BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 12/11/2010
CORAM
The Hon'ble Mr.Justice R.S.Ramanathan
W.P.(MD)No.10659 of 2007
S.Chokkar ... Petitioner
Vs.
1. Secretary to Government of Tamil Nadu
Adi Dravidar and Tribal Welfare Department
Secretariat, Chennai - 9.
2. The Directorate
Adi Dravidar and Tribal Welfare Department
Chennai - 5.
3. District Adi Dravidar Welfare Officer
Collectorate Campus
Madurai - 20. ...Respondents
Writ Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorarified Mandamus to call for the records connected
with the impugned order passed by the first respondent in G.O.Ms.No.96 Adi
Dravidar and Tribal Welfare Department dated 02.08.2007 and quash the same and
consequently direct the first respondent to regularize the service of the
petitioner with effect from 01.01.1980, the date on whjich he completes five
years of service under contingent establishment in terms of G.O.Ms.No.52 Finance
(FR.II) dated 14.01.1977.
!For Petitioner ... Mr. R.Rangaramanujam
^For Respondents ... Mr.S.C.Herold Singh
Government Advocate
:ORDER
The petitioner was appointed as Watchman by the third respondent and he
joined duty on 28.10.1974. On completion of five years of service, he was
appointed as Office Assistant by transfer of service and joined duty on
19.03.1980 and continued to work till date. At the time of his initial
appointment, he was 22 years old and he studied upto S.S.L.C. and though the
petitioner possess necessary qualifications for the appointment of Office
Assistant, he was not recruited through the Employment Exchange. According to
the petitioner, as per the G.O.Ms.No.52 Finance (F.R.11) dated 14.01.1977,
G.O.Ms.No.1352 (Labour Employment) dated 07.11.1978 and G.O.Ms.No.107 (Personnel
and Administrative Reforms) dated 05.02.1987, his service ought to have been
regularized, after he has completed five years of service and without
regularizing him in service in the year 1980, his service was regularized from
the date of issuance of the G.O.Ms.No.96 Adi Dravidar and Tribal Welfare
Department dated 02.08.2007, and that G.O. is challenged in this Writ
Petition, stating that the services of the petitioner ought to have been
regularized from the year 1980, when he has completed five years of service.
2. The third respondent filed a counter affidavit stating that the
petitioner is not entitled to the benefits of G.O.Ms.No.52 Finance (F.R.11)
dated 14.01.1977, as he has not completed five years of service in the year
1977 and G.O.Ms.No.1352 (Labour Employment) dated 07.11.1978, did not specify
that no separate sanction is necessary, as the appointment of the petitioner was
outside the purview of the Tamil Nadu Public Service Commission (hereinafter
referred to as T.N.P.S.C.) and the petitioner was not vigilant and he has not
taken any steps to regularize the service and only after the issuance of
G.O.Ms.No.22, (Personnel and Administrative Reforms (F) Department dated
26.02.2006, the service of the petitioner was regularized, and therefore, the
petitioner cannot challenge the impugned order and he cannot claim any
regularization from the year 1980.
3. Mr. R.Rangaramanujam, the learned counsel appearing for the
petitioner submitted that G.O.Ms.No.52 Finance (F.R.11) dated 14.01.1977,
makes it very clear that any Government servant having completed five years of
service is entitled to be regularized and the Heads of Department ought to have
sent proposals on the first January of every year for bringing into regular
establishment, the service of contingent employees, who have completed five
years of service and therefore, it is not correct to state that G.O.Ms.No.52,
will not apply to the petitioner’s case, as he has not completed 5 years of
service in the year 1977. The learned counsel further submitted that as per
G.O.Ms.No.1352 (Labour Employment), the appointment to the post outside the
purview of the T.N.P.S.C. made upto the period of 31.12.1977, without
consulting the Employment Exchange to be rectified as a Special case by the
concerned Administrative Department and as per the G.O.Ms.No.107 (Personnel and
Administrative Reforms, Department) dated 05.02.1987 referred to above, the
Government has decided to abolish the contingent staff forthwith and also
directed that all the contingent staff should be brought into regular
establishment on or before 01.04.1982, on the basis of the order passed by the
Tamil Nadu Administrative Tribunal in T.A.Nos.739 & 741 of 1991, the persons
similarly placed were considered and their services were regularized and
therefore, the service of the petitioner also ought to have been regularized
from the year 1980. The learned counsel also submitted that on the basis of
the order passed by the Tamil Nadu Administrative Tribunal in T.A.Nos.739 & 741
of 1991, the Government of Tamil Nadu passed G.O.Ms.No.400 Revenue (E2)
Department dated 15.05.1995, regularizing the service of 16 persons, after
relaxing the rules and in the case of the petitioner, the Tamil Nadu Adi
Dravida Welfare Madurai, Unit- 2, by its letter dated 15.07.2002, to the
District Aadi Dravida Welfare Officer, Madurai-20, recommended the
regularization of service of the petitioner from 19.03.1980 by quoting various
G.Os., as referred to above and the District Aadi Dravida Welfare Officer,
Madurai- 20, also informed the Commissioner, Aadi Dravida Welfare, Chennai,
that the post of O.A., is kept vacant from 19.03.1980, where the petitioner is
working as O.A. and therefore, the petitioner’s service ought to have been
regularized from 19.03.1980 and it cannot be held that he was guilty of laches.
The learned counsel also relied upon the judgment reported in (2005) 5 C.T.C.
513 in the case of (N.Neela Vs. The Joint Director) in support of his
contention.
