Allowed

V.Sundaravadivel v. the State of Tamil Nadu

Madras HC11 May 2017WP(MD)/22920/2015

Case brief

AI extract

What is this about?

The petitioner, a part-time instructor, challenged regularization only effective from training completion. The court held that due to the department's delay in complying with previous directions to send him for training, he is entitled to regularization and benefits retrospectively from his initial appointment date.

What did the court decide?

Petitioner entitled to regularization from initial appointment (03.06.2002) and all monetary/service benefits; third respondent to issue modified order within eight weeks.

V.Sundaravadivel Vs the State of Tamil Nadu — Pension and Retirement Benefits | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 11.05.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR W.P.(MD)No.22920 of 2015

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and

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W.M.P.(MD)Nos.1 & 2 of 2015

V.Sundaravadivel

.. Petitioner

Vs.

The State of Tamil Nadu Represented by its Secretary to Government, School Education Department, St.George Fort, Chennai-600 009.

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The Director of School Education, College Road, DPI Campus, Chennai-600 006.

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The Joint Director of School Education (Vocational), College Road, DPI Campus, Chennai-600 006.

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The Chief Educational Officer, O/o the Chief Educational Officer, Dindugal Post & District. .. Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified Mandamus to call for the records in pursuant to the impugned order passed by the third respondent in Na.Ka.No.92693/V1/E3/2008 dated 30.10.2013 and quash the same so far as the regularization of Petitioner service from 14.02.2013 is concerned and consequently direct the respondents to regularize the petitioner service with effect from the date of initial appointment ie. from 03.06.2002 based on the recommendation made by the fourth respondent in his proceedings Na.Ka.No.8001/Aa1/2013 dated 03.05.2013 and grant all monetary and service benefits within a stipulated time may be fixed by this Court.

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For Petitioner : Mr.M.Saravanakumar

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For Respondents : Mr.J.Gunaseelan Muthiah

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Government Advocate for R1 to R4

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O R D E R

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The Prayer in the Writ Petition is for a Writ of https://hcservices.ecourts.gov.in/hcservices/ Certiorarified Mandamus to call for the records in pursuant to the impugned order passed by the third respondent in

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Na.Ka.No.92693/V1/E3/2008 dated 30.10.2013 and quash the same so far as the regularization of Petitioner service from 14.02.2013 is concerned and consequently direct the respondents to regularize the petitioner's service with effect from the date of initial appointment ie. From 03.06.2002, based on the recommendation made by the fourth respondent, in his proceedings Na.Ka.No.8001/Aa1/2013, dated 03.05.2013 and grant all monetary and service benefits within a time frame as fixed by this Court.

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The case of the petitioner is that he was appointed as part time Vocational Instructor on 19.07.1989 at I.T.O. Higher Secondary School, Aykudi, Dindugal District. However, he was ousted from service on 31.05.1994 for want of students' strength. He then filed a Writ Petition before this Court in W.P.(MD). No.15319/1995 seeking for a direction to send the petitioner for a short term Training Course in the District Institute of Education and Training at Ottanchathram, hereafter referred to as DIET. An order to that effect was passed by this Court on 03.08.2001 and thereafter the petitioner was re-appointed on 23.05.2002 and joined on 03.06.2002.

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3.A number of similarly placed part time Vocational Instructors without qualification, who were making representations, at the office of the department, had already approached this Court and in a number of cases, directions were issued to send them for short term training at DIET and after completion of the training, the services of those part time Instructors have been regularized as full time Vocational Instructors, of course from the date of initial appointment in all those cases.

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4.In spite of this legal and factual matrix, since the petitioner's service had not been regularized, nor the petitioner had been sent for a short term training course at DIET, as directed by this Court in the year 2001 itself, the petitioner had once again approached this Court by filing a Writ Petition in W.P.(MD).No.8090 of 2008, where a prayer was sought for that the petitioner be absorbed as full time Vocational Instructor in the Government Higher Secondary School, Vambarapatti, Dindugal District, based on the seniority list dated 12.07.2005 and to grant all monetary and service benefits.

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5.The said Writ Petition was decided by an order passed by this Court, dated 12.04.2010, wherein the following orders have been passed.

