Allowed

B.Rajendran v. Agricultural Production Commissioner

Madras HC13 Jul 2022WP/19836/2019

Case brief

AI extract

What is this about?

The High Court set aside an order regularizing daily wage employees only from 2009. It held that G.O. No. 22 (2006) entitled them to regularization from the completion of 10 years of service in 2002, rejecting the 240-day annual service requirement.

What did the court decide?

The impugned order regularizing services from 2009 was set aside, and a direction was issued to regularize services from 27.07.2002 with effect on continuity of service and pension calculation but wit

B.Rajendran Vs Agricultural Production… — Pension and Retirement Benefits | Madras HC (2022)

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W.P.No.19836 of 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 13.07.2022

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CORAM :

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

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Writ Petition No.19836 of 2019

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1.B.Rajendran

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2.K.Manavalan

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3.B.R.Rajendran

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4.K.Selvaraj

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…. Petitioners

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-Vs-

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1.Agricultural Production Commissioner and Secretary to Government Secretariat, Chennai 600 009.

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2.Commissioner and Director of Agriculture Agriculture Department, Chepauk Chennai-5.

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3.Joint Director of Agriculture Cuddalore.

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…. Respondents

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Prayer : Writ Petition under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records leading to the issue of G.O.(2D) No.124, Agriculture Department dated 25.05.2009 issued by first respondent the letter No AUP2 / 125176 / 2006 dated 01.06.2009 and letter no. AUP2 / 110129 /2018 dated 15.02.2019 issued by second respondent and the proceedings no. A5 / 7861 / 2009 dated 17.06.2009 issued by third respondent and quash the same and direct the Respondents to regularise the service of the petitioners with effect from the date of completion

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benefits.

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of ten years of service as daily wage employees with monetary and service benefits.

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For Petitioner : Mr.R.Singaravelan, Senior Counsel for Mr.G.Elangovan For Respondents : Mr.R.U.Dinesh Rajkumar Additional Government Pleader

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O R D E R

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The prayer sought for herein is for a Writ of Certiorarified Mandamus calling for the records leading to the issue of G.O.(2D) No.124, Agriculture Department dated 25.05.2009 issued by first respondent the letter No AUP2 / 125176 / 2006 dated 01.06.2009 and letter no. AUP2 / 110129 /2018 dated 15.02.2019 issued by second respondent and the proceedings no. A5 / 7861 / 2009 dated 17.06.2009 issued by third respondent and quash the same and direct the Respondents to regularise the service of the petitioners with effect from the date of completion of ten years of service as daily wage employees with monetary and service benefits.

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These four petitioners initially were appointed as daily wagers in the Bio Fertilizer Unit at Cuddalore on 22.07.1992, having their name being sponsored by the Employment Exchange concerned, by the proceedings of the Agricultural Chemist (Bio Fertilizer Unit, Cuddalore) vide is proceedings dated 22.07.1992.

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Though the petitioners had been working in that capacity for several

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years, their services were not regularized and they were also not brought under the time scale of pay. Hence, the petitioners approached this Court by filing a writ petition in W.P.No.25441 of 2004, where a direction was given by this Court dated 08.09.2004 to decide the representation of the petitioners with regard to their grievance of regularisation.

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Pursuant to the said order passed by this Court, by taking into account

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of the import of G.O.No.22, Personnel and Administrative Reforms Department dated 28.02.2006, the second respondent had sent a communication to the first respondent on 16.11.2006, where inter alia the following has been stated,

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" 2) ,e;epiyapy; jpUthsh;fs; gp/nyhfehjd;. gp/uhn$e;jpud;. nf/ bry;tuh$;. o/Mh;/uhn$e;jpud; kw;Wk; nf/ kzthsd; Mfpa 5 jpdf;Typ gzpahsh;fs; ePjpkd;wj;ij mQqfp j';fspd; gzpapid tud;Kiw gLj;j cj;jut[ bgw;Ws;sdh;/

