Madras High Court
A.Babysabeena vs The State Of Tamilnadu Rep.By Its ... on 29 August, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICAURE AT MADRAS
DATED:29.08.2011
CORAM:
THE HON'BLE MR.JUSTICE K.CHANDRU
W.P.Nos.1286,2175 ,887,and 17821 of 2009
1 A.BABYSABEENA
2 D.PAVULRAJ
3 S.AJINTHAKUMARI
4. E.CHELLADURAI
5 K.SURENDRABABU
6 N.RAMACHANDRAN
7 T.THANGAPPAN
8 P.JOHNSON
9 B.HARIKUMAR.
10 S.MARIA XAVIER
11 A.RAJENDRAN
12 A.SATHYANESAN
13 U.KANDASAMY
14 K.KRISHNA PILLAI
15 K.THANGARAJ
16 R.RETHINARAJ
17 J.MELTAMERY
18 R.AASAITHAMBI
19 L.P.SELVAM
20 P.ABHIMANYU
21 L.NATESAN
22 A.CHINNATHAMBI
23 G.MURUGESAN
24 R.RAJEE
25 M.THAKKAN
26 S.PALANIVEL
27 T.R.RAVEENDRAN
28 M.GANESAN
29 P.RAMAN
30 L.GOVINDARAJ
31 K.SURESH
32 S.GANGADHARAN
33 R.PANDU
34 S.MANI
35 G.RAMAMURTHY
36 K.JANARTHANAN
37 M.GUNASEKARAN
38 P.GOVINDASAMY
39 V.PONNUSAMY
40. N.RAMASAMY
41. P.PICHANDI
42 S.ASOKAN
43 G.MAHENDRAN
44 K.MOHAN
45 M.RAJAGOPAL
46 P.G.MANI
47 M.MAHENDRAN
48. CHELLAKUMAR
49 R.RAJANGAM
50 E.BALAMURUGAN
51 R.V.ANANTHARAMAN
52 C.THANGASAMI
53 T.KUMAR
54 K.MANALRAJ
55 S.SUKUMARAN
56 P.SRINIVASAN
57 P.MURUGAN
58 N.SANKAR
59 R.VASU
60 L.VENKATRAMAN
61 K.SAIT JAKIR HUSSAIN
62 R.SRINIVASAN
63 P.SELVARAJ
64 A.ANSAR
65 P.KOTHANDARAMAN
66 M.PRABHAKARAN
67 M.MAHABOOBKHAN
68 A.SAHADEVAN
69 G.ASHOK KUMAR
70 S.PARTHASARATHY
71 S.DHILESH PONNIAH
72 G.KADIRESAN
73 T.MURUGAN
74 B.SANKAR
75 T.SURESH
76 V.KASI VISWANATHAN
77 C.KARUPPIAH
78 P.ASHOK KUMAR
79 P.ANBAZHAGAN
80 R.MANI
81 M.ASOKAN
82 M.RAJI
83 K.MAYILSAMI
84 R.VEERAPPAN
85 P.SELVARAJ
86 S.MURTHI
87 R.SUBBIAN
88 R.NAGARAJAN
89 K.SUNDARAM
90 K.CHINNARAJ
91. K.SELVAM
92 N.RAJENDRAN
93 R.SUBBARAJ
94 M.CHINNARAJ
95 M.THANGAVEL
96 N.NAGARAJ
97 P.SWAMINATHAN
98 K.BOSE.
99 M.SEKAR
100 B.RATHINASAMY
101 V.RAMANATHAN
102 R.GANESAN
103 V.KANAKARAJ
104 R.MATHIAZHAGAN
105 R.SUDHAKAR
106 T.PADAIKATHAN
107 R.ANANDHAKUMAR
108 K.MUTHUKRISHNAN
109 P.MATHIAZHAGAN
110 R.ARASAPPAN
111 R.GUNASEKARN
112. B.BASKARAN
113 M.P.NATARAJAN
114 M.KADIRESAN
115 V.ARUL
116 A.SIRPRASADAM
117 P.DURAIRAJ
118 L.SOWRIMUTHU
119 A.MURUGESAN
120 M.CHINNATHAMBI
121 L.SAIT
122 A.VELAYUDHAM
123 A.GANESAN
124 S.ANNAMALAI
125 M.MARI
126 M.MUNIAPPAN
127 A.MUNIAPPAN
128 E.GOPI
129 G.GANGA
130 A.KASIAMMAL
131 M.NAGARANI
132 J.POONGODHAI
133 A.PONNUSAMI
134 G.PALANI
135 M.JAYAPAUL
136 T.KRISHNAN
137 M.MAYAKANNAN
138 K.ARUMUGAM
139 R.NAGENDRAN
140 D.PANDURANGAN
141 M.KANNAN
142 M.MANGAI
