Madras High Court
The State Of Tamil Nadu vs G.Velmurugan on 10 December, 2018
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2724 of 2018
and
CMP No.22418 of 2018
1.The State of Tamil Nadu
Rep. by its Secretary
Animal Husbandry, and Fisheries Department
Fort St. George
Chennai 600 009
2.The Commissioner
Animal Husbandry Services
D.M.S. Compound
Chennai - 6 ... Appellants
Vs.
G.Velmurugan ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against
the Order dated 14.02.2018 made in W.P.No.25254 of 2008.
For Appellants : Mr.P.S.Sivashanmugasundaram
For Respondent : Ms.N.R.Jasmine Padma
for Mr.L.Chandrakumar
http://www.judis.nic.in
2
JUDGEMENT
(Judgment of the Court was delivered by S.MANIKUMAR, J) Challenge in this writ appeal is to an order of the writ court dated 14.02.2018 made in W.P.No.25254 of 2008, by which, the writ court, set aside G.O. Ms. No.117 Animal Husbandry and Fisheries Department dated 28.08.2008 and consequently directed the respondents therein/appellants, to regularise all the petitioners therein from the date of their original appointment i.e. 2000 - 2001, with all monetary benefits like, grant of annual increment except arrears of pay etc.
2. Short facts leading to the filing of the writ appeal are that, the writ petitioner was initially appointed as a Casual Labourer on 14.02.1991 in Animal Husbandry Department. According to him, his services were continuously utilised during the period of casual employment. After completion of a number of years as casual labour, he approached the Tamil Nadu Administrative Tribunal and obtained certain directions for regularisation of his service and thus he was brought under regular establishment during 2000.
3. According to him, after being brought into regular establishment, he was also granted annual increments immediately, http://www.judis.nic.in but, the same was discontinued for the subsequent periods. The 3 Government have passed an order in G.O. Ms. No.17, dated 03.02.2004, regularising about 800 similarly placed persons by relaxing the rules in their favour. However, the petitioners herein and others were not included, despite they were fully qualified for regularisation. Some of the casual employees employed in the first respondent department approached this Court for grant of annual increment on the basis of their initial appointment between 1998 - 99, 1999 - 2000 and this Court passed an order directing the appellants herein to consider the claim of the petitioners therein for grant of annual increment. As the appellants did not comply with the order within the time stipulated by the writ court, a contempt petition was filed.
4. In pursuance of the direction issued by this Court in contempt proceedings, the Government have issued G.O.(Ms).No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.08.2008, granting regularisation to several casual employees from the date of issue of the Government Order dated 28.08.2008 and not from the date of their original appointment. Under such circumstances, respondent herein has filed W.P. No.25254 of 2008 challenging the G.O.Ms.No.117 dated 28.08.2008, insofar as it denies regularisation from the date of their initial appointment, the time scale of pay and the consequential denial of annual increment from http://www.judis.nic.in 4 the said date.
5. Before the writ court, respondent herein contended that the issue was covered by the decision of a Hon'ble Division Bench of this Court in W.A.Nos.226 and 491 of 2012 dated 05.11.2013. In the said decision, a similar claim came up for consideration before a Hon'ble Division Bench and the appeal was allowed in favour of the Government servants therein who were identically placed like the petitioners herein. The operative portion of the order reads thus:
"14. For the foregoing reasons, the orders of the Writ Court in W.P.No.26753 of 2008 and 17559 of 2009 dated 28.09.2011 and 06.07.2011 respectively are set aside and the writ appeals are allowed. The respondents are directed to regularize the services of the appellants in the post of Animal Husbandry Assistant with effect from 21.08.1997 and 16.06.1999 respectively i.e. the date of appellants' joining in the regular post of Animal Husbandry Assistant and grant all the monetary benefits. If for any period, the appellants had been ousted for want of vacancy, the appellants shall not be entitled to any monetary benefit during that period but the same shall be taken into account for continuity of service. The respondents are directed to comply with the order within a period of four months from the date of receipt of a copy of the judgment. No costs."
The Hon'ble Division Bench directed regularisation of service to the appellants therein in the post of Animal Husbandry Assistant with effect from the date of their initial appointment with all monetary benefits. However, monetary benefits was restricted and that the http://www.judis.nic.in 5 same should not be applicable during the period of their non-
employment.
6. Before the writ court, on behalf of the Secretary to Government, Animal Husbandry, Dairying and Fisheries Department, Deputy Secretary to Government, Animal Husbandry, Dairying and Fisheries Department, filed a counter affidavit and submitted that the respondent herein was brought into regular establishment during 1999, but his services were not regularised subsequently due to administrative reasons and relaxation of rules relating to the post of Animal Husbandry Assistant.
7. Learned Special Government Pleader further contended that the Government vide G.O. Ms. No.17, Animal Husbandry and Fisheries (AH1) Department dated 3.2.2004 have regularised 804 persons in the post of Animal Husbandry Assistant relaxing their age, qualification, cycling and employment exchange sponsor, in which the writ petitioner name was not included due to non-completion of 10 years service as on 6.2.1995. He further contended before the writ court that as per Rules in vogue only one increment can be sanctioned to Government servants whose services are to be regularised.
Accordingly, the second increment was not sanctioned to the writ petitioner since his services were not regualarised. Proposals were http://www.judis.nic.in 6 sent to the Government to regularise temporary Animal Husbandry Assistant including the writ petitioner relaxing the age, qualification, cycling and Employment Registration. Based on that the first appellant herein regularised the services of 163 Animal Husbandry Assistants vide G.O. Ms. No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 from the date of issue of orders by relaxing the relevant rules in their favour.
8. It is the further submission of the learned Special Government Pleader that the Government servants are eligible for sanction of annual increment only from the date of regularisation of their services. Accordingly, the petitioner is eligible for annual increment after completion of one year from the date of regularisation i.e. from the date of issue of the orders regularising the services of the petitioner. Learned Special Government Pleader further contended that the Government arrived at a policy decision that the persons who had entered into Government service by irregular appointments can be absorbed by considering the long service and may be regularised from the date of issue of orders. Accordingly, the services of the writ petitioner's service was regularised.
9. The Director of Animal Husbandry and Veterinary Services, Chennai, has filed a separate counter affidavit reiterating the very http://www.judis.nic.in 7 same averments and further contended that writ petitioner's claim is not similar to the appointment of regular employees, since the writ petitioner's appointment is irregular. He further contended that the Hon'ble Supreme Court, in Civil Appeal Nos.2726-2729 of 2014, dated 21.02.2014 arising out of SLP (C) Nos.5681-5684/2014 and CC.19326/19329/2013, held as follows:
"8 (ii)xxx xxx, xxx Even temporary, ad hoc or daily base services for a long number of years, let alone service for one or two years will not entitle such employees to claim regularisation, if he is not working against the sanction post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.
xxxx
(a) Part time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part time temporary employees.
(b) Part time temporary employees in Government run institution cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work."
11. Based on the pleadings and submission of the parties, writ court vide a common order dated 14.02.2018 made in W.P. Nos.10974 of 2009 and 25254 of 2008 granted the relief sought for by the petitioners therein. Relevant portion of the order reads thus:
8. At this, learned counsel for the petitioners would submit that as far as these petitioners are concerned, they have been continuously working and the question of they have http://www.judis.nic.in been ousted for some time does not arise and therefore, they 8 are entitled to monetary benefits from the date of the initial appointment.
9. Upon notice, learned Special Government Pleader appearing for the respondents has entered appearance and filed a detailed counter affidavit.
10. According to the learned Special Government Pleader, the petitioners are not entitled for regularization from the date of their initial appointment, since their initial appointment was irregular and subsequently regularised by G.O.Ms.No.117, dated 28.08.2008. The substance of the objections as found in paragraph V of the counter affidavit is extracted below:-
"V) It is submitted that the services of the petitioners whose appointment were irregular have been regularized with effect from 28.08.2008 as per G.O.Ms.No.117, Animal Husbandry, Dairying and Fisheries (AH-7) Department, dated 28.08.2008, following the guidelines issued in U.O.Note No.16076/S/95-9, Personnel and Administrative Reforms (S) Department, dated 05.02.1996 and there is an order in para No.4 of the above Government Order regarding sanctioning of annual increments only on completion of one year of service from the date of regularization, which will be the date of Government Order i.e. 28.08.2008. Hence, they are eligible to get next increment only on 01.07.2009. Therefore, necessary orders have been issued for cancelling the increments already santioned and recovery of increments paid to those sanctioned increments before 28.08.2008. Hence, there is no error in the order passed by the second respondent."