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vdnt. ghh;it (3) kw;Wk; (4)y; fz;l muR foj';fspy; nkw;fz;l 5 jpdf;Typg; gzpahsh;fspd; gzpapid tud;Kiwg; gLj;jpl cah;ePjp kd;w cj;jut[ vz;/lgps;a[/g;gp/25441-2004 kw;Wk; lgps;a[/g;gp/vk;/g;gp/ vz;/30915-04 ehs; 8/9/2004y; tH';fg;gl;l jPh;g;gpd;

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go ,t;ite;J gzpahsh;fSf;F kl;Lk; jdpahff; fUj;JU mDg;gpl mwpt[Wj;jpa[s;sijj; bjhlh;e;J 5 gzpahsh;fSf;F kl;Lk; gzp

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tud;Kiw bra;jplg; gzpahsh; gl;oay; ,j;Jld;

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,izj;jDg;gg;gLfpwJ/

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nkw;go Ie;J gzpahsh;fSk; flY}h; khtl;lj;jpy; caph; cuj; jahhpg;g[ ikaj;jpy; 1992Mk; Mz;L Kjy; gzpahw;wp tUfpwhh;fs;/ ,th;fs; caph; cuk; cw;gj;jpapd; mog;gilapy; jpdf;Typahf gzpahw;wp tUfpwhh;fs;/ ,th;fs; 89 ehl;fSf;F nky; bjhlh;e;J gzpg[hpa mDkjpf;fg;gLtjpy;iy/

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,th;fs; mog;gilg; gzpahsh;fSf;fhd nghjpa fy;tpj; jFjp bgw;Ws;sdh;/ ,th;fs; jpdf;Typahf ntiy tha;g;gfk; K:yk; njh;t[ bra;ag;gl;Ls;sdh;/ ,g;gzpahsh;fs; gzp tpgug; gl;oay;

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,j;Jld; ,izj;J mDg;gp itf;fg;gLfpwJ/ ,th;fs; taJ tuk;gpidf; fle;J tpl;likahy; ,th;fSf;fhd taJ tpjp 5(1)I jsh;j;jp ,th;fsJ gzpapid tud;Kiw bra;jpl murplk; Miz bgw;W tH';FkhW nfl;Lf;bfhs;fpnwd;/"

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Along with the said letter, the second respondent also annexed a

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tabular column, where details of casual employees ie., the petitioners herein working in the Chemistry Wing of the Agriculture Department has been stated. The tabular column suggests that, all these petitioners were appointed or initially engaged as daily wagers at the respondent department ie., the office of the Agricultural Chemist, BFPC, Cuddalore with effect from 27.07.1992. They completed 10 years of service as 27.07.2002. All these petitioners were appointed through employment exchange. Insofar as their educational

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qualification is concerned, they failed in 10th standard except one candidate viz., Selvaraj, who passed only 9th Standard. By making this communication by way of recommendation, the second respondent had requested the first respondent to regularize their services in view of the Government Order ie., G.O.No.22, Having considered the said recommendation made by the second respondent, the first respondent issued an order in G.O.(2D) No.124, Agriculture Department dated 25.05.2009, where the first respondent ordered to regularize the services of the petitioners in the post of Watchman in the respondent Department with effect from the date of issuance of the G.O.(2D) No.124 dated 25.05.2009.

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By virtue of this order having been passed by the first respondent, the chance of getting regularization on completion of 10 years of service ie., in the year 2002 for the petitioners is defeated, thereby they may not be eligible or entitled to get the pension on retirement or superannuation.

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Therefore, challenging the said portion of the order thereby regularizing the services of the petitioners only with effect from 25.05.2009 and not from July 2002, the date on which the 10 years completion of service was over from their initial appointment or engagement in the year 1992, the present writ petition has been moved by the petitioners.

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Heard Mr.R.Singaravelan, learned Senior Counsel appearing for the petitioners, who pointed out that the benefits accrued on the petitioner is mainly on G.O.No.22, Personnel and Administrative Reforms Department dated 28.02.2006. In fact it was a special gesture of the State Government as per the wish and the policy decision of the State Government, which was announced by the then Chief Minister followed by G.O.No.22, which was issued on 28.02.2006, wherein the only criteria was those daily wagers who have been working in any Government Department of State of Tamil Nadu can be regularized as on 01.01.2006 for which age and other relaxation like communal rotation is to be made and that also be taken and accordingly such relaxation shall be made.

