Madras High Court
P.Raja vs The State Of Tamil Nadu on 6 January, 2016
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2016
RESERVED ON : 13.10.2015
PRONOUNCED ON : 06.01.2016
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
W.P.(MD)Nos.7919 to 7922 of 2012
P.Raja .. Petitioner in W.P.(MD) No.7919 of 2012
A.Jayaprakash .. Petitioner in W.P.(MD) No.7920 of 2012
A.Nizamudeen .. Petitioner in W.P.(MD) No.7921 of 2012
M.Sundararajan .. Petitioner in W.P.(MD) No.7922 of 2012
-vs-
1. The State of Tamil Nadu
rep.by its Secretary to Government
Highways and Minor Ports Department
Secretariat, Chennai 600 009
2. The Principal Director (Highways)
O/o the Principal Director (Highways)
Highways Department
Chepauk, Chennai 600 005
3. The Divisional Engineer
Highways & Rural Works
Highways Department
Dindigul Division, Trichy Road
Dindigul .. Respondents 1 to 3 in all the writ petitions
Petitions under Article 226 of the Constitution of India, praying for
the issue of a Writ of Certiorarified Mandamus, to call for the records on
the file of the second respondent in connection with the impugned orders of
rejection of regularisation of service passed in Memo
No.37053/Nirvagam5(1)/2006 dated 24.10.2011 and quash the same as illegal and
arbitrary and consequently direct the first and second respondents to
regularise the petitioners' service in the post of Junior Draughting Officer.
!For Petitioners :: Mr.S.Selvam for
Mr.G.Thalaimutharasu
^For Respondents :: Mr.T.R.Janarthanam
Additional Government Pleader
:ORDER
All these writ petitions have been filed with a common prayer to set aside the impugned orders of rejection of the request of the petitioners for regularisation passed by the Principal Director (Highways), Highways Department, Chennai with a consequential direction to the respondents to regularise their service in the post of Junior Draughting Officer. Since the relief claimed is similar in all the writ petitions, the pleadings in respect of the petitioner in W.P.(MD) No.7919 of 2012 are referred to in this order, for the sake of convenience.
2. The petitioner, Mr.P.Raja, having passed Diploma in Civil Engineering in the year 1989, registered his name in the employment exchange on 19.3.91. Thereafter, on his appointment as Technical Assistant Grade-II on daily wages basis in the Highways Department, he joined duty on 1.7.97 in the office of the Assistant Divisional Engineer, Highways, Natham, Dindigul. He has also rendered 12 years of service in the department on daily wages basis with artificial break, for which he was issued with the certificate by the Junior Engineer concerned. In this background, his grievance is that though he was working continuously for a period of more than 12 years in the Highways department, his services were not regularised.
3. Learned counsel for the petitioner, bringing to the notice of this Court the proceedings dated 4.12.2006 issued by the Assistant Divisional Engineer, Highways, Madurai contended that it is an admitted case of the respondents that from 1.7.97 till 31.12.2003, the petitioner was working as Technical Assistant Grade-II on daily wages basis. Placing on record, one another proceedings dated 4.7.2005 issued by the Assistant Divisional Engineer, Highways, Ramanathapuram, he contended that the petitioner was working as Technical Assistant Grade-II on daily wages basis from 1.4.2004 to 30.6.2005. Placing on record yet another proceedings dated 27.11.2006 issued by the Assistant Engineer, Highways, Natham to the effect that the petitioner was working on daily wages basis as Technical Assistant Grade-II from 11.7.2005 to 30.9.2006, he again contended that when the three service certificates issued by the respective officers clearly show that the petitioner, having passed the Diploma in Civil Engineering in the year 1989, was appointed in the office of the Assistant Divisional Engineer, Highways, Madurai on 1.7.97 with the artificial break of five days on completion of 90 days service, when he has been working continuously, therefore, he is entitled to get the benefit of G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department dated 28.2.2006, which clearly says without any doubt that the services of the daily wages employees working in all Government departments who have rendered ten years of service as on 1.1.2006 be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post, the respondents ought to have regularised his service. When the State Government has taken a policy decision to absorb the NMR Technical Assistants working in the Highways department for a period of five to ten years, subsequently, the first respondent-Secretary to Government, Highways and Minor Ports Department, Chennai also had issued a letter dated 5.2.2007 directing the Divisional Engineers concerned to send the particulars of the NMRs working under their control for consideration of permanent absorption and that the Divisional Engineers (Highways) had sent the particulars as sought for to the Principal Director (Highways), the second respondent herein by including the name of the petitioner in the said list, the respondents have not considered his case. In this regard, he has again pleaded that the petitioner has also filed W.P.(MD)No.10675 of 2009 for considering his case for regularisation. Even before filing the said writ petition, the petitioner earlier filed one another writ petition, W.P.(MD) No.4752 of 2009 challenging the Government Order issued in G.O.Ms.No.34, Highways (HK3) Department dated 29.1.2008 on the ground that the same was silent about the NMRs recruitment and the consequential relief of regularisation. When this Court has passed an order on 26.10.2009 allowing W.P.(MD) No.10675 of 2009 to consider his representation and pass orders within a period of four weeks with one another direction to keep one post vacant till the same was decided, the second respondent has passed the impugned order rejecting his case for regularisation, on the ground that he has completed only 1498 days and not completed ten years as contemplated in G.O.Ms.No.22, Personnel and Administrative Reforms Department dated 28.2.2006. Adding further, he has submitted that when the petitioner has put in 12 years of unblemished service in the respondent department, he has got a legitimate expectation for consideration of his representation for regularisation. When the petitioner has been working since 1997 with the artificial break here and there, as evidenced from the three service certificates issued by the respective officers for the periods specified thereunder, the impugned order of rejection passed by the second respondent is absolutely untenable and the same is liable to be set aside, he pleaded.
