Allowed

M.Muniammal v. The Principal Secretary to

Madras HC20 Dec 2022WP/19468/2016

Case brief

AI extract

What is this about?

The Court held that artificial breaks in service after 89 days cannot impede the grant of special time scale of pay to daily wage employees under G.O.Ms.No.385. The petitioner was directed to be reinstated immediately, with service period reckoned from original engagement, but awarded no arrears for the period from April 1, 2020.

What did the court decide?

The impugned order dated 09.03.2016 was quashed; the petitioner was directed to be reinstated immediately with service reckoned from original engagement; special time scale of pay was ordered without

M.Muniammal Vs The Principal Secretary to — Pension and Retirement Benefits | Madras HC (2022)

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W.P.No.19468 of 2016

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.12.2022

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CORAM:

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THE HONOURABLE MR.JUSTICE M.S.RAMESH

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W.P.No.19468 of 2016

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and

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W.M.P.No.16878 of 2016

M.Muniammal

...Petitioner

-Vs-

1.The Principal Secretary to Government, School Education Department, Fort St. George, Chennai - 09.

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2.The Director of Public Libraries, Anna Salai, Chennai - 02.

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3.The District Library Officer, Villupuram District, Villupuram.

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...Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records in pursuant to the impugned letter issued by the 1^st respondent in Letter No.35964/Ni.Va 4(2)/2015-1, dated 09.03.2016 and quash the same and consequently direct the 1^st respondent to grant special time scale of pay of Rs.1300-3000 + Grade Pay Rs.300 to the petitioner as per G.O.Ms.No.385,

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https://www.mhc.tn.gov.in/judis

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Finance (Paycell) Department, dated 01.10.2010 retrospectively with effect from 01.10.2010 with all consequential service and monetary benefits.

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For Petitioner : Mr.R.Prem Narayan

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For Respondents : Mrs.C.Meera Arumugam, Additional Government Pleader

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ORDER

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Heard Mr.R.Prem Narayan, learned counsel for the petitioner and

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Mrs.C.Meera Arumugam, learned Additional Government Pleader for the respondents.

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The petitioner herein was inducted as a Gardner on daily wage basis on 22.04.2006. On 10.03.2008, she was ousted from service and thereafter, she was reinstated into service on 21.04.2008. After working for about 12 years, she was again ousted from service on 31.03.2020, owing to Covid Pandemic situation.

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The Government, in G.O.Ms.No.385, Finance (Paycell) Department,

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dated 01.10.2010, had ordered for bringing in daily wage employees in the Government department under special time scale of pay for those who

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completed 3 years of service. When the petitioner's request in this regard was kept pending, she had filed a writ petition in W.P.No.21041 of 2015 and by an order dated 14.07.2015, the Government was called upon to consider the petitioner's representation within a stipulated time. In consequence to the order of this Court, the impugned order dated 09.03.2016 has been passed, by stating that during the engagement of the petitioner, she was given a break on completion of every 89 days and therefore, since she was not in continuous employment for 3 years, she is not entitled for the special time scale of pay. Challenging the same, the present writ petition has been filed.

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Pending the writ petition, the Government in G.O.Ms.No.260, School Education Department, dated 17.12.2018, had brought 324 part-time Sweepers into regular time scale of pay, in accordance with G.O.Ms.No.385, dated 01.10.2010.

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The learned counsel for the petitioner placed reliance on the decisions of the Hon'ble Supreme Court, as well as this Court and submitted that the break given, after 89 days during the petitioner's engagement as a part-time employee, is deemed to be an artificial break and therefore, the

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same cannot be brought in as an impediment for denying the special time scale of pay, which has been ordered by the Government in G.O.Ms.No.385, dated 01.10.2010.

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Per contra, the learned Additional Government Pleader appearing for the respondents placed reliance on the averments in the counter affidavit and submitted that, as per G.O.Ms.No.385, the part-time Sweepers are required to put in 3 years of continuous service and since the petitioner herein had worked only for 89 days and thereafter was given a break of 1 day and that she was not in a sanctioned post, she is not entitled for the special time scale of pay.

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The issue with regard to imposing an artificial break in the services of a part-time employee had come up before the Hon'ble Supreme Court in the case of Rattan Lal and others Vs. State of Haryana and others reported in 1985 (4) SCC 43, wherein, the practice of giving an artificial break in service was deplored and held that the services of a contractual employee cannot be terminated on the ground of such an artificial break.

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Following the decision in Rattan Lal's case (supra), a learned single Judge of this Court had also granted regularization to contractual employees in the case of K.R.Rajendran and others Vs. Union of India, Ministry of Agriculture and others passed in W.P.(MD) No.8792 of 2018, dated 05.06.2018. The relevant portion of the order reads as follows:-

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"12....

