Madras High Court
The State Of Tamil Nadu vs E.Sankaralingam on 30 November, 2018
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:30.11.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2631 of 2018
and
CMP No.21413 of 2018
1.The State of Tamil Nadu
Rep. by its Secretary to Government
Animal, Husbandry, Dairying and Fisheries Department
Fort St. George
Chennai 600 009
2.The Commissioner and Director
Animal Husbandry and Veterinary Services
DMS Buildings
Chennai - 600 006
3.The Regional Joint Director
Animal Husbandry Department
Tirunelveli
4.The Clinician
Veterinary Poly Clinic
Tirunelveli - 627 001 ... Appellants
Vs.
E.Sankaralingam ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent against
the Order dated 17.11.2016 made in W.P.No.30393 of 2008.
For Appellants : Mr.P.S.Sivashanmugasundaram
Special Government Pleader
http://www.judis.nic.in
2
For Respondent : Mr.S.Gunasekaran
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 17.11.2016 made in W.P.No.30393 of 2008, by which, the writ court, following its previous order of the same date made in W.P. No.22168 of 2009, allowed the writ petition and directed the appellants herein to regularise the services of the respondent herein/writ petitioner, from the date of appointment or the date on which the respondent was brought into time scale of pay and further observed that once the respondent is entitled to get his service regularised as above, he shall also be eligible to get all service benefits including periodical increment in pay. Writ court further directed the appellants herein to calculate the said pay difference, arrears after calculating increment to be paid to the respondent herein.
2. Short facts leading to the filing of the writ appeal are that, the writ petitioner was initially appointed as daily wage Casual Labourer on 18.01.1988, in the office of the Deputy Director, District Live Stock Farm, Abishekapatti, Tirunelveli District and he continued as such till 16.2.2000. He has put in more than 20 years of service as Animal Husbandry Assistant, paid from contingencies, and he is http://www.judis.nic.in 3 eligible to be appointed as Animal Husbandry Assistant, as per amendment to Ad hoc Rules framed under Article 309 of the Constitution of India in G.O. Ms. No.1527 Agriculture (AHVIII) Department dated 28.8.1985, wherein the educational qualification prescribed for the post of Animal Husbandry Assistant is, able to read and write Tamil. Therefore, as per G.O. Ms. No.1460 dated 19.11.1973 and the Government Guidelines in Letter No.35988/D.O.I.FR.I/93-3, dated 11.1.1994, the petitioner is entitled for the first increment and also further increments. Therefore, the restriction imposed in sanction of increment in G.O. Ms. No.117 dated 28.8.2008 is void, ab initio and ultra vires of the Fundamental Rule 26.
3. According to him, as on 6.2.95, 1135 persons were working as daily wage casual labourers. Government in G.O. Ms. No.116, Animal Husbandry Assistant, directed to fill up those posts as detailed below:
"The Government have decided that these Casual Labourers should be brought into regular establishment in a phased manner and that in the 1st instance the service of the 465 persons, in whose favour the Tamil Nadu Administrative Tribunal has passed orders for bringing them into regular establishment and also in respect of 361 persons, who have put in service as http://www.judis.nic.in casual labourers for 10 years and more as on 6.2.95 4 should be brought into regular establishment and posted as Animal Husbandry Assistant.
The Government also directed that the above persons be appointed as Animal Husbandry Assistant in the above sanctioned posts in relaxation of relevant service rules for the post of Animal Husbandry Assistant. The Director of Animal Husbandry is directed to send necessary relaxation proposals to Government in this regard."
4. He further submitted that while brought into regular establishment, 758 daily wage casual labourers in the post of Animal Husbandry Assistant, out of 826 posts, the Government omitted the senior most person and junior most persons, who were appointed as Animal Husbandry Assistants and others services were regularised from the date of the Government order. Hence, he filed O.A. before Tamil Nadu Administrative Tribunal in O.A. No.5548/99 to regularize their services on par with juniors. The Tamil Nadu Administrative Tribunal, issued direction in the admission stage itself on 24.9.1999 and the writ petitioner was temporarily appointed in the regular post as Animal Husbandry Assistant as per the order of the Commissioner and Director, Animal Husbandry and Veterinary Services, Chennai.