11. Therefore, learned Special Government Pleader would submit that the petitioners are not entitled to any relief as prayed for in the writ petitions. However, as regards the order passed by the learned Division Bench as aforementioned, the learned Special Government Pleader would submit that the issue raised in the writ appeals are identical as that of the issues raised in the present writ petitions.
12. In view of the submissions of the learned counsel as http://www.judis.nic.in above, this Court is bound by the decision of the learned 9 Division Bench as the Division Bench order dated 05.11.2013, passed in W.A.Nos.226 and 491 of 2012, wherein, the operative portion of the learned Division Bench order is also extracted supra. Since the issues raised in these writ petitions are squarely covered by the orders passed by the learned Division Bench and also the learned counsel for the petitioners would submit that the Department has implemented the orders of the learned Division Bench in respect of those similarly placed persons, this Court does not see any justifcation for taking a different view in the matter. Moreover, the orders passed by the learned Division Bench is binding on this Court. Therefore, this Court has no hesitation in allowing the writ petitions as prayed for.
13. In the above circumstances, the impugned in G.O.No.117, Animal Husbandry and Fisheries Department dated 28.08.2008, is hereby set aside, insofar as it restricts regularization of service of the petitioners with effect from the date of issue of the Government Order. There shall be consequential direction to the respondents to grant regularisation to all the petitioners herein from the date of their original appointment i.e., 2000-01 with all monetary benefits like grant of annual increment except the arrears of pay etc. The consequential direction shall be complied with by the respondents, within a period of eight weeks from the date of receipt of a copy of this order.
14. With the above direction, the writ petitions stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
12. Being aggrieved by the order made in the case of the respondent, instant writ appeal has been filed, on the following grounds:
i) Writ court ought to have considered the fact that the Government in G.O. (Ms) No.17, Animal Husbandry and http://www.judis.nic.in 10 Fisheries (AH1) Department, dated 03.02.2004 have regularised the services of 804 persons in the post of Animal Husbandry Assistant by relaxing their age, qualification, cycling and Employment Exchange sponsor in which the respondent's name was not included due to non-completion of 10 years of service as on 06.02.1995 among the 826 casual labourers who were brought into regular establishment vide G.O. Ms. No.116, Animal Husbandry and Fisheries (AH6) Department, dated 07.05.1997.
ii) Writ court ought to have considered the fact that proposals were sent to the Government to regularise the temporary Animal Husbandry Assistants including the respondent herein by relaxing their age, qualification, cycling and employment registration and based on the same, the Government have regularised the services of 163 Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.08.2008 from the date of issue of orders by relaxing the relevant rules in their favour;
iii) Writ court ought to have considered the fact that the respondent herein was originally appointed as casual labourer and after considering his long service, he was brought into regular establishment but due to the need of relaxation of relevant rules his services could not be regularised in time and after relaxing the rules, the services of the respondent herein were regularised though his appointment was irregular;
iv) Writ court ought to have considered the fact that the Government arrived at a policy decision that the persons who were entered into Government service by irregular appointments can be absorbed considering the long service and may be regularised from the date of issue of Government order and accordingly the services of the respondent herein were regularised from the date of issue of GO.
v) Writ court ought to have considered the fact that the name of the respondent herein was sympathetically considered http://www.judis.nic.in along with other casual labourers by relaxing the relevant rules 11 and brought him into regular establishment;
vi) Writ court ought to have considered the fact that the respondent herein is not entitled for regularization from the date of his initial appointment, since his initial appointment was irregular;
vi) Writ court ought to have considered the fact that in the case of Secretary, State of Karnataka and others vs. Umadevi and others reported in (2006) 4 SCC 1, the Hon'ble Supreme Court held to the effect that a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution; and
vii) Writ court ought to have noted that if the services of the respondent herein is regularised from the date of his appointment, it will open the flood gate to similarly placed persons to make such a claim which will be hindrance to the State Exchequer.
13. Based on the grounds, Mr.P.S.Sivashanmugasundaram, learned Special Government Pleader, made submissions.
Ms.N.R.Jasmine Padma, learned counsel appearing on behalf of Mr.L.Chandrakumar, counsel on record, for the respondent, made submissions rebutting the arguments of learned Special Government Pleader.
14. Heard the learned counsel for the parties and perused the entire materials available on record.
15. U.D. Note No.16076/S/95-9 Personnel and Administrative http://www.judis.nic.in Reforms (S) Department, dated 05.02.1996, reads as under:
12GOVERNMENT OF TAMIL NADU U.D. Note No.16076/S/95-9 Personnel and Administrative Reforms (S) Department Secretariat, Madras - 9 Dated : 05.02.1996 Sub: Public Services Retrospective Regularisation of services of persons appointed temporarily otherwise than in accordance with rules by relaxation of relevant rules - based on the judgments of the Supreme Court of India and Tamil Nadu Administrative Tribunal - Re-examined Further Instructions issued.
Ref: 1. G.O. Ms No.42, Personnel and Administrative Reforms (S) Department, dated 05.02.92
2. U.O. Note No.61800/93-1, Personnel and Administra-
tive Reforms (S) Department, dated 10.09.93
-----
The attention of the Departments of Secretariat is invited to the Government Order cited wherein it was ordered that the Head of the Department should send proposals to the Government on or before 31.12.1992 for ratification of irregular appointments made by the appointment authorities till 05.02.1992 and the above time limit would not be extended further. It was further ordered therein that any proposal on regularisation of irregular appointment received by the Government one year after the initial appointment will be rejected by the Government, besides insisting the appointing authorities to initiate disciplinary proceedings against the persons responsible for such irregular appointments.
2. Subsequently, in the U.O. Note cited, instructions were issued that while regularising irregular appointments, the benefit of regularisation should be given from the date of issue of order.
3. In O.A. No.683/89, the Tamil Nadu Administrative Tribunal held that "for the laches on the part of the respondents, that applicant cannot in any way be held responsible though the initial order of appointment is bad. The authorities who passed such an http://www.judis.nic.in order is liable but the benefits that have been conferred on the 13 applicant cannot be taken away after 12 years of time, when there is no allegation on the applicant in this case. Following the above observations, the Tamil Nadu Administrative Tribunal held that on the principles of promissory estoppel, the applicants are entitled for retrospective regularisation with effect from the original appointment with all service and consequential benefits. Apart from that, in several cases, the Supreme Court of India and the Tamil Nadu Administrative Tribunal have observed that the service may be regularised retrospectively from the date of initial appointment with all service and consequential benefits. It has been noticed from the post that normally rules relating to method of appointment, age, educational qualifications, communal reservation were being relaxed. The whole issue pronounced in such cases and the Government have decided to regularise the irregular appointments made before 05.02.1992 and to enforce stringent measures to curtail the practice of making irregular appointments.
3. The Departments of Secretariat are, therefore requested to follow the following instructions scrupulously, while regularizing irregular appointments:
i) The irregular appointments made after 05.02.1992 cannot be regularized and such proposals shall be rejected.
ii) The directions of the Tamil Nadu Administrative Tribunal referred to in para 2 above shall be uniformly followed in all remaining cases (to be regularisex) and retrospective regularization shall be done.
iii) In such cases, orders should be obtained from the Minister concerned.
iv) Disciplinary action shall be taken against the officer responsible for such irregular appointments.
4. The receipt of the U.O. Note may be acknowledged.
P.S.Pandyan Secretary to Government http://www.judis.nic.in To, 14 All Secretaries to Government, Madras - 9 All Officers in the Personnel and Administrative Reforms Department, Madras-9 All Sections in the Personnel and Administrative Reform Department, Madras - 9 All (OP) Sections in the Secretariat, Madras - 9 (for communicating copies to all sections)
16. G.O. Ms. No.17, Animal Husbandry and Fisheries (AH1) Department dated 03.02.2004, has been issued to regularise the services of 804 Animal Husbandry Assistants, by relaxing the educational qualifications, age and recruitment through Employment Exchanges. The said G.O. reads thus:
jkpH;ehL muR RUf;fk;
fhy;eil guhkhpg;g[j;Jiw ? jpdf;Typg; gzpahsh;fs; fhy;eil guhkhpg;g[ cjtpahsh;fshf gzpepakdk; bra;ag;gl;lJ tpjpj;jsh;t[ bra;J gzptud;Kiw bra;J Miz btspaplg;gLfpwJ/ ????????????????????????????????????????????????