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Therefore based on such import of the said order since the petitioners had completed 10 years of service from their initial appointment or engagement as on July 2002 itself, such a recommendatory report was sent by the second respondent on 16.11.2006, whereby on 27.07.2002 since all these petitioners have completed 10 years of service as daily wage employees, they were entitled to get regularization / absorption from that date. However the first respondent, through the impugned order dated 25.05.2009 only has come forward to regularize the services of the petitioner with effect from date of the order ie.,

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25.05.2009. Thereby, the services rendered by the petitioners for getting regularization in the year 2002 on the basis of G.O.No.22 since have been denied, that runs contra to the Government Order.

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He would also submit that, in respect of similarly placed persons the very same department ie., Agriculture Department has issued a Government Order in G.O.Ms.No.233, Agriculture Department dated 11.06.2007, the import of the said Government Order has been brought to the notice of this Court by the learned Senior Counsel and he would point out that 95 such daily wage employees' services had been regularized with effect from their original date of appointment. The benefit extended to those 95 persons were directed to be extended for further two persons in the said G.O.Ms.No.233 dated 11.06.2007 by the same Agriculture Department.

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When that being so, the denial is now made only to the case of the petitioners for regularizing their services on completion of 10 years service. Instead, if the impugned order dated 25.05.2009 alone is taken as a date for regularization of their services, their right of getting the pension since is defeated, it is a discriminatory act on the part of the respondents besides violating the import of G.O.No.22 and the very same instructions issued in this regard. Hence, the learned Senior Counsel seeks the indulgence of this Court to

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allow this writ petition.

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However Mr.R.U.Dinesh Rajkumar, learned Additional Government Pleader appearing for the respondents would submit that, though it was recommended by the second respondent in his letter dated 16.11.2006 that, these petitioners have completed 10 years of service as on 29.07.2002 and therefore entitled to get the benefit of regularization by virtue of G.O.No.22 referred to above on verification of the muster roll records it has come to the light that these petitioners, though had been engaged for 10 years right from 1992 except in 1993, in all these years these petitioners have not rendered total 240 days of service as daily wage employees in one calendar year. In 1993, the muster roll suggests that there was no such engagement in respect of all the four petitioners.

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In this context the learned Government Counsel relied the following averments made in the additional counter affidavit.

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“ 7. It is submitted that the statement of the petitioner and three others were engaged as casual labour in the Bio-Fertilizer Production Unit, Cuddalore is submitted below.

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*Year*	N	*umber of days e*	*ngaged in one ye*	ar
	B.Rajendran	K.Manavalan	B.R.Rajendran	K.Selvaraj
1992	77	81	79	79
1993	0	0	0	0
1994	102	119	128	129
1995	167	211	187	187
1996	221	215	201	205
1997	44	43	38	35
1998	204	0	128	61
1999	164	89	95	78
2000	270	242	252	241
2001	225	229	201	227
2002	106	96	94	95
*Total*	*1580*	*1325*	*1403*	*1337*

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8. It is submitted that out of 365 days, 240 days of engaged continuously in a year in a sanctioned post is absolutely necessary to count an year service of the daily wage employees. It is seen from the above statement that no one has completed ten years or approximately 2,400 days. Moreover, the petitioners herein were not engaged in the year 1993. In the year 1992, 1999 and 2002, the petitioners were engaged 100 days in the years and below 50 days in the year 1997. The statement of the engagement of the petitioners in the Bio-Fertilizer Production Unit, Cuddalore is annexed as Annexure A for kind perusal of this Hon'ble Court.”

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Relying upon these averments, the learned Government Counsel would further contend that, assuming that the benefit of G.O.No.22 has to be extended to those who have rendered 10 years service, the 10 years service should be reckoned as follows, where he has been in service for not less than 240 days in one calendar year ie., 10 X 240 = 2400 days in whole in the 10 years, and only then the benefit of G.O.No.22 would be extended to such employees.

