Orders Pronounced on : 22.04.2022 THE HONOURABLE MR.JUSTICE V.PARTHIBAN W.P.Nos.29346, 4989, 4990, 7594, 14508, 15668, 29212, 13545, 7595, 10190 of 2014 and W.P.Nos.34113 & 34555 of 2013 and W.P.Nos.18884 and 18885 of 2016 and W.P.Nos.28336 of 2017 and W.M.P.No.30443, 30442 of 2017 W.P.No.29346 of 2014
1. G.Sivagiganesan
2. V.Thambidurai
3. S.Senthil 4.M.Raja
5. M.Jayakumar
6. M.Marudamuthu ...Petitioners Vs.
1. State of Tamil Nadu, Rep. by its Secretary, Public Works Department, Fort St.George, Chennai - 9.
2. The Chief Secretary to Government, Personnel & Administrative Reforms (F) Department, Fort St.George, Chennai - 9.
3. The Principal Chief Engineer (Buildings) and Chief Engineer (General), Public Works Department, Chepauk, Chennai - 5. ...Respondents 1/18 W.P.No.29346 of 2014 etc.
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for records relating to the second respondent's order made in G.O.Ms.No.74 P & AR Department dated 27.06.2013 to an extent of paragraph - 6 therein is concerned and that of the order of the first respondent made in Letter No.1298/C2/2010-24 dated 31.01.2014, to quash the same insofar as petitioners are concerned and to consequently direct the respondents to regularize the services of the petitioners in completion of 10 years of services and to extend all benefits both service and monetary.
For petitioner : Mr.Ravi Shanmugam for Ms.N.R.Jasmine Padma for Mr.L.Chandrakumar in W.P.29346/2014, 34555/2013, 29212/2014, 15668/2014 & 13545 of 2014 Mr.K.Venkatramani, Senior Counsel for M/s. M.Muthappan in W.P.Nos.18884 & 18885/2016 Mr.Ravi Shanmugam in W.P.Nos.4989, 4990/2014, 34113, 14508 & 10190/2014 Mr.P.Chandrasekaran in W.P.Nos.7594 & 7595/2014 Mr.S.Thankasivam in W.P.No.28336/2017 For respondents : Mr.S.Silambanan, Additional Advocate General, Assisted by Mr.L.S.M.Hasan Fizal, Additional Govt.Pleader for R1 & R3 in W.P.29346/2014 7594, 7595/2014, 29212/2014, 34113/2013, 28336/2017, 10190/2014, 14508/2014 Respondents 1 to 4 in W.P.Nos.18884, 18885/2016 & 34555/2013 Respondents 2 & 3 in W.P.4989 & 4990/2014 Respondents 1, 3 to 5 in W.P.No.15668/2014 Respondents 1, 3 & 4 in W.P.No.13545/2014 Mr.G.Ameedius, Government Advocate for R2 in W.P.No.29346/2014, 7594, 7595, 29212/2014, 34113/2013, 28336/2017, 15668/2014, 10190/2014, 13545/2014, 14508/2014 & R1 in W.P.4989 & 4990/2014 2/18 W.P.No.29346 of 2014 etc.
COMMON ORDER These batch of Writ Petitions have come on remand of the orders passed by the Division Bench of this Court in Writ Appeal Nos.2875, 2644 & 1015 to 1019 of 2018 dated 16.08.2019.
2. The short facts and circumstances that gave rise to the remit by the Division Bench of this Court are stated hereunder.
i) The writ petitioners are the employees of State Government and they approached this Court in various writ petitions which are part of the consideration of this Court herein, seeking regularization of service principally on the ground that they had been continuing in service uninterruptedly and continuously for several years.
ii) The Government, in response to various representations by scores of employees, seeking regularisation of their services on the ground that they had been uninterruptedly and continuously employed for several years, had issued G.O.Ms.No.22 dated 28.02.2006 providing for regularization for such of those employees in various departments who had completed 10 years of service as on 01.01.2006. On the basis of the said G.O., several hundreds of employees had been conferred with the benefit of regularisation of their services.
iii) Subsequently, the employees who had not completed 10 years of 3/18 W.P.No.29346 of 2014 etc.
continuous service as on 01.01.2006 but completed 10 years of service after 01.01.2006, had approached this Court by filing number of writ petitions. Those writ petitions were heard and several orders came to be passed directing regularization of their services also in terms of G.O.Ms.No.22 Personnel and Administrative Reforms Department, dated 28.02.2006. Some of the orders were appealed against and the Division Bench of this Court also confirmed the same. The Special Leave Petitions filed against those orders also came to be rejected. Thus, the petitioners therein, though not strictly stated to come within the framework of G.O.Ms.No.22 dated 28.02.2006, but their services were ordered to be regularized, came to be regularized eventually, as the verdicts in their cases had reached finality in their favour.
