Madras High Court
M.Anandan vs The Secretary To Government Of Tamil ... on 12 October, 2011
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.10.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NoS.9586 AND 10082 OF 2011 AND CONNECTED MISCELLANEOUS PETITIONS W.P.NO.9586 / 2011 1.M.Anandan 2.K.Pandurengan 3.R.Velu 4.C.Balasubramani 5.S.Paramasivam 6.T.K.Selvam 7.C.Yeswanta Rao ... Petitioners W.P.NO.10082 / 2011 1.C.Karthikeya 2.E.Umapathy ... Petitioners Versus 1.The Secretary to Government of Tamil Nadu Municipal Administration and Water Supply Dept. Fort St. George, Chennai. 2.The Commissioner of Municipal Administration Chepauk, Chennai 600 005. 3.The Executive Officer Sathuvacheri III Grade Municipality Sathuvacheri, Vellore District. ... Respondents in both WPs' PRAYER: Petitions filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorari, to call for the records from the 3rd respondent relating to his proceedings Na.Ka.No.76/2006/A1, dated 27.02.2006 and quash the same in so far as regularisation of the service of the petitioners are concerned and consequently direct the respondents herein to regularise the service of the petitioners in Time Scale of Pay after expiry of 3 years from the date of their appointment made pursuant to and in accordance with G.O.Ms.No.198, MA & WS Department, dated 26.10.1998 with all attendant benefits. (Prayer amended as per order dated 22.09.2011 in M.P.Nos.2 and 2 of 2011 in W.P.Nos.9586 and 10082 of 2011) For Petitioners : Mr.K.Venkkatasamy For Respondents 1&2 : Mr.V.Subbiah Special Government Pleader For Respondent 3 : Mr.Venkatesh Government Pleader COMMON ORDER
The petitioners in W.P.No.9586 of 2011 are employed as Watchmen cum Water Suppliers and the petitioners in W.P.No.10082 of 2011 are employed as Electrician GradeII, in the third respondent Municipality. All the petitioners are employed in the third respondent Municipality on daily wage basis initially.
2.The Government of Tamil Nadu issued an order in G.O.Ms.No.199, Municipal Administration and Water Supply Department dated 12.08.1997 granting powers to the Director of Municipal Administration for creation of the posts of Sanitary Workers in Municipalities and to appoint in those posts the Sanitary Workers employed on daily wages as on 31.12.1996, on consolidated pay for three years. After completion of three years service on consolidated pay, the Government would decide on the regularisation of their services, based on the assessment on the performance of their service.
3.The Government of Tamil Nadu issued another order in G.O.Ms.No.198, Municipal Administration and Water Supply Department, dated 26.10.1998 granting consolidated pay to seven categories of employees working in Town Panchayats and Municipalities, on daily wage basis. The said G.O. contemplates regularisation of service of those employees, who are brought to consolidated pay, on their completion of three years of service, if their services are satisfactory.
4.Based on the assessment report of the concerned Municipality, appropriate orders would be passed by the Government regularising the services of Sanitary Workers and the workers belonging to other categories by fixing them on time scale of pay. The said Government Orders also provide for 5% increase in the consolidated pay, for every year, up to three years.
5.Based on the Government Order in G.O.Ms.No.198, the petitioners were appointed in the year 1998 on consolidated pay. The third respondent Municipality has made recommendations to the second respondent for regularising the services of the petitioners, on their completion of three years of service.
6.However, the petitioners and Sanitary Workers were not regularised on completion of three years of service in consolidated pay on the ground that there was ban on recruitment imposed by the Government in G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001.
7.After the ban was lifted in G.O.Ms.No.14, Personnel and Administrative Reforms Department, dated 07.02.2006, the Government issued an order in G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006, granting regularisation to all the Sanitary Workers and the workers belonging to other categories, who were appointed on consolidated pay, with effect from the date of the issuance of the said G.O. Based on the same, the third respondent passed an order dated 27.02.2006 granting time scale of pay to the petitioners and the Sanitary Workers with effect from 27.02.2006.
8.While G.O.Ms.No.199 of the first respondent relates to Sanitary Workers employed in various Municipalities, G.O.Ms.No.198 relates to seven categories of employees working in Town Panchayats and Municipalities. Both the Government Orders provides for consolidated pay for three years to daily wage Sanitary Workers / other categories of workers and for time scale of pay on completion of three years in consolidated pay. According to the petitioners, both the Government Orders are identical.
