Madras High Court
A. Jahangir vs The Government Of Tamil Nadu on 14 June, 2012
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-6-2012 CORAM: THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR Writ Petition No.10034 of 2012 & M.P.No.1 of 2012 Writ Petition No.10035 of 2012 & M.P.No.1 of 2012 Writ Petition No.10036 of 2012 & M.P.No.1 of 2012 Writ Petition No.10037 of 2012 & M.P.No.1 of 2012 Writ Petition No.10038 of 2012 & M.P.No.1 of 2012 Writ Petition No.10662 of 2012 & M.P.No.1 of 2012 Writ Petition No.10663 of 2012 & M.P.No.1 of 2012 Writ Petition No.10664 of 2012 & M.P.No.1 of 2012 Writ Petition No.10665 of 2012 & M.P.No.1 of 2012 A. Jahangir . . Petitioner in W.P.No.10034/2012 G. Radha . . Petitioner in W.P.No.10035/2012 V. Subramanian . . Petitioner in W.P.No.10036/2012 V. Appavu . . Petitioner in W.P.No.10037/2012 V. Chennakrishnan . . Petitioner in W.P.No.10038/2012 M. Dharmalingam . . Petitioner in W.P.No.10662/2012 P. Natarajan . . Petitioner in W.P.No.10663/2012 R. Harinarayanan . . Petitioner in W.P.No.10664/2012 K. Jeyaraman . . Petitioner in W.P.No.10665/2012 Vs. 1. The Government of Tamil Nadu, rep.by the Secretary to the Government, Commercial Taxes and Registration Department, Fort St.George, Chennai 600 009. 2. The Principal Secretary/Commissioner, Commercial Taxes Department, Chennai 600 005. 3. The Joint Commissioner of Commercial Taxes, Vellore Division, Vellore, Vellore District. . . Respondents in all writ petitions Common Prayer: These Writ Petitions are filed under Article 226 of the Constitution of India, praying this Court to issue writ of Certiorarified Mandamus calling for the records relating to the impugned order of the first respondent in G.O.(2D)No.173, Commercial Taxes and Registration (A1) Department, dated 15.11.2011 and quash the same insofar as regularisation of petitioners' services from the date of issue of the said order is concerned and direct the respondents to regularise the services of the petitioners in the post of Office Assistant with effect from the date of their initial appointment viz., 12.1.1990, 10.8.1989, 3.2.1989, 19.4.1989, 3.3.1990, 2.9.1989, 1.4.1989, 23.4.1990, 31.3.1989 respectively, with monetary benefits and grant all consequential benefits. For Petitioners : Mr.P.Rajendran For Respondents : Mr.V.Subbiah, Special Government Pleader COMMON ORDER
Mr.V.Subbiah, learned Special Government Pleader takes notice for the respondents.
2. The prayer in all the writ petitions are to quash the G.O.(2D)No.173, Commercial Taxes and Registration (A1) Department, dated 15.11.2011 insofar as regularisation of petitioners' services from the date of issue of the said order is concerned and direct the respondents to regularise the services of the petitioners in the post of Office Assistant with effect from the date of their initial appointment viz., 12.1.1990, 10.8.1989, 3.2.1989, 19.4.1989, 3.3.1990, 2.9.89, 1.4.1989, 23.4.1990, 31.3.1989 respectively, with monetary benefits and grant all consequential benefits.
3. The petitioners were initially appointed as Masalchi/Night Watchman in the Commercial Tax Department on 7.4.1983, 7.10.1982, 10.4.1981, 2.10.1982, 23.2.1984, 5.4.1983, 1.4.1981, 21.3.1984, 15.4.1981 respectively through Employment Exchange. As per G.O.Ms.No.1544, Commercial Taxes and Endowments Department, dated 23.12.1988 they were appointed as Office Assistants with effect from 12.1.1990, 10.8.1989, 3.2.1989, 19.4.1989, 3.3.1990, 2.9.1989, 1.4.1989, 23.4.1990, 31.3.1989 respectively and as directed in the said order, proposals were sent to the Government for relaxation of relevant rule, viz., Rule 5(1) of the Special Rules for the Tamil Nadu Basic Service relating to age of the petitioners, as they crossed the age limit when they were appointed as Office Assistants. It is the case of the petitioners that the said proposal was considered by the Government only after 22 years and issued G.O(2D)No.173 Commercial Tax and Registration (A-1) Department, dated 15.11.2011 regularising the services of the petitioners in the post of Office Assistant with effect from the date of issue of the said Government Order, viz., 15.11.2011.
