Madras High Court
G. Ashokan vs The District Collector on 22 April, 2014
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-04-2014 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.A.No.413 of 2013 G. Ashokan ... Appellant Vs. 1. The District Collector, Tiruvannamalai District, Tiruvannamalai. 2. The Block Development Officer, Thandarampet Panchayat Union, Thandarampet. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 5.11.2012 in W.P.No.12151 of 2012. For Petitioner : Mr.V.Suthakar For Respondents : Mr.V. Subbiah, Special Govt. Pleader O R D E R
N.PAUL VASANTHKUMAR,J This writ appeal is preferred by the appellant, who is the son of late R.Govindan @ R.Govindasamy, challenging the order of the learned single Judge made in W.P.No.12151 of 2012 dated 5.11.2012, wherein the appellant has prayed to quash the order dated 1.12.2011 passed by the District Collector, Tiruvannamalai and for further direction to regularise the services of the appellant's father late R.Govindan @ R.Govindasamy from the date of his initial appointment i.e, from 8.10.1986 with all consequential benefits such as monetary benefits and appoint the appellant on compassionate grounds in Thandarampet Panchayat Union in any one of the post. The writ petition was dismissed by the learned single Judge.
2. The brief facts necessary for disposal of this writ appeal are that the appellant's father was appointed as Masalchi (Basic Servant) on a consolidated pay of Rs.60 per month from 8.10.1986 in Thandarampet Panchayat Union. During the lifetime of his father he had prayed for regularisation of his service on the ground that several persons worked along with him were granted regularisation. The appellant's father was lastly receiving salary of Rs.620/- per month until his date of superannuation on 31.3.2010 as his date of birth as per service register was 10.3.1950 and he died on 3.3.2011, leaving behind his wife Muniammal, two sons Elumalai and appellant herein and one daughter namely Sangeetha as legal heirs. Legal heirship certificate was issued by Tahsildar, Thandarampet in September, 2011. The appellant submitted an application seeking compassionate appointment, as no one in his family was employed. The said application was rejected by order dated 19.7.2011 against which W.P.No.22849 of 2011 was filed before this Court and by order dated 21.10.2011 this Court set aside the said order and remitted the matter before the respondents to examine the case of the appellant as per rules relating to compassionate appointment and pass fresh orders within four weeks. Thereafter the District Collector, Tiruvannamalai District again rejected the request on 1.12.2011 stating that the service of the appellant's father was not regularised and therefore there is no provision for providing compassionate appointment to the legal heir of the person who served as Masalchi on temporary basis. The said order was challenged before the learned single Judge with the above prayer contending that the appellant's father served as Masalchi from 8.10.1986 till 2010 for a meagre salary initially at the rate of Rs.60/- per month, which was subsequently increased and lastly he was paid Rs.620/- per month, and when several persons served along with appellant's father were given regularisation and were granted time scale of pay, non-regularisation of the appellant's father in spite of availability of permanent post in the cadre of Masalchi/basic servant for about 25 years, was unfair and prayed for regularisation of appellant's father from the date of his initial appointment with time scale of pay and monetary benefits arising out of such regularisation and other benefits and also for issuing compassionate appointment to the appellant as no one in his family was employed and the family was in indigent circumstances.
3. The said writ petition was opposed by the respondents by filing counter affidavit contending that the legal heir of the temporary Government Servant is not eligible for compassionate appointment as per G.O.Ms.No.560 Labour and Employment Department dated 3.8.1977 and even assuming that the regularisation of the service of the writ petitioner's father is to be granted under G.O.Ms.No.22 P&AR Department dated 28.2.2006, still compassionate appointment cannot be demanded as a matter of right.
4. The learned single Judge relying upon the counter affidavit dismissed the writ petition, holding that the regularisation cannot be ordered against the said order, against which the appellant has preferred this writ appeal.
5. Mr.V.Suthakar, learned counsel appearing for the petitioner argued that after disposal of the writ petition by the learned single Judge and during pendency of the writ appeal, the Government clarified G.O.Ms.No.22 P&AR Department dated 28.2.2006 by issuing G.O.Ms.No.74 P&AR Department, dated 27.6.2013 which was given effect from 1.1.2006 and even as per the new Government Order petitioner's father was entitled to get his services regularised at least from 1.1.2006 with time scale pay till his age of retirement. The learned counsel also fairly submitted that the appellant's father having died after reaching the age of retirement, appellant may not be justified in claiming compassionate appointment as legal heirs of the retired persons are not eligible to get compassionate appointment under any scheme. The learned counsel also submitted that similarly placed persons appointed on temporary basis with consolidated pay after 1.4.1981 were granted regularisation through G.O.Ms.No.267 dated 22.12.1999, G.O.Ms.No.161 dated 26.6.2000 and G.O.Ms.No.144 Rural Welfare and Panchayat Raj Department dated 9.9.2009 and the said persons having been given regularisation, the appellant's father being similarly placed, ought to have been given regularisation on completion of ten years or at least from the year 2000, which has been given to similarly placed persons and in any event from 1.1.2006. Therefore, the order of the learned single Judge is liable to be set aside and the appellant's father was entitled to get his services regularised and 50% services rendered by him prior to the date of regularisation is bound to be counted as pensionable service along with regular service for retirement benefits till his retirement as per Rule 11(2) of the Tamil Nadu Pension Rules, 1978 and the legal heirs of the appellant's father is entitled to get difference in salary from 1.1.2006.