143 P.MANICKAVACHAGAM
144 M.GNANASEKARAN
145 S.RAJENDRAN
146 R.RAJARAMAN
147 M.NATARAJAN
148 M.SANTHI
149 B.NEDUNCHEZHIAN
150 D.AROKIADASS
151 R.MARIMUTHU
152 V.S.MURUGAIAN
153 K.CHANDRAN
154 A.NOORUDEEN
155 K.MURUGESAN
156 C.BALUSAMY
157 S.SRINIVASAN
158 T.RAMESH
159 K.SARAVANAN
160 G.ETHIRAJALU
161 J.EDWIN
162 K.CHANDRASEKARAN
163. S.SELVARAJ
164 C.CHINNATHAMBI
165 S.SARAVANAN
166 P.MATHESWARAN
167 C.VIJAI
168 R.NANDAKUMAR
169 N.DHANASEKAR
170 S.SENTHILKUMAR
171 N.SIVAPUNNIAM
172 B.RAMALINGAM
173 T.SEKAR
174 K.SHANMUGAM
175 S.MANIARASAN
176 M.RAJENDRAN
177 V.KUMAR
178 M.KENNADY
179 S.RAJENDRAN
180 K.PALANIAMMAL
181 A.AROKIARAJ
182 M.SELVARAJ
183 J.NAGESWARAN
184 M.MAVADIYAN
185 K.CHITRASU
186 R.POONGODI
187 R.RANGARAJAN
188 S.ELANGOVAN
189 C.MARIMUTHU
190 S.NAGARAJAN
191 S.THIRUMURUGAN
192 SUBRAMANIAN
193 R.MURUGESAN
194 P.KRISHNAN
195 P.KADHIRVEL
196 V.SEKAR
197 M.SANMUGHAM
198 S.KUMAR
199 R.MURUGAN
200 K.AROKIARAJ
201 M.RAJVELU
202 P.MANICKAM
203 P.SURESH
204 E.MADHU
205 A.BALASUBRAMANI
206 P.RAJENDRAN
207 G.TAMILSELVAN
208 T.SARADA
209 A.ARUMUGAM @ MURUGAN
210 S.KANDASAMI
211 G.MANGAYAKARASI
212 M.SULOCHANA
213 K.SELVAM
214 VIJAYAKUMAR
215 M.MANOHARAN
216 E.KANAKAMBARAM
217 R.BABY
218 S.SARASWATHI
219 P.MARAKATHAM
220 C.KANNIAMMAL
221 V.GOVINDAMMAL
222. P.MUNIAMMAL
223 S.MANGAMMAL
224 S.CHINNAMMAL
225 K.VANMAYIL
226 V.DEVAKI
227 R.ANNAMALAI
228 M.SHANMUGASUNDARAM
229 R.SUBRAMANI
230 S.SEKAR
231 P.KUPPAN ...Petitioners
Vs
1 THE STATE OF TAMILNADU REP.BY ITS PRINCIPLE SECRETARY PUBLIC WORKS
DEPARTMENT FORT ST. GEORGE CHENNAI-9
2 THE ENGINEER IN CHIEF AND
CHIEF ENGINEER (GENERAL) CHEPAUK
CHENNAI-5 ...Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for records relating to Paragraph-3(ii) of the order made in G.O.Ms.No.334 Public Works(C2) Dept. dated 19.10.2007 and letter No.12236/C2/2008-4 dated 5.9.2008 to quash the same and consequently direct the respondents to regularise the services of the petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of GO and to extend all consequential benefits forthwith
For Petitioners:Mr.L.Chandrakumar
For Respondent : Mr.V.Subbiah ] Special Government Pleader
W.P.No.2175 of 2009:
1 P.MUTHU MANICKAM
2 V.MASILAMANI
3 S.SRINIVASAN
4 R.MURUGESAN
5 K.MATHIAZHAGAN
6 P. NATARAJAN
7 G. GOVINDARAJ
8 D. SIVASANKARAN ...PETITIONERS
Vs
1 THE STATE OF TAMILNADU
REP BY ITS PRINCIPLE SCRETARY PUBLIC WORKS
DEPT. FORT ST.GEORGE CHENNAI 9.
