Allowed

M. Dhandapani v. the Govt. of Tamilnadu Rep.

Madras HC9 Nov 2011WP/49612/2006

Case brief

AI extract

What is this about?

The High Court quashed orders regularizing the petitioner's service only from the date of a Government Order. Relying on precedents, it directed the respondent to regularize services and grant consequential benefits retrospectively from the petitioner's initial appointment date.

What did the court decide?

Impugned orders quashed; Respondents directed to regularize petitioner's service with all benefits from date of initial appointment (28.08.1986).

M. Dhandapani Vs the Govt. of Tamilnadu Rep. — Pension and Retirement Benefits | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 09.11.2011

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CORAM

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THE HONOURABLE Mr.JUSTICE D.HARI PARANTHAMAN

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W.P.Nos.49612 of 2006 and 14366 of 2007
(O.A.Nos.1895 of 2001 and 366 of 2003)
M. Dhandapani ... Petitioner
in both Writ Petitions
Vs
1. The Government of Tamil Nadu
rep. by the Secretary to the Government,
Rural Development Department,
Fort St. George, Chennai – 600 009.
2. The Collector,
Coimbatore,
Coimbatore District.
3. The Commissioner,
Udumalpet Panchayat Union,
Udumalpet, Coimbatore District. ... Respondents
in both Writ Petitions

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PRAYER in W.P.No.49612 of 2006: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.1895 of 2001 on the file of Tamil Nadu Administrative Tribunal, to call for the records relating to the impugned order of the first respondent in G.O.Ms.No. 161, Rural Development (E-7) Department dated 26.06.2000 and the consequential order of the third respondent in Na.Ka.No.530/2000/A3 dated 7.2.2001, quash the same and direct the respondents to regularise the services of the petitioner with effect from the date of his initial appointment, namely, 28.08.1986 and grant him all consequential benefits.

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https://hcservices.ecourts.gov.in/hcservices/

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PRAYER in W.P.No.14366 of 2007: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.364 of 2003 on the file of Tamil Nadu Administrative Tribunal, to call for the records relating to the impugned order of the second respondent in Na.Ka.No.1435/2000/K-5 dated 26.12.2002 and quash the same.

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For Respondents : Mr.V.Subbiah, Special Government Pleader in both Writ Petitions

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COMMON ORDER

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On abolition of the Tribunal, the Original Applications in O.A.Nos.1895 of 2001 and 366 of 2003 filed before the Tamil Nadu Administrative Tribunal, Chennai, stood transferred to this Court and re-numbered as W.P.Nos.49612 of 2006 and 14366 of 2007.

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The District Collector, Coimbatore, passed an order dated 30.06.1984 stating that the Government issued G.O.Ms.No.2509, Health and Family Welfare Department, dated 24.12.1982, directing to fill up the posts of Male Nurse, Female Nurse and Night Watchman permanently at Panchayat Union Ayurvedic Dispensary, Dhali, Udumalpet Panchayat Union, from 01.04.1979. Based on the aforesaid order, the District Employment Exchange was addressed to send a list of persons eligible to hold those posts. Based on the sponsorship, Interview Cards were sent to 9 persons including the petitioner. In the letter dated 25.08.1986 of the Commissioner of Panchayat Union, those persons were directed to appear for interview on 28.08.1986 with the Certificates mentioned therein. Accordingly, the petitioner participated in the said interview and was selected for the post of Scavenger-cum-Night Watchman. He was granted Dearness Allowance besides Basic Pay. By an order dated 12.01.1996, he was also granted scale of pay by the Commissioner, Udumalpet Panchayat Union and arrears were paid.

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3.While so, G.O.Ms.No.161, Rural Development (E7) Department, dated 26.06.2000, was issued regularising the service of the petitioner on completion of 10 years of service, with effect from 28.08.1986. The petitioner was already in receipt of the scale of pay and other benefits as stated above. In view of the G.O.Ms.No.161, Rural Development (E7) Department, dated 28.08.1996, the third respondent re-fixed the pay by an order dated 08.12.2000 and another order dated 07.02.2001 was passed for recovery of the amount. Aggrieved over the same, the petitioner has filed the Original Application praying to quash the G.O.Ms.No.161, Rural

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Development (E-7) Department, dated 26.06.2000 and the recovery order dated 07.02.2001 of the third respondent and sought for a direction to the respondents to regularise the service of the petitioner with effect from the date of his initial appointment viz., 28.08.1996.

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The respondents have filed a reply affidavit refuting the allegations made by the petitioner.

