The prayer in the writ petition is for a Writ of Certiorarified Mandamus, calling for the records pertaining to the Impugned Order passed by the 2nd Respondent in Na.Ka.No.44597/D1/E3/2012 dated 27.08.2012, and quash the same and directing the Respondents 1 and 2 to approve the Petitioner's appointment and to regularise the Petitioner's service on completion of 10 years from 22.05.1987 and to pay all monetary and attendant benefits to the petitioner.
2.The case of the petitioner is that the petitioner had been appointed as Watchman cum Sweeper by the 5th Respondent on 22.05.1987 on daily wage basis for Rs.15/- per day and ever since he had been working as Watchman cum Sweeper. During the year 2006, the Government issued Government Order in G.O.Ms.No.22 Personnel and Administrative Reforms (F) Department dated 28.02.2006, wherein the following order has been passed:
?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 Department 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 Department whatever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government.
4.This order issues with the concurrence of Finance Department vide its U.O.No.995/FS/P/2006 Dated 28.02.2006.?
Pursuant to the said Government Order, number of temporary employees worked on daily wages basis or otherwise consolidated pay, were regularised in respective services on completion of 10 years service. Here, the petitioner also had been worked from 1987, had completed 10 years of service in 1997 and therefore, he is entitled to seek absorption in the post of Watchman-cum- Sweeper by virtue of the imports of G.O.Ms.No.22 dated 28.02.2006 referred to above. Therefore, the petitioner has approached the official respondents for such request and absorption of the petitioner.
3.It is also the case of the petitioner that in the said 5th respondent school already one Waterman by name R.Balakrishnan had retired on superannuation, thereafter, even the works undertaken by the said Balakrishnan had been undertaken by the petitioner and as of now the petitioner had been working as Watchman-cum-Sweeper-cum-Waterman and also some time do the work of Night-Watchman. Inspite of his services rendered to the 5th respondent school for the past nearly 30 years, the services of the petitioner had not been regularised. Therefore, the petitioner had approached the respondents for regularisation and such request was not considered immediately and therefore, the petitioner has approached this Court by filing W.P.(MD) No.6111 of 2012. In the said Writ Petition, this Court by order dated 27.04.2012, directed the second respondent therein i.e., the Director of School Education to consider the request of the petitioner dated 20.01.2012, and pass appropriate orders on merits and in accordance with law within the time frame. Pursuant to the said orders of this Court, instead of considering the case of the petitioner, by taking into account the long service rendered and regularising the services of the petitioner, the first respondent has passed order dated 27.08.2012, whereby the request of the petitioner had been rejected. The said order is under challenge in this Writ Petition with the aforesaid prayer.
4.Heard both sides.
5.The learned counsel appearing for the petitioner would submit that pursuant to G.O.Ms.No.22 dated 28.02.2006, thousands of employees, who had been temporarily working either on daily wages basis or on consolidated pay on completion of 10 years period had been regularised. In number of cases when no such gesture was shown to the employees of the State Government, those employees had approached this Court by filing batch of cases and pursuant to the order passed by this Court the services of those incumbents had been regularised. It is also submitted by the learned counsel appearing for the petitioner that insofar as the import and implementation of the G.O.Ms.No.22 dated 28.02.2006 is concerned, the issue was taken up to the Hon'ble Apex Court, where also the view taken by various Division Benches of this Court had been confirmed by the Hon'ble Supreme Court and only thereafter number of persons had been absorbed. According to the learned counsel for the petitioner, the petitioner is one among the person, whose service also should have been regularised by invoking G.O.Ms.No.22 dated 28.02.2006, but the same had been rejected inspite of the directions given by the first respondent. Therefore, the impugned order is liable to be interfered with.
6.Per contra, the learned Additional Government Pleader appearing for the official respondents would submit that insofar as the non-teaching posts at the School Education Department are concerned, the Government issued a Government Order in G.O.Ms.No.115 School Education (D2) Department dated 30.05.2007. Insofar as Sweepers and Watchman posts etc, are concerned, it is the policy decision of the Government not to confer upon those post on regular basis and those posts in Government and Government Aided Schools can be filled by the School concerned by way of outsourcing and expenses of it concerned has to be met out by the school concerned. In this regard, the Learned Additional Government Pleader had invited the attention of this Court to Paragraph 3 III of the G.O.Ms.No.115 dated 30.05.2007, which reads thus:
?III. epug;gg;gl ntz;oa fhtyh;> Jg;guthsh;> bgUf;Fgth; kw;Wk; Jg;guthsh;(k) bgUf;Fgth; Mfpa gzpaplq;fisg; bghwj;jtiu ? muR gs;spfisg; nghy; cjtpbgWk; gs;spfspYk; ,jw;fhd brytpid me;je;j gs;spfns Vw;Wf; bghs;s ntz;Lk; vd;w epge;jidf;Fl;gl;L ,g;gzpaplq;fis btspahl;fisf; bfhz;L (on outsourcing) epug;gyhk;.?