???????????????????
fhy;eil guhkhpg;g[ kw;Wk; kPd; tsj; (fh/g1) Jiw murhiz (epiy vz;) 17 ehs;/ 3/2/2004 gof;fg;gl;lJ/ 1/ muR Miz (epiy) vz;/1527. ntshz;ik Jiw. ehs;/ 28/8/85/ 2/ muR Miz (epiy) vz;/ 148 kw;Wk; 149 fhy;eil guhkhpg;g[ kw;Wk; kPd;tsj; (fh/g7) Jiw ehs;/ 18/9/96/ 3/ muR Miz (epiy) vz;/116. fhy;eil guhkhpg;g[ kw;Wk; kPd;tsj; (fh/g6) Jiw ehs;/ 7/5/97/ gof;f http://www.judis.nic.in 4/ fhy;eil kUj;Jtg;gzpf;fs; ,af;Fehpd; foj e/f/vz;/9425- 15 Mh;Mh;2-99. ehs;/ 2/11/99. 3/3/2000. 20/6/2000. 11/9/2000. 8/3/2001 kw;Wk; ehs;/ 8/1/2003/ Miz:
nkny 3?y; gof;fg;gl;l Mizapd; tHp. jpdf;Typg; gzpahsh;fis fhy;eil guhkhpg;g[ cjtpahsh;fis Cjpa tpfpjj;jpy; bfhz;Ltu 826 fhy;eil guhkhpg;g[ cjtpahsh;fs; gjtpfs; njhw;Wtpf;fg;gl;L. mth;fspy; fy;tpj; jFjp. taJ kw;Wk; ntiy tha;g;gfk; K:yk; epakdk; bra;aglhik Mfpatw;wpw;F chpa tpjpj;jsh;t[ Mizia btspapl jf;f fUj;JU mDg;gpitf;FkhW fhy;eil kUj;Jtg; gzpfs; ,af;Feiuf; nfl;Lf;bfhs;sg;gl;lJ/ 2/ nkny 3?y; gof;fg;gl;l Mizapd;go njhw;Wtpf;fg;gl;l 826 fhy;eil guhkhpg;g[ cjtpahsh; gjtpfspy; 19 gjtpfs; ,Jtiu epug;gg;gltpy;iy kPjKs;s 807 gjtpfspy; epakdk; bra;ag;gl;lth;fspy;. ,uz;L egh;fs; fy;tp jFjp bjhlh;ghf nghypr; rhd;wpjH; mspj;jjpd; fhuzkhf gzpapypUe;J ePf;fgl;Ltpl;lhbud;Wk;. xUth; mth; kPjhd Fw;w tHf;fpd; fhuzkhf gzp ePf;fk; (Dismissal) bra;ag;gl;L tpl;lhh; vd;Wk; fhy;eil kUj;Jtg; gzpfs; ,af;Feh; bjhptj;Js;shh;/ kPjpa[s;s 804 egh;fspd; bgah;fs; kw;Wk; mth;fspd; gzpapid fhy;eil guhkhpg;g[ cjtpahsh; gjtpapy; tud;Kiw bra;tjw;F mth;fs; rhh;ghf vd;bdd;d tpjpfSf;F jsh;t[ Miz tH';fg;glntz;Lk; vd;w tptu';fis kz;ly thhpahf fhy;eil kUj;Jtg; gzpfs; ,af;Feh; muRf;F mDg;gp itj;Js;shh;. 804 fhy;eil guhkhpg;g[ cjtpahsh;fs; rhh;ghf njitahd tpjpj;jsh;t[ Miz tH';fp mth;fspd; gzpapid mth;fs; fhy;eil guhkhpg;g[ cjtpahsuhfg; gzpapy; nrh;e;j ehs; Kjy; tud;Kiw bra;J Miz tH';FkhW fhy;eil kUj;Jtg; gzpfs; ,af;Feh; murpid nfl;Lf; bfhz;Ls;shh;/ 3/ nkny xd;wpy; gof;fg;l;l murhizapy;. fhy;eil guhkhpg;g[ cjtpahsh;
http://www.judis.nic.in gjtpf;fhd jw;fhypf tpjpfSf;F btspaplg;gl;l 16 jpUj;j';fspd;gofhy;eil guhkhpg;g[ cjtpahsh; gjtpf;Fr; rpy;yiur; brytpd; mog;gilapy; fhy;eil guhkhpg;g[ cjtpahsuhf gzpg[hpe;jth;fisna epue;ju fhy;eil guhkhpg;g[ cjtpahsuhf epakpf;fg;glntz;Lk;/ mt;thwpy;iybadpy; ntiy tha;g;gfk; K:yk; neuo epakdk; bra;ag;glntz;Lk; (tpjp vz;/3)/ nkYk;. tpjp vz;/5(v)?d;go ,g;gjtpapy; epakdk; bra;ag;gLgth; 28 taJ epuk;gp ,Uf;ff;TlhJ vd;Wk;. tpjp vz;/5 (gp)?d;go vl;lhtJ tFg;g[ tiu goj;jpUg;gJld; fhy;eilfis guhkhpf;ft[k;. irf;fps; Xl;lt[k; bjhpe;jpUf;fntz;Lk;/ 4/ fhy;eil kUj;Jtg; gzpfs; ,af;Fehpd; braw;Fwpg;gpid muR ed;F ftdj;Jld; Ma;t[ bra;J fPH;fz;lthW MizapLfpwJ/ 1987?Mk; Mz;Lgo eilKiw Ehypd; 1?k; bjhFjpiar; nrh;e;j jkpH;ehL khepy kw;Wk; rhh;epiy gzpfs; tpjpfspy; ghfk; 11?y; ml';fpa[s;s bghJ tpjpfspd;go 8?y; tH';fg;gl;l mjpfhu';fisf; bfhz;L ,t;thizapd; ,izg;gpy; Fwpg;gplg;gl;Ls;s 804 egh;fspd; gzpapid mth;fs; mg;gjtpapy; nrh;e;j ehs; Kjy; tud;Kiw bra;tjw;F VJthf mth;fs; rhh;ghf jkpH;ehL mog;gil gzp rpwg;g[ tpjp kw;Wk; fhy;eil guhkhpg;g[ cjtpahsh; gjtpf;fhd jw;fhypf tpjpfis fPH;tUkhW jsh;t[ bra;J jkpH;ehL MSeh; mth;fshy; Mizaplg;gLfpwJ/ ???????????????????????????????????????????????? ???????????????????
fhy;eil guhkhpg;g[ cjtpahsh; jkpH;ehL mog;gil gzp gjtpf;fhd jw;fhypf tpjpfspy; rpwg;g[ tpjpfspy;
epakd tpjp taJ fy;tp jFjp irf;fps; Xl;l jpdf;Typ gzpshfuhf 3 5(a) 5(b)(ii) bjhpe;jpUj;jy; ntiy tha;g;gfk;
K:yk;
http://www.judis.nic.in ntz;Lk;/ epakdk; bra;ahjJ
17
5(b)(ii) 4(a)
1 2 3/ 4/ 5/
??????????????????????????????????????????????? ????????????????????804 ngh; 776 ngh; 568 ngh; 114 ngh; 547 ngh;
???????????????????????????????????????????????? ???????????????????
5/ ,t;turhiz bjhHpyhsh; kw;Wk; ntiy tha;g;g[j; Jiw. gzpahsh; kw;Wk; eph;thf rPh;j;jpUj;jj;Jiw kw;Wk; epjpj;Jiwapy; m/rh/F/vz;/8786-N.1-03?1. ehs;/ 7/4/2003. m/rh/F/vz;/ 20510-o-03?1. ehs;/ 5/5/2003. kw;Wk; m/rh/F/vz;/34492-fhg&kP-2003. ehs;/ 25/6/2003?y; ,irt[ld; btspaplg;gLfpwJ/ ? MSehpd; Mizg;go ?