6. Mr.V.Subbiah, learned Special Government Pleader was not in a position to dispute the regularisation given to several other persons who were appointed on consolidated pay after 1.1.1981 similar to the appellant's father and submitted that the appellant's father during his lifetime has not prayed for regularisation and after his demise, appellant prayed for compassionate appointment and after rejection of the same appellant has chosen to file writ petition seeking regularisation of the services of his father and consequential appointment on compassionate ground, and there is delay in seeking regularisation of services of the appellant's father and the learned single Judge was right in dismissing the writ petition.
7. We have considered the rival submissions of the learned counsel for the appellant as well as learned Special Government Pleader for respondents.
8. It is not in dispute that the appellant's father viz. R.Govindan @ R.Govindasamy was temporarily appointed as Masalchi (unskilled post) from 8.10.1986 by order of the Block Development Officer, Thandarampet, dated 6.10.1986 on consolidated pay of Rs.60/- per month. The order reads as follows:
Proceedings of the Commissioner Thandarampattu Panchayat Union Present: Thiru V.S.Govindaragavan Na.Ka.A1.9070/86 Dated: 6-10-86 Sub: Establishment Thandarampattu panchayat Union, Thandarampattu Village Thiru.
Govindasami, S/o.Rama Goundar appointed as Masalji from 8.10.86 Orders issued.
Ref: Application dated 7.10.86 from Thiru.Govindasami, S/o.Rama Goundar, Thandarampattu.
ORDERS Orders are issued appointed Thiru Govindasami, S/o.Rama Goundar, Thandarampattu Panchayat Union, Thandarampattu Village as Masalji temporarily from 8.10.86. He shall be paid Rs.60/- per month as fixed pay. No other allowances shall be paid.
He is required to join duty on the morning of 8.10.86.
Sd/-xxxxxxx Commissioner Service Register was opened and periodical entry was made from 6.10.1986 and the salary was fixed at Rs.270/- per month from 1.4.1996 and after deducting Rs.20/- towards interim relief a sum of Rs.250/- was paid as salary per month. Appellant's father served as Masalchi till 31.3.2010, i.e., till he reached 60 years of his age and died on 3.3.2011 without receiving any terminal/retirement benefits.
9. It is not disputed by the respondents that similarly placed persons numbering 210 were granted regularisation on completion of ten years of their continuous service even though they were also appointed after the prohibitory order issued by the Government ordering not to fill up the basic servant post on or after 1.1.1981. The said regularisation order regularising the services of 210 persons was passed in G.O.Ms.No.267, Rural Development Department dated 22.12.1999. Further, 171 identically placed persons served as Night Watchmen, who were also appointed after 1.1.1981 were granted regularisation by G.O.Ms.No.161 Rural Development Department, dated 26.6.2000. The regularisation of the persons appointed after 1.1.1981 was granted as per the above referred Government Orders for over 381 persons. Appellant claimed regularisation of the service of his father in terms of G.O.Ms.No.22 P&AR Department dated 28.2.2006 and the said GO was modified by G.O.Ms.NO.74 P&AR Department dated 27.6.2013 stating that the said order will come into force with retrospective effect from 1.1.2006 from the date of coming into effect of G.O.Ms.No.22 dated 28.2.2006, which reads as follows:
"ABSTRACT 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.
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PESONNEL 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. The 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"
10. The appellant's father submitted his representation seeking regularisation as Night Watchman on 28.7.2006 before the Commissioner, Panchayat Union, Thandarampet and no action was taken on the said representation and he died on 3.3.2011 as stated supra while serving as Masalchi. G.O.Ms.No.22 dated 28.2.2006 was clarified by issuing G.O.Ms.No.74 P&AR Department dated 27.6.2013 by stating that the regularisation scheme framed in G.O.Ms.No.22 dated 28.2.2006 was improperly implemented, which caused huge financial commitment to the Government exchequer and to arrest the improper implementation of one time regularisation scheme ordered by the Government, the Government on 27.6.2013 decided to lay down fresh modalities to govern the regularisation of services of full time daily wage employees.