9.In these circumstances, the Sanitary Workers employed in Palladam Municipality, who were granted the time scale of pay in Februrary 2006, pursuant to G.O.Ms.No.21, referred to above, filed a writ petition in W.P.No.25620 of 2006 seeking to quash the order dated 27.02.2006 of the Palladam Municipality, regularising their services with effect from 23.02.2006 and for a consequential direction to grant them regularisation on completion of three years of service, on consolidated pay. The said writ petition was allowed by this Court on 17.09.2008. The matter was taken before the Division Bench of this Court by way of filing an appeal in W.A.No.47 of 2010. The First Bench of this Court dismissed the writ appeal on 23.06.2010 and confirmed the order of the learned single Judge. The matter was taken to the Honourable Apex Court and the Apex Court dismissed the SLP (Civil) No.26605 of 2010 on 27.09.2010.
10.The petitioners have filed the present writ petitions seeking to quash the order dated 27.02.2006 of the third respondent granting time scale of pay with effect from 27.02.2006 and for a direction to grant regularisation on completion of three years of service in consolidated pay, as per G.O.Ms.No.198, MA & WS Department, dated 26.10.1998 with all benefits.
11.No counter affidavit is filed by the respondents.
12.Heard both sides.
13.It is brought to the notice of this Court that the Sanitary Workers of the third respondent Municipality in these writ petitions, filed a writ petition in W.P.No.9726 of 2011 questioning the order dated 27.02.2006 regularising their services with effect from 27.02.2006 and for a consequential direction to regularise their services on completion of three years of service in consolidated pay, as per G.O.Ms.No.199, referred to above, with all attendant benefits. A learned single Judge of this Court allowed the writ petition by a detailed order dated 26.04.2011. It is also stated that no appeal is filed against the order of the learned single Judge referred to above.
14.The learned counsel for the petitioners submit that since the Sanitary Workers of the third respondent Municipality are granted the relief of regularisation as per the order dated 26.04.2011 in W.P.No.9726 of 2011, on their completion of three years of service, as per G.O.Ms.No.199 referred to above, the same yardstick should be followed in respect of the petitioners in these writ petitions. According to the learned counsel, both the Government Orders in G.O.Ms.Nos.198 and 199 are similarly worded. While G.O.Ms.No.198 deals with seven categories of employees, G.O.Ms.No.199 confines to Sanitary Workers. He further submits that the order dated 26.04.2011 passed in W.P.No.9726 of 2011 by this Court relating to the Sanitary Workers of the third respondent Municipality is based on the order dated 17.09.2008 passed in W.P.No.25620 of 2006, which attained finality. It is also submitted that in para 8 of the order passed in W.P.No.9726 of 2011, it is stated that the third respondent Municipality should simply extend the benefit of the judgment dated 17.09.2008 passed in W.P.No.25620 of 2006, as the petitioners therein are similarly situated, without expecting them to approach this Court claiming the similar relief. According to the learned counsel for the petitioners, the same would apply to the petitioners herein also.
15.On the other hand, the learned Special Government Pleader / Government Pleader appearing for the respondents vehemently contended that the petitioners, having accepted the benefit under the order dated 27.02.2006 of the third respondent, are estopped from questioning the same. Further it is submitted that these writ petitions suffer from laches, as the petitioners have approached this Court after five years from the date of issuance of the impugned order. In this regard, they relied on a judgment dated 08.03.2011 of this Court passed in W.P.No.4818 of 2011, wherein the writ petition was dismissed on the ground of laches.
16.The learned Special Government Pleader / Government Pleader also relied on a judgment of the Honourable Apex Court in COL.B.J.AKKARA (RETD.) VS. GOVERNMENT OF INDIA AND OTHERS [2006 (11) SCC 709] for the proposition that the respondents could resist the writ petitions filed by the petitioners raising new grounds and the ground relating to laches was not raised in W.P.No.9726 of 2011.
17.I have considered the submissions made on either side.
