Madras High Court
E.Dhanasekar vs The State Of Tamil Nadu on 16 June, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.2358 of 2005
1.E.Dhanasekar
(deleted as per the order of this Court
dated 7.3.2014 in WP.MP.No.166/2013)
2.D.Manoharan
3.S.Kalaichelvi
4.K.Dayalan
5.D.Velu
6.Radhakrishnan
7.S.Sridhar ... Petitioners
vs.
1.The State of Tamil Nadu
rep. by Secretary to the Government,
Animal Husbandry and Fisheries Department,
Fort St. George, Chennai-9.
2.The Managing Director/Commissioner,
Tamil nadu Co-operative Milk Producers' Federation Ltd.
Madhavaram Milk Colony,
Madhavaram Post, Chennai-51.
3.The Special Officer,
Vellore Thiruvannamalai District
Co-operative Milk Producers' Federation Ltd.
Vellore- 632 009. ... Respondents
Writ Petition is filed under Article 226 of the Constitution of India, for issuance of a writ of Certiorarified Mandamus, to call for the records on the file of the first respondent relating to the decision in the order issued by the 2nd respondent bearing No.RC.17433/2004/M2 dated 29.12.2004 read with express Memo issued by the 3rd respondent bearing No.5328/P&A/1/02 dated 21.12.2004 read with G.O (2D) No.137 dated 28.9.2007, quash the same to the extent it denies the petitioners regularisations from the initial dates of appointment in their respective cadre and consequently direct the respondents to regularise the services of the petitioners from the dates of their appointment in their respective cadre as listed in page 1 of the typed set of documents as per G.O.Ms.NO.75 dated 21.4.1998 with arrears of salary, seniority and all other attendant benefits and award exemplary costs.
(Prayer amended as per the order of this court dated 7.3.2014 in WP.MP.No.20 of 2014)
For Petitioners : M/s.R.Vaigai
For Respondents : Mr.R.M.Muthukumar, GA (R1)
Mr.P.Subramanian (R2 & R3)
O R D E R
The short point that arises for consideration is as to whether the petitioners are to be regularised in their respective cadres, in which they had been employed or as Junior Factory Assistant at entry level.
2.Originally, the writ petition is filed by 7 petitioners, whereas, during the pendency of the writ petition, the first petitioner by name E.Dhanasekar filed WPMP.No.166/2013 to delete his name in the cause title and to dismiss the writ petition. In pursuance of the order made therein, the name of the first petitioner was deleted and writ petition was dismissed against the first petitioner herein.
3.Few facts, which are relevant for consideration in respect of other petitioners herein, are as follows:
The petitioners were sponsored by the employment exchange during 1995 for appointment to the post of Technical Casual Labourers in the 3rd respondent service and they were duly recruited, as they possessed necessary qualifications prescribed for the post. While the petitioners 2 and 3 had been discharging their duties as Data Entry Operator and Typist respectively, the petitioners 4 and 5 to 7 had been working as fitter and electricians respectively and all of them were paid Rs.110/- per day as wages, because of their technical nature of work. The petitioners though possessed of requisite educational and technical qualifications and they having been selected through employment exchange and having been continuously discharging their duties as Data Entry Operator/Typist/Fitter/Electricians on daily wages, they were not given any other service benefits except, payment of bonus, EPF contribution deducted from their salary and supply of uniforms. Since they had been continuing in service for number of years, they had been making repeated representations requesting the authorities to regularise their services. In pursuance of the same, G.O.Ms.No.75 Animal Husbandry and Fisheries (MP II) Department, came to be passed on 21.4.1998 for regularising the services of 46 technical persons and 64 causal labourers, who were recruited through employment exchange and had completed 480 days in a period of 24 calendar months, with effect from the date of their initial appointment in their respective cadres. The petitioners, who were also appointed as Technical Casual Labourers and were covered under technical persons, have been making representations to the respondents to implement G.O.Ms.No.75 Animal Husbandry and Fisheries (MP II) Department dated 21.4.1998 and to regularise their services on technical side. However, no action was taken by the respondents, which compelled the petitioners to approach this court by way of WP.Nos.10209 and 17720 of 2004 and the writ petitions were disposed of, by directing the respondents to consider the petitioners' representations in terms of G.O.Ms.No.75 dated 21.4.1998. The 2nd respondent did not comply with the direction issued by this court within the time stipulated therein, but came forward with miscellaneous petition for extension of time on the ground that there was no cadre strength to accommodate the services of the petitioners and there was a ban on creation of new posts and proposals for regularisation were awaiting for approval of the Government. Considering the same, this Court accordingly extended the time for complying with the direction of this court by the respondents.