5. According to him, the Commissioner and Director, Animal Husbandry and Veterinary Services, in his Roc. No.95288/RR1/99-2 http://www.judis.nic.in dated 18.01.2000, he was brought into regular establishment in the 5 regular time scale of pay and appointed temporarily as Animal Husbandry Assistant. The Regional Joint Director of Animal Husbandry, Tirunelveli-9 appointed the writ petitioner as Animal Husbandry Assistant in Veterinary Hospital, Kulithurai, Tirunelveli District, in time scale of pay of Rs.2610-60-3150-65-3540, temporarily and joined duty on 17.2.2000 and continued as such till this day without any regularization of services. The respondents were sanctioned only one increment on 1.1.2001, after that no increment was granted. The appellants have not taken any steps to regularize the service of the petitioner for more than 8 years.
6. He further submitted that the Government in G.O. Ms. No.1460 Finance (FR1) Department dated 19.11.1973 has issued orders regarding drawal of increment by Government servants which reads as follows:
"5.i. All services including temporary service, i.e. service not regularised and service under emergency provision shall count for increment without any restrictions, except where passing of an examination has been prescribed as a condition for drawal of increment or where an increment is denied as a measure of specific punishment."
7. The Government in its letter No.35988/D.O.I.FR.I/93-3 dated 11.1.1994, issued guidelines regarding sanction of increment to the Government http://www.judis.nic.in servants appointed on various circumstances which reads 6 as follows:-
2. Regular Appointment:
Probationers are eligible for sanction of increment on normal dates irrespective of declaration of satisfactory completion of probation, subject to the provisions in Rule 28 of the General Rules. In cases where the probationer has to acquire or pass any prescribed test within the period of probation/extended period of probation, the first increment in case where the probation period is one year and the second increment in cases where the period of probation is two years, shall be sanctioned only after acquiring the qualification or passing the test.
3. Appointment in unclassified Post:- Persons appointed in unclassified posts (posts which are not classified under any Special/ad hoc rules) are eligible for three increments only."
8. He further submitted that the 2nd appellant in his letter No.99430/N1/02 dated 14.4.04, 15.6.05, 20.3.06, 3.5.06 and 8.5.08, has sent the proposals to the Government for regularisation of services of the 163 persons, which reads as follows:
"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 http://www.judis.nic.in Tribunal to consider their representation and pass orders 7 on merits. Based on the orders of the Tamil Nadu Administrative Tribunal, 163 Casual Labourers were appointed as Animal Husbandry Assistant as and when vacancy arose in the sanctioned posts. He has requested the Government to issue necessary orders for regularising their services in the posts of Animal Husbandry Assistant with effect from the date of their appointment as Animal Husbandry Assistant duly relaxing the rules relating to age limit, educational qualification, rule of reservation etc., prescribed to the post of Animal Husbandry Assistant."
9. The Government of Tamil Nadu in G.O. Ms. No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008, passed the following orders, which reads as follows:-
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 Assistant 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 insructed to initiate disciplinary action those who are all responsible for the appointment of 163 Casual Labourers without Government orders and ifnorm the action taken against the officials in this regard.
4. The Annual increment shall be sanctioned only http://www.judis.nic.in 8 on completion of one year from the date of regularization which will be the date of Government order reguarising their services."
10. By the above Government order, the petitioner's services was regularised from the date of G.O. Ms. No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008. Based on the above Government order, the 2nd and 3rd respondent in their Roc. No.99430/N1/2002 dated 1.9.2008 and Na. Ka. No.9379/E1/2008-1 dated 5.9.2008, issued the following instruction to regularise the service of the petitioner as per G.O. Ms. No.117 dated 28.8.08 and sanction increment after completing one year of service - the date of regularisation. The 4th respondent in his proceeding Na. Ka. No.583/A/2008 dated 16.10.2008, regularise the service of the petitioner with effect form 28.8.08. The 4th respondent in his Proc. Na. Ka. No.583/A/2008 dated 18.11.08, increment sanctioned to the petitioner on 1.1.2001, ordered recovery being the increment from 1.1.2001 to 30.10.2008, and should be recovered from November, 2008 salary.
11. According to him, the services of the persons like the petitioner were regularised in G.O. Ms. No.116 Animal Husbandry (AH6) Fisheries Department dated 7.5.97, with effect from the date of first appointment. Whereas regularising the services of the petitioner http://www.judis.nic.in 9 from the date of the G.O is arbitrary and illegal and amounts to discrimination.
