IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10/03/2003
Coram
THE HON'BLE MR.JUSTICE E.PADMANABHAN
WRIT PETITION NO.7745 of 1998 and WRIT PETITION NO.19105 OF 1998
AND
WMP Nos:11782 and 28987 OF 1998
K.Malini ..Petitioner
in both WPs
-Vs-
1. The Secretary
Tamil Nadu Legislative Assembly
Secretariat
Chennai
2. The Secretary
Tamil Nadu Public Service Commission
Government Estate
Chennai-2 ..Respondents
in both WPs
For petitioner :: Mr.R.Thiagarajan, S.C.,for
M/s.K.Venkataraman
M.Muthappan
For respondents:: Ms.V.Velumani AGP
Mr.Paul Vasantha Kumar for R.2
Writ petitions filed under Art.226 of The Constitution of India
praying for the issue of a writ of certiorarified mandamus, as stated therein.
:O R D E R
In W.P.No:7745 of 1998, the petitioner has prayed for the issue of a
writ of mandamus directing the respondents 1 and 2 to regularise the services
of the petitioner in the post of Typist in the first respondent Secretariate
and pass such other further order or orders.
2. In W.P.No:19105 of 1998 the very same petitioner challenge the
proceedings of the Tamil Nadu Public Service Commission, the second respondent
herein in Letter No.6782/CD-B2-96, dated 3.11.1998 and quash the same and
consequently direct the respondent to regularise the services of the
petitioner with all attendant and consequential monetary benefits. The
petitioner and respondent are common in both the writ petitions.
3. Heard Mr.R.Thiagarajan, learned senior counsel appearing for Mr.
M.Muthappan for the petitioner, Ms.V.Velumani, learned Additional Government
Pleader appearing for the first respondent and Mr.N.Paul Vasantha Kumar,
learned counsel appearing for the second respondent Commission.
4. It may not be necessary to set out the facts in detail in the
light of the directions which this court proposes to issue.
5. The petitioner a Typist temporarily appointed in the Tamil Nadu
Legislative Assembly is governed by the Tamil Nadu Legislative Assembly
Service Rules framed under Article 187 of The Constitution of India. The
petitioner was initially appointed as temporary Typist in the Legislative
Assembly Department and she has been working continuously on and from
6.11.1989. The petitioner was sponsored by the Employment Exchange. But she
was appointed on temporary basis. When such appointment continued, the first
respondent-Legislative Assembly Department addressed the second
respondent-Public Service Commission for concurrence and continuance of the
writ petitioner’s appointment as a regular candidate sponsored by the Service
Commission while setting out certain facts, circumstance and the background in
which the petitioner came to be appointed on temporary basis and her
continuance in service of the Legislative Assembly Department. The Commission
reiterated its earlier stand by letter dated 7.8.1996 and refused to grant its
concurrence for the continuance of the petitioner and advised that the
petitioner may be discharged.
6. In the meanwhile, the Service Commission issued a Notification for
the Special Qualifying Examination conducted during 1994 for regularisation of
the temporary posts of Junior Assistant, Typist, Steno Typist etc., who were
recruited through Employment Exchange and who are temporary hands working in
the said posts during the period set out in the said Notification. The
petitioner once again made representation through the Hon’ble Speaker seeking
for regularisation of her services. The Personnel and Administrative
Department took the view that the request of the petitioner could not be
considered as she has not qualified herself in the Special Qualifying
Examination conducted during 1994. Despite the said facts, the petitioner was
allowed to continue ins service and the Legislative Assembly Secretariat once
again requested the Service Commission for concurrence for the regularisation
of her temporary services. The Service Commission declined to giver
concurrence for regularisation of the petitioner’s temporary services by the
impugned letter dated 3.1.1998. Hence the present writ petition.
7. Earlier the petitioner has filed W.P.No.7745 of 1998 seeking for a
direction to regularise her services in the Legislative Assembly Department,
while pointing that she has been working for more than a decade and that she
should be regularised. Later, the petitioner filed the second writ petition
challenging the decision of the Service Commission.
8. Both the writ petitions are taken up together and common arguments
were advanced. Mr.N.Paul Vasantha Kumar, learned counsel appearing for the
Service Commission sought to sustain the views taken by the Service Commission
while Mr.R.Thiagarajan, learned senior counsel represented that the different
stand taken by the Service Commission in respect of the petitioner alone would
amount to discriminatory treatment as persons identically placed were given a
favoured treatment, while pointing out that the Service Commission has given
concurrence for regularization of identical appointees. Mr.N.Paul Vasantha
Kumar, learned counsel for the Service Commission in turn contended that the
cases of two other individual appointees in whose favour concurrence was given
by the Commission were differently placed and therefore the same cannot be
cited as an example, nor the plea of discrimination, nor the plea of estoppel
would apply.