iv) The Government, in order to restrict the grant of benefit of regularization only to such of those employees who had completed 10 years of service as on 01.01.2006 had issued subsequently G.O.Ms.No.74 dated 27.06.2013. The Government Order interalia laid down the restriction as to the grant of the benefit of regularization only to the employees who had completed 10 years of service as on 01.01.2006 and the said Government Order was given retrospective effect from 01.01.2006. The retrospective effect given to the said Government Order was subject matter of challenge in a batch of Writ petitions before this Court.
v) This Court after consideration of the rival submissions and the case 4/18 W.P.No.29346 of 2014 etc.
laws on the subject matter allowed all the Writ petitions vide its order dated 22.09.2020. This Court has ultimately held that G.O.Ms.No.74 P&A.R. Department dated 27.06.2013, retrospectively restricting the benefit to the employees who have completed 10 years of service only as on 01.01.2006 was unconstitutional. This Court principally reasoned that by a subsequent G.O., the rights accorded to the Government servants cannot be taken away and this plea for regularsation cannot stated to be negated by operating the G.O. retrospectively.
3. The batch of writ petitions allowed by this Court was a subject matter of Writ Appeals in W.A.Nos.2875, 2644 of 2018 and 1015 to 1019 of 2018. The Division Bench heard the appeals and disposed of the same by order dated 16.08.2019 holding that it was well within the prerogative of the Government to change its policy by superseding its earlier G.O.Ms.No.22 Personnel and Administrative Reforms (F) Department, dated 28.02.2006 vide G.O.Ms.No.74, Personnel and Administration Reforms(F) Department dated 27.06.2013. By holding as such, the Division Bench has held in paragraph 29 which is extracted hereunder.
"29. The order passed by the learned single Judge quashing clause 6 is set aside. The writ petitions are remitted to the writ court for fresh consideration to decide as to whether each of the respondents are eligible for regularization in accordance with the order in G.O.Ms.74, 5/18 W.P.No.29346 of 2014 etc.
Personnel and Administrative Reforms (F) Department, dated 27 June 2013, or any other relevant Government Orders governing the matter. The individual cases must be decided on merits, taking into account the nature of service and the period of such service."
Thus, these writ petitions are back on the lap of this Court for consideration of the claims of these petitioners without reference to the G.O.Ms.No.22. In view of the present remit before this Court, the only aspect that is left open for further consideration of the claim of these writ petitioners is dehors the conclusion by this Court in setting aside the offending para No.6 of the G.O.Ms.No.74, dated 27.06.2013, the order of this Court could still be sustained or not? The cardinal issue before this Court is whether the employees' claim for regularisation could still be considered favourably on other grounds or lnot?
4. The answer to the above question would have to be found by making reference to some of the orders passed by the Division Bench of this Court as relied upon by the learned counsel for the writ petitioners. The first of the decisions of the Division Bench of this Court was dated 21.02.2017 rendered in W.A.(MD).No.913 of 2015. The learned Division Bench of this Court on this issue after referring to various objections from the Government on the retrospective implementation of G.O.Ms.No.74 dated 27.06.2013 has held in paragraphs 6 to 10 as follows:
6/18 W.P.No.29346 of 2014 etc.
"6. We have heard the learned Special Government Pleader appearing for the appellants and the learned counsel appearing for the respondents.
7. This appeal has been filed based on the judgment of the Hon'ble Supreme Court in Civil Appeal Nos.2726 to 2729 of 2014, dated 21.02.2014. According to the appellants, as per the dictum laid down in the said judgment, the respondents are not entitled for regularization. That apart, the learned Special Government Pleader, by relying upon G.O.(Ms)No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013, has submitted that as per the said Government Order, 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 those who have completed 10 (ten) years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned cadre strength. In the case on hand, the respondents were not appointed in consultation with the Employment Exchange. Therefore, they are not entitled for regularization.
8. Keeping in mind the above said submission, we have carefully gone through the judgment relied upon by the learned Special Government Pleader.
7/18 W.P.No.29346 of 2014 etc.
The said judgment dealt with the issue relating to Part Time Sweeper. Coming to the case on hand, we find that the respondents are the daily wage employees and hence, the said judgment cannot be made applicable to the facts of the case to deny the claim of the respondents for regularization.
9. Yet another submission made by the learned Special Government Pleader is that as per G.O.(Ms)No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013, 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 those who have completed 10 (ten) years of service as on 01.01.2006 shall be regularized. However, we find that the said Government Order came into effect only on 27.06.2013 and it was issued by way of clarification of G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006. G.O.Ms.No.74 was issued only on 27.06.2013, whereas, the respondents were appointed in the year 1984, 1995 and 1998 respectively, that is to say, much earlier to the said Government Order. Therefore, the second submission made by the learned Special Government Pleader cannot be accepted. Therefore, we are of the opinion 8/18 W.P.No.29346 of 2014 etc.
that absolutely, there is no infirmity in the order passed by the learned Single Judge warranting interference at the hands of this Court.