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5.According to the respondents, the petitioner was appointed on contingent basis contrary to the G.O.Ms.Mo.878, Rural Development Department, dated 15.05.1981. As per the G.O.Ms.Mo.878, Rural Development Department, dated 15.05.1981, no person should be appointed in contingent establishment after 01.04.1981. However, the petitioner was appointed on contrary to the said Government Order. In these circumstances, proposals were sent to the Director of Rural Development, regularising the service of the petitioner, who was appointed after 01.04.1981. The Government issued G.O.Ms.No.161, Rural Development (E-7) Department, dated 26.06.2000 to regularise the service of 171 contingent employees including the petitioner from the date of completion of 10 years of service. Though the regularisation was ordered on completion of 10 years of service and to give monetary benefits, it was directed to be sanctioned with effect from 26.06.2000, the date of issuance of Government Order. Hence, the petitioner is not entitled to the regular appointment from the date of initial appointment and the third respondent has also correctly passed an order dated 07.02.2001 to recover the excess amount that was paid contrary to the G.O.Ms.No.161, Rural Development (E-7) Department dated 26.06.2000.

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The District Collector, Coimbatore, passed an order dated 26.12.2002, regularising the service of the petitioner from the date of issuance of G.O.Ms.No.161, Rural Development (E-7) Department dated 26.06.2000, instead of regularising the service of the petitioner on completion of ten years of service. Aggrieved over the same, the Original Application in O.A.No.366 of 2003 has been filed by the petitioner.

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Heard the learned counsel on either side.

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The learned counsel for the petitioner submits that the petitioner was appointed against the regular post sanctioned in issuing G.O.Ms.No.2509, Health and Family Welfare Department, dated 24.12.1982. He was also appointed by following the selection procedure i.e., through Employment Exchange after conducting interview. In fact, the third respondent granted scale of pay from the date of appointment. In these circumstances, the Government is not correct in issuing G.O.Ms.No.161, Rural Development (E-7) Department dated 26.06.2000, regularising the service of the petitioner on completion of ten years of service and while the petitioner is working, the District Collector passed an order

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regularising the service from the date of issuance of G.O.Ms.No.161, Rural Development (E-7) Department dated 26.06.2000.

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On the other hand, the learned Special Government Pleader for the respondents seeks to sustain the impugned order relying on the reply affidavit filed by the respondents.

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I have considered the rival submissions made on either side and perused the materials available on record.

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As rightly contended by the learned counsel for the petitioner, the petitioner was appointed against the sanctioned post. The order dated 30.06.1984 of the District Collector, Coimbatore, is extracted hereunder:

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"ghh;it 1y; fz;l muR Mizapy; khtl;l Ml;rpj; jiytUf;F mspf;fg;gl;Ls;s mjpfhuj;jpd;go/ cLkiy Cuhl;rp xd;wpaj;jpy; cs;s jsp Ma[h;ntj kUj;Jtkidapy; cs;s/ fPH;f;fz;l gzpapl';fSf;F 01/04/1979 Kjy; epue;ju mDkjp tH';fp cj;jputplg;gLfpwJ.

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1.Mz; brtpypah; cjtpahsh;

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2.bgz; brtpypah; cjtpahsh;

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3.njhl;o kw;Wk; ,ut[f;fhtyh;"

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12.Pursuant to the aforesaid order dated 30.06.1984, the petitioner was recruited through Employment Exchange. The petitioner was issued with an appointment order dated 28.08.1986. He was granted pay of Rs.18/- and also Dearness Allowances. Later, the third respondent passed an order dated 12.01.1996 granting the scale of pay. In view of the aforesaid facts, the Government is not correct in issuing G.O.Ms.No.161, Rural Development (E-7) Department dated 26.06.2000, regularising the service of the petitioner on completion of ten years of service. The case of the petitioner could not be compared with the other Night Watchman.

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As rightly contended by the learned counsel for the petitioner, the Judgment relied on by him is directly applicable to the facts of the case. In the order passed by this Court in W.P.No.39780 of 2006, dated 24.03.2009, paras 4 to 8 are extracted hereunder:

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"4.The grievance of the petitioner is that his service was regularised by relaxing the rules from the date of issuance of the Government Order as stated supra and not from the date of initial appointment.

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5.The petitioner, who was appointment without qualification and not in accordance with the rules, was granted relaxation of the rules by the Government. Similar issue as to whether the regularisation can be restricted from the date of issuance of the relaxation order or from the date of initial appointment, came up for consideration

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before this Court in the decision of mine reported in (2006) 2 MLJ 339, Perumal V. vs. Commissioner and Secretary to the Government, Health and Family Welfare Department, Chennai, wherein relaxation was given for not possessing required qualification from the date of issue of the order and not from the date of initial appointment, was set aside by me with a further direction to given effect of relaxation from the date of appointment and not from the date of issuance of the relaxation order. The fact in the above case is similar to the fact in this case. The Division Bench of this Court also in the judgment in Indian Council of Medical Research v. K.Rajalakshmi reported in 2005(1) CTC 488 has also taken a similar view.