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"7.... (ii).The Hon'ble Supreme Court in the decision reported in 1985 4 SCC 43-(Rattan Lal & Others Vs. State of Haryana & Others), deplored the practice of giving artificial break in service. The state Government is expected to function as a model employer. This proposition continues to hold good even in this age of liberalisation and globalisation. The aforesaid judgment was relied on in the subsequent Full Bench decision of the Hon'ble Supreme Court reported in (1991) 2 SCC 599-(Sri Rabinarayan Mohapatra Vs. State of Orissa and others). The very same principle has been reiterated in yet another decision of the Hon'ble Supreme Court reported in (2009) 6 SCC 611(MD.Abdul Kadir & Another Vs. Director General of Police, Assam & others). Therefore, it cannot lie in the mouth of the State Government to now contend that they are entitled to terminate the services of the contractual

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employee on the expiry of the 11th month and give artificial break after which engage them again. This Court makes it clear that the practice of giving artificial breaks shall be discontinued henceforth. The benefits payable to the petitioners/Scheme appointees in terms of the scheme norms, shall be disbursed. In view of the comprehensive nature of the relief given to the petitioners herein, there shall be of no claim for payment of past arrears. However, as regards the future, it is undertaken by the Government that the periodical/annual increment will be given effect in terms of the scheme regulations."

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In another order in the case of B.Rajendran and others Vs. Agricultural Production Commissioner and Secretary to Government, Secretariat, Chennai passed in W.P.No.19836 of 2019, a similar view was taken by this Court in the following manner:-

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"19. Insofar as the petitioners' appointment or initial engagement as daily wage employees in the respondent Department on 27.07.1992 is concerned, there is no dispute. Continuously these petitioners have been engaged by the respondent Department and this has been certified by the officer concerned ie., the

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second respondent in the annexure referred to above along with the letter dated 16.11.2006.

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20. As quoted herein above in the letter dated 16.11.2006, they had been continuously engaged for 10 years from 1992 where intermittently artificial break was given to these petitioners ie., at the end of 89th day, a break will be given so that even the 90 days continuous service cannot be claimed by these petitioners. This has been specifically mentioned in Para 4 of the letter of the second respondent dated 16.11.2006.

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21. Therefore, it discloses that the petitioners had been continuously engaged from 1992, the date on which they have been initially appointed or engaged.

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22. In this context, if we look at G.O.No.22 it directs that the services of the daily wage employees working in all Government departments who have rendered 10 years service as on 01.01.2006 be regularized by appointing them in the same scale of pay of the post in accordance with the service conditions prescribed for the post concerned subject to their being otherwise qualified for the post.

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23. Except this import, nothing had been added or cannot be added or employed in G.O.No.22 dated 28.02.2006. Based on the said G.O.No.22 dated 28.02.2006, many number of such daily wage employees have already been regularized on completion of their 10 years service. As has been rightly pointed out by the learned Senior Counsel appearing for the petitioners, the very same Department i.e., Agriculture Department by G.O.Ms.No.233 dated 11.06.2007 has passed the following order.

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" 3/ jkpH;ehL eph;thfj; jPh;g;ghaj;jpd; jPh;g;gpid muR ftdKld; ghprPyid bra;J jpUthsh;fs; Mh;/ Rg;gukzp kw;Wk; v!;/j';fntY Mfpa ,U jpdf;Typf; fhtyh;fspd; rhh;ghf jkpH;ehL mog;gilg; gzp rpwg;g[ tpjpfspy; taJ Fwpj;j tpjp 5(1)?I jsh;t[ bra;J mth;fs; Kjd; Kjypy; jpdf;Typ gzpahsh;fshf gzpapy; nrh;e;j ehshd Kiwna 02/02/80 kw;Wk; 04/02/83 Kjy; g[jpa ,uz;L fhtyh;fs; gzpaplj;ij njhw;Wtpj;J mth;fspd; gzpapid Kiwna 02/02/80 kw;Wk; 04/02/83 Kjy; tud;Kiwg;gLj;jp murhiz (epiy) vz;/399 ntshz;ikJiw ehs; 22/12/2006?y; ntshz;ik Jiwapy; gzpg[hpe;J tUk; 95 jpdf;Typ gzpahsh;fSf;F gzptud;Kiw bra;J 22/12/2006 Kjy; gzg;gad; bgWtjw;F Miz tH';fpaJ nghy; nkw;brhd;d ,uz;L fhtyh;fSf;Fk; 22/12/2006 Kjy; gzg;gad; tH';fyhk; vd muR fUJfpwJ/ 4/ 1987 Mk; Mz; muRg;gzp eilKiw E}y; bjhFjp 1?y; cs;s jkpH;ehL khepy kw;Wk; rhh;epiyg;gzpfSf;fhd tpjpfspy; ,uz;lhk; gFjpapy; ml';fpa bghJ tpjpfspy; 48?MtJ tpjpapd; fPH; tH';fg;gl;Ls;s mjpfhu';fspd;go jkpH;ehL MSeh; mth;fs; jpUthsh;fs; Mh;/Rg;gukzp kw;Wk; v!;/j';fntY Mfpnahh;fspd; gzpapid mth;fs; gzpapy; Kjd;Kjypy; nrh;e;j ehshd Kiwna 02/02/1980 kw;Wk; 04/02/83 Kjy; tud;Kiwg;gLj;j VJthf mth;fs; bghUl;L jkpH;ehL mog;gil gzp rpwg;g[ tpjpfspy; tpjp 5(1) (taJ) I jsh;j;jp MizapLfpwJ/ gzg;gad; 22/12/2006 Kjy; tH';f Mizaplg;gLfpwJ/ "