2 THE ENGINEER IN CHIEF AND
CHIEF ENGINEER (GENERAL) CHEPAUK CHENNAI 5. ..RESPONDENTS
Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for records relating to the 1st respondent order made in Paragraph-3 (ii) of G.O.Ms. 334 Public Works (C2) Department dt 19.10.2007 and Letter No.12236/C2/2008-4 dt 5.9.2008 to quash the same and consequently direct the respondents to regularize the services of the petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of Government order and to extent all
consequential benefits forthwith.
For Petitioners: Mr.W.M.Abdul Majeed
For Respondent : Mr.V.Subbiah ] Special Government Pleader
W.P.No.5887 of 2009
1 G.KALIAPERUMAL
2. R.SOUNDARAJAN
3 A.RAJAKUMARAN
4 M. PALANIVEL
5 K.DURAIRAJ
6 K.CHANDRAMOHAN
7 S.ALAGARSAMY
8 R.JAYAPAUL
9 V.THANGAVEL
10 C.RAJAPPA
11 S.PARISUTHAM
12 T. PICHAIMUTHU
13 V. THIRUVANDADURAI
14 A.GANESAN
15 U.GOPAL
16 M. KARUNANIDHI
17 K.K. KUMAR
18 K.JAYARAMAN
19 C. PALANIVEL
0 C.LAKSHMANAN
21 S. NAGARAJAN
22 S.SANTHOSHAM
23 P. MUNUSAMY
24 S. KAMARAJ
25 V.BASKAR
26 S. YESUDAS
27 N. BOOPATHI KANNAN
28 G.PRABHAKARAN
29. K.NEDUMARAN
30 P.SHANMUGAM
31 C. ARUMUGAM
32 K.MARUDHUPANDIARAJ
33 P.RAMESH
34 R.GOVINDASAMY
35 P.MARIMUTHU
36 A. RAJASEKARAN
37 G.MANUNEEDHISELVAN
38 P.EKAMBARAM
39 N. TAMIZHVANAN
40 P.VALAOLIMANI
41 S.NATARAJAN
42 D.SIVAGNANAM
43 K.SRINVIASAN
44 K.MATHIALAGAN
45 P. GNANAMURTHY
46 M.ANBANANDAN
47 V. DHANRAJ
48 M.SOMASUNDARAM
49 K. RAVIKUMAR
50 D.BALASUBRAMANIAM
51 T.SELVAM
52 R.RAJASEKARAN
53 P.SETTU
54 N.MANIMARAN
55 K.BALASUBRAMANIAM
56 M.MEENAKSHI SUDNARAM
57 S.SELVAM
58 R. ILANGO
59 P.KALYANA SUNDARAM
60 P.SATHYA BAMA
61 S. SWAMINATHAN
62 S. RAJASEKARAN
63 G. GANDHI
64 V.KUMAR
65 M.SIVA ALAGUPANDI
66 V.BABASAMY
67 D.MANIVANNAN
68 N.KARUNANIDHI
69. V.RAMALINGAM
70 KALIAPERUMAL
71 S. THAMBUSAMI
72 G.RAVISHANKAR
73 A. RAVI
74 V.SELVARAJ
75 T.DAMODARAN
76 N.CHANDRASEKARAN
77 V.JAYAPAUL
78 A.VETRIVEL
79 V.IYYAPA SAMY
80 A.MANI
81 R.KRISHNASAMY
82. R.KALIAMURTHY
83 R.RAVIKUMAR
84 S.RAJENDRAN
85 S.SEKAR
86 P.GANESAN
87 T.RAMACHANDRAN
88 G.VEERAPPAN
89 P.MOHAN
90 P.MARIMUTHU
91 R.KALIAPERUMAL
92 K.BALU
93 V.RAMALINGAM
94 J.BALASUNDARAM
95 S.MATHIVANAN ...Petitioners
Vs
1 THE GOVERNMENT OF TAMILNADU
REP BY ITS SECRETARY TO GOVERNMENT PUBLIC
WORKS (C-2) DEPARTMENT FORT ST.GEORGE
CHENNAI 9.
2 THE CHIEF ENGINEER IN GENERAL
PUBLIC WORKS DEPT. CHEPAUK CHENNAI 5.
...Respondents
Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus call for the records pertaining to G.O.Ms. No.334 Public Works Department dt 19.10.2007 and consequential letter bearing no. 12236/C2/2008-4 dt 5.9.2008 of the 1st respondent and the consequential letter dt 28.10.2008 bearing No. 4(1)/24927/08 of the 2nd respondent herein and quash the same in so far it relat4s to para 3 (ii) of G.O.Ms. No.334 Public Works Department dt 19.10.2007 and further direct the respondents to regularize the service of the petitioners from the date of completion of ten years of service as Nominal Muster Roll and grant financial benefits notionally from the date of their regularization and further grant actual benefits from the date of issuance of the impugned Government order dated 19.10.200 with all consequential benefits.