17. Thereafter, 163 persons, who were working as Animal Husbandry Assistants in various institutions filed Original Application on the file of Tamil Nadu Administrative Tribunal to regularise their services. Government have also considered the orders made in W.P. No.24615/2006 and Contempt Petition No.625 of 2008 filed by Thiru.V.Sivasankaran and 29 others, who were denied annual increments. While considering the case of regularisation and demand of annual increments, Government have issued G.O. (Ms) No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.8.2008, and ordered that the annual increment shall be sanctioned only on completion of one year from the date of regularisation which http://www.judis.nic.in 18 will be the date of Government order regularising their services. The said G.O. reads thus:
GOVERNMENT OF TAMIL NADU ABSTRACT Animal Husbandry Department - Casual Labourers appointed in the post of Animal Husbandry Assistant - Regularisation of service by relaxing relevant rules - orders - issued
------------------------------------------------------------------------- Animal Husbandry, Dairying and Fisheries (AH7) Department G.O.(Ms) No.117 DATED 28.8.2008 Read:
From the Commissioner of Animal Husbandry and Veterinary Services Letters No.99430/N1/02, DATED 14.4.04, 15.6.05, 20.3.2006, 3.5.06 and 8.5.08 ORDER:
The Commissioner of Animal Husbandry and Veterinary Services in his letters read above has stated that 163 persons who were working as Casual Labourers in various institutions in the Animal Husbandry Department had filed cases in the Tamil Nadu Administrative Tribunal to bring them into regular establishment as Animal Husbandry Assistant and obtained orders from the Tamil Nadu Administrative Tribunal to consider their representation and pass orders on merits. Based on the orders of the Tamil Nadu Administrative Tribunal, 163 casual labourers were appointed as Animal Husbandry Assistants as and when vacancy arose in the sanctioned posts. He has requested the Government to issue necessary orders for regularising their service in the posts of Animal Husbandry Assistant with effect from the date of their appointment as Animal Husbandry http://www.judis.nic.in 19 Assistant duly relaxing the rules relating to age limit, educational qualification, rule of reservation etc., prescribed to the post of Animal Husbandry Assistant.
2. In the meantime, Thiru.V.Sivasankaran and 29 others whose names are also included in the above proposal have filed W.P. No.24615/06 before the High Court for sanctioning increment to them. The High Court in order dated 3.8.2006 has directed the first respondent i.e. Secretary, Animal Husbandry Dairying and Fisheries Department that considering the limited scope of the prayer and without going into the merits of the case to consider the representation of the petitioners dated 22.8.2005 followed by the reminder on 19.3.2006 in respect of granting of annual increments to the petitioners and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. Now the petitioners have filed C.P. No.625/08 for non- implementation of the above order.
3. The Government have examined the proposal of the Commissioner of Animal Husbandry and Veterinary Services and accordingly pass the following orders:-
(a) The services of 163 Animal Husbandry Assistants are regularised from the date of issue of this order by relaxation of relevant rules in their favour as indicated in Annexure to this order.
(b) The Commissioner of Animal Husbandry and Veterinary Services is instructed to initiate disciplinary action against those who are all responsible for the appointment of 163 Casual Labourers without Government orders and inform the action taken against the officials in this regard.
4. The Annual increment shall be sanctioned only on completion of one year from the date of regularisation which will be the date of Government order regularising their services.
5. This order issues with the concurrence of Finance Department vide its U.O. No.54094/AHF/2008-1, dated 28.8.2008.
(By order of the Governor)
http://www.judis.nic.in Leena Nair
20
Principal Secretary to Government
18. Three persons whose names have been included in G.O. Ms. No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.8.2008, at Sl. Nos.140, 141 and 147 were not regularised.
Hence, they filed writ petitions seeking for a writ of certiorarified mandamus to quash the said Government Order insofar as they are concerned to direct respondents therein, to regularise the services of the post of Animal Husbandry Assistants with effect from 21.08.1997.
Based on the decisions of the Hon'ble Supreme Court in State of Karnataka vs. Umadevi reported in (2006) 4 SCC 1 and Union of India and another vs. Arulmozhi Iniarasu and others reported in (2011) 7 SCC 397, writ court rejected their prayer. Being aggrieved they preferred W.A. Nos.226 and 491 of 2012. A Hon'ble Division Bench of this court in W.A. Nos.226 and 491 of 2012 dated 05.11.2013, while setting aside the impugned G.O. dated 28.8.2008, at paragraph Nos.12 to 14, ordered as follows:
" 12. One S.Mathiyalagan, whose name is found in Sl.No.25 of G.O.Ms.No.117 dated 28.08.2008 had fled W.P.No.7049 of 2009 seeking for a direction to withdraw the proceedings of the Clinician, Veterinary Hospital, Kumbakonam dated 18.09.2008 and 30.12.2008 and direct the authorities to regularise the services of S.Mathiyalagan with effect from 01.07.1999 i.e. the date of joining the regular post of Animal Husbandry Assistant and also to sanction the annual increment with effect from 01.07.2000. http://www.judis.nic.in The said writ petition was allowed interalia issuing directions.21
The Government implemented the order passed in W.P.No.7049 of 2009, regularising the said S.Mathiyalagan with effect from 01.07.1999 i.e. the date of joining in the regular post of Animal Husbandry Assistant by issuing G.O.Ms.No 49 dated 20.02.2013. While so regularising, the Government had also relaxed Rule 23(a)(ii) of General Rules of Tamil Nadu State and Subordinate Services in favour of the said S.Mathiyalagan.
13. The name of the said S.Mathiyalagan is found in Sl. No.25 of G.O.Ms.No.117 dated 28.08.2008. The names of the appellants in W.A.No.226 of 2012 viz., S.Rajangam and N.Thirukasu are found in Sl.Nos.140 and 141 (Ramanathapuram Region). Likewise, the name of the appellant in W.A.No.491 of 2012 viz., K.Krishnasamy is found in Sl.No.147. When the respondents have regularised the services of S.Mathiyalagan (Sl. No.25 in G.O.Ms.No.117 dated 28.08.2008) in the post of Animal Husbandry Assistant with effect from 01.07.1999 i.e. the date of joining in the regular post of Animal Husbandry Assistant and issued G.O.Ms.No.49 dated 20.02.2013, the respondents are not justified in denying the benefit to the appellants, contending that they are not similarly placed. When the appellants are similarly placed as that of S.Mathiyalagan, the respondents cannot seek to deny the benefit of regularisation of the appellants with effect from the date of joining in the regular post of Animal Husbandry Assistant. We are of the view that the appellants are similarly placed as that of S.Mathiyalagan and the appellants are entitled to be regularised with effect from the date of joining in the regular post of Animal Husbandry Assistant i.e. 21.08.1997 and 16.06.1999 respectively. The orders of the Writ Court cannot be sustained and are liable to be set aside.
14. For the foregoing reasons, the orders of the Writ Court in W.P.No.26753 of 2008 and 17559 of 2009 dated http://www.judis.nic.in 28.09.2011 and 06.07.2011 respectively are set aside and 22 the writ appeals are allowed. The respondents are directed to regularise the services of the appellants in the post of Animal Husbandry Assistant with effect from 21.08.1997 and 16.06.1999 respectively i.e. the date of appellants' joining in the regular post of Animal Husbandry Assistant and grant all the monetary benefits. If for any period, the appellants had been ousted for want of vacancy, the appellants shall not be entitled to any monetary benefit during that period but the same shall be taken into account for continuity of service. The respondents are directed to comply with the order within a period of four months from the date of receipt of a copy of the judgment. No costs.
19. Following the judgment made in W.A. Nos.226 and 491 of 2012 dated 05.11.2013, another Hon'ble Division Bench of this court in W.A. No.1271/2012 dated 23.4.2014 in the matter of M.Thiyagarajan vs. The State of Tamil Nadu represented by its Secretary to Government, Animal Husbandry, Dairying & Fisheries Department, Chennai and others, set aside the order of the learned single Judge dated 30.8.2011 made in W.P. No.26962 of 2008, denying regularization and consequently, while allowing the writ appeal, issued a direction to the respondents therein to grant all consequential benefits to the appellant regularising his services with effect from 1.7.1999 i.e. the date of the joining in the regular post of Animal Husbandry Assistant and also directed the respondents therein to sanction increment with effect from 1.7.2000 with all consequential benefits.
http://www.judis.nic.in 23
20. Thiru.S.Mathiyalagan, who was temporarily appointed as Animal Husbandry Assistant on 1.7.99 filed W.P. No.7049 of 2009, to quash the proceedings of the Clinician, Veterinary Poly Clinic, Kumbakonam, Thanjavur District in Na.Ka. No.955/2003-1 dated 18.9.2008 and Na.Ka. No.955/2003 dated 30.12.2008 and to regularise his services with effect from 1.7.99 i.e. the date of joining in the regular post of Animal Husbandry Assistant and to sanction annual increment with effect from 1.7.2000 with all consequential service and monetary benefits. Writ petition was allowed on 17.8.2011. Thereafter, Government issued G.O. (Ms) No.49 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 20.2.2013 implementing the orders as hereunder.
