Madras High Court
Mrs.Mariammal vs The State Of Tamil Nadu on 12 July, 2017
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2017
CORAM
THE HONOURABLE Mr. JUSTICE S.M.SUBRAMANIAM
W.P. Nos. 392, 393, 459 & 18792 of 2015 and 17991, 34362 of 2014
& M.P. Nos. 1, 1 of 2015, 1, 1 and 2 of 2014
W.P.No.392 of 2015
1. Mrs.Mariammal
2. Ms.Sarojini
3. Minor Ilakiya
4. Minor Dinesh Kumar ... Petitioners
Vs
1. The State of Tamil Nadu
Rep by the Secretary to Government,
Municipal Administration & Water Supplies Department,
Fort St. George, Chennai 600 009.
2. The Commissioner of Municipal Administration,
Chepauk, Chennai 600 005.
3. The Commissioner
Mayiladuthurai Municipality,
Nagapattinam District. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the relevant records pertaining to the orders issued by the Commissioner, Myladuthurai Municipality, the 3rd respondent herein vide his proceedings Na.Ka.8855/97/H1 dated 10.03.2006 and quash them in so far as regularisation is given w.e.f. From 01.03.2006 only is concerned as illegal, arbitrary, unreasonable, being violative of principles of natural justice and thereby direct the respondents herein to regularise the services of the petitioners' mother late R.Jaya with retrospective effect from date of completion of 3 years of service as per G.O.Ms. No.71 (Municipal Administration and Water Supply (MC.3) Department) dated 05.05.1998 with all consequential monetary and service benefits and disburse accumulated arrears of the same to the petitioners within a time frame.
For Petitioners :
(Both Wps 392, 393 & 459 of 2015 :
and 34362 of 2014) : Mr.V.Thirupathi
(In WP 18792 of 2015) : Mr.A.R.Suresh
For Respondents : Mr.K.Dhananjeyan
(For R1 & R2)
Special Government Pleader
Mr.I.Srinivas (For R3)
COMMON ORDER
All these batch of writ petitions are filed seeking a relief of regularisation of services with retrospective effect. In this regard, the writ petitioner placed reliance on the orders passed by the Government in G.O.Ms.No.71 (Municipal Administration and Water Supply (MC.3) Department) dated 5th May 1998.
2. The learned counsel appearing for the writ petitioners submitted that all the issues raised in these batch of writ petitions were adjudicated elaborately by the Hon'ble Full Bench of this Court in the case of Secretary to Government Municipal Administration and Water Supply Department Versus V.Marisamy and Others reported in 2017 (3) CTC 673.
3. On perusal of the judgment of the Full Bench, this Court is inclined to consider the relief sought for in all these writ petitions. The relevant portion of the order of Full Bench is extracted hereunder :-
25. It has been further contended by the Learned Counsel for the individual Applicants that the Full Bench has travelled beyond the scope of Reference and went to give a third view, contrary to the facts, when all the particulars were not placed before it. For the sake of convenience, the reference before the Full Bench is reproduced as under:
Whether the view taken by the Division Bench in W.P.(MD) Nos.4170 & 4171 of 2011 & 9296 of 2012 is the correct view or that of the other Division Bench in W.A.(MD) No.729 of 2013 is the correct view?.
26.Though, as pointed out by the Counsel, after answering the Reference in the negative, the Full Bench had held that the Regularisation can be given effect only from 23.02.2006 in Para 28(iii) of the Judgment sought to be reviewed, we do not agree the same to be excess as it was necessary for the Court to discuss the issue in detail to answer the point of Reference. However, the findings in Para 28 (iii) are incorrect and liable to be recalled in view of our findings in the earlier Paragraphs.
27. Another contention by the learned Additional Advocate General was that by virtue of G.O.Ms.No.166, dated 31.12.2014, the Regularisation can be given effect only from 23.02.2006. We do not agree with the said contention as we have already held that the Sanitary Workers are entitled to be regularised as per the terms of G.O.Ms.No.71, dated 5.5.1998 from the date of their initial appointment. Paragraphs-29 of the decision of the Supreme Court reported in CID v. Vatika Township (P) Ltd., 2015 (1) SCC 1, is relevant and the same is extracted hereunder:
The obvious basis of the principle against retrospectivity is the Principle of fairness, which much be the basis of every legal rule as was observed in L 'Office Cherifien des Phosphates v.Yamashita-Shinnihon Steamship Co. Ltd., 1994 (2) WLR 39. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for the purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges form the various decisions and this legal position was conceded by the Counsel for the parties. In any case, we shall refer to few Judgments containing this dicta, a little later.
28.In the present case, by virtue of G.O. Ms. No.101, dated 30.04.1997 & G.O.Ms.No.71, dated 5.5.1998, the right to be considered for regularisation on completion of the mandatory period had already accrued to the Petitioners on the date of their appointment. The only condition is to be satisfied is the required number of days, of course take away the fundamental right of the Petitioners to be considered for appointment.
29.In the result, Rev. Aplc. No.87 of 2014 is dismissed and Rev.Appl.Nos.223 & 254 of 2015 are allowed on the following terms:
a) Persons employed as Sanitary Workers and covered by G.O.Ms.No.101, dated 30.04.1997 & G.O.Ms.71, dated 5.5.1998 are entitled to be regularised after the completion of the respective period under Consolidated Pay as specified in the Government Orders from the date of their initial appointment.
b) Any orders passed by any Municipality regularising the service based on G.O.Ms. No.21, dated 23.2.2006, Full Bench Judgment dated 29.11.2013 & G.O.Ms.No.166, dated 31.12.2014 shall be recalled and appropriate Orders shall be passed as held above.
30.Consequently, the connected Miscellaneous Petitions are closed. No costs.
4. Based on the ratio laid down by the Full Bench of this Court, the writ petitioners are entitled to get the benefit on par with other employees similarly placed. It is needless to state that the eligibility criteria and other qualifications as per the Rules regarding the regularisation have to be followed by the respondents before taking decision and passing orders extending the benefit of the judgment of the Full Bench of this Court.
5. Accordingly all the writ petitions stand disposed of. However, there is no order as to costs.
12.07.2017 maya To
1. The State of Tamil Nadu Rep by the Secretary to Government, Municipal Administration & Water Supplies Department, Fort St. George, Chennai 600 009.
2. The Commissioner of Municipal Administration, Chepauk, Chennai 600 005.
3. The Commissioner Mayiladuthurai Municipality, Nagapattinam District.
S.M.SUBRAMANIAM, J.
maya W.P. Nos. 392, 393, 459 & 18792 of 2015 and 17991, 34362 of 2014 12.07.2017