18.It is not in dispute that the petitioners are in employment prior to 31.12.1996, on daily wage basis in the third respondent Municipality. The petitioners in W.P.No.9586 of 2011 are employed as Watchmen cum Water Suppliers and the petitioners in W.P.No.10082 of 2011 are employed as Electrician Grade II in the third respondent Municipality. The first respondent Government issued the orders in G.O.Ms.Nos.198 and 199 referred to above, fixing certain norms for creation of posts for maintenance of Street Lights, Water Supply etc. As stated above, G.O.Ms.No.199 relates to Sanitary Workers and G.O.Ms.No.198 relates to other categories of employees. In the said Government Orders, the daily wage employees were brought to consolidated pay basis for three years. Both the Government Orders are similarly worded and they provide for 5% increase in consolidated pay for every year upto three years. Both the Government Orders contemplate granting of time scale of pay to the consolidated pay employees, on completion of three years of service, if their services are satisfactory, in the assessment of the third respondent Municipality. Based on the assessment of the third respondent, the first respondent could grant them regularisation and fix them in time scale of pay.
19.While so, the Government issued the order in G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001 imposing ban on recruitment in all the Departments, except Police, Medical and Education Department. Citing the ban as a reason, the petitioners and the Sanitary Workers were not granted the benefit of regularisation as contemplated under G.O.Ms.Nos.198 and 199. It is not the case of the third respondent that the service of the petitioners are not satisfactory in their assessment. It is not in dispute that non regularisation was only due to the ban imposed in G.O.Ms.No.212. After the ban was lifted in G.O.Ms.No.14, Personnel and Administrative Reforms Department, dated 14.02.2006, the first respondent issued the order in G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006 to regularise the services of all categories of employees employed in various Municipalities, who are in receipt of consolidated pay, to grant time scale of pay with immediate effect. Accordingly, the Municipalities, including the third respondent Municipality, granted time scale of pay to all its employees employed on consolidated pay.
20.When the Palladam Municipality granted time scale of pay to the Sanitary Workers by the order dated 27.02.2006, with effect from 23.02.2006, in accordance with G.O.Ms.No.21, referred to above, the Sanitary Workers of the Palladam Municipality questioned the same by filing the writ petition in W.P.No.25620 of 2006 and sought for regularisation and time scale of pay on completion of three years of service in accordance with G.O.Ms.No.199. The said writ petition was allowed by this Court on 17.09.2008. While allowing the said writ petition, the issue relating to ban on recruitment was raised before this Court and the same was considered by this Court in para 6 of its order, which reads as follows:
"6. It is not in dispute that the petitioners were appointed as sanitary works initially on consolidated basis in Palladam Municipality in pursuant to G.O.Ms.No.199, Municipal Administration and Water Supply Department dated 12.8.1997. As per the said G.O., the sanitary workers shall be regularized on completion of three years of service. The petitioners, who have been appointed on 27.3.1998 as per the said G.O. ought to have been regularized by 27.3.2001. The reason for not regularizing their services as per the counter affidavit of the respondents is that there was a ban for recruitment except in Police, Medical and Teachers service and hence the services of the petitioners could not be regularized. The ban imposed could only be for a new appointment and the petitioners, who have been already appointed prior to the ban imposed by the Government cannot be denied regularization of their services citing the said ban. All the petitioners have already been appointed and it is not as if new posts are being created or new appointments are made. Hence the contention raised by the learned Special Government Pleader appearing for the respondents that the services of the petitioners could not be regularized in view of the ban imposed by the Government cannot be accepted."
21.Against the aforesaid order dated 17.09.2008 passed in W.P.No.25620 of 2006, the respondent Municipality therein, filed an appeal in W.A.No.47 of 2010. The First Bench of this Court on noticing that the learned single Judge allowed the said writ petition based on the judgment of a Division Bench of this Court in W.A.No.1454 of 2007 dated 19.12.2008, did not find any infirmity in the order of the learned single Judge and thus, confirmed the order of the learned single Judge by dismissing the Writ Appeal in W.A.No.47 of 2010 on 23.06.2010. Paras 3 and 4 of the judgment in W.A.No.47 of 2010 are extracted hereunder:
"3. The learned Single Judge, on the basis of the judgment rendered by a Division Bench of this Court in W.A.No.1454 of 2007, dated 19.12.2008 in the case of Director of Town Panchayat, Kuralagam, Chennai and two others -vs- R.Sundaradas, allowed the writ petitions and held that the writ petitioners are entitled to the time scale of pay only from the date when they completed three years on consolidated pay and not from any subsequent dated. Aggrieved by the same, the respective Panchayats have filed the above appeals.