GOVERNMENT OF TAMILNADU ABSTRACT Animal Husbandry Department - Casual Labourers appointed in the post of Animal Husbandry Assistant - Regularization of the services of Thiru.S.Mathilalagan - Orders - Issued.
---------------------------------------------------------------------------
Animal Husbandry, Dairying and Fisheries (AH6) Department G.O.(Ms) No.49 Dated: 20.2.2013 Masi 8 Thiruvalluvar Andu 2043 Read:
1. G.O.(Ms) No.116, Animal Husbandry, Dairying and Fisheries Department, dated 7.5.97.
2. From the Director of Veterinary Services, Chennai Proceedings No.108018/RR1/96 dated 16.6.99
3. G.O.(Ms)No.117, Animal Husbandry, Dairying and Fisheries Department, dated 28.8.2008.
http://www.judis.nic.in 24
4. From the Commissioner of Animal Husbandry and Veterinary Services Lr.No.26281/N1/2009, dt: 02.07.09
5. Hon'ble High Court order dated 17.08.2011.
6.From the Commissioner of Animal Husbandry and Veterinary Services, letter No.26281/N1/09, dated 31.07.12.
----
ORDER:
In the Government order first read above, orders were issued for bringing 826 daily wages employees who have put in ten years and more than ten years of service into regular establishment.
2. In the proceedings second read above, the Director of Animal Husbandry and Veterinary Services has issued order to bring Thiru.S.Mathiyalagan into regular time scale of pay and appointed temporarily as Animal Husbandry Assistant and he had joined duty on 1.7.1999 F.N. Based on the proceedings of the Director of Animal Husbandry and Veterinary Services second read above, the Clinician, Veterinary Hospital, Kumbakonam, has sanctioned increment from 1.7.2000 to 31.12.2008 before issuing orders for regularisation of services of the individual.
3. In the Government order third read above, orders were issued to regularize the services of 163 persons including Thiur.Mathiyalagan with effect from 28.8.2008 by relaxing the relevant rules (ie) method of recruitment, qualification and employment exchange in favour of the individuals and also ordered that, the annual increment will be sanctioned only after one year from the date of issue of the above said Government Order.
4. In view of the order issued above in his proceedings dated 31.12.2008, the Clinician Veterinary Hospital, Kumbakonam, has issued orders to recover the increment sanctioned from 1.7.2000 to 31.12.2008 amounting to Rs.22,091/- from his pay in 36 installments with effect from January, 2009 and four installments have already been recovered from him.
5. Against the recovery order issued by the Clinician, Veterinary Hospital, Kumbakonam, the individual has filed W.P.No.7049/09 in the Hon'ble High Court with a prayer to quash the proceedings of the Clinician, Veterinary Hospital, Kumbakonam dated http://www.judis.nic.in 18.9.2008 and 30.12.2008 and to direct the respondents to regularise 25 the services of the petitioner with effect from 1.7.1999, (ie) the date of joining in the regular post of Animal Husbandry Assistant and to sanction annual increment with effect from 1.7.2000 with all consequential service and monetary benefits.
6. The Hon'ble High Court in the above W.P. in its judgment fourth read above ordered as follows:
"This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.
The relief against recovery is granted by Courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess."
The impugned orders stand set aside. The Writ Petition will stand allowed.
7. The Government after careful examination, decided to implement the orders of High Court passed in W.P.No.7049/09 filed by Thiru.S.Mathialagan, Animal Husbandry Assistant. Accordingly, the Government direct to regularize the services of Thiru.S.Mathialagan in the post of Animal Husbandry Assistant with effect from 01.07.1999, (ie) the date of joining in the regular post of Animal Husbandry Assistant in relaxation of rules in respect of age, qualification and mode of recruitment with effect from 1.7.99.
8. Consequent to the retrospective date of regularization of service Thiru.S.Mathialagan, as Animal Husbandry Assistant with http://www.judis.nic.in 26 effect from 1.7.99. In exercise of the powers conferred under rule 48 of the General Rule for Tamil Nadu State and Subordinate Services, the Governor of Tamil Nadu hereby relaxes the Rule 23(a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services in favour of Thiru.S.Mathialagan so as to sanction increment with effect from 01.07.2000 so as to enable him to get the monetary benefit from the date of regularization.
9. The Director of Animal Husbandry and Veterinary Services is requested to taken necessary action accordingly.
(By order of the Governor) GAGANDEEP SINGH BEDI SECRETARY TO GOVERNMENT
21. Judgment in W.A. No.1271 of 2012 dated 23.04.2014 was sought to be reviewed in Review Application SR No.88746/2014 with a delay of 147 days. After considering the merit of the Review Application, a Hon'ble Division Bench of this court in Rev.Appl. SR No.88746 of 2014 and M.P. No.1 of 2014 dated 5.6.2015 ordered as hereunder:
" 3. A perusal of the paragraph No.2 of the impugned order, which is the subject matter of the review petition, discloses that the parties in the very same Government Order was granted regularization from the date of initial appointment and hence, it was held that the appellant is also entitled to get the similar benefits. The earlier order granting regularisation to the above said date of initial appointment, has not been put to challenge and hence, it reached the finality.
4. The grounds urged in the review application, on the face of it, are unsustainable and the learned Additional Government Pleader under the guise of arguing the review http://www.judis.nic.in 27 application wants to re-agitate the matter once again. It is a well settled position of law that the review application cannot be treated as an appeal in disguise.
5. This court finds no merits in the review application. Therefore, the condone delay petition in M.P. No.1 of 2014 is dismissed and the Review Application SR No.88746 of 2011 is rejected."
22. Government took the matter to the Hon'ble Supreme Court in Special Leave to Appeal (C) C.C. No.14588 of 2015 in the matter of State of Tamil Nadu, represented by its Secretary to Government, Animal Husbandry, Dairying & Fisheries Department and Ors. vs. M.Thiyagarajan on 15.09.2015, after condoning the delay, the Hon'ble Supreme Court dismissed the Special Leave Petition as hereunder:
" Delay condoned.
The special leave petition is dismissed.
As a sequel to the above, interlocutory application exemption from filing official translation is disposed of."
23. Consequently, Government have issued orders in G.O. (Ms) No.185 dated 22.09.2015 implementing the orders of this court.
GOVERNMENT OF TAMILNADU ABSTRACT Animal Husbandry Department - Regularization of the services of Thiru.M.Thiagarajan in the post of Animal Husbandry Assistant - Orders - Issued.
----------------------------------------------------------------------------
Animal Husbandry, Dairying and Fisheries (AH6) Department G.O.(Ms) No.185 Dated 22.09.2015 http://www.judis.nic.in 28 g[ul;lhrp: 05 Manmatha Aandu 2046 Read:
1. G.O.(Ms) No.116, Animal Husbandry and Fisheries Department, dated 07.05.1997.
2. G.O.(Ms) No.117, Animal Husbandry, Dairying and Fisheries Department, dated 28.8.2008.
3. From the Assistant Director, Animal Husbandry Department, Kumbakonam proceedings No.3895/A/2008-2, dated 7.10.2008.
4. Order of the Hon'ble High Court of Madras dated 30.8.2011 in W.P.No.26962/2008.
5. Order of the Hon'ble High Court of Madras dated 23.04.2014 in W.A.No.1271/2012.
6. G.O.(Ms).No.49, Animal Husbandry, Dairying and Fisheries (AH6) Department, dated 20.02.2013.
7. Order of the Hon'ble High Court of Madras dated 05.06.2015 in RA (Sr) No.88746/2014.
8. From the Director of Animal Husbandry and Veterinary Services Letter No.83157/N1/2008, dated 27.07.2015.
9. From the Advocate-on-Record, Supreme Court of India, New Delhi, dated 15.09.2015.
10. Notice dated 15.09.2015 of the High Court of Madras in C.P.No.3308/2014.
----
ORDER:
In the Government order first read above, Government have sanctioned 826 post of Animal Husbandry Assistant from the date of issue or order till 30.03.1998 to enable the Director of Animal Husbandry to bring he casual labourers in the regular post. Thiru.M.Thiagarajan who has joined as daily wages employee on 15.12.1987 was appointed as Animal Husbandry Assistant as per the above Government order.
2. In the Government order second read above, orders were issued to regularize the service of 163 Animal Husbandry Assistants http://www.judis.nic.in including Thiru.M.Thiagarajan w.e.f. the date of order issued (i.e) 29 28.08.2008 by relaxing the relevant rules and also ordered that, the annual increment will be sanctioned only on completion of one year from the date of issue of the above said Government order.