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“ Therefore, I am of the considered view that the case of the petitioner has to be taken as a special case taking https://hcservices.ecourts.gov.in/hcservices/ note of the fact that he has been working as part time Vocational Instructor from the year 1989 onwards, of course with a gap between 31.05.1994 to 25.05.2002. It is

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also brought to the notice of this Court that the petitioner has got only a few years of service to attain the age of superannuation. In such view of the matter, the third respondent is directed to consider the claim of the petitioner as a special case in sending him for short term training course in District institution of education and training at Oddanchatram, if there are no other legal impediments. Such order shall be passed within a period of four weeks from the date of receipt of a copy of this order. After the petitioner is send for such training and after successful completion of the said training it is open to the educational authorities to regularise the petitioner in the full time vocational instructor as per the Government Order in G.O.Ms.No.834 dated 23.09.1994. It is made clear that the above said order is passed in the peculiar facts and circumstances of the present case taking note of the above said situation and this order shall not be a precedent for any other case. The writ petition is ordered accordingly. Consequently, the connected miscellaneous petition is closed No costs”.

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6.As against the said order, the department preferred a Writ Appeal in W.A.(MD).No.265 of 2011. In the said appeal, final order was passed by the Division Bench of this Court on 28.02.2011, where the following order was passed:

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“6.We have head the learned counsel on either side and perused the materials available on record.

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7.The Division Bench of this Court in a batch of Writ Petitions in W.P.Nos.9780 of 1995 etc., by a common order dated 08.07.2004, directed that even unqualified vocational instructors who have completed short term training course should be treated as regularly appointed person and they should be regularised in the light of G.O.Ms.No.834, dated 23.09.1994. In compliance with the said Division Bench order of this Court, the appellants sent part time Vocational Instructors for the short term course in spite of the fact that they are unqualified vocational instructor. Therefore, by relying upon the said judgment, the learned single Judge directed the appellants to consider the claim of the petitioner as a special case in sending him for short term training course in District Institution of training at Oddanchtram, if there are no other legal impediments. After such successful completion of training, directed the educational authorities to regularise the respondent in the full time vocational instructor as per the Government order in G.O.Ms.No.834,, https://hcservices.ecourts.gov.in/hcservices/ dated 23.09.1994. In our opinion, the learned single Judge is justified by relying upon the earlier order of the Division Bench of this Court.

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8.In the light of the same, we do not find any infirmity in the said direction. Hence, we are not inclined to make interference in the order passed by the learned single Judge. The writ appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.”

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7.As against said order of the Division Bench, the Department further went on appeal to the Hon'ble Apex Court, where they suffered with an order of dismissal, as the Special Leave Petition was dismissed. Only after these legal battle, the petitioner had sent for a short term training at the DIET only in the year 2013 and the petitioner had completed such training only on 13.02.2013. Thereafter, the present order, dated 30.10.2013 was issued by the third respondent, whereby the services of the petitioner have been regularized by bringing him under a full time Vocational Instructor, however only with effect from 14.02.2013, that is from the next day, after he completed the Short term training course at DIET.

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8.Aggrieved by the said regularization, only after completion of the training date and not from the date the petitioner rejoined service in the year 2002, the petitioner has filed this Writ Petition, challenging the said impugned order, dated 30.10.2013 with the aforesaid prayer.

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9.Mr.M.Saravanakumar, learned counsel appearing for the petitioner would make submissions by relying upon the aforesaid judgments of the learned Judge as well as Division Bench of this Court, where directions were given that the services of the petitioner shall be brought under full time Vocational Instructor on permanent basis, of course after completing his training. The said view has been affirmed by the Hon'ble Apex Court by dismissal of Special Leave Petition filed by the department. Only thereafter, the petitioner had been sent for training and therefore he was able to complete the short term training course on 13.02.2013. Therefore, the respondent, instead of regularising the service of the petitioner from the date of appointment, has regularised his service only from 14.02.2013 thereby the valuable services rendered by the petitioner for nearly about 11 years and more has not been considered. Therefore, the order impugned refusing to regularise the services of the petitioner from his initial appointment is bad in law.

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The learned counsel for the petitioner would also make his submissions by relying upon the recommendatory communication issued by the fourth respondent vide his proceedings in https://hcservices.ecourts.gov.in/hcservices/ 8001/Aa1/2013 dated 03.05.2013 which reads thus:

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“ e.f.vz;.8001/M1/2013 ehs; 03.05.2013

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ma;ah ,

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bghUs; : gs;spf; fy;tp-jpz;Lf;fy; khtl;lk; , ntk;ghh;gl;o , muR

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nky;epiyg;gs;sp , gFjp neu bjhHpw;fy;tp Mrphpah; jpU.tp.Re;ju tonty; vd;ghUf;F Kgneu bjhHpw;fy;tp Mrphpauhfg;

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gzptud;Kiw bra;a fUj;JUf;fs; gzpe;jDg;g[jy;- rhh;g[.

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ghh;it : jiyikahrphpah; , muR nky;epiyg;gs;sp , ntk;ghh;gl;o fojk; e.f.vz;.55/2013 ehs; 29.04.2013.