12. He further submitted that the respondents have used different yardsticks to different people at different intervals. In G.O. Ms. No.116 dated 7.5.97 the persons whose services were regularised as per the above said GO with effect from the date of joining in the post of regular Animal Husbandry Assistant, whereas the petitioner though he was appointed in a regular post on 1.7.99, but his services was regularized with effect from 28.8.08, as per the impugned order. This amounts to discrimination and hence it is against Articles 14 and 16 of the Constitution of India.
13. Before the writ court, on behalf of respondents, Deputy Secretary to Government, Animal Husbandry, Dairying and Fisheries Department, had filed a counter affidavit and submitted that it is incorrect to state that the petitioner was eligible to appoint as Animal Husbandry Assistant as per Ad hoc Rules and it is also denied that the eligibility for the post is able to read and write Tamil. Actually, the petitioner was appointed on the basis of irregular appointment without regularisation and the petitioner is not eligible to claim the first and further increment. Petitioner has filed writ petition against the orders passed by the Tamil Nadu Government. In the said order of http://www.judis.nic.in 10 appointment of the petitioner, it is clearly stated that the Government will pay regular salary with increment only after regularisation on completion of one year from the date of regularisation vide G.O. Ms. No.117, Animal Husbandry, Dairying and Fisheries Department, dated 28.8.2008.
14. She further submitted that the petitioner was engaged as casual labourer (as shepherded, cowboy, and Agric Labour) in the District Livestock Farm, Tirunelveli on daily wages basis for foddering livestocks. Moreover, the petitioner had joined duty on temporary basis as a casual labourer without having any eligibility to hold the post. Hence the claim of the petitioner is against the norms of Ad hoc Rules and not eligible for regular appointment. Hence all other contentions relating to paras 4 to 6 of the affidavit are denied.
15. She further submitted that the petitioner's claim for drawal of increment, on the basis of G.O. Ms. No.1460 Finance (FR.I) Department, dated 19.11.1973 is not applicable to the petitioner. The Government order was only for the regular appointment. As the petitioner's appointment is irregular, he cannot seek remedy as per Ad hoc Rules governing the post of Animal Husbandry Assistant of Regular Appointment. The petitioner was appointed on the condition that till the order is issued for regularization, the petitioner cannot be http://www.judis.nic.in 11 eligible to get increment etc. But the petitioner filed this petition in violation of the appointment order and it is unfair to claim the right as regular employee. In the same Government order it is noted that the officer who is responsible for appointing candidates on irregular appointment is to be punished. When the Government order is like that the petitioner's appointment itself is made based upon judgment against eligibility.
16. In G.O. (Ms) No.117 Animal Husbandry, Dairying and Fisheries Department, dated 28.8.2008, it is clearly mentioned that the irregular appointments will be regularised and they are eligible to get annual increment after completion of one year from the date of regularisation. In the same order, it is also instructed to take disciplinary action against those who are all responsible for such irregular appointments of 163 casual labourers as per direction issued by the Tamil Nadu Administrative Tribunal.
17. She further submitted that the fourth respondent, namely Clinician, Veterinary Poly Clinic, Tirunelveli, was directed, to recover the increment already paid to the petitioner. Since the petitioner was regularised only on 28.8.2008, he is eligible to get increment after completion of the year. On that ground, the above said order was passed by the 4th respondent and the petitioner obeyed the same for http://www.judis.nic.in 12 recovery of that increment by written consent. The earlier increment has to be recovered from him, since the increment amount was paid to the petitioner without proper manner. Hence the temporary irregular employee cannot claim as per the norms of regular employees. The fact that he was appointed irregularly is being accepted by the petitioner and he has given a request letter for recovery of ineligible increments from 2009 January salary.
18. The contention of the petitioner that he is eligible to get increment every year vide G.O. Ms. No.1460 Finance (FR1) Department dated 19.11.1973 is false because the Government Order has a proviso that the regularised employees alone are eligible to get increment. The said government order is only for regular appointment and not for irregular appointment.
19. It is her further contention that petitioner has stated that in G.O. Ms.117, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.8.2008 for the 163 persons appointed as Animal Husbandry Assistants, in para (4) it is ordered as follows: "The Annual increment shall be sanctioned only on completion of one year from the date of Government order for regularising their services."