4. We have perused the judgment, dated 19.12.2008 rendered by the Division Bench of this Court in the aforementioned appeal. In our view, as rightly held by learned Single Judge, the present cases are squarely covered by the said Division Bench judgment. We do not find any reason to differ with the view taken by the learned Single Judge. There being no merit in the appeals they stand dismissed."
22.Aggrieved by the judgment dated 23.06.2010 of the First Bench of this Court passed in W.A.No.47 of 2010, the appellant Palladam Municipality filed a Special Leave to Appeal in SLP (C) No.26605 of 2010 before the Honourable Apex Court and the Apex Court dismissed the same on 27.09.2010.
23.In these circumstances, the ten Sanitary Workers of the third respondent Municipality herein, filed the writ petition in W.P.No.9726 of 2011 seeking to quash the order dated 27.02.2006 of the third respondent granting them scale of pay in terms of G.O.Ms.No.21, referred to above and for a consequential direction to grant them regularization and time scale of pay on completion of three years of service as per G.O.Ms.No.199. The third respondent Municipality put a stiff resistance. The learned single Judge while passing the detailed order in W.P.No.9726 of 2011 allowing the writ petition, considered the judgment dated 17.09.2008 of the learned single Judge in W.P.No.25620 of 2006 and the judgment dated 23.06.2010 passed by the First Bench of this Court in W.A.No.47 of 2010 and also the SLP filed before the Honourable Apex Court. The learned single Judge held that the Sanitary Workers of the third respondent Municipality are similarly situated like that of the Sanitary Workers of the Palladam Municipality and therefore, the third respondent should have granted the benefit of regularisation as per the order dated 17.09.2008 passed by this Court in W.P.No.25620 of 2006 when the same attained finality. The learned single Judge also held that when some of the employees are granted the relief, the same could not be denied to other employees, viz., the petitioners therein and they could not be driven to approach this Court seeking the similar relief. In this regard, para 8 of the order of the learned single Judge passed in W.P.No.9726 of 2011 is extracted hereunder:
"8. Identically placed persons shall be given similar relief by Courts of law is well settled. The said issue i.e., to consider similarly placed persons equally if the issue is identical was considered by me in the decision reported in 2006 WLR 327 : (2006) 2 MLJ 572 (N.S.Balasubramanian v. Food Corporation of India, New Delhi). Paragraphs 16 and 17 reads as follows:
"16.(a) The learned Senior counsel for the petitioner cited the judgment of the Supreme Court reported in AIR 1997 SC 3588 (K.C.Sharma v. Union of India), wherein in para 6 it is held as under, "6.Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of O.A.No.774 of 1994 is condoned and the said application is allowed. The appellant would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A.Nos.395-403 of 1993 and connected matters. No order as to costs."
(b) In another decision cited by the learned Senior Counsel for the petitioner reported in (2003) 12 SCC 192 (State of Karnataka and others v. N.Parameshwarappa and others) in paragraphs 8 and 9 the Supreme Court held as under, "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. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts and circumstances of the case wherein a serious and genuine doubt existed about the applicability of the government order dated 30.3.1990, as raised in the proceedings.
9.For all the reasons stated above, the appeals filed both by the State as well as by the private respondent teachers fail and shall stand dismissed. Our declaration to extend the benefits of the judgments to others who have not approached the Court, but similarly placed is to do complete and substantial justice. No costs."
(c) In yet another decision reported in 1999 SCC (L&S) 788 (Govind Ram Purohit and another v. Jagjiwan Chandra and others), in para 3 the Honourable Supreme Court held thus, "3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only Respondent 1, the High Court while finally concluding the matter has given a direction to promote all those who were senior to the appellants even though they were not parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. Therefore, we do not see any reason why we should entertain such a technical plea when the High Court has done substantial justice to all concerned."
From the analysis of the judgments cited above, it is beyond doubt and clear that once the point is decided in favour of a group of persons, there is no further point in waiting for each and every person to file petition and pray for the same relief. As held by the Honourable Supreme Court, the benefit of the judgment is equally applicable to similarly placed persons to do complete and substantial justice.