7.The learned Additional Government Pleader also would submit that when the said G.O. was questioned before this Court, it was clarified that when the posts are sanctioned posts in a school, for filling the post like the Sweeper etc., the import of the G.O. will not stand in the way. In other words, when there is no sanctioned post of sweeper in the School, certainly Paragraph 3 III will come into operation because as those posts cannot be filled up on regular time scale of pay by the Government. Therefore, so far as the petitioner is concerned, according to the learned Additional Government Pleader, the prayer sought for regularisation in the job of Sweeper or Watchman cannot be made by the Department as the said post had not been sanctioned and that reason has been given in the impugned order by the second respondent and therefore the impugned order requires no interference by this Court
8.This Court has considered the rival submissions made by both sides.
9.The fact remains that the petitioner had been appointed on 22.05.1987 at the 5th respondent school as Watchman/Sweeper on daily wages basis. This factual matrix is not in dispute as in the very penultimate paragraph of the impugned order the first respondent has admitted that the petitioner had been appointed on 22.05.1987 and has been working as daily wages employee for all these years. The only reason cited for rejecting the regularisation, according to the first respondent is that the post of Watchman has not been sanctioned to the 5th respondent school and therefore, in view of G.O.Ms.No.115 School Education Department dated 30.05.2007, those posts has got to be filled up only by engaging out sourcing with the financial commitment of the school concerned and therefore, the petitioner even though had been working for long years as daily wages employee, he cannot be admitted on time scale of pay on permanent basis by the department.
10.Insofar as the petitioner's claim is concerned he had been working as a full time Watchman cum Sweeper in the 5th respondent aided school. The import of the G.O.Ms.No.22 dated 28.02.2006, has been taken into consideration in a number of cases as stated supra and a number of persons who had worked for more than 10 years as daily wages employees had been permitted to be made permanent. The very import of the language used in G.O.Ms.No.22 dated 28.02.2006 in the following lines, ?The Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service on 01.01.2006 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.? would mean that who ever has rendered service as daily wages employee for 10 years as on 01.01.2006 are entitled to claim regularisation. Insofar as the petitioner is concerned he has rendered service more than 10 years in the 5th respondent school, which is an aided school and whatever be the salary payable to the teaching and non-teaching staff of aided school has to be borne out by the aid being given by the Government.
11.In respect of the petitioner's school there are 700 students studying presently and altogether more than 47 teaching and non-teaching staff are working. To keep the school clean the post like sweeper is very much required and to fulfil that the petitioner's service had been engaged way back in 1987 and accordingly petitioner had been appointed on 22.05.1987. After the retirement of one Balakrishnan, who had worked in the 5th respondent school as Waterman, the said work has also been entrusted to the petitioner and as on today the petitioner is working as Watchman cum Sweeper, Waterman and also some time night watchman. When such a full timework is being extracted from the petitioner for nearly for three decades, it is completely an injustice in not having absorbed and regularised the services of the petitioner in the said post.
12.In order to redress the grievance of the employees like the petitioner, the Government had taken a policy decision and issued G.O.Ms.No.22 dated 28.02.2006, pursuant to which a number of such employees were regularised/ absorbed by the respective Government Departments and in most of the cases, pursuant to the orders passed by this Court. Here in this case, since the petitioner had been appointed and working from 1987 has completed 10 years service as on 22.05.1997, he is fully eligible to get the fruits of G.O.Ms.No.22 dated 28.02.2006. This fact had been admitted by the respondents. However, the only reason pointed out is as per G.O.Ms.115 dated 30.05.2007, the post like Watchman/ Sweeper cannot be made permanent by way of making appointment. This Court is of the view that the said Government Order G.O.Ms.No.115 dated 30.05.2007, will not have the retrospective effect over-riding the import of G.O.Ms.No.22 dated 28.02.2006, whereby the cut of date has been fixed as 01.01.2006. Since G.O.Ms.No.115 dated 30.05.2007 has been issued subsequent to 01.01.2006, that is the cut of date fixed by the Government, whatever be the import of the G.O.Ms.No.115 dated 30.05.2007, it would not be made applicable to the case which became eligible as on 01.01.2006. Insofar as the petitioner's case is concerned, he is in service and completed 10 years service as on 22.05.1997. Therefore, he would be eligible to get the benefits of G.O.Ms.No.22 dated 28.02.2006 and it is also admitted by the Department. Therefore, the only reason adduced by the first respondent in the impugned order is unjustifiable and cannot be sustained. Therefore, the same is liable to be quashed.
13.In the result, the Writ Petition is allowed. The impugned order of the second respondent dated 27.08.2012 is quashed and the petitioner shall be entitled to get absorbed on completion of 10 years service from 22.05.1987, the date on which he was appointed and such order of regularisation shall be passed by the first respondent within a period of eight weeks from the date of receipt of a copy of this order and accordingly, the petitioner's service benefits by bringing him under time scale of pay from the date of regularisation also be paid to him within the said period. No costs.
To
1.The Principal Secretary to Government, School Education Department, Fort St. George, Chennai.
2.The Director of School Education, College Road, Chennai.
3.The Chief Educational Officer, Kanyakumari District, at Nagercoil.
4.The District Educational Officer, Thuckalay, Kannyakumari District..