20. It is her further contention that Rule 23(a)(ii) of the General http://www.judis.nic.in 13 Rules for Tamil Nadu State and Subordinate Services contemplates that, a person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him form the date of commencement of his probation. Where commencement of probation is ordered from a date earlier than the date of the order and if this had not been enabled by relaxation of any rule, he shall draw increments, including arrears, in this time scale of pay applicable to him from such earlier date. The appointing authority shall include a provision to this effect while issuing orders in all such cases.
21. She further submitted that Rules 3, 5(a) and 5(b)(i) & (ii) mode of appointment (through employment exchange) age, qualification and other qualifications of the Ad hoc rules governing the post of Animal Husbandry Assistant has been relaxed in favour of the individual in G.O. (Ms) No.117, Animal Husbandry, Dairying and Fisheries Department, dated 28.8.2008. The individual commenced his probation from the above date i.e. 28.8.2008. He is eligible for sanction of increment after completion of one year from the issue of the above said Government Order as per rule 23(a)(ii) of the General Rules for the Tamil Nadu State and Subordinate Services, since he also become qualified to the post of Animal Husbandry Assistant from the date of issue of the said Government Order only. The petitioner's http://www.judis.nic.in 14 claim is not parallel to the appointment of regular employees, since petitioner's appointment is irregular and not to be decided with earlier regular appointments. There is o discrimination of violation of rules or used different yardsticks to different people for paying increment etc.
22. The Regional Joint Director of Animal Husbandry, Tirunelveli, filed a separate counter affidavit reiterating the very same averments except the following.
23. Before the writ court the third respondent submitted that writ petitioner's claim is not parallel to the appointment of regular employees since writ petitioner's appointment is irregular. He further contended that the Hon'ble Supreme Court, has passed orders on 21.02.2014 in Civil Appeal Nos.2726-2729 of 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 http://www.judis.nic.in regularisation as they are not working against any 15 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."
24. Based on the pleadings and the submission of the parties, the writ court following the decision made in W.P. No.22168 of 2009 dated 17.11.2016, allowed the writ petition No.30393 of 2008 vide its order of the even date. The relevant portion of the order reads thus:
"2. The petitioner was appointed as daily wages Casual Labourer on 18.01.1988. The petitioner had put in more than 20 years of service as Animal Husbandry Assistant and therefore, he was eligible to be regularised in the said service. Ultimately, pursuant to the orders of the State Administrative Tribunal, the second respondent passed an order on 18.01.2000 whereby, the services of the petitioner was brought into time scale of pay and he was posted in the regular services as Animal Husbandry Assistant. All the issues raised in the writ petition are similar to that of the issue raised in W.P.No.22168 of 2009 which came to be disposed by this Court today i.e., 17.11.2016.
3. In Para Nos. 11 to 15 of the order dated 17.11.2016 in W.P.No.22168 of 2009, it was held as http://www.judis.nic.in follows:-16
"11. This Court have considered the rival submissions made by the respective counsel and documents filed before this Court for perusal.
12. At the outset, this Court feels that the issue raised in the writ petition is no more res integra. It is no doubt that the petitioner and other similarly placed persons were originally appointed as casual employees, who worked as Animal Husbandry Assistants at various places at the respondent department. Since they were working as such for several years, their plea of regularisation were considered and ultimately, the petitioner was brought into time scale of pay only in the year 2000. Since the petitioner was brought in time scale of pay only in 2000, certainly, he would be entitled to get regularisaton of his service. However, for want of regularisation of rules as well as for creation of post, the respondents have taken time till 2008. In the meantime, in the year 2004, the Government passed G.O.Ms.No.117 whereby relaxation for the rules pertaining to age as well as education qualification for these people have been given. Already, the Government created 826 posts of Animal Husbandry Assistants under Government Order in G.O.Ms.No.116, Animal Husbandry http://www.judis.nic.in and Fisheries Department dated 07.05.1987.17
Since posts were created and rules were also relaxed, there is absolutely, no impediment on the part of the respondents to regularise the services of these people including the petitioner from the date of appointment or their actually joining in service pursuant to such appointment or the date on which these incumbents, like the petitioner were brought in time scale of pay.