3. In view of the orders issued above, in his proceedings third read above, the Assistant Director, Animal Husbandry Department, Kumbakonam, has issued orders to recover the increment sanctioned from 01.07.2000 to 30.09.2008 amounting to Rs.10,333/- from his pay in 36 instalments with effect from October, 2008 and four instalments have been recovered from him.
4. Against the above recovery order, Thiru.M.Thiagarajan has filed a W.P.No.26962 of 2008 and also sought for retrospective regularisation from the date of joining in the regular post (i.e) 1.7.1999 and the Hon'ble High Court of Madras has set aside the order of the recovery and also dismissed the above writ petition.
5. Against the above order, Thiru.M.Thiagarajan has filed a Writ Appeal No.1271 of 2012 and the Hon'ble High Court in the order dated 23.4.2014 has allowed the W.A. with a direction to the respondents to grant consequential benefits to the appellant, within a period or three months from the date of receipt of copy of this order.
6. In the Government order sixth read above, in a similar case, orders have been issued regularizing the services of Thiru.S.Mathiazhagan w.e.f. the initial date of appointment (i.e) w.e.f. 01.07.1999. The above G.O. has been cited in the order of the Hon'ble High Court in W.A.No.1271 of 2012 and hence, the order passed by the learned Single Judge dated 30.08.2011 cannot be sustained and the writ appeal is allowed with a direction to the respondents to grant consequential benefits to the appellant, within a period of three months from the date of receipt of a copy of this order.
7. As per the opinion of the Government Pleader, a Review petition has been filed in S.R.No.88476 of 2014 and M.P.No.1/2014 and the Hon'ble High Court in the order dated 05.06.2015 has rejected the same.
8. Against the above order, SLP (CC) No.14588 of 2015 has been filed before the Apex Court of India, and the same has been dismissed upholding the order of Hon'ble High Court.
http://www.judis.nic.in 9. In the letter eighth read above, the Director of Animal 30 Husbandry & Veterinary Services has recommended to regularise the services of Thiru M.Thiagarajan in the post of Animal Husbandry Assistant w.e.f. 01.07.1999 the date of joining in the regular post based on the orders of the Divisional Bench of Hon'ble High Court of Madras in W.A.No.1271/2012 by relaxing rule 23 (a) (ii) of the General Rule of Tamil Nadu State and Subordinate Service in favour of the individual so as to sanction the increment w.e.f. 01.07.2000 as a special case, so as to avoid contempt proceedings pending before the Hon'ble High Court of Madras.
10. The Government after detailed examination, decided to implement the order of the Divisional Bench of Hon'ble High Court of Madras in W.A.No.1271/2012 filed by Thiru.M.Thiagarajan, Animal Husbandry Assistant, based on the recommendation of the Director of Animal Husbandry and Veterinary Services. Accordingly, the Government direct to regularize the services of Thiru M.Thiagarajan in the post of Animal Husbandry Assistant w.e.f. 01.07.1999, (i.e) the date of joining in the regular post of Animal Husbandry Assistant in relaxation of rules in respect of qualification and mode of recruitment with effect from 01.07.1999.
11. Consequent to the retrospective date of regularization of service of Thiru. M.Thiagarajan, as Animal Husbandry Assistant with effect from 01.07.1999 in exercise of the Powers conferred under rule 48 of the General Rule for Tamil Nadu State and Subordinate Services, the Governor of Tamil Nadu hereby relaxes the Rule 23(a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services in favour of Thiru M.Thiagarajan so as to sanction increment with effect from 01.07.2000 as a special case so as to enable him to get the monetary benefit from the date of regularization.
12. The Director of Animal Husbandry and Veterinary Services is requested to take necessary action accordingly.
(By order of the Governor) S.VIJAYAKUMAR SECRETARY TO GOVERNMENT
24. Implementing the order of the writ court dated 01.12.2016 made http://www.judis.nic.in in W.P. No.42198 of 2016 and W.P. No.42199 of 2016, filed by 31 R.Karunanidhi and V.Sadhasivam, Government have issued orders in G.O. (Ms) No.251 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 21.12.2017 as hereunder:
GOVERNMENT OF TAMIL NADU ABSTRACT Animal Husbandry Department - W.P. No.42198 of 2016 and W.P. No.42199 of 2016 filed by Tvl.R.Karunanidhi and V.Sadhasivam, Animal Husbandry Assistants before the Hon'ble High Court of Madras
- Judgment delivered - Regularisation of their service from the date of their initial appointment - Orders - Issued.
----------------------------------------------------------------------------- Animal Husbandry, Dairying and Fisheries (AH6) Department G.O. (Ms) No.251 Dated 21.12.2017 jpUts;Stuhz;L 2048 khh;fHp 06 Read:
1. G.O. (Ms) No.117 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 28.08.2008
2. Orders of the Hon'ble High Court of Madras dated 01.12.2016 in W.P. No.42198 of 2016 and W.P. No.42199 of 2016
3. From the Special Government Pleader, High Court of Madras Letter dated 28.08.2017
4. From the Director of Animal Husbandry and veterinary Services, Letter No.8480/N1/2017 dated 05.09.2017
-----
ORDER:
In the Government Order first read above, the services of 163 Casual Labourers appointed as Animal Husbandry Assistant are regularised from the date of issue of the order by relaxation of relevant rules in their favour. Among the 163 Animal Husbandry Assistants, the following two Animal Husbandry Assistants whose http://www.judis.nic.in 32 services were regularised by relaxing relevant rules in their favour on the date indicated against their names:-
Sl. Name and Post Place of Date of Date of Date of No. Working joining as joining as Regularizat Daily AH ion as AH wages Assistant Assistant employee
1. Thiru.R.Karunanidhi, Veterinary 01.10.1989 03.03.1999 28.08.2008 AH Assistant Dispensary, AN FN Karuvakuric hi, Thanjavur Dist
2. Thiru.V.Sadhasivam Veterinary 02.03.1985 02.02.1998 28.08.2008 AH Assistant Dispensary, FN FN Peraiyur Thanjavur Dist
2. Tvl.R.Karunanidhi and V.Sadhasivam, Animal Husbandry Assistants have filed W.P. No.42198 of 2016 and W.P. No.42199 of 2016 against the above said order, before the Hon'ble High Court, Madras with a prayer to regularise their services from the date of initial appointment as was given to similarly placed person Thiru.M.Thiyagarajan in G.O. (Ms) No.185, Animal Husbandry, Dairying and Fisheries (AH6) Department, dated 22.09.2015 on the basis of order of the Hon'ble Division Bench of this court in W.A. No.1271 of 2012 dated 23.4.2014 and the same was confirmed by the Hon'ble Apex Court of India in SLP (CC) No.14588 of 2015 dated 15.9.2015.
3. The Hon'ble High Court of Madras in its judgment dated 1.12.2016 in the above writ petitions have ordered as follws:
" ...Considering the facts and circumstances of the case and considering the submissions made on either side, without going into the merits of the claim projected by the petitioners, this court directs the petitioners to send a copy of the representation dated 01.04.2016 along with a copy of this order to the first respondent within a period of two weeks from the date of receipt of a copy of this order and on receipt of the same, the first respondent is directed to consider the said representation seeking regularization of their service from the http://www.judis.nic.in 33 date of initial appointment and pass appropriate orders, on merits and in accordance with law and also on the basis of G.O. (Ms) No.185, Animal Husbandry, Dairying and Fisheries (AH6) Department, dated:22.09.2015, within a period of eight weeks thereafter. Both the writ petitions are disposed of accordingly. No costs..."
4. Based on the above judgment, Tvl.R.Karunanidhi and V.Sadhasivam have sent a representation dated 22.02.2017 to Government seeking regularisation of their service from the date of their initial appointment as Animal Husbandry Assistant.
5. The Director of Animal Husbandry and Veterinary Services in the letter fourth read above has stated that the Government Pleader has opined that this is not a fit case for appeal against the above said orders of the High Court, dated 1.12.2016 and has also stated that in a similar case based on the order dated 23.04.2014 in W.A. No.1271 of 2012 filed by Thiru.M.Thiagarajan, Animal Husbandry Assistant, the services of the individual was regularized in the post of Animal Husbandry Assistant w.e.f. 01.07.1999 i.e. the date of his joining in the regular post of Animal Husbandry Assistant in relaxation of relevant rules vide G.O. (Ms) No.185, AHD&P (AH6) Department, dated 22.09.2015. The Director of Animal Husbandry and Veterinary services has therefore recommended to regularise the services of Tvl.R.Karunanidhi and V.Sadhasivam from the date of their joining as Animal Husbandry Assistant i.e. w.e.f. 03.03.1999 and 02.02.1998 respectively.