4. It is the grievance of the petitioners that though they were initially appointed in the year 1990/1989 and immediately proposals were sent to the Government for relaxation of the relevant rules, the Government considered the same only after 22 years and passed the impugned Government Order regularising the services of the petitioners prospectively i.e., from the date of the Government order viz., 15.11.2011, and thus, the petitioners are deprived of the benefit of regularisation for 22 years.
5. The learned counsel for the petitioners submitted that the issue is covered by the decision in W.P.No.4859 of 2009 order dated 24.2.2010, reported in 2010 (1) CWC 721 (P.Subramani v. Director of School Education) and the same is confirmed by the Division Bench in W.A.No.1520 of 2010 on 25.10.2010 and by the Supreme Court in SLP No.8231 of 2011 dated 12.5.2011.
6. In view of the said submission, when the writ petitions were posted for admission, the learned Special Government Pleader was directed to take notice for the respondents and was directed to verify whether the issue is covered by the decision cited above. Today, the learned Special Government Pleader submitted that the issue is covered by the decision of this Court in W.P.No.4859 of 2009 order dated 24.2.2010, which was confirmed by the Division Bench in W.A.No.1520 of 2010 and by the Supreme Court in SLP No.8231 of 2011 dated 12.5.2011 and the said order was also implemented by the Government by issuing G.O.Ms.No.123 School Education Department, dated 17.8.2011.
7. The petitioner in the above cited case, namely P.Subramani, who was employed as Part-time Sweeper in the Government Higher Secondary School, Ganapathypuram, Coimbatore, approached this Court by filing a writ petition, challenging the order refusing to regularise his service from the date of his initial appointment i.e., from 1.11.1990 and for payment of all consequential monetary benefits. The said writ petition namely WP No.4859 of 2009 was allowed by this Court by an order dated 24.02.2010 (T.S. Sivagnanam, J). The Department, aggrieved by the said order has filed W.A.No.1520 of 2010 before the Division Bench of this Court by contending that the learned single Judge was not right in ordering regularisation from the date of initial appointment and the regularisation can be ordered only on completion of 10 years as per G.O.Ms.No.22, P&AR Department, dated 28.02.2006. The said contention was rejected by the Division Bench of this Court in para-8 of the judgment dated 25.10.2010. The Special Leave Petition No. 8231 of 2011 filed against the said judgment before the Honourable Supreme Court was also dismissed on 12.05.2011. In spite of dismissal of the Special Leave Petition the order of this Court was not implemented and therefore, the petitioner therein filed Contempt Petition No.1035 of 2010 and thereafter the order passed by this Court was complied with by the respondents therein by issuing G.O.Ms.No.123, School Education Department dated 17.08.2011, regularising the service of the said P.Subramani from the date of his initial appointment namely 1.11.1990 with salary and other benefits.
8. In the decision reported in (2006) 2 MLJ 339 (V. Perumal v. Commissioner and Secretary to the Government, Health and Family Welfare Department, Chennai) I had an occasion to consider similar issue wherein the grievance of the petitioner was that there was no justification to restrict the relaxation prospectively. This Court quashed the impugned Government order therein restricting the relaxation from the date of the impugned Government order and held that if the Government order is strictly applied, the petitioner's valuable service of 20 years will get obliterated and the petitioner will not be in a position to get annual increments and other benefits. Against the said order there is no appeal as on date.
9. In the light of the above cited decisions, the writ petitions are allowed and the impugned G.O.(2D)No.173 Commercial Taxes and Registration (A1) Department, dated 15.11.2011 insofar as restricting the regularisation of petitioners' services from the date of the order, is set aside and the first respondent is directed to pass orders regularising the services of the petitioners from the date of their initial appointment with time scale of pay applicable at the relevant period and pay arrears of salary to the petitioners. Necessary order is directed to be passed by the first respondent within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes/No. Internet : Yes/No. 14-6-2012 vr To 1. The Secretary to the Government, Commercial Taxes and Registration Department, Fort St.George, Chennai 600 009. 2. The Principal Secretary/Commissioner, Commercial Taxes Department, Chennai 600 005. 3. The Joint Commissioner of Commercial Taxes, Vellore Division, Vellore, Vellore District. N. PAUL VASANTHAKUMAR, J. Vr W.P.Nos.10034 to 10038 and 10662 to 10665 of 2012 14-6-2012