9. Mr.R.Thiagarjan, learned senior counsel raised the only
contention, namely that the petitioner alone has been singled out and treated
differently while the two others namely Tmt.Santhanamathi and Tmt. Kanmani
Vasantharani have been treated differently and it is just and fair that the
petitioner is also given the same treatment. In this respect, the learned
senior counsel referred to the following paragraphs in the Counter Affidavit
filed on behalf of the second respondentService Commission. The relevant
portion of the counter affidavit read thus:-
“20. As the plea of the Government to regularise the petitioner in
the post of Typist was not in order, s it is violative of the G. O.Ms.No.433
P & A.R.(P.C) Dept., dated 14.12.1993 and G.O.ms.No.270, Tamil Nadu
Legislative Assembly Secretariat Department dated 7.11.1994 , the Commission
had refused concurrence to regularise her, in the above letters. The
petitioner had challenged the above letter in this writ petition. The
Commission’s letter challenged by the petitioner was addressed to the
Secretary, Tamil Nadu Legislative Assembly Secretariat Department and not to
the petitioner. The necessary reply for the Government’s letter had been sent
by the Commission to the Head of the Department i.e., the Secretary to
Government Tamil Nadu Legislative Assembly Secretariat Department. Even
before the receipt of the same by the Head of the Department, she took
necessary action on that, it seems that the petitioner had manipulated to
obtain the same and challenged it in her individual capacity which was done in
flagrant violation of any official norms. In the said circumstances, the
contention of the petitioner that no positive reply from the second respondent
i.e., the Commission is not correct and the contention of the petitioner may
be rejected.
21. With reference to the petitioner’s contention in para 4 of the
affidavit that “two candidates namely Tmt.S.Santhanamathi and Tmt. Kanmani
Vasanthamani” were given concurrence for their regularisation by the
Commission, it is submitted that the Government in the Tamil Nadu Legislative
Assembly Secretariat in their letter dated 29.9.1997 had addressed the
Commission for issue of concurrence for regularisation ofo the said two
candidates. The contents of the letter are reproduced below which is self
explanatory.
“Since the above two candidates, have been serving continuously or a
long period, their request for regularisation their temporary services was
intimated to the Tamil nadu Public Service Commission in order to obtain its
concurrence under latter part of Regulation 16(b) of The Tamil Nadu Public
Service Commission Regulations, 1954. However, in its letter fifth cited, the
Tamil Nadu Public Service Commission has conveyed its inability to accord its
concurrence. In this connection, I am to state that these two candidates,
viz,. Tmt.S. Santhanamathy and Tmt.C.Kanmani Vasantharani have been working
for more than 7 years, only under emergency provisions. This being the case,
the Government have taken a sympathetic consideration in the case of those
temporary personnel who had been recruited through the Employment Exchange and
issued orders in G.O.ms.NO.996, Personnel & Administrative Reforms (Placement)
Department, dated 22.9.1984, for regularising their service, after obtaining
due concurrence of the Tamil Nadu Public Service Commission. Like wise, in
G.O.Ms.No.433, Personnel & Administrative Reforms (Placement-Cell) Department
dated 14.12.1993, the temporary services of such candidates were regularised
by conducting a Special Qualifying Examination by the TNPSC. It may be quite
pertinent to state that in the above processes, the temporary services of
those candidates who had put in a day’s temporary services, were also
regularised. I am also to add that those two candidates are under indigent
circumstances, since the ormer had lost her husband and the latter;s husband
is unemployed. They have to shoulder the entire responsibilities of their
families. Getting a placement of any other office at this stage is also too
hard to be thought of. Hence, it has become necessary to consider their cases
sympathetically. I am therefore, to request you to kindly reconsider the
requests of these two candidates on a humanitarian approach and to take early
action for obtaining and communicating the concurrence of the Tamil Nadu
Public Service Commission, so as to enable them to be appointed on regular
basis”.
22. As the Government have requested to reconsider the
Commission’s stand and to take humanitarian view, the Commission gave its
concurrence for the regularisation of the two individuals viz., Tmt.S.