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6.In the above referred judgments, this Court held that relaxation of rules granted is only for appointments already made and therefore, the benefits has to be given from the date of appointment and not from the date of issuance of the relaxation order. The said judgment is followed by the Honourable Mr.Justice P.Jyothmani in W.P.No.20797 of 2008, dated 21.10.2008 and by the Honourable Mr.Justice P.P.S.Janarthana Raja, in W.P.No.28263/2006, dated 18.01.2007 and W.P.No.20146/2006 dated 29.03.2007 passed by the Honourable Mr.Justice V.Ramasubramanian.

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7.The only difference in this case is that the Government ordered regularisation to all the contingent staff only after completion of 5 years of contingent service and as such, the petitioner will get the right of regularisation after their completion of 5 tears of contingent service. Hence, regularisation granted to the petitioner in G.O.Ms.No.107, Revenue Department dated 23.01.1989 should be made available on his completion of 5 years of service in the contingent establishment.

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8.The impugned order dated 03.09.1998 is set aside and the writ petition is allowed on the above terms. Necessary order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order, granting regularisation of the petitioner's service on his completion of 5 years of contingent service and not fro the date of grant of relaxation."

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14.Likewise, in the order dated 30.03.2007 in W.P.No.14679 of 2006, para 4 is extracted hereunder:

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"4.Relaxation having been granted in respect of age of the petitioner, there is no reason to restrict the benefit from the date of the Government Order. This Court in W.P.No.28263 of 2006 (Ganapathy v. Government of Tamil Nadu) by order dated 18.01.2007 considered similar issue and held that by prospective regularisation, earlier services of the petitioner therein will be wiped out for

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the purpose of terminal benefits and allowed the writ petition with a direction to regularise the services with effect from the date of appointment."

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15.Paras 3 and 4 of the order of this Court in W.P.No.30564 of 2006, dated 14.03.2009, are extracted hereunder:

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"3.It is seen from the records that the petitioner was sponsored by the Employment Exchange and was appointed as a Watchman on 15.02.1982 on a consolidated pay. Subsequently, he was appointed as Masalchi on 20.10.1984 and promoted as an Office Assistant on 31.08.1980 and he has been working as Office Assistant continuously from 31.08.1990. When his services sought to be regularised it was found that he required the relaxation from the Rule relating to reservation and also the upper age limit for entering into the Government Services. Therefore, necessary proposals were sent to the Government. The government issued the impugned Government Order in G.O.Ms.No.478, Revenue Department dated 31.05.1996, granting exemption under Rules 3(a) and 5(1) of the Special Rules for the Tamilnadu Basic Services. Even though the power was exercised under Rule 48, it was unfortunate that the Government did not grant retrospective regularisation inspite of the fact that the petitioner had been working continuously from 31.08.1990. In fact, the petitioner joined the initial service when he was only 24 years and was well within the age for joining the Government Services. Though normally the Court cannot interfere in the matter of exemption, in the present case, it is admitted case that the petitioner was working from 31.08.1990. He should have been exempted retrospectively with effect from viz., 31.08.1990 for holding the post of the Office Assistant. It must be stated that it is not a case where he was lacking the minimum qualification for holding the post.

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4.In the light of the same, the writ petition stands allowed that the petitioner by the impugned Government Order in G.O.Ms.Mo.478, Revenue Department, dated 31.05.1996 granting exemption prospectively is set aside and the respondents are directed to grant exemption and it is declared that the petitioner has been regularised from the date when he was appointed as Office Assistant 31.08.1990. No costs."

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In a similar matter, a Division Bench of this Court in the order dated 29.04.2008 in W.A.No.1329 of 2007, confirmed the order of the learned Single Judge in W.P.No.20146 of 2006, dated 29.03.2007. Paras 3 and 4 of the said order are extracted hereunder:

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"3.By virtue of regularisation from 11.11.1991, the petitioner has last 10 years of service. As submitted by

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the learned Additional Government Pleader the order passed in the above Writ Petition-W.P.No.28263/2006 has become final.

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4.Though it is contended that the facts are different, we are not able to agree with the said contention on the ground that it is within the hands of the appellants to regularise the services of the petitioner. After satisfactory completion of probation, the petitioner cannot continue for years together without regularisation when the post is available. More over, it is not the contention of the Government that there are no vacancies. The Government itself has agreed that based on the G.O., relaxation from the compliance of sponsorship by the employment exchange is given. Therefore, the petitioner's services should have been regularised from the date of his initial appointment. Hence, we see no reason to entertain the present Writ Appeal."

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The aforesaid Judgments of this Court are squarely applicable to this case.

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For the reasons stated above, the impugned order is quashed and
the respondents are directed to regularise the service of the
petitioner from the date of his initial appointment with all
benefits.
sd/-
Assistant Registrar
True Copy/-
Sub Assistant Registrar
mps
To
1. The Secretary to the Government,
Government of Tamil Nadu,
Rural Development Department,
Fort St. George, Chennai – 600 009.
2. The Collector,
Coimbatore,
Coimbatore District.