6. The Government after careful examination decided to implement the orders of the Hon'ble High Court of Madras, dated 01.12.2016 passed in W.P. No.42198 of 2016 and W.P. No.42199 of 2016 and to regularise the services of Tvl.R.Karunanidhi and V.Sadhasivam from the date of their initial appointment as Animal Husbandry Assistant i.e. w.e.f. 03.03.1999 F.N and 02.02.1998 A.N respectively as was done in a similar case to Thiru.M.Thiyagarajan, Animal Husbandry Assistant vide G.O. (Ms) No.185, Animal Husbandry, Dairying and Fisheries (AH6) Department, dated 22.09.2015 by relaxing Section 28(2) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 in favour of the individuals and issue orders accordingly.
http://www.judis.nic.in 7. In exercise of the powers conferred under Section 58 of the 34 Tamil Nadu Government Servants (Conditions of Service) Act, 2016, the Governor of Tamil Nadu hereby relaxes Section 28(2) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, in favour of Tvl. R.Karunanidhi and V.Sadhasivam, Animal Husbandry Assistants, so as to enable them to get the monetary benefit from the date of their regularisation.
8. The Director of Animal Husbandry and Veterinary Services is requested to take necessary action accordingly.
(By order of the Governor) K.Gopal Principal Secretary to Government
25. A Hon'ble Division Bench of this court has considered a similar appeal filed by the Government in W.A. No.397 of 2018 between State of Tamil Nadu, represented by its Secretary to Government and others vs. T.Chinnaiyan against the order setting aside recovery of increment paid during casual appointment.
Dismissing the writ appeal No.397/2018 dated 05.03.2018, a Hon'ble Division Bench at paragraph No.6 and 7 held as follows:
" 6. It is pertinent to note that the appointments were made initially as against the non-sanctioned post and though initially the Government had thought of appointing them on regular basis, they were appointed on casual basis and on absorbing them into regular establishment, since it was the sanctioned post, the Government authorities thought it fit to pay the regular increment by mistake on the part of the authorities and as a matter of policy decision and considering the financial implication the Government would have taken a decision to regularise some of the employees on a later date which may be due to change of Government or due to change of policies at http://www.judis.nic.in 35 the authorities of policy making level. What is done as a policy cannot be changed especially when there is no claim or any such relief.
7. But, it is not in dispute that the respondent herein had worked during the period when he was sanctioned the increment, which alleged to be due to the mistake on the part of the authority in interpreting the procedure and it was sanctioned prior to such a policy decision. Therefore, the recovery of increment paid to the respondent herein for the relevant period cannot be made. In that view of the matter, we dismiss the writ appeal filed by the State confirming the order passed by the learned single Judge. No costs. The connected miscellaneous petition is also dismissed."
26. Government have also issued G.O. (Ms) No.38 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 05.03.2018 regularising Mr.S.Chandrasekaran and four others from the date of their appointment. The same reads as under:
GOVERNMENT OF TAMILNADU RUf;fk;
gzpaikg;g[ ? fhy;eil guhkhpg;g[ ? jpU/vd;/MWKfjh!;. jpU/tp/ke;jpuKj;J. jpU/V/gukrptk;. jpU/vk;/rghgjp kw;Wk; jpU/v!;/re;jpunrfud; Mfpa 5 egh;fis mth;fs; fhy;eil cjtpahsh;fshf gzpapy; nrh;e;j ehs; Kjy; gzptud;Kiw bra;jy; ? Miz btspaplg;gLfpwJ/ ???????????????????????????????????????????????? ???????????????????
fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPd;tsj; (fh/g/6) Jiw murhiz (epiy) vz;/38 http://www.judis.nic.in ehs; 05/03/2018 36 ncwtpsk;gp khrp 21 jpUts;Sth; Mz;L 2049 gof;fg;gl;lJ/ 1/ murhiz (epiy) vz;/116. fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPd;tsj; (fhg6) Jiw. ehs; 07/05/1997/ 2/ murhiz (epiy) vz;/117. fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPd;tsj; (fhg6) Jiw. ehs; 28/08/2008/ 3/ ,af;Feh;. fhy;eil guhkhpg;g[ kw;Wk;
kUj;Jtg; gzpfs; mth;fspd; foj vz;/52257-vd;1-
16. ehs; 23/03/2017/ ?????
Miz nkny xd;wpy; gof;fg;gl;l murhizapy;. fhy;eil guhkhpg;g[j;Jiwapy; jpdf;Typg; gzpahsh;fshfg; gzpg[hpe;j 804 egh;fSf;F fhyKiw Cjpa tpfpjj;jpy; fhy;eil guhkhpg;g[ cjtpahsh;fshf gzp epakdk; bra;a Miz btspaplg;gl;lJ/ nkny ,uz;oy; gof;fg;gl;l murhizapy; 163 fhy;eil guhkhpg;g[ cjtpahsh;fSf;F tpjp jsh;t[ bra;J murhiz btspaplg;gl;l ehs; Kjy; gzptud;Kiw bra;a Miz btspaplg;gl;lJ/ 2/ nkny ,uz;oy; gof;fg;gl;l murhizapd;go gzptud;Kiw bra;ag;gl;l 163 egh;fspy; jpUthsh;fs; N/MWKfjh!;. V/ke;jpuKj;J kw;Wk; A/gukrptk;
Mfpnahh;fs; fhy;eil guhkhpg;g[ cjtpahsh;fshf gzp epakdk; bra;ag;gl;l ehs; Kjy; Kd;njjpapl;L gzptud; bra;af; nfhhp brd;id cah;ePjpkd;w kJiuf; fpisapy; http://www.judis.nic.in bjhlh;e;j tHf;F vz;/W.P.No.18885/16, 18886/16 kw;Wk;
37y; 3/10/2016 md;W gpd;tUkhW jPh;g;g[ 18887/2016- tH';fg;gl;Ls;sJ/ ".... Under such circumstances, the respondent are directed to consider the representations of the petitioners dated 24.05.2016, 09.06.2016 and 24.05.2016 respectively, in the light of the order passed in W.A.No.1271 of 2012, dated 23.04.2014 and G.O.(Ms)No.185, Animal Husbandry, Dairying and Fisheries (AH6) Department, dated 22.09.2015, within a period of six weeks from the date of receipt of a copy of this order."
3. jpUthU:h; khtl;lk;. bfhl;lh';Fo fhy;eil kUe;jfj;jpy; fhy;eil guhkhpg;g[ cjtpahsuhf gzpg[hpe;J tUk; jpU/ vk;/ rghgjp mth;fs; fhy;eil guhkhpg;g[ cjtpahsuhf gzp epakdk; bra;ag;gl;l ehs; Kjy; Kd;njjpapl;L gzptud; bra;af;nfhhp brd;id cah;ePjpkd;wj;jpy; bjhlh;e;j tHf;F vz;/W.P.No.35048/16?y; 4/10/2016 md;Wk;. jpUthU:h; khtl;lk;. kd;dhh;Fo nfhl;lk; foahr;nrhp kUe;jfj;jpy; fhy;eil guhkhpg;g[ cjtpahsuhf gzp epakdk;
bra;ag;gl;l ehs; Kjy; Kd;njjpapl;L gzptud; bra;af; nfhhp brd;id cah;ePjp kd;wj;jpy; bjhlh;e;j tHf;F vz;/W.P.No.37236/16?y; 25/10/2016 md;Wk; fPH;f;fz;lthW jPh;g;g[ tH';fg;gl;Ls;sJ/ "....Considering the facts and circumstances of the matter, this court directs the 1st respondent to consider the representation of the petitioner dated 29.08.2016 and pass appropriate orders on merits and in accordance with law, within a period of six weeks from the date of receipt of a copy of this order."
nkny K:d;wpy; gof;fg;gl;l fojj;jpy;. ,af;Feh;.