Santhanamathy and Tmt.C.Kanmani Vasantharani by its order dated 21.3.1998.
23. Moreover, the two persons mentioned above had not appeared for
the Special Qualifying Examination’94 conducted by the Commission; Unlike the
above two persons the petitioner had the chance for appearing for the Special
Qualifying Examination GroupIV’94 by virtue of her temporary service. While
4329 candidates had appeared for the said examination, 2618 candidates were
selected and their services were regularised consequently. For the total 200
marks (one paper i.e., English 100 marks and the other paper General 100
Marks) the candidates were required to take the minimum qualifying marks of
30# in the aggregate i.e., the minimum marks for pass was fixed as 60 marks in
aggregate. But, the petitioner had secured only 28 marks in aggregate viz.,
English-11, General Knowledge 17) for the required aggregate of 60 marks.
10. On a consideration of the above portions, it is clear that there
is no difference, much less, considerable or material difference between the
case of the petitioner viz-a-viz Tmt.Santhanamathy and Tmt.Kanmani
Vasantharani. On all aspects, they are identically placed. However,
Mr.N.Paul Vasantha Kumar, learned counsel appearing for the Service Commission
contended that the two persons in whose favour the second respondent Service
Commission had given concurrence are in a pitiable condition and therefore
such a concurrence had been accorded.
11. It is not as if there has been any comparison between the said
two candidates and the writ petitioner when the Commission considered the
request of the petitioner. The reliance placed on the letter forwarded by the
Legislative Assembly Secretariat Department is the only material if at all
that could have been placed in favour of the said two persons for a favoured
treatment as against the writ petitioner. It may be that the Legislative
Assembly Secretariat Department has not worded the letters identically or
carefully or as effectively as the others. But in every respect the said two
persons namely Tmt.Santhanamathy and Tmt.Kanmani Vasantharani are identically
placed. Factually, the petitioner also has been in continuous service. The
petitioner was also doing certain urgent pressing work like the two others.
The indigent circumstances relied upon or suggested will also apply to the
case of the petitioner. As already pointed out, the Legislative Assembly
Secretariat Department while forwarding the papers might not have highlighted
the indigent circumstance of the petitioner as well as her social status or
financial position. Only in certain aspect of the matter, there may be a
little difference, but it will not be a a ground to treat the petitioner
differently from that of the said Tmt.Santhanamathy and Tmt.Kanmani
Vasantharani. The learned senior counsel appearing for the petitioner is well
founded in his contention that the petitioner should not have been treated
differently than that of the two others as there is no difference, much less,
substantial or material difference which may disentitle the petitioner from
having the same treatment.
12. In the circumstances, this court is of the considered view that
the mater requires and deserves reconsideration in the hands of the second
respondent-Service Commission and the Commission may have a fresh look and
consideration and therefore it is proper to remit back the matter to the
Service Commission for being considered taking into consideration of the
entire matter and in particular the background of the petitioner’s case
viz-a-viz the other two candidates in whose favour concurrence has been
accorded as a relaxation. The Service Commission may reconsider the matter
taking into consideration of the entire facts and the over all view of the
matter. The Service Commission has to decide the issue afresh as it is the
expert body in such matters independent of the view expressed by the Personnel
and Administrative Reforms Department, while considering the request for
relaxation or concurrence for regularisation of her services.
13. The petitioner has been working for more than a decade and
allotted to work and if she is to be turned out at this stage as she is
already aged above Forty, she may not find an employment at all. This court
is confident that the case of the petitioner may receive full consideration in
the hands of the Service Commission on par with other cases. Till the Service
Commission reconsider and communicate its decision, the services of the
petitioner shall be continued. It is for the Service Commission to call for
fur ther reports from the Legislative Assembly Secretariat Department and it
is also equally open to the petitioner to make further submissions to justify
her request through proper channel.
14. Writ Petition No.19105 of 1998 is allowed. The impugned letter
No.6782/CD-B2-96, dated 3.11.1998 is quashed and the matter is remitted back
to the second respondent-Service Commission for de novo consideration.
15. Consequently, connected WP.NO.7745 of 1998 is closed. Connected
WMPs are also closed. The parties shall bear their respective costs.
Internet: Yes
Index: Yes
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Copy to:-
1. The Secretary
Tamil Nadu Legislative Assembly
Secretariat
Chennai
2. The Secretary
Tamil Nadu Public Service Commission
Government Estate
Chennai-2