11. In G.O.Ms.No.74 dated 24.6.2013 three conditions are imposed for regularisation of the services of contingent staff on completion of ten years as on 1.1.2006. Those conditions are,
(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange to discharge the function of the post in the Tamil Nadu Basic Service and completed 10 (ten) years of service as on 1.1.2006 shall be regularised against regular vacancies in the sanctioned cadre strength.
(vi) The part-time and casual employees are not entitled to the concession referred to at para (ii) above.
(vii) The services of the full time daily wage employees who have completed 10 years of service after 1.1.2006 shall not be regularised."
The said three conditions are to be satisfied for a person seeking regularisation as on 1.1.2006.
12. The said Government order viz., G.O.Ms.No.22 P&AR Department dated 28.2.2006 which is also clarified by G.O.Ms.No.74 P&AR Department dated 27.6.2013 was issued by the Government bearing in mind the direction issued by the Honourable Supreme Court in the decision reported in (2006) 4 SCC 1 (Secretary, State of Karnataka v. Umadevi(3) and Others). The Hon'ble Supreme Court while deprecating the practice of appointing persons without following Articles 14 and 16 of the Constitution of India, held in paragraph 53 thus, "53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa (State of Mysore v. S.V.Narayanappa), R.N. Nanjundappa (R.N.Nanjundappa v. T.Thimmiah) and B.N. Nagarajan (B.N.Nagarajan v. State of Karnataka) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. ........"
The benefit as per the above referred paragraph is not only applicable to the said case viz., Umadevi case, but also to similarly placed daily wage/adhoc employees, who had put in ten years of continuous service without availing the protection of any interim order of Courts or Tribunals. The said position is made clear by the Hon'ble Supreme Court in the decision reported in (2010) 9 SCC 247 : 2010 (6) Supreme 262 (State of Karnataka & Ors. v. M.L.Kesari & Ors.). In paragraph 13 (in SCC) it is held thus, "13. ............ The only further direction that needs to be given, in view of Umadevi (3), is that the Zila Panchayat, Gadag should now undertake an exercise within six months, as a general one-time regularisation exercise, to find out whether there are any daily-wage/casual/ad hoc employees serving the Zila Panchayat and if so whether such employees (including the respondents) fulfil the requirements mentioned in para 53 of Umadevi (3). If they fulfil them, their services have to be regularised. If such an exercise has already been undertaken by ignoring or omitting the cases of Respondents 1 to 3 because of the pendency of these cases, then their cases shall have to be considered in continuation of the said one-time exercise within three months. It is needless to say that if the respondents do not fulfil the requirements of para 53 of Umadevi (3), their services need not be regularised. If the employees who have completed ten years service do not possess the educational qualifications prescribed for the post, at the time of their appointment, they may be considered for regularisation in suitable lower posts."
Thus it is clear that G.O.Ms.No.22 P&AR Department dated 28.2.2006, again reiterated in the recent Government Order issued in G.O.Ms.No.74 P&AR Department dated 27.6.2013 is in compliance with the decisions of the Supreme Court cited supra.
13. The only issue left to be decided at this juncture is as to whether the appellant's father while in service had satisfied the conditions mentioned in G.O.Ms.No.74 P&AR Department, dated 27.6.2013, which is a clarification of G.O.Ms.No.22 P&AR Department, dated 28.2.2006.
14. Insofar as sponsorship through Employment Exchange while appointing the appellant's father as Masalchi (basic servant) is concerned, Section 3 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, clearly states that for filling up unskilled posts sponsorship of Employment Exchange is not required. For easy reference, Section 3 is extracted hereunder:
"3. Act not to apply in relation to certain vacancies.- (1) This Act shall not apply in relation to vacancies,--
(a) in any employment in agriculture (including horticulture) in any establishment in private sector other than employment as agricultural or farm machinery operatives;
(b) in any employment in domestic service;
(c) in any employment the total duration of which is less than three months;
(d) in any employment to do unskilled office work;
(e) in any employment connected with the staff of Parliament.
(2) Unless the Central Government otherwise directs by notification in the Official Gazette in this behalf this Act shall not also apply in relation to-
(a) vacancies which are proposed to be filled through promotion or by absorption of surplus staff of any branch or department of the same establishment or on the result of any examination conducted or interview held by, or on the recommendation of, any independent agency, such as the Union or a State Public Service Commission and the like;
(b) vacancies in an employment which carries a remuneration of less than sixty rupees in a month."
(Emphasis Supplied) On perusal of the above statutory rule, it is evident that as per Section 3(d), for any employment to do unskilled office work, no sponsorship from Employment Exchange is required. Similarly, while filling up vacancies which carries remuneration of less than Rs.60/- per month, the same need not be sponsored through Employment Exchange. Appellant's father was appointed as Masalchi, which is admittedly an unskilled office work and he was paid only Rs.60/- per month. Therefore as per Section 3(1)(d), respondents cannot impose a condition that unless the name of the persons seeking regularisation was sponsored through Employment Exchange, regularisation cannot be ordered, is not valid as it is in violation of the Central Act viz., Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959. It is well settled in law that Executive Order will not prevail over the provisions of an Act.