13. Since the respondents issued G.O.Ms.No.117, dated 28.8.2008 which is also impugned herein, affected persons have already approached this Court and ultimately, a Division Bench of this Court in the order referred to above in W.A.Nos. 226 and 491 of 2012 dated 05.11.2013 in S.Rajangam and another Vs. The Secretary to Government, Animal Husbandry, Dairying and Fisheries Department and others has categorically held that all the incumbents, who have been shown in the annexure to the G.O.Ms.No.117 should be treated on par and therefore, those appellants in the said writ appeals were directed to be regularised from the date of their actual appointment and the said portion of the order as extracted above is at paragraph 14 of the said Judgment. As rightly pointed out by the learned counsel for the petitioner, in compliance of the orders of this Court, the respondents passed http://www.judis.nic.in G.O.Ms.No.185 dated 22.09.2015. In fact in 18 the said Government Order, the Government placed the legal battles between the parties wherein it is specifically mentioned that in W.A.No.12712 of 2012, orders were passed in favour of the appellants and against which review petition also was filed and the said review also was rejected as against which SLP(Civil)No.14588 of 2015 was filed and the Hon'ble Apex Court has rejected the same and in view of the said issue having reached finality, they passed the Government Order regularising the services of the individuals from the date of their original appointment. When that being the factual position, there is no gain saying to state that this petitioner need not be entitled to seek the same benefits of regularisation from the date of his actual appointment or the date on which he was brought in to time scale of pay.
14. Therefore, this Court has no hesitation to hold that the denial of the benefits of regularising of the services of the petitioner from the date of appointment or the date actually the petitioner was brought into time scale of pay, is totally unsustainable in law and therefore, the contentions made in this regard on behalf of the respondents are liable to be rejected and accordingly, is rejected.
http://www.judis.nic.in
15. In the result, the writ petition is 19 allowed. The respondents are directed to regularise the service of the petitioner from the date of appointment or the date on which the petitioner was brought into time scale of pay. Once the petitioner is entitled to get his service regularised as above, needless to say that the petitioner shall also be eligible to get all service benefits including periodical increment in pay. Therefore, the respondents are directed to calculate the said pay difference, pay arrears after calculating increment to be paid to the petitioner and pay the same to the petitioner. All the aforesaid directions shall be complied with by the respondents within a period of three months from the date of receipt of a copy of this order. No costs."
4. In view of the said order having been passed in the aforesaid writ petition today, since the facts of the present case also is identical, this petitioner also shall be entitled to get the same relief as has been provided in the said case. Therefore this writ petition is allowed in the terms as indicated above in paragraphs 14 to 15 of the order in WP No. 22168 of 2009. No costs.
Consequently, connected miscellaneous petition is closed."
25. Being aggrieved by the aforesaid order, instant writ appeal has been filed, on the following grounds:
http://www.judis.nic.in 20
i) Writ court ought to have considered the fact that the respondent/petitioner was originally appointed as Casual Labourer by way of irregular appointment and considering his long service, the Government have brought him into regular establishment as Animal Husbandry Assistant temporarily as per 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 though necessary steps have been taken to regularise his services, due to need of relaxation of relevant rules and due to the administrative reasons his services could not be regularised in time.
iii) Writ court ought to have considered the fact that after relaxation of the rules, the respondent/petitioner's service was regularised vide G.O. (Ms) No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.8.2008 though his appointment was irregular.
iv) Writ court ought to have noted that as per existing rules, no temporary Government servants are entitled for regular annual increment till their services are regularized and the Government servants are eligible for sanction of annual increment only after completion of one year from the date of regularization of their services.
v) Writ court ought to have noted that in G.O. Ms. No.117 Animal Husbandry Dairying and Fisheries (AH7) Department, dated 28.8.2008, orders have been issued regularizing the respondent/petitioner's services from http://www.judis.nic.in the date of issue of the above said order. It was also 21 ordered that annual increment should be sanctioned after completion of one year from the date of regularization i.e. 28.8.2008, the date of issue of the above said Government Order.
vi) Writ court ought to have considered the fact that the Government took a policy decision that the persons who were entered into Government service as casual labourers by irregular appointment can be absorbed considering their long service and may be regularised from the date of issue of orders and accordingly, the respondent's service was regularised from the date of issue of G.O. (Ms) No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department, dated 28.8.2008.