4. A detailed counter affidavit has been filed by the Divisional Engineer, (Highways) Construction and Maintenance, Dindigul on behalf of the respondents stating that the petitioner was engaged as NMR from 1.7.97 to 30.9.2006 and in this span of nine years, he has been engaged for 1498 days only, therefore, it cannot be construed as continuous service at any point of time. Adding further, the learned Additional Government Pleader for the respondents submitted that the petitioner has not worked more than 90 days continuously at one time, therefore, he is not entitled to get the benefit of the G.O.Ms.No.22 dated 28.2.2006, as he had not fulfilled the conditions of eligibility of ten years service as on 1.1.2006 in the category of daily wages employees as laid down in the said Government Order. Since the respondents have acted only as per the guidelines issued in the said Government Order, the impugned order does not call for any interference, he pleaded.
5. Heard both sides.
6. It is not in dispute that the petitioner Mr.P.Raja, having passed the Diploma in Civil Engineering in the year 1989, was engaged by the respondents as Technical Assistant Grade-II on daily wages basis from 1.7.97 and he had been working in the said post on daily wages basis till 30.9.2006 with the artificial break then and there, as could be seen from the three service certificates, namely, (1) issued by the Assistant Divisional Engineer, Highways, Madurai dated 4.12.2006 certifying that the petitioner worked from 1.7.97 till 31.12.2003, (2) issued by the Assistant Divisional Engineer, Highways, Ramanathapuram dated 4.7.2005 certifying that the petitioner worked from 1.4.2004 to 30.6.2005 and (3) issued by the Assistant Engineer, Highways, Natham dated 27.11.2006 certifying that the petitioner worked from 11.7.2005 to 30.9.2006. Since the entire claim of regularisation rests on the G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department dated 28.2.2006, it is necessary to refer to the abstract of the said Government Order, which reads as follows:-
?Public Services-Employees working on daily wages-Bringing into regular establishment on completion of ten years of service as on 1.1.2006-Orders issued.
PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT G.O.Ms.No.22 Dated: 28.2.2006 ORDER:
The Hon'ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 8.2.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 1.1.2006 will be regularised.
2. Based on the announcement made by the Hon'ble Chief Minister on 8.2.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 1.1.2006 be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post.
3. The Departments of Secretariat may therefore, be directed to pursue action to regularise the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 1.1.2006 as ordered in para 2 above, in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government.
4. This order issues with the concurrence of Finance Department vide its U.O.No.985/FS/P/2006 dated 28.2.2006.
(By order of the Governor) N.Narayanan Chief Secretary to Government?
7. A careful reading of the aforesaid Government Order clearly shows that the services of those daily wages employees working in all the Government departments who have rendered ten years of service as on 1.1.2006 were ordered to be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. Meticulously following the guidelines issued in the aforementioned Government Order, the third respondent has forwarded the details of NMRs who have completed above 3 years and below 10 years of service as on 3.3.2009 to the Chief Engineer (Highways), Chepauk, Chennai by including the name of the petitioner as having worked from 1.7.97 to 30.9.2006 for a period of 1498 days with break, amongst others. The second respondent has rejected the request of the petitioner for regularisation on the ground that he had completed only 1498 days of service from 1.7.97 to 30.9.2006.
8. Coming to the case of the petitioners in the other writ petitions, namely, Mr.A.Jayaprakash, Mr.A.Nizamudeen and Mr.M.Sundararajan who are also similarly placed, the second respondent has rejected their request for regularisation on the ground that they had completed only 1254 days of service from 1.10.97 to 31.12.2006, 1131 days from 18.11.99 to 23.9.2006 and 1200 days from 1.7.88 to 31.7.2006, respectively.
9. It is an admitted case of the respondents in their counter affidavit that the artificial break was given by them alone to the petitioners and the petitioners cannot be blamed for that. Secondly, in an identical circumstance, this Court gave a direction in favour of similarly placed persons who have rendered more than three years of service for regularisation in W.P.No.36623 of 2004 dated 9.12.2005 (V.Kaliappan and others v. State of Tamil Nadu rep.by its Secretary to Government, Highways Department and others).
10. In view of the above, although the petitioners have not satisfied the eligibility criteria of ten years service as on 1.1.2006 in the respondent department for consideration of their request for regularisation in terms of G.O.Ms.No.22 dated 28.2.2006, this Court is only inclined to observe that this order shall not preclude the respondents to consider the case of the petitioners for regularisation on the basis of any other Government Order, since they are presently over-aged and had also served in the respondent department on daily wages basis for quite a long time, though with break in service. With this observation, all the writ petitions are disposed off. Consequently, M.P.(MD) Nos.2 of 2012 are closed. No costs.
To
1. The Secretary to Government Highways and Minor Ports Department Secretariat Chennai 600 009
2. The Principal Director (Highways) O/o the Principal Director (Highways) Highways Department Chepauk Chennai 600 005
3. The Divisional Engineer Highways & Rural Works Highways Department Dindigul Division, Trichy Road Dindigul.