15. The other two conditions viz., Appellant's father was employed on full time basis and completed ten years of service as on 1.1.2006 are not in dispute as the appointment order nowhere states that the appointment was on part time basis and he completed ten years of service in the year 1996. Thus, it is clear that the Appellant's father was entitled to get his services regularised at least from 1.1.2006 with time scale of pay and for receiving the said relief Appellant's father being no more, Appellant and other legal heirs of the deceased R.Govindan are entitled to get arrears of salary payable from 1.1.2006 after adjusting the consolidated salary already paid and other retirement benefits.
16. Tamil Nadu Pension Rules, 1978 Rule, 11(2) contemplates counting of 50% of the persons served in contingent/consolidated service if the service was a whole time service followed with absorption/regularisation. Thus, 50% services of the Appellant's father upto 31.12.2005 was bound to be counted as pensionable service i.e., from 8.10.1986 to 31.12.2005 along with regular service from 1.1.2006 to 31.3.2010. The total pensionable service comes to over 13 years. Thus, appellant's father was entitled to get pension and other retirement benefits from 1.11.2010 till his death 3.3.2011 and the appellant's mother is entitled to get family pension as the widow of the deceased R.Govindan from 4.3.2011.
17. It is settled proposition of law that right to get actual salary/leave salary and retirement benefits are right to property as per Article 300A of the Constitution of India. The Supreme Court in the judgment reported in AIR 2013 SC 3383 (State of Jharkand v. Jitendra Kumar Srivastava) held that such benefits cannot be deprived to person or legal heirs, who are eligible to receive the same. Hence, the appellant and other legal heirs of the appellant's father are bound to get the benefits. The learned counsel for the appellant fairly stated that appellant is not entitled to get compassionate appointment due to the regularisation granted to the appellant's father from 1.1.2006 as the appellant's father reached the age of superannuation i.e, 60 years of age on 31.3.2010 and thereafter only he died, tha was on 3.3.2011.
18. The appellant's father though appointed as basic servant temporarily at the age of 36 years, he was paid Rs.60/- per month initially, which was periodically increased and lastly he received Rs.620/- per month till his completion of 60 years of age i.e, upto 31.3.2010. Even though he was also appointed after 1.4.1981, the Government having chosen to regularise more than 381 persons appointed after 1.4.1981 through two Government orders on their completion of ten years of service, appellant's father ought to have been granted regularisation of service from 1996 as he joined in service on 8.10.1986. The appellant's father was paid salary less than the minimum wages fixed by the Government through the District Collector, right from 8.10.1986 till 31.3.2010. Thus, the appellant's father was discriminated not only due to non-regularisation, but also by not paying minimum wages for about 25 years. In spite of the Government order issued in G.O.Ms.No.22 P&AR Department dated 28.2.2006 ordering to regularise the contingent staff in all departments who have completed ten years of service as on 1.1.2006, still his service was not regularised. The existence of the post from 8.10.1986 for about 25 years is proved by the conduct of the respondent in allowing him to continue in service. In view of all these facts coupled with the judgment of the Supreme Court cited supra, this Court is firmly of the view that this case deserves to be allowed partly.
19. In fine, the writ appeal is partly allowed setting aside the order of the learned single Judge with a direction to grant regularisation of the service of the appellant's father namely R.Govindan with effect from 1.1.2006 with time scale of pay and pay arrears of salary from 1.1.2006 to 31.3.2010 after adjusting the consolidated salary already paid to him for the said period. The respondents are also directed to sanction and pay pension to the appellant's father by counting 50% of service from 8.10.1986 to 31.5.2005 along with regular service from 1.1.2006 and pay arrears of pension of the appellant's father from 1.11.2010 to 3.3.2011 and pay family pension to appellant's mother viz., Muniammal from 4.3.2011 onwards in terms of Tamil Nadu Pension Rules, 1978. The said directions are directed to be completed within a period of six weeks from the date of receipt of copy of this order. No costs.
(N.P.V.,J) (M.S.N.,J.)
22-04-2014
Index :Yes/No
Internet :Yes/No
Note: Issue copy today itself (22.4.2014)
vr
To
1. The District Collector, Tiruvannamalai District,
Tiruvannamalai.
2. The Block Development Officer,
Thandarampet Panchayat Union, Thandarampet.
N.PAUL VASANTHAKUMAR,J
AND
M.SATHYANARAYANAN,J
vr
Pre-Delivery Judgment in
W.A.No.413 of 2013
22-4-2014