For Petitioners: Mr.V.Suthakar
For Respondents: Mr.V.Subbiah Special Government Pleader
--
W.P.No.7821 of 2009
K.CHAKRAVARTHY ...Petitioner
Vs.
1 THE GOVERNMENT OF TAMILNADU
REP BY ITS SECRETARY TO GOVERNMENT PUBLIC
WORKS (C-2) DEPARTMENT FORT ST.GEORGE
CHENNAI 9.
2 THE CHIEF ENGINEER IN GENERAL
PUBLIC WORKS DEPT. CHEPAUK CHENNAI 5.
...Respondents
. Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for records relating to Paragraph-3(ii) of the order made in G.O.Ms.No.334 Public Works(C2) Dept. dated 19.10.2007 and letter No.12236/C2/2008-4 dated 5.9.2008 to quash the same and consequently direct the respondents to regularise the services of the petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of GO and to extend all consequential benefits forthwith
For Petitioner:Mr.W.M.Abdul Majeed
For Respondents: Mr.V .Subbiah Special Government Pleader
---
O R D E R
In all the four writ petitions, the petitioners have come forward to challenge G.O.Ms.No.334 Public Works(C2) Department dated 19.10.2007 and seeks to challenge Para.3(ii) of G.O.Ms.No.334 Public Works Department dated 19.10.2007. In the said G.O. The State Government framed a scheme for absorption of 1506 Nominal Muster Roll employees to adjust them against the vacancies available in the particular category and also accommodate them in those categories. In the said order, it was stated that Nominal Muster Roll employees of both coming under the Civil and Electrical who have completed 10 years of service, will be brought under regular establishment and their services will be regularised. In the said G.O., the names of employees, their date of birth, their community date of appointment, date of completion of ten years, their educational qualifications and also the relevant recruitment rules which are to be relaxed their favour for the purpose of bringing them under regular establishment.
2. The State Government in the very same G.O. also cancelled the earlier annexures I & II which were appended to the G.O.Ms.No.321 Public Works Department dated 28.09.2007 and the present G.O. comprised of 1056 Nominal Muster Roll employees. In Paragraph 5 of the said order, it was stated that the Chief Engineer(General) Public Works Department and the Regional Chief Engineers concerned are responsible to the facts and figures given in their proposals in respect of regularization and in the said G.O. Impugned, Annexures I to XIV contained the names of employees including the petitioners herein. The State Government in the penultimate paragraph, had stated that for the purpose of regularization, it is established that there will be an expenditure of Rs.4,44,52,887/- in this regard and necessary proposal will have to be sent to the financial department.
3. The petitioners were beneficiaries of the said order. However, in these writ petitions, curiously they have come forward to challenge Paragraph 3(ii) of the G.O. which reads as follows:
"3(ii) where relaxation of eligibility criteria is involved, the financial benefit will be reckoned from the date of relaxation. In other cases, from the date they have completed 10 years of service. In either case actual monetary benefit will accrue from th date of issue of Government orders."
4. As noted in the said paragraph , it is stated that insofar as relaxation of eligibility criteria is concerned the financial benefit will be reckoned from the date of relaxation, in other case, they have completed 10 years of service in either case, either monetary benefit will accrue from the date of issue of the Government Order. The letter dated 05.09.2008, the Principal Secretary to Government addressed to the Chief Engineer(General),Public Works Department had informed that in respect of the G.O. it is implied that the date of relaxation is the date of issue of orders namely 19.10.2007 and the monetary benefits will accrue from the date of issuance of orders. Hence, the pay of the 1056 NMRs issued in the G.O. cited to be fixed in the minimum of the time scale on 19.10.2007, at a starting stage as well as the monetary benefit will have to be allowed from that date.
5. The contention of the petitioners as set out in the affidavit is that confining the monetary benefits from the date of G.O. is without basis and suffers from want of application of mind. Once the Government chooses to invoke the power of relaxation under Rule 48 of the General Rules containd in Part II of the Tamil Nadu State and Subordinate Service Rules, then the regularization so made should not be detrimental to the individual and regularization given long back to the date of regularisation. It should be reckoned to the date on which they have completed 10 years and the failure to do the request made by the petitioner will result in grave injustice. It is also stated that the petitioner have worked and toiled as casual labourer and have long service, G.O. came to be issued and once the qualifying service of 10 years has taken for regularisation, then the benefit should go before the date of completion for 10 years and not the artificial date of taking note of the date of G,.O.