4.fhy;eil guhkhpg;g[ kw;Wk; kUj;Jtg; gzpfs; mth;fs; nkny 2?y; gof;fg;gl;l murhizapy; jpU/vk;/MWKfjh!; kw;Wk; 4 egh;fis murhiz btspaplg;gl;l ehs;Kjy; gzptud;Kiw bra;ag;gl;likf;Fg; gjpyhf. cah;ePjp kd;w http://www.judis.nic.in jPh;g;g[fspd; mog;gilapYk; kw;Wk; murhiz (epiy) 38 vz;/49. fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPd; tsj;Jiw. ehs; 20/02/2013 kw;Wk; murhiz (epiy) vz;/185. fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPd;
tsj;Jiw. ehs;/22/09/2015 Mfpatw;wpd;
mog;gilapYk;. jdpah;fis fhy;eil guhkhpg;g[[
cjtpahsuhf gzpapy; nrh;e;j ehs; Kjy; Kd;njjpapl;L gzptud;Kiw bra;jpLkhW murpidf; nfhhpa[s;shh;/ 5/ fhy;eil guhkhpg;g[ kw;Wk; kUj;Jtg; gzpfs; ,af;Feh; mth;fsJ fUj;JUtpid nkny gj;jp 2 kw;Wk; 3?y; cs;s cah;ePjpkd;w jPh;g;g[fspd; mog;gilapy;. muR ed;F ghprPypj;J jpUthsh;fs; vd;/MWKfjh!;. vk;/rghgjp. tp/ke;jpuKj;J. v/gukrptk; kw;Wk; v!;/re;jpunrfud; Mfpa Ie;J fhy;eil guhkhpg;g[ cjtpahsh;fisa[k; mth;fs; gzpapy; nrh;e;j ehs; Kjy; Kiwna 17/02/2000. 13/07/1999. 16/02/2000. 30/06/2000 kw;Wk; 01/12/1998 Kjy; Kd;njjpapl;L gzptud;KiwgLj;j VJthf jdpah;fs; rhh;ghf mth;fsJ bgah;fSf;F vjpnu Fwpg;gpl;Ls;s jw;fhypf tpjpfs;
kw;Wk; jkpH;ehL muRg;gzpahsh;fs; (gzp epge;jidfs;) rl;lk;. 2016?y; gphpt[ 28(2) Mfpatw;iw jsh;t[ bra;ayhk; vd muR Kot[ bra;J mt;thnw MizapLfpwJ/ t/vz; bgah; tpjpj;jsh;t[ bra;ag;glntz;oa tpjpfs;
1 v!;/re;jpunrfud; jw;fhypf tpjp 3 (epakdk;).
5(a)(taJ) kw;Wk; tpjp 5(b)
(fy;tpj; jFjp)
2 vk;/rghgjp jw;fhypf tpjp 3 (epakdk;)
http://www.judis.nic.in 3 tp/ke;jpuKj;J jw;fhypf tpjp 3 (epakdk;)
39
t/vz; bgah; tpjpj;jsh;t[ bra;ag;glntz;oa
tpjpfs;
4 vd;/MWKfjh!; jw;fhypf tpjp 3 (epakdk;). 5(b)
(fy;tpj; jFjp)
5 V/gukrptk; jw;fhypf tpjp 3 (epakdk;).
5(a)(taJ)
6/ ,jw;fpz';f jkpH;ehL muR gzpahsh;fs; (gzp epge;jidfs;) rl;lk; 2016?y; gphpt[ 58?y;
tH';fg;gl;Ls;s mjpfhu';fspd;go jpUthsh;fs; vd;/MWKfjh!;. vk;/rghgjp. tp/ke;jpuKj;J. v/gukrptk; kw;Wk; v!;/re;jpunrfud; Mfpnahh;fsJ gzpapid fhy;eil guhkhpg;g[ cjtpahsh; gzpaplj;jpy; mth;fsJ mg;gjtpapy; nrh;e;j ehs;Kjy; Kd;njjpapl;L Kiwna 17/02/2000. 13/07/1999. 16/02/2000. 30/06/2000 kw;Wk; 01/12/1998 Kjy; gzptud;Kiw bra;a VJthf. nkny gj;jp 5?y; jdpah;fsJ bgah;fSf;F vjpnu Fwpg;gpl;Ls;s jw;fhypf tpjpfs; kw;Wk; jkpH;ehL muR gzpahsh;fs; (gzp epge;jidfs;) rl;lk; 28(2) Mfpatw;iw jdpah;fs; rhh;ghf jsh;t[ bra;J nkjF jkpH;ehL MSeh; mth;fs; MizapLfpwhh;/ 7/ ,af;Feh;. fhy;eil guhkhpg;g[ kw;Wk;
kUj;Jtg; gzpfs; mth;fs; ,J Fwpj;J njitahd nky; eiltof;iffs; nkw;bfhs;SkhW mwpt[Wj;jg;gLfpwhh;/ (MSehpd; Mizg;go) nf/nfhghy;
muR Kjd;ikr; brayhsh;
http://www.judis.nic.in 40
27. In the case on hand, the respondent herein/writ petitioner was appointed in the post of Animal Husbandry Assistant by bringing him in the regular time scale of pay by the proceedings of the Directorate of Veterinary Services in ROC No.39095/RR1/98-2 dated 02.06.1999. The name of the respondent herein is found at Sl.No.44 of Annexure to G.O. (Ms) No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 and in respect of respondent, rules relating to appointment and appointment not made through Employment Exchange, have been relaxed.
28. When the appellants have regularised the services of similarly placed persons, they are not justified in denying the benefit to the respondent herein, contending that he is not similarly placed.
When the respondent is similarly placed as that of S.Mathiyalagan, Sl.No.25 in the Annexure to the G.O. Ms. No.117 (W.P. No.7949 of 2009), S.Rajangam and N.Thirukasu, Sl.Nos.140 and 141 respectively, in the Annexure to G.O. Ms. No.117 (appellants in W.A. No.226 of 2012) and K.Krishnasamy, Sl. No.147 in the Annexure to G.O. Ms. No.117 dated 28.8.2008 (appellant in W.A.No.491 of 2012), the appellants cannot deny the benefit of regularisation of the respondent herein, with effect from his date of joining in the regular post of Animal Husbandry Assistant. We are of the view that the http://www.judis.nic.in 41 respondent is also similarly placed as that of the persons included at Sl.Nos.25, 140, 141 and 147 in the Annexure to G.O. Ms. No.117 dated 28.8.2008 and the respondent is entitled to be regularised with effect from the date of joining in the regular post of Animal Husbandry Assistant i.e. 02.06.1999. Reference can be made to few decisions:
i) In Prem Chand Somchand Shah v. Union of India reported in (1991) 2 SCC 48, the Hon'ble Supreme Court, at paragraph 8, held thus, "8. As regards the right to equality guaranteed under Article 14, the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."
http://www.judis.nic.in 42
ii) In State of Karnataka v. N.Parameshwarappa reported in 2003 (12) SCC 192, in paragraph 8, the Hon'ble Apex Court held thus:
"8. ............. we do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and having regard to the fact that relief related to the revision of scales of pay, every one of that class of teachers who approached would be entitled to the benefit, notwithstanding that they have not approached the court."
iii) In Hari Ram v. State of Hariyana reported in 2010 (2) CTC 336 (SC), the Supreme Court held that, if the Courts are not correcting the wrong action of the Government it may leave citizen with the belief that citizen is right in contacting right persons in the Government as if judicial proceedings are not efficacious. Thus similarly placed persons are bound to be treated equally without discrimination is a fundamental right guaranteed under Article 14 of the Constitution of India.
iv) In State of U.P. v. Dayanand Chakrawarty reported in 2013 (8) Scale 74 : (2013) 7 SCC 595, the Hon'ble Supreme Court http://www.judis.nic.in 43 held that there cannot be any discrimination in treating equally placed persons on same footing, for all purposes.
29. In the light of the above, we do not find any error in the order of the writ court. According, the writ appeal is dismissed.
However, there shall be no order as to cost. Consequently, the connected civil miscellaneous petition is closed.
30. The appellants are directed to regularise the services of the respondent in the post of Animal Husbandry Assistant with effect from 02.06.1999 i.e. the date of the joining in the regular post of Animal Husbandry Assistant and grant all the monetary benefits. If for any period, the respondent had been ousted for want of vacancy, the respondent shall not be entitled to any monetary benefit during that period but the same shall be taken into account for continuity of service. The appellants are directed to comply with the order within a period of four months from the date of receipt of a copy of the judgment. No costs.
[S.M.K., J.] [S.P., J.]
10.12.2018
Index : Yes
Internet : Yes
Speaking/Non-speaking order
asr
http://www.judis.nic.in
44
S. MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
asr
W.A.No.2724 of 2018
and CMP No.22418 of 2018
10.12.2018
http://www.judis.nic.in