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Here in the case in hand, the total days the petitioners served is 1580, 1325, 1403 and 1337 respectively. Therefore, it is far behind the 2400 mark. Therefore, it cannot be stated that these petitioners have rendered service of 10 years for the purpose of getting the benefit under G.O.No.22.

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Nevertheless, according to the learned Government Counsel, these petitioners have been regularized on the basis of the recommendatory report sent by the second respondent by taking into account their continuous service as daily wage employees for several years in the Department in the Watchman post and that is how G.O.No.124 was issued on 25.05.2009. Therefore, in the said

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post of Watchman since these petitioners have been regularized, only from that date they have been regularized by relaxing the relevant rules in this regard.

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Therefore, the benefit already conferred on the petitioners by virtue of G.O.No.124 dated 25.05.2009 itself is more than their entitlement and the present plea raised by the petitioners to treat them as having put in 10 years service for getting the benefit under G.O.No.22 is beyond the scope of G.O.No.22. Hence, by citing the said reason, the plea raised by the petitioners has been rejected through the impugned order dated 15.02.2019 and therefore that order is to be sustained, the learned Government Counsel contended.

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I have heard the learned counsel for both sides and have perused the materials placed on record.

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

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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 89^th 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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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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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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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

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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 ie., 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

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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/

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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;

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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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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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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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If that criterion is accepted, the State Government has to revisit many number of orders passed by them in the past, where thousands of such daily wage employees have been regularized in various departments extending the benefit of G.O.No.22 dated 28.02.2006.

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Such kind of extreme interpretation cannot be given as the respondents desires to employ in respect of G.O.No.22 because, the language used in Para 2 of G.O.No.22 dated 28.02.2006 only says that "those who have

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rendered 10 years of service as on 01.01.2006" , which means, the daily wage employees rendered service of 10 years as on 01.01.2006 would be entitled to get the benefit. The word 'continuous service' is conspicuously absent in the said Government Order because, the Government knew that these kind of daily wage employees would not be engaged for all 240 days or more in one calendar year because the daily wage employees can be engaged depending upon the works available in the Department and some time this kind of artificial break also would be employed on them and after such artificial break in respect of some candidates, re-employment or re-engagement would be followed on the next day and in respect of some, it may take place even after several weeks or months.

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Only to regularize this kind of daily wage employees, the Government,

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being a welfare measure, has taken such a policy decision to extend the benefit of regularizing the services of daily wage employees who have completed 10 years service in that category and that is the reason why the Government Order in G.O.No.22 dated 28.02.2006 was issued. Therefore, the very intention of the Government Order which is arising out of a policy decision taken by the Government which was announced by the then Chief Minister cannot be tinkered by such extreme proposition as has been projected or employed by the respondents through their counter affidavit, as has been vehemently contended by the learned Government Counsel, and the same cannot be accepted or countenanced.

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The reason cited by the first respondent in the order dated 15.02.2019 ie., the last para stating that, there is no evidence to state that from 1992 they have been continuously engaged by the Department, cannot also, stand because, the fact remains that, from 1992 they have been engaged and it is an admitted fact and even in the tabular column that has been given by the respondents in Para 7 of the additional counter affidavit. Therefore, that reason also in the order dated 15.02.2019, which is also impugned herein, is not based on any facts.

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Hence, for all these reasons and discussions made above, this Court is

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inclined to dispose of this writ petition with the following order.

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That the impugned order insofar as regularizing the

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services of the petitioners with effect from 25.05.2009 alone is hereby set aside.

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The order dated 15.02.2019 denying the benefit to the petitioners to regularize their services on completion of 10 years of service ie., in the year 2002 also is hereby set aside

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As a sequel, there shall be a direction to the respondents to pass necessary orders to regularize the services of the petitioners with effect from the 10 years service they completed ie., from 27.07.2002 without extending any back wages to the petitioners for such period. The other service benefits including

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continuity of service for the purpose of calculating their pension on superannuation be extended to the

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petitioners.

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