4.However, the 3rd respondent issued an Express memo dated 21.12.2004 stating that the appointment of the petitioners without cadre strength was illegal, as per the earlier judgment of the Division Bench of this court and the petitioners' request for regularisation of their services could not be complied with. The 2nd respondent in pursuance of the express memo passed by the 3rd respondent, passed an order, refusing regularisation of the petitioners in regular cadre. Aggrieved by the same, the petitioners approached this court by way of present writ petition for quashing the impugned Express Memo dated 21.12.2004 passed by the third respondent and the impugned order dated 29.12.2004 passed by the second respondent and for direction to the respondents to regularise the services of the petitioners as per G.O.Ms.No.75 dated 21.4.1998 with all consequential benefits including arrears of salary.
5.During the pendency of the writ petition, G.O.(2D) No.137 Animal Husbandry, Dairying and Fisheries (MP.II) Department dated 28.9.2007 relating to regularisation of casual labourers, came to be passed, in and under which, the petitioners were regularised in the post of Junior Factory Assistant, which is an unskilled post, in the basic pay of Rs.2550/- with effect from 12.3.2001 with monetary benefit from 28.9.2007. The petitioners joined the post of Junior Factory Assistant on 16.10.2007 without prejudice to their right in the writ petition and they were also subsequently posted as Senior Factory Assistant on 11.3.2008. According to the petitioners, even thereafter, they continued to work in unskilled post, to which they were appointed. Hence, the petitioners sought for amendment of the relief made in the writ petition for quashing the express memo dated 21.12.2004 passed by the third respondent and consequential order dated 29.12.2004 passed by the second respondent as well as G.O.(2D) No.137 dated 28.9.2007 and for directing the respondents to regularise the petitioners from the initial date of their appointment in their respective cadre as per G.O.Ms.No.75 dated 21.4.1998 with arrears of salary, seniority and all other attendant benefits.
6.The relief sought for herein is seriously resisted by the contesting respondents 2 and 3 mainly on the following grounds: The petitioners' appointment without cadre strength is illegal and is liable to be set aside, as per the earlier decision of the Division Bench of this Court and the petitioners, being casual labourers, are entitled to be regularised in the post of Junior Factory Assistant at the entry level.
7.The learned counsel for the petitioners and the contesting respondents have also cited the following authorities of the Hon'ble Apex Court in support of their respective contentions for and against the relief sought for herein: (i)(2011) 6 SCC 584 (Devinder Singh v. Municipal Council, Sanaur (ii) (2013) 14 SCC 65 (Nihal Singh and others v. State of Punjab and others etc) and (i) (2004) 7 SCC 112 (A.Umarani v. Registrar, Co-operative Societies and others) respectively.
8.Heard the rival submissions made on both sides.
