.Shiva Shanmugam, learned Government Advocate for the first respondent and Mr.P.I.Thirumurthi, learned Government Advocate for the second respondent.
5. The petitioner states that since he was appointed in the vacancy caused due to retirement of one Mr.Sadasivanpillai on 30.06.1983, the second respondent ought to have regularly appointed the petitioner from the date of his initial appointment. It is also submitted that prior to his appointment by the second respondent by an order dated 10.03.1984, one Mr.V.Manigandan was employed on a temporary basis. Since, the petitioner was recruited through Employment Exchange on a regular basis, the temporary employment of Mr.V.Manigandan came to an end. The learned counsel for the petitioner has brought to my notice the order dated 10.03.1984 in this regard, the said order is extracted here-under:-
VERNACULAR (TAMIL) PORTION DELETED
6. The learned counsel for the petitioner has also brought to my notice the order dated 05.12.1991 regularising the service of Mr.Sadasivanpillai with effect from 01.10.1979, after his retirement on 30.06.1983. The said order is extracted here-under:-
VERNACULAR (TAMIL) PORTION DELETED
7. The learned counsel for the petitioner further contends that when he was promoted as Helper in the Electricity Department of the Municipality, by an order dated 04.01.1990 it is categorically stated that he was appointed against a regular vacancy. In this regard, the order dated 04.01.1990 is extracted here-under:-
VERNACULAR (TAMIL) PORTION DELETED
8. The learned counsel for the petitioner also relies on a decision of this Court dated 18.01.2007 in W.P.No.28263 of 2006. On the other hand, the learned counsel for the respondents and more particularly, the second respondent submits that the petitioner was regularised with effect from 12.08.1994 and that therefore, he could not seek retrospectively regularisation from the date of his employment.
9. I have considered the submissions made on either side.
10. The petitioner was admittedly recruited through Employment Exchange. When he was appointed, another person one Mr.V.Manigandan was temporarily appointed to the post due to necessity. On petitioner being appointed through Employment Exchange, the petitioner took charge of the post. The appointment order dated 10.03.1984 which was extracted above makes it very clear that the petitioner was appointed against a regular vacancy. It is also made clear that Mr.Sadasivanpillai, Bus-Stand Watchman, retired from service on 30.06.1983 as above in the order dated 05.12.1991, that was also extracted above. Mr.Sadasivanpillai was employed as Bus-Stand Watchman. It is very clear that the petitioner was appointed in the place of Mr.Sadasivanpillai. The order dated 10.03.1984 makes it very clear that the petitioner was appointed against the regular vacancy.
11. Further, when the petitioner was promoted as Helper, he was posted against a regular vacancy. It is made clear that in the order dated 04.01.1990 that he was promoted as Helper in the regular vacancy. The said order 04.01.1990 is extracted above.
12. Further more, the judgment of this Court dated 18.01.2007 in W.P.No.28263 of 2006 squarely applies to the facts of this case. In fact, in the said case the person was not recruited through Employment Exchange. Even in such a case, this Court directed regularisation from the date of his initial appointment taking into account his continued service. Paragraphs 4 to 8 of the judgment is extracted here-under:-
“4. The respondents have filed a reply affidavit admitting the fact that the petitioner was appointed as Punka Puller on 17.03.1974 and that after continuous service for about five years, he came to be appointed as Office Assistant with effect from 15.12.1979. From 15.12.1979, the petitioner had been in continuous service as Office Assistant. Thus the fact that the petitioner was in continuous service from 17.03.1974 is actually admitted by the respondents.
5. However the respondents have taken a stand that the appointment of the petitioner was made without consulting the Employment Exchange and that therefore the appointment require relaxation of the relevant special rules. Accordingly G.O.Ms.No.1050 dated 24.07.1991 was passed granting relaxation of the relevant special rules and regularising his services with effect from the date of issue of the Government Order.
6. In normal circumstances what the Government did could have been approved, since any order granting relaxation and regularising the services of a person can take only prospective effect. But in this case the action of the Government cannot be approved for two reasons namely;
a) 17 years of service of the petitioner from 1974 to 1991 is sought to be wiped out by a single stroke by way of a Government Order and the same is arbitrary and unfair.
b) The services of the petitioner were actually reguarlised in the post of Office Assistant with effect from 15.12.1979, by a competent authority namely the Sub-Collector, Arupukottai by the proceedings dated 17.02.1981. By a separate proceedings of the same date, the Sub-Collector, Aruppukottai also declared satisfactory completion of probation for the petitioner in the category of Office Assistant. After 10 years of satisfactory declaration of probation and regularisation, the Government was not entitled to grant relaxation in the year 1991 and confine the benefit of relaxation to prospective effect from 1991. As a matter of fact relaxation in respect of upper age limit itself was necessitated on account of the long delay on the part of the Government in passing the Order. Therefore the petitioner cannot be made to bear the brunt of the attack on accounts of the delay on the part of the Government in passing order.
7. The action of the Government is also unjustified for more reason. The petitioner was due to attain superannuation in the year 1999. The order regularising his services came to be issued in the year 1991 giving it prospective effect. Therefore the regular services of the petitioner would be counted only as eight years, depriving him of any useful terminal and pensionary benefits, despite the fact that by the year 1999 he would have rendered 25 years of service. Therefore the action of the Government is wholly unjustified.
8. Consequently the writ petition is allowed and the respondents are directed to treat the petitioner as having been regularised in service with effect from 15.12.1979 as per the original Order of the Sub-Collector dated 17.02.1981 and to grant him all consequential benefits within a period of three months from the date of receipt of production of a copy of this Order No costs.”
13. For the reason stated above, the petitioner is entitled to succeed. Accordingly the writ petition is allowed and the second respondent is directed to pay the monetary benefits within a period of eight weeks form the date of receipt of a copy of this order. No costs.
r n s
To
1. The Director of Municipal / Administration,
Chepauk,
Chennai 600 005.
2. The Municipal Commissioner,
Kuzhithurai Municipality,
Kanyakumari District,
Kanyakumar 629 165