vii) Writ court ought to have noted that there is no discrimination between the persons regularised earlier and later but the services of the Animal Husbandry Assistant were regularised as per the availability of sanctioned posts and so there is no discrimination.
viii) Writ court ought to have noted that the respondent/petitioner herein was sympathetically brought into Government Services consdiering his long service as casual labourer appointed by irregular appointment.
ix) In similar case this Hon'ble Court has allowed the writ appeal in W.A. No.27 of 2015 by its order dated 6.4.2015 by referring the order dated 10.7.2014 made in W.A. No.2911 of 2012 etc. batch of cases.
http://www.judis.nic.in 22
26. Based on the grounds, Mr.P.S.Sivashanmugasundaram, learned Special Government Pleader, made his submissions. Ms.S.Gunasekaran, learned counsel for the respondent, made submissions rebutting the arguments of the learned Special Government Pleader.
27. Heard both sides and perused the entire materials available on record.
28. U.D. Note No.16076/S/95-9 Personnel and Administrative Reforms (S) Department, dated 05.02.1996, reads as under:
GOVERNMENT 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 http://www.judis.nic.in 23 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 order is liable but the benefits that have been conferred on the 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 http://www.judis.nic.in follow the following instructions scrupulously, while regularizing 24 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 To, 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)
29. 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;gj[ ;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/ http://www.judis.nic.in 25 ???????????????????????????????????????????????????????????????????
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; kPdt ; sj; (fh/g7) Jiw ehs;/ 18/9/96/ 3/ muR Miz (epiy) vz;/116. fhy;eil guhkhpg;g[ kw;Wk; kPdt ; sj; (fh/g6) Jiw ehs;/ 7/5/97/ gof;f 4/ fhy;eil kUj;Jtg;gzpf;fs; ,af;Fehpd; foj e/f/vz;/9425-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:
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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;ll; murhizapy;. fhy;eil guhkhpg;g[ cjtpahsh; gjtpf;fhd jw;fhypf tpjpfSf;F btspaplg;gl;l jpUj;j';fspd;gofhy;eil guhkhpg;g[ cjtpahsh; gjtpfF ; r; rpy;yiur; brytpd; mog;gilapy; fhy;eil guhkhpg;g[ cjtpahsuhf gzpg[hpe;jth;fisna epue;ju fhy;eil guhkhpg;g[ cjtpahsuhf http://www.judis.nic.in 26 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[ss ; bghJ tpjpfspdg; o 8?y; tH';fg;gl;l mjpfhu';fisf; bfhz;L ,t;thizapd; ,izg;gpy; Fwpgg; plg;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 guhkhpgg; [ cjtpahsh; gjtpf;fhd jw;fhypf tpjpfis fPHt ; UkhW 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;
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30. 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 http://www.judis.nic.in 27 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 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 http://www.judis.nic.in 28 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 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.
http://www.judis.nic.in (b) The Commissioner of Animal Husbandry and Veterinary 29 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) Leena Nair Principal Secretary to Government
31. 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, http://www.judis.nic.in while setting aside the impugned G.O. dated 28.8.2008, 30 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. The said writ petition was allowed interalia issuing directions. 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 http://www.judis.nic.in placed as that of S.Mathiyalagan, the respondents cannot 31 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 28.09.2011 and 06.07.2011 respectively are set aside and 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.
32. 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 http://www.judis.nic.in learned single Judge dated 30.8.2011 made in W.P. No.26962 of 32 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.
33. 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 http://www.judis.nic.in Thiru.S.Mathilalagan - Orders - Issued.33
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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.
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 http://www.judis.nic.in employment exchange in favour of the individuals and also ordered 34 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 18.9.2008 and 30.12.2008 and to direct the respondents to regularise 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 http://www.judis.nic.in amount paid in excess."35
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 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
34. 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:
http://www.judis.nic.in 36 " 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 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."
35. 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."
http://www.judis.nic.in 36. Consequently, Government have issued orders in G.O. (Ms) 37 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.
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Animal Husbandry, Dairying and Fisheries (AH6) Department G.O.(Ms) No.185 Dated 22.09.2015 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.
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http://www.judis.nic.in ORDER:
38
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 including Thiru.M.Thiagarajan w.e.f. the date of order issued (i.e) 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 http://www.judis.nic.in respondents to grant consequential benefits to the appellant, within a 39 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.
