Madras High Court
T.Mahalai vs The Government Of Tamil Nadu on 2 February, 2015
Bench: S.Tamilvanan, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.02.2015 Coram THE HONOURABLE Dr.JUSTICE S.TAMILVANAN and THE HONOURABLE Mr.JUSTICE V.S.RAVI Writ Appeal (MD) No.37 of 2015 T.Mahalai ... Appellant/Petitioner vs. 1.The Government of Tamil Nadu, rep.by its Secretary to Government, Highways Department, Fort St.George, Chennai-600 009. 2.The Accountant General (A & E), 361, Anna Salai, Teynampet, Chennai-600 018. 3.The Chief Engineer, Highways Department, Chennai-600 005. 4.The Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul-624 001. ... Respondents/Respondents Writ Appeal filed under Clause 15 of Letters Patent, against the order of the learned Single Judge, dated 23.11.2011, made in W.P.(MD)No.13342 of 2011. !For Appellant : Mr.A.Thirumurthy ^For Respondents : Mr.M.Govindan, Spl.Govt.Pleader. :JUDGMENT
(Judgment of the Court was delivered by S.TAMILVANAN,J) Heard the learned counsel appearing for the appellant as well as the learned Special Government Pleader appearing for the respondents.
2.This writ appeal has been filed under Clause 15 of Letters Patent, challenging the order dated 23.11.2011, made in W.P.(MD)No.13342/2011, by the learned Single Judge. The writ petition was filed by the appellant herein, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the order in Na.Ka.No.768/11/B2, dated 15.03.2011, passed by the Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul, the 4th respondent herein, seeking an order to quash the same and consequently direct the respondents to count the break of service in respect of the respondent for the period from 01.11.1992 to 11.06.1998 and to count half of the service rendered by him as NMR Mazdoor from 01.05.1974 to 31.10.1992, as qualifying service for pension and sanction the pensionary benefits to the respondent with effect from 01.06.2005, the date of his retirement.
3.Learned Special Government Pleader, referring to Government Order, in G.O.No.41, Finance (Pension) Department, dated 09.02.2010, submits that for getting pension one should have served not less than 10 years in regular service and for that purpose, half of the service rendered under non- provincialised service can be taken into account and if there is any break in service, the same should be regularised by the Head of the Department and further the employee should have been regularly absorbed in service before 1st April, 2003.
4.The learned counsel appearing for the appellant/petitioner drew the attention of this Court to the operative portion of the said Government Order, which reads as follows:
"Provided that this sub-rule is applicable to all employees who rendered service under the State Government in non-provincialised service, consolidated pay, honorarium or daily wages basis on or after 1st January, 1961 and absorbed in regular service before 1st April, 2003. Provided further that wherever there was break in service before their absorption in regular service before 1st April 2003, the same shall be specifically condoned by the orders of the Head of Departments, in which the employees were regularly absorbed and such period of break, shall not count for the purpose of pensionary benefits."
5.Learned counsel appearing for the appellant submitted that though the appellant approached for regularisation of break in service, the same was negatived by the Divisional Engineer, the 4th respondent and the 4th respondent is not the competent authority to condone the break in service. It was also brought to the notice of this Court that as per the Annexure to Government Order in G.O.Ms.No.114, Highways (HM2) Department, dated 15.05.1998, for about 63 Daily Wage employees were regularly absorbed in service, wherein Sl.No.47 relates to T.Mahali, the appellant herein and his date of birth is 18.05.1947 and date of joining in service is shown as 05.06.1976. The learned counsel appearing for the appellant submits that till he was regularly absorbed, the appellant had worked for more than 18 years and even if the period of 6 years, 5 months and 20 days, as per the proceedings of the 4th respondent is deducted, his service as NMR/Casual Labour would be more than 11 years and therefore there could be a direction issued to the Chief Engineer, Highways Department, Chennai-5, the 3rd respondent herein, to consider the representation made by the appellant for regularisation of break in service and to pass appropriate orders.
6.It is not in dispute that the petitioner entered into service as NMR/Casual Labour in the Highways Department in 1976 and worked as such till he was regularly absorbed as per G.O.Ms.No.114, Highways (HM2) Department, dated 15.05.1998 and in between there was break in service for 6 years, 5 months and 20 days. As per G.O.Ms.No.41, Finance (Pension) Department, dated 09.02.2010, the competent authority to regularise such break in service is only the Chief Engineer, Highways Department, the 3rd respondent herein. However, the order was passed by the 4th respondent, by his proceedings in Na.Ka.No.768/2011/B2, dated 15.03.2011, whereby the request of the petitioner was rejected on the ground that there was discontinuity of service for about 6 years, 5 months and 20 days. The appellant is a retired Employee and as per the records available, he had worked under non-provincialised service since 1976 till he was regularly absorbed in 1998 and admittedly there was break in service before he was regularly absorbed.
7.On the aforesaid circumstances, we are of the view, to meet the ends of justice that the 3rd respondent has to consider the request made by the appellant and pass appropriate orders, on humanitarian grounds, in accordance with law. Accordingly, the 3rd respondent is directed to consider the request of the petitioner for regualrisation of break in service and to pass appropriate orders within a period of eight weeks from the date of receipt of a copy of this order.
8.The writ appeal is disposed of with the above said direction. No order as to costs.
Index:yes/no (S.T.,J) (V.S.R.,J)
Internet:yes/no. 02.02.2015
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To:
1.The Secretary to Government,
Government of Tamil Nadu,
Highways Department,
Fort St.George, Chennai-600 009.
2.The Accountant General (A & E),
361, Anna Salai, Teynampet,
Chennai-600 018.
3.The Chief Engineer,
Highways Department,
Chennai-600 005.
4.The Divisional Engineer,
Construction and Maintenance,
Highways Department,
Dindigul-624 001.
S.TAMILVANAN,J
and
V.S.RAVI,J
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Judgment in
W.A.(MD)No.37/2015
Dated:02.02.2015