17.The Law Department as well as the Finance Department of the respondents / Corporation considered the similarity of the issue involved and recommended to the respondents to pay the recovered amount to the petitioners as well. Hence the denial of the said benefit to the petitioners is unreasonable and violative of Articles 14 and 16 of the Constitution of India. The decisions cited by the learned Additional Advocate General reported in AIR 1996 SC 2890 (State of Karnataka v. G.Halappa) and AIR 2002 SC 2427 (State of Karnataka v. G.Halappa) have no application to the facts of this case because of the submission that Circular No.13 dated 9.7.1997 was wrongly applied by the respondents while stepping up of the pay. The said contention was raised before the Kerala High Court and before the Honourable Supreme Court and the same was not accepted. Hence it is not open to the respondents to raise the said plea in this writ petition as they were parties to the proceedings before the Kerala High Court."
The said decision is confirmed in W.A.No.956 of 2006 by the Division Bench by Judgment dated 30.10.2006. SLP(C)No.677 of 2007 filed against the same was also dismissed by the Supreme Court on 23.4.2007."
Ultimately, the learned single Judge allowed the writ petition in W.P.No.9726 of 2011 on 26.04.2011 in the following terms:
"9.Hence, the impugned order dated 27.02.2006 in so far as restricting the regularization granted to the petitioners from 27.02.2006 is set aside and the writ petition is allowed with a direction to the respondents to regularize the services of the petitioners as Sweepers in the third respondent Municipality, from the date of completion of three years of continuous service in terms of G.O.Ms.No.199, Municipal Administration and Water Supply (MC3) Department, dated 12.8.1997, with all monetary benefits. The respondents can very well verify the dates of completion of services of the petitioners and grant relief. Necessary order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed. However, no order as to costs. "
24.As rightly contended by the learned counsel for the petitioners, since the order dated 26.04.2011 passed in W.P.No.9726 of 2011 relating to Sanitary Workers attained finality, the third respondent Municipality ought to have granted similar relief to the petitioners herein also. It is not in dispute that G.O.Ms.Nos.198 and 199 are similarly worded. While G.O.Ms.No.199 confines to Sanitary Workers, G.O.Ms.No.198 relates to seven categories of employees and all other terms of the Government Orders are same and identical.
25.On the other hand, the learned Special Government Pleader / Government Pleader for the respondents sought to question the same on the ground that the petitioners have accepted the benefit under the order dated 27.02.2006 of the third respondent and therefore, they are estopped from claiming the relief under G.O.Ms.No.198.
26.In my view, the submission made by the learned Special Government Pleader/Government Pleader for the respondents has no substance. The respondents, who are guilty of not granting time scale of pay to the consolidated pay employees under G.O.Ms.No.198 and 199, could not plead estoppel. The respondents, who are Government authorities, should set an example and act like a model employer and they could not come with these types of technical pleas. Furthermore, the writ petition in W.P.No.9726 of 2011 was filed subsequent to filing of one of the present writ petitions viz., W.P.No.9586 of 2011. When the Sanitary Workers, who have filed the writ petition in W.P.No.9726 of 2011 are given the benefits, the respondents could not now allege that the petitioners, having accepted the benefit under the order dated 27.02.2006 of the third respondent, could not agitate against the same.
27.The other argument of the learned Special Government Pleader / Government Pleader is that the petitioners have approached this Court after five years of passing of the order dated 27.02.2006 by the third respondent, which is impugned in these writ petitions and that therefore, the writ petitions have to be rejected in limine on the question of laches. In my view, Article 226 of the Constitution of India do not prescribe any period of limitation. Courts have imposed self restrictions as to the entertaining of writ petitions under Article 226 of the Constitution of India. One of the restrictions is laches. Whether there is laches in approaching the Court depends on the facts and circumstances of the case. There is no straight jacket formula. As stated above, whatever I have held relating to the argument on estoppel, applies equally to the argument relating to laches. The respondents, who are guilty of not implementing their own orders, could not come and plead that the petitioners have come to this Court belatedly. On facts also, in my considered view, there is no laches. The issue got settled on the dismissal of SLP by the Honourable Apex Court in the similar issue only on 27.09.2010. The petitioners have approached this Court in April 2011. Hence, there is no delay in approaching this Court. Furthermore, the writ petition in W.P.No.9726 of 2011 filed by the Sanitary Workers of the same third respondent Municipality was disposed on 26.04.2011. Hence the petitioners could not be blamed that they approached belatedly.