9. In the letter eighth read above, the Director of Animal 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 http://www.judis.nic.in with effect from 01.07.2000 as a special case so as to enable him to 40 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
37. Implementing the order of the writ court dated 01.12.2016 made in W.P. No.42198 of 2016 and W.P. No.42199 of 2016, filed by 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 http://www.judis.nic.in veterinary Services, Letter No.8480/N1/2017 41 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 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 http://www.judis.nic.in 1.12.2016 in the above writ petitions have ordered as follws:42
" ...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 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 http://www.judis.nic.in V.Sadhasivam from the date of their initial appointment as Animal 43 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.
7. In exercise of the powers conferred under Section 58 of the 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
38. 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 http://www.judis.nic.in and on absorbing them into regular establishment, since it 44 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 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."
39. 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;
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kw;Wk; kPdt ; sj; (fhg6) Jiw. ehs; 07/05/1997/ 2/ murhiz (epiy) vz;/117. fhy;eil guhkhpg;g[. ghy;tsk; kw;Wk; kPdt; sj; (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[jJ ; iwapy; 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; bjhlh;e;j tHf;F vz;/W.P.No.18885/16, 18886/16 kw;Wk; 18887/2016-y; 3/10/2016 md;W gpdt ; UkhW jPh;g;g[ 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."
jpUthU:h; khtl;lk;. bfhl;lh';Fo fhy;eil kUe;jfj;jpy;3.
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;njjpaplL ; gzptud; bra;af;nfhhp brd;id http://www.judis.nic.in cah;ePjpkd;wj;jpy; bjhlh;e;j tHf;F vz;/W.P.No.35048/16?y; 4/10/2016 46 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."
4. nkny K:dw; py; gof;fg;gl;l fojj;jpy;. ,af;Feh;. 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 jPh;g;g[fspd; mog;gilapYk; kw;Wk; murhiz (epiy) 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[ss ; hh;/ 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;gg; [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;njjpaplL ; gzptud;KiwgLj;j VJthf jdpah;fs; rhh;ghf mth;fsJ bgah;fSf;F vjpnu Fwpg;gplL ; s;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) http://www.judis.nic.in kw;Wk; tpjp 5(b) (fy;tpj; jFjp) 47 t/vz; bgah; tpjpj;jsh;t[ bra;ag;glntz;oa tpjpfs; 2 vk;/rghgjp jw;fhypf tpjp 3 (epakdk;) 3 tp/ke;jpuKj;J jw;fhypf tpjp 3 (epakdk;) 4 vd;/MWKfjh!; jw;fhypf tpjp 3 (epakdk;). 5(b) (fy;tpj;
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40. 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.95288/RR1/99-2 dated 18.01.2000. The name of the respondent herein is found at Sl.No.45 of Annexure to G.O. (Ms) No.117, Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 and in respect of http://www.judis.nic.in 48 respondent, rules relating to appointment and appointment not made through Employment Exchange, have been relaxed.
41. When the respondent is similarly placed as that of S.Mathiyalagan, Sl.No.25 (W.P. No.7949 of 2009), S.Rajangam and N.Thirukasu, Sl.Nos.140 and 141 respectively, (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 to 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 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 his joining in the regular post of Animal Husbandry Assistant i.e. 17.2.2000. In this regard, 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 http://www.judis.nic.in said right ensures equality amongst equals and its aim 49 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."
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 http://www.judis.nic.in 336 (SC), the Supreme Court held that, if the Courts are not 50 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 held that there cannot be any discrimination in treating equally placed persons on same footing, for all purposes.
42. In the light of the above, we do not find any error in the order of the writ court. Accordingly, the writ appeal is dismissed. However, there shall be no order as to cost. Consequently, the connected civil miscellaneous petition is closed.
43. The appellants are directed to regularise the services of the respondent in the post of Animal Husbandry Assistant with effect from 17.2.2000 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 http://www.judis.nic.in 51 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.]
30.11.2018
Index : Yes
Internet : Yes
Speaking/Non-speaking order
asr
http://www.judis.nic.in
52
S. MANIKUMAR, J.
AND
SUBRAMONIUM PRASAD, J.
asr
W.A.No.2631 of 2018
and CMP No.21413 of 2018
30.11.2018
http://www.judis.nic.in