9.At the outset, this court is not inclined to accept the objection so raised on the side of the respondents that the appointment of the petitioners without cadre strength is illegal and their appointment cannot be regularised by the Government for the following reasons. It may be true that the Hon'ble Apex Court in the decision reported in (2004) 7 SCC 112 (A.Umarani v. Registrar, Co-operative Societies and others) held so. As far as the present case is concerned, the appointment of the petitioners was stated to be irregular mainly on the ground that the same was in excess of cadre strength. Except this, no other ground was made in the impugned orders to deny the benefit of regularisation of the petitioners in their respective cadres. Whereas, the learned senior counsel for the petitioners drew the attention of this court to vacancies position as on 30.9.2001 enclosed in the typed set of papers, as per which, there were required number of vacancies in the posts of Data Entry operator, Typist and Technicians to consider the petitioners' representation for regularisation of them in their respective cadres. As a matter of fact, the impugned G.O.(2D) No.137 dated 28.9.2007 refers to vacancies of 35 posts in the cadres of Driver, Technicians Technicians (Lab) and Executive (Typist). It is stated therein that the above mentioned 35 posts may be down graded to accommodate 55 casual labourers, whose services remain to be regularised. The particulars furnished in the Annexure I appended to the said G.O would reveal that the petitioners were among 54 casual labourers and they possess requisite age and educational qualifications and were recruited through employment exchange and completed 480 days within a period of 24 calendar months. In view of the same, the plea that the appointment of the petitioners' was illegal and through back door entry for want of cadre strength, deserves no merit and acceptance. As a matter of fact, the petitioners were already regularised as Junior Factory Assistant at entry level. It is nobody's case that the petitioner are not entitled to be regularised in service at all. But, the objection raised herein is that they have no right to be regularised as Data Entry Operator/Typist/Fitter/Electricians and are entitled to be regularised only as Junior Factory Assistant at entry level. Thus, this Court is only required to go into the question as to whether the petitioners' claim for being regularised as Data Entry Operator/Typist/ Fitter/Technicians is legally valid or not.
10.As already referred to, the petitioners 2 to 7 were appointed as Technical causal labourers. The specific plea that they were discharging their duties as Data Entry Operator/Typist/Fitter/ Electricians respectively, is not denied on the respondents side. They were, as per G.O.Ms.No.75 Animal Husbandry and Fisheries (MP II) Department dated 21.4.1998, covered in the category of technical persons, keeping in mind their requisite qualifications and the nature of the duties performed by them. The G.O.Ms.No.75 dated 21.4.1998 is very clear to the effect that the services of 46 technical persons and 64 casual labourers, who were recruited through employment exchange with required qualification and age, shall be regularised with effect from the date of their appointment in their respective cadre. The above referred to G.O. does not make any distinction between 46 Technical persons and 64 causal labourers. It is also relevant to mention at this juncture that the express memo dated 21.12.2004 passed by the third respondent and the impugned order dated 29.12.2004 passed by the second respondent, denied the benefit of regularisation to the petitioners' on the ground that their appointment were in excess of cadre strength, which is now found to be untrue and no other ground was mentioned in the impugned memo and order for treating their appointment as illegal or for denying them the benefit of regularisation on par with other technical persons. Thus, this Court is of the view that considering the position of vacancies in 1999 and 2001 and on the date of passing of G.O.(2D).No.137 dated 28.9.2007, the denial of regularisation of the petitioners' in skilled post in their respective cadre is arbitrary, unreasonable and unjustified and contrary to G.O. and the orders passed by the respondents to that effect cannot be allowed to sustain and are hence liable to be quashed.
K.B.K.VASUKI, J.
rk
11.In the result, the express memo dated 21.12.2004 passed by the third respondent and order dated 29.12.2004 passed by the second respondent as well as G.O.(2D) No.137 dated 28.9.2007 stand quashed, with direction issued to the respondents to regularise the services of the petitioners 2 to 7 in their respective cadres with service benefits and other attendant benefits but, with future monetary benefits from the date of actual regularisation in their respective cadres as Data Entry Operator, Typist, Fitter and Electricians insofar as the petitioners 2 and 3, 4 and 5 to 7 respectively. The whole exercise shall be completed within 12 weeks from the date of receipt of the copy of this order. The writ petition is accordingly ordered. No costs.
Index:Yes/No Internet:Yes/No rk 16.06.2014 To 1.The Secretary to the Government, Animal Husbandry and Fisheries Department, Fort St. George, Chennai-9. 2.The Managing Director/Commissioner, Tamil nadu Co-operative Milk Producers' Federation Ltd. Madhavaram Milk Colony, Madhavaram Post, Chennai-51. 3.The Special Officer, Vellore Thiruvannamalai District Co-operative Milk Producers' Federation Ltd. Vellore- 632 009.Writ Petition No.2358 of 2005