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ghh;itapy; fz;l fojj;jpy; jpz;Lf;fy; khtl;lk; ntk;ghh;gl;o , muR nky;epiyg;gs;spapy; bjhHpw;fy;tp Mrphpauhfg; gzpg[hpe;J tUk; jpU.tp.Re;jutonty; vd;ghhpd; gzpapid tud;Kiw bra;a fUj;JUf;fis jiyikahrphpah; mDg;gp cs;shh;.

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md;dhh; bjhHpw;fy;tp Mrphpauhf ,Ug;gjhy; gzptud;Kiw fUj;JUf;fisg; ghpe;Jiu bra;J ,j;Jld; ,izj;Jg; gzpe;J mDg;g[fpnwd;.”

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bjhHpw;fy;tp Mrphpah; gzptud;Kiw gotk;

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t.vz;	bjhHpw;fy;tp Mrphpah;	epiy	2	gzptud;	Kiw epiy bjhH;;	pw;fy;tp
	bgah; kw;Wk; gs;sp	bjhHpw;fy;tp		bra;a[k; ehs;	Mrphpauhf	juk;
	Kfthp kw;Wk;	Mrphpauhf			ghh;j;jg;gl; ;	;;;;l ehs;
	fw;gpf;Fk; ghlk;	cl;gLj;jg;g;	;;;l;l		kw;Wk; m	;; urhiz
		ehs;	kw;Wk;		vz;.
		muhrhidfs;	;
1.	jpU.tp.Re;jutonty;	03.06.2002		03.06.2002	03.06.2002
	bjhHpw;fy;tp Mrphpah;	murhiz	(epiy)		murhiz	(epiy)
	muR nky;epiyg;gs;sp	vz; 181 ;	; ehs;		vz;- 181	ehs;
	ntk;ghh;gl;o	18.07.2012			18.07.2012

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md;dhh; K:d;W khj fhy Fwfpa gapw;rpapid gpg;uthp 2013 y; Koj;Js;shh;. ,

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af;Feh; Mrphpah; fy;tp Muha;r;rp kw;Wk; ,a;ffj;jhy; rhd;W tHq;fg;gl;Ls;sJ”.

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11.By relying upon the said communication of the fourth respondent, the learned counsel for the petitioner would submit that the fourth respondent, in fact, has recommended and forwarded proposal of the petitioner to regularise the service of the petitioner from 03.06.2002, the date on which he joined service after reappointment. In spite of the said recommendations having https://hcservices.ecourts.gov.in/hcservices/ been made by the fourth respondent, the third respondent has passed the impugned order, whereby he has regularised the services

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of the petitioner only from 14.02.2013. Therefore the said regularisation missing the services of the petitioner for more than 11 years is totally unjustifiable and hence interference of this Court is very much essential in the given circumstances of the case.

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12.Per Contra Mr.Gunaseelan Muthiah learned Government Advocate appearing for the respondents, by relying upon the averments made in the counter affidavit, would submit that even though the petitioner has got orders from the learned Judge in a Writ Petition and subsequently confirmed by the Division Bench of this Court as against which the Special Leave Petition was also dismissed, in all these cases, a direction issued to the official respondent was only to send the petitioner for a short term training course and thereafter his services can be regularised.

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13.In this regard the learned Government Advocate would rely upon the operative portion of the order of the learned Judge made in WP(MD)No.8090 of 2008 wherein the following direction was issued.

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“After the petitioner is sent for such training and after successful completion of the said training, it is open to the educational authorities to regularise the petitioner in the full time vocational instructor as per the Government Order G.O.Ms.No.834 dated 23.09.1994.”

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14.Therefore, the direction issued by this Court was to send the petitioner for short term training Course and after he has successfully completed the training, it is open to the department to regularise the services of the petitioner by bringing him under full time Vocational Instructor as per the G.O.Ms.No.834 dated 23.04.1994.

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If at all the petitioner is entitled to go for a training because of the orders of this Court and based on which if he is entitle to get the regularisation by bringing him under full time vocational Instructor, the same can be done only after he completed the training. Since he admittedly completed the training only on 13.02.2013, the regularisation would take effect from the next date that is on 14.02.2013 and that is what in fact has been given to him through the order impugned dated 13.02.2013.

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16.The learned Government Advocate would submit that the petitioner's regularisation, after he completed the special training, is strictly in accordance with law and in fact in pursuant to the orders of this court and therefore such regularisation cannot be extended retrospectively from 2002, where admittedly the petitioner was working without qualification as https://hcservices.ecourts.gov.in/hcservices/ part time Vocational Instructor. Therefore, the learned Government Advocate would submit that the impugned order is fully sustainable and requires no interference.

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17.This Court heard the rival submissions made by the learned counsel appearing for both parties.