28.At this juncture, it is relevant to point out that the learned Special Government Pleader / Government Pleader relied on a judgment dated 08.03.2011 of this Court passed in W.P.No.4818 of 2011, wherein the learned single Judge dismissed the writ petition preferred by the Sanitary Workers of Arcot Municipality, Vellore District on the ground of laches. It is true that the issued involved in the said writ petition is identical to the issue involved in these writ petitions. But, the aforesaid facts were not brought to the notice and more particularly, the fact that the issue was finally settled only on 27.09.2010, when the Honourable Apex Court dismissed the SLP preferred by the Palladam Municipality. Furthermore, the third respondent Municipality was not a party in W.P.No.4818 of 2011, while it is a party in W.P.No.9726 of 2011. Hence the judgment of the learned single Judge in W.P.No.4818 of 2011 could not applied to the facts of this case.
29.On the other hand, the learned single Judge, in para 8 of the judgment dated 26.04.2011 passed in W.P.No.9726 of 2011, has held that the respondents are bound to grant the relief to the similarly situated persons. More importantly, as stated above, the writ petition in W.P.No.9726 of 2011 that was allowed on 26.04.2011 pertains to the third respondent Municipality herein. One of the present writ petitions viz., W.P.No.9586 of 2011 that is under consideration was filed prior to W.P.No.9726 of 2011. In these circumstances, I am not inclined to apply the judgment dated 08.03.2011 passed in W.P.No.4818 of 2011.
30.The last submission made by the learned Special Government Pleader / Government Pleader is that the issue of laches was not raised in W.P.No.9726 of 2011 and the respondents are not precluded in raising the same in these writ petitions. They relied on a judgment of the Honourable Apex Court in COL.B.J. AKKARA's case (cited supra). The said judgment is relating to retiral benefits to Defence employees. One set of employees have got a judgment in Delhi High Court in their favour and the same was also complied with. Later, the Ministry of Defence, Government of India questioned in another set of cases. It was submitted on behalf of the retired employees that since the judgment of the Delhi High Court attained finality, the Department could not question the same before the Honourable Apex Court. In these circumstances, the Honourable Apex Court, in para 26 of its judgment, has held as follows:
"26.The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a pick-and-choose method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001."
31.In my view, the said judgment could not be applied for more than one reason. It was held that just because the earlier judgment was not questioned, that could not preclude them from challenging the subsequent order. In these writ petitions, the respondents have questioned the similar matter, before the Honourable Apex Court and the Apex Court also dismissed their plea. Furthermore, the facts in COL.B.J.AKKARA's case (cited supra) is not similar to the facts of this case. That case related to interpretation of certain circular issued by the Defence Ministry. In this case, the facts are crystal clear and interpretation of the G.O., is not involved herein. The respondents seek to deny the relief only on technical grounds. Hence, the matter attained finality. In view of these facts, the submissions made by the learned Special Government Pleader / Government Pleader for the respondents deserves to be rejected.
32.For all the aforesaid reasons, the impugned order dated 27.02.2006 in so far as restricting the regularization granted to the petitioners from 27.02.2006 is set aside and the writ petitions are allowed with a direction to the respondents to regularize the services of the petitioners as Watchmen cum Water Suppliers and Electrician GradeII respectively, in the third respondent Municipality, from the date of completion of three years of continuous service, in terms of G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.8.1997, with all monetary benefits. Necessary order is directed to be passed by the respondents within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed.
12.10.2011 Index : Yes Internet : Yes TK D.HARIPARANTHAMAN, J.
TK To
1.The Secretary to Government of Tamil Nadu Municipal Administration and Water Supply Dept. Fort St. George, Chennai.
2.The Commissioner of Municipal Administration Chepauk, Chennai 600 005.
3.The Executive Officer Sathuvacheri III Grade Municipality Sathuvacheri, Vellore District.
W.P.NoS.9586 AND 10082 OF 2011 12.10.2011