6. It is stated that this Court in a catena of judgments have underlined the principles of discrimination in the matter of relaxation. It is also followed the decision of the State Government which has been followed uniformly in the matter of grant of such relaxation from the date on which they have completed ten years. In this context, the petitioner relied upon several G.Os.issued from 1.7.1996 to 15.05.2008 wherein the same practice was made and therefore they are eligible for the benefit as prayed for by them and to the extent, the G.O. Should be amended and that portion of the G.O. should be set aside.
7. The first writ petition was admitted on 23.01.2009. Subsequently, other writ petitions with similar prayer were came to be admitted. Pending the writ petition, this Court declined to grant any interim relief, though the prayer was made, for staying the operation of that portion of the G.O.
8. Mr.L.Chandrakumar, supported by Mr.Sudhakar, counsel appearing for the petitioners contended that in the matter of fixation of benefits, the Government should not discriminate and the policy of the Government inasmuch as it is only to confer the benefits on the date of completion of 10 years,the monetary benefits should be given including the fixation of notional benefits starting from the date and not from the said G.O.
9. Mr.Sudhakar, also placed reliance upon the Judgment of this Court V.Perumal Vs. Commisioner and Secretary to the Government, Health and Family Welfare Department, Fort St.George and others reported in (2006) 2 MLJ 339 and referred to Paragraph 4 of the said Judgment. In that case, the Court held that the regularization made after several years should not deprive the workmen's service. The judgment proceeded on factual basis and there is no reference to any legal precedent quoted in this regard. Time and again it has been held that regularization is purely a discretion of the Government and once it is exercised, there cannot be any improvement on the power of such relaxation.
10. In essence, the petitioner wants to read the present G.O,. In the backdrop of the previous G.Os. which were issued from time to time under different circumstances, the contention to the contrary raised by the petitioner and are liable to be rejected.
11. The order impugned viz., G.O.Ms.No.334, Public Works Department dated 19.10.2007 is a scheme framed by the Government in respect of qualified number of NMRs to be relaxed and have put in reckoned service thereafter. Since a Scheme of that nature has to be comprehensive scheme and the petitioners are inasmuch as beneficiaries of the scheme, wherein the Government had relaxed essential qualifications for holding the posts of regular Government servants by exercising its power under Rule 48, cannot seek to improve upon the scheme. In any manner showing the previous order will not help their case. It cannot be, contended that what should be the rationale behind the said policy. In fact substantial number of G.Os.cited were issued before the Supreme Court's Judgment in Uma Devi's case reported in 2006 4 SCC 1. In Uma Devi's case (cited supra), a Constitution Bench of the Supreme Court had only mentioned as an one time measure that too in respect of last grade employees by framing a scheme can be regularised only to that extent, the Supreme Court had exempted the State Governments.
12. But, subsequently, when several State Governments gave periodical exemptions citing Uma Devi's case, the Supreme Court frowned upon such regularization. It was directed that any recruitment should be done only in the light of the recruitment rules and any deviation made will be violative of Articles 14 and 16 of the Constitution. In fact, very recently, (a matter which went from this State) the Supreme Court in its decision in Union of India Vs. ArulmozhiIniarasu and others reported in 2011 7 SCC 397 has held that the engagement of casual labourers even for considerably long duration did not confer any legal right on them for seeking mandamus for relaxation of necessary rule. The direction granted for relaxation contained in the recruitment rules, was held to be clearly unsustainable. In the said Judgment, the Court in Paragraph 26 laid down the circumstances under which a writ of mandamus can be issued. Paragraph 26 reads as follows:
"26.Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality (Ref.Sushanta Tagore Vs. Union of India (2005) 3 SCC 16, U.P.State Sugar C orporation Ltd., V .Sant Raj Singh ((2006) 9 SCC 82 :2006 SCC (L & S) 1610, State v.Sashi Balasubramanian ((2006) 13 SCC 252 :(2007) 3 SCC (Cri) 337 and State of Orissa v.Prasana Kumar Sahoo (2007) 15 SCC 129 :(2010) 2 SCC (L & S) 765."
13.Under the said circumstances, this Court is unable to countenance the prayer made by the petitioners in these writ petitions. Accordingly, the writ petitions are dismissed. No costs. Consequently, M.P.Nos. Are closed.
VJY 1 THE STATE OF TAMILNADU REP.BY ITS PRINCIPLE SECRETARY PUBLIC WORKS DEPARTMENT FORT ST. GEORGE CHENNAI-9 2 THE ENGINEER IN CHIEF AND CHIEF ENGINEER (GENERAL) CHEPAUK CHENNAI 5