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18.The import of the order of the learned single Judge of this Court dated 12.02.2010 in W.P.(MD).No.8090 of 2008 has already been extracted herein above. Confirming the said order, the Division Bench of this Court, by order dated, 24.02.20010 in W.P. (MD)No.285 of 2010, has directed that the petitioner would be entitled to go for a training and consequently entitled for regularisation. The Division Bench of this Court at para 7 of their order, which is extracted herein above, has specifically stated that by virtue of a common order dated 08.07.2004 in a batch of Writ petitions in W.P.(MD)No.9780 of 1995 etc., even unqualified Vocational Instructor who have completed the short term training course should be treated as regularly appointed person and they should be regularised in the light of Government Order in G.O.Ms.No.834, dated 23.09.1994.

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Pursuant to the said directions issued by this Court as referred to above by the Division Bench of this Court, probably unqualified part time Vocational Instructor, after having completed the training successfully, has been regularised as full time Vocational Instructor category, of course from the date of their original or initial appointment.

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When number of persons similarly placed like the petitioner have been given such benefit, when a specific direction was given by this Court in the case of the petitioner, which was confirmed by the Hon'ble Apex Court as the SLP filed by the department was dismissed, the department again took a different view in the case of the petitioner alone. It is also pertinent to note here that the fourth respondent, vide his proceedings dated 14.02.1995, has directed that those part time Vocational Teachers without training, can be sent for such training in DIET at Ottanchathram and in this regard the fourth respondent has issued the following directions to all concerned.

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“The list of Unqualified Part time Vocational Instructors to be deputed for short term Training Course in DIETS is communicated to the Heads of Schools concerned for immediated and necessary action.

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They are requested to receive the Part-time Vocational Teachers with instructions to join the short term Training course in District institution of Education and Training at Oddanchatram without affecting the Practical work of Higher School Examination Positively.

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

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Further the Headmasters are requested to ensure that the Teachers noted in the annexure for actually appointed

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prior to 16.7.90 and working continuously before sending them to training.

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This would be treated us Specially Urgent. A report in this regard should be submitted by next post”.

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By quoting this communication, the learned counsel appearing for the petitioner would submit that even in the year 1995 part time vocational Teachers were sent for training, though the petitioner was available at that time, for being sent to the said training, for the reasons best known to them, the respondents did not send the petitioner for training. Had he been sent for training at that time, the petitioner would have been regularised even form the year 1995 on wards. Thereafter, when a direction was issued by this Court in W.P.(MD)No.15319 of 1995 by an order dated 03.08.2001, in a earlier writ petition filed by the very same petitioner, the Department has not sent the petitioner for that special training. However, he was only reappointed on 23.05.2002 again as part time Vocational Instructor and pursuant to which he joined in service on 03.06.2002.

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Even thereafter when a direction was issued by the learned Judge on 12.04.2010 as referred supra, immediately the department has not acted upon as per the direction issued by the learned Judge, they preferred a Writ Appeal and after suffering an order from the Division Bench on 28.02.2011 even then the department has not acted upon as they had gone for appeal to the Hon'ble Apex Court. Only after the dismissal of the SLP filed by the Department, they have come forward to send the petitioner for training and that is why the reason for the petitioner was able to complete the training on 13.02.2013. Therefore the belated action of sending the petitioner to training only in the year 2013 cannot be put against the petitioner, as the petitioner has always been available for taking the said training. In spite of repeated directions given by this Court, since the petitioner has not been sent for training immediately, the respondents now cannot not take a stand that the petitioner would be entitled to get regularisation only from 14.02.2013, the date of next to the completion of the training. Therefore there is a considerable force in the claim made by the petitioner as well as the submissions made by the learned counsel for the petitioner to seek for a regularisation from the date of initial appointment i.e., from 03.06.2002.

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For these reasons this Court is inclined to pass the following orders:

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(1)the petitioner since has completed the special training and he has already been brought under regular service as full time https://hcservices.ecourts.gov.in/hcservices/ Vocational Instructor, he shall be entitled to claim regularisation from the date of initial appointment ie. from 03.06.2002;

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(2)the third respondent is directed to issue a modified order

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to the order impugned dated 30.10.2013 to that effect as indicated above;

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(3)once the modified order is issued giving regularisation to the petitioner from the date of initial appointment, it is needless to mention that the petitioner is entitled to claim all the service benefits as well as monitory benefits;

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(4)the needful as directed above that is for giving modified order to the impugned order shall be done by the third respondent within a period of eight weeks from the date of a receipt of a copy of this order and the monitory benefits calculated pursuant to the same would also to be paid to the petitioner within a period of eight weeks thereafter.

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