4. Mr.S.C.Herold Singh, the learned Government Advocate reiterated the
allegations made in the counter affidavit and submitted that as per the
G.O.Ms.No.22, stated supra, the petitioner’s service was regularized, as he
satisfied the requirements and his service was regularized from the date of
issuance of that G.O viz., G.O.Ms.No.96, and G.O.Ms.No.52, cannot be applied
to the petitioner, as he has not completed five years of service in the year
1977. He further submitted that the judgment rendered in T.A.No.739 of 1991, by
the Tamil Nadu Administrative Tribunal, cannot be applied to the petitioner’s
case, as there was no direction in that judgment to regularize the service of
all other persons, who are similarly placed and the judgment was given in
respect of those petitioners.
5. The point for consideration is whether the petitioner is entitled to be
regularized from the year 1980, as claimed by him.
6. It is not in dispute that the petitioner was initially appointed as
Watchman on 28.10.1974 and joined as O.A., by transfer of service on
19.03.1980. In the year 1980, he has completed 5 years of service. Therefore, we
will have to see whether the petitioner is entitled to be regularized as per
G.O.Ms.Nos.52, 1352, 107 as referred to above.
7. It is seen from the G.O.52 Finance (FR.II) dated 14.01.1977, the
Heads of Department were directed to send their proposals for creation of
adequate number of posts for bringing to regular establishment, the contingent
workers, who have completed 5 years of service as on 01.01.1977, after a careful
review of the need for continuance of the posts in which they are employed.
Therefore, from the above paragraph, it is seen that those who have completed 5
years of service as on 01.01.1977, are eligible to be considered for
regularization of service, after review of the need for continuance of that
post. But the second clause, further provides that in future, the Heads of
Department should send proposal on 1st January of each year, for bringing into
regular establishment, the contingent employees, who completed 5 years of
service as on 1st January. Therefore, by the subsequent clause, a duty is cast
upon the Heads of Departments, to send their proposals on 1st January of each
year to regularize the employees, who have completed 5 years of service. The
petitioner completed 5 years on 27.10.1979, when he was appointed as O.A., by
transfer of service on 19.03.1980. Therefore, the respondents 2 and 3 ought to
have recommended to the first respondent to regularize the service of the
petitioner as he has completed 5 years of service. Further, as per
G.O.Ms.No.1352, Labour & Employment dated 07.11.1978, the appointment to the
post outside the purview of the T.N.PS.C. made upto the period of 31.12.1977,
without consulting the Employment Exchange has to be rectified as a special
case by the concerned Administrative Department of the Secretariat, provided
the individuals should possess all qualifications prescribed for the posts. As
per G.O.Ms.No.107, (Personnel and Administrative Reforms, Department), the
G.O.Ms.No.52, was reiterated and it has been stated as follows:-
” The Government after careful examination accept the recommendation of
the One Man Committee and accordingly directs that the Heads of Departments are
empowered to create posts to bring the contingent staff to regular establishment
after a careful review of the need for the posts and to appoint a contingent
staff in the post if no relaxation of rules is involved. In cases where
relaxation is involved, necessary proposal both for creation of post and
appointments thereto shall be sent to the Government. The Work of bringing the
contingent establishment to regular establishment should be completed before
31.03.1987.”
8. It is admitted by the third respondent viz., Special Tahsildar, Aadi
Dravida Welfare Madurai, Unit-2, the post of O.A., is kept vacant and the
petitioner is employed as O.A. from 19.03.1980. The third respondent has sent
that information only at the request of the Commissioner of Aadi Dravide
Welfare Chennai, and even in the year 2002, the Special Tahsildar, has
recommended the case of the petitioner for regularization of service from the
year 1980, by quoting all the G.Os. referred to above. Therefore, as per G.Os.
referred to above, the petitioner is entitled to be regularized in service after
completion of 5 years of service, as the petitioner has necessary qualifications
for the post and he was not regularized due to the inaction on the part of the
Heads of Department and that cannot be taken advantage of by the respondents to
deny the regularization from the year 1980.
9. As a matter of fact, it is seen from the additional typed set of
papers, filed by the petitioner that the petitioner has sent representations
every year to the Heads of Department and he also filed an application in
O.A.No.2692 of 1990, before Tamil Nadu Administrative Tribunal, seeking the same
relief. It was ordered in the above application, directing the respondent to
consider the case of the petitioner, if he is otherwise eligible and comes under
the purview of the G.Os. relied upon by him. That judgment was rendered by the
Tamil Nadu Administrative Tribunal in the year 2002, though the petitioner
filed the application in the year 1990. Therefore, it cannot be considered that
the petitioner was not vigilant and he has not taken steps.
10. According to me, as per G.O.Ms.No.52, a duty is cast upon the Heads
of Department to recommend the names of eligible candidates, who were employed
on contingent employment basis for regularization and hence, the petitioner has
completed 5 years of service, even in the year 1980, his service ought to have
been regularized from 19.03.1980 and his service cannot be regularized from the
date of issuance of G.O.Ms.No.96 dated 02.08.2007. Hence, the impugned order
regularizing the petitioner’s service from the date of issuance of the
G.O.Ms.No.96 Adi Dravidar and Tribal Welfare Department dated 02.08.2007, is not
correct to that extent and the service of the petitioner has to be regularized
from 19.03.1980. Therefore, the respondents are directed to regularize the
service of the petitioner from 19.03.1980.
11. In the result, the Writ Petition is allowed. Consequently, connected
Miscellaneous Petitions are closed. No costs.
sd