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24. Many number of such daily wage employees in the same department have been regularized with effect from their original date of appointment or engagement and the benefits already given to 95 such daily wage employees were directed to be extended to two more persons for which G.O.Ms.No.233 was issued. Therefore, it is the routine procedure adopted by various Departments of the State of Tamil Nadu including Agriculture Department that those who have completed 10 years service in the daily wage category as on 01.01.2006 would be entitled to get benefits arising out of G.O.No.22.

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25. If that being the position, now a new interpretation is sought to be given or some additional condition is sought to be employed by the respondents by filing an additional counter, where they have stated that in each year of such daily wage engagement, the daily wage employees should have completed 240 days ie., total 2400 days continuously for 10 years and then only they would be eligible to get the benefit under G.O.No.22."

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The learned counsel for the petitioner also placed reliance on a decision of the Hon'ble Supreme Court in the case of Bhagwati Prasad and others Vs. Delhi State Mineral Development Corporation reported in 1990 SCC (1) 361, in which the issue revolved around the regularization of parttime employees on completion of 3 years of service and the Hon'ble Supreme Court held that, while calculating the period of 3 years, the period of original break of 3 months could be condoned and the break of more than 3 months can be deducted while calculating the period of 3 years. The relevant portion of the order reads as follows:-

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"6.......

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In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondents, in the circumstances, would be sufficient for confirmation. If there is a gap of more than three months between the period of termination and re-appointment that period may be excluded in the computation of the three years period."

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The aforesaid extracts are self explanatory. As such, when the

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Government orders for regularization of part-time employees on completion of 3 years of service, the respondents cannot take a stand that such employees 10/14

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were not in continuous service, on the ground that their services were interrupted through a break after 89 days. More so, when the Government themselves have regularized the services of 324 part-time employees in G.O.Ms.No.260, dated 17.12.2018, denial of similar benefits of extension of special time scale of pay to the petitioner herein, would be discriminatory.

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In view of the settled proposition of the Hon'ble Supreme Court, as

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well as the orders of this Court referred above, the reasoning adopted by the respondents in the impugned order, as well as the submissions made by the learned Additional Government Pleader, cannot be sustained.

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It is now stated by the learned Additional Government Pleader that

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after receiving the wages for the month of March, 2020, the petitioner had not reported for duty from 01.04.2020.

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On the other hand, the learned counsel for the petitioner submitted that from 01.04.2020 onwards, the petitioner was ousted from service, owing to Covid Pandemic situation and therefore, her services were not engaged by them.

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Now that this Court has held that the petitioner would be entitled

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for the special time scale of pay in accordance with G.O.Ms.No.385, dated

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01.10.2010, she can be reinstated back into service. However, since she was not engaged from 01.04.2020 till date, she would not be entitled for the monetary benefits, but her service period alone could be reckoned for this period.

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In the result, the impugned order dated 09.03.2016 passed by the first respondent is quashed. Consequently, there shall be a direction to the first respondent herein to reinstate the petitioner back into service with immediate effect and to grant the special time scale of pay, in accordance with G.O.Ms.No.385, dated 01.10.2010, on completion of 3 years of service, without reference to the break in her services. However, the petitioner would not be entitled for the arrears of salary for the period from 01.04.2020 till the date of her joining duty on reinstatement, but would be entitled for the other service benefits. Such orders of reinstatement, grant of special time scale of pay and disbursement of the service benefits, shall be passed by the first respondent, within a period of 8 weeks from the date of receipt of a copy of this order.

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