10. In fine, the Writ Appeal fails and the same is dismissed accordingly. The appellants are directed to comply with the order of the learned Single Judge, within a period of six weeks from the date of receipt of a copy of this judgment. No costs. Consequently, the connected miscellaneous petition is closed."
5. In the above case, the Division Bench has confirmed the order of the learned single Judge in respect of the employees who have completed 10 years of service after 01.01.2006. In that case, Division Bench also held that G.O.Ms.No.74 was issued well after the appointment of the casual employees therein and the same cannot negate the rights of the petitioners therein. By such reasoning, the Division Bench confirmed the order of the learned single Judge granting the benefit of regularisation.
6. One other Division Bench, vide its order rendered in W.A.No.686 dated 12.07.2017, has referred to G.O.Ms.No.22 dated 28.02.2006 confirmed the order of the learned single Judge granting regularisation of employees who have completed 10 years of service after the cut off date 01.01.2006. The observation 9/18 W.P.No.29346 of 2014 etc.
of the Division Bench in paragraph Nos.3 and 4 are extracted hereunder.
"3. Even though the appellant is right in contending that as on 01 January 2006, the writ petitioner had not completed 10 years and therefore he cannot avail the benefit in terms of G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28 February 2006, we are still not inclined to interfere with the order passed by the learned Single Judge. We note that in similar cases, the Government had granted relaxation and regularized such services. For instance in G.O.Ms.No.3, Environment and Forest Department, 2013, dated 10 January 2013, the services of as many as 14 persons who were working in the appellant department were regularized. In fact the said 14 persons had completed 10 years only as on 01 January 2011. It is not the case of the appellant that the writ petitioner had gained back door entry.
4. Admittedly, he had been in service right from 15 October 1997. There is no break in service. To deny the benefit of the regularization to an employee, who had completed 19 years as on date would not be just or equitable. Taking into account the special circumstances obtaining in this case, we do not wish to interfere with the order of regularization made in favour of the respondent herein."
7. As facts would disclose, against the order, Special Leave Petition was 10/18 W.P.No.29346 of 2014 etc.
filed and the same was also dismissed vide order dated 04.09.2013 (SLP.Diary No.29276/2019) by the Hon'ble Supreme Court.
8. One the Judges who was part of the Division Bench who had remitted the matter to this Court has in fact, is part of the other Division Bench but taken a contrary view in the matter, in favour of claim for regularisation. In W.A.No.1133 of 2014 dated 29.06.2018, the Division Bench referred to the challenge made against the judgment of the Division Bench in identical issue and recorded the fact of dismissal order of the Hon'ble Supreme Court in S.L.P. The Division Bench has referred to certain earlier orders and finally ruled as under:
"2.The respondent was appointed as a Night Watchman in the office of the 4th appellant on 02.07.1992. He has been working as such since then. He made a representation on 09.04.2012 seeking regularisation of the services in terms of G.O.Ms.No.22, P & AR (F) Department, dated 28.02.2006. Since the said request is not complied with, the respondent had approached this Court seeking regularisation as aforesaid.
3. Taking note of similar orders passed by this Court in WP (MD) No.11707 of 2006 dated 22.12.2006 which was confirmed in WA (MD) No.391 of 2007 on 25.10.2007 and orders in WP No.18126 of 2008 dated 29.07.2008, which was confirmed in WA No.230 of 11/18 W.P.No.29346 of 2014 etc.
2009 dated 03.08.2009, the learned Single Judge had allowed the Writ Petition directing regularisation of the services of the respondent.
4. Aggrieved, the State is before us by way of this intra Court Appeal.
5. Mr.V.Anandhamoorthy, learned Additional Government Pleader appearing for the appellants and Mr.G.Elanchezhiyan, learned counsel appearing for the respondent.
6. Mr.V.Anandhamoorthy, learned Additional Government Pleader appearing for the appellants would contend that in view of the subsequent Government Order in G.O.Ms.74, P & AR (F) Department, dated 27.06.2013, the respondent cannot be regularised as the same would amount to creation of supernumerary post. Very same issue was considered by the Division Bench of this Court in WA No.273 of 2016 dated 16.03.2016. The same contention raised by the learned Additional Government Pleader placing reliance on G.O.Ms.74, P & AR (F) Department, dated 27.06.2013 was rejected by the Division Bench. The Division Bench had concluded that the subsequent G.O. cannot take away the rights, which are already accrued to the respondent therein.
7. The Special Leave Petition filed by the State challenging the said judgment of the Division Bench 12/18 W.P.No.29346 of 2014 etc.
in WA No.273 of 2016 was also dismissed by the Hon'ble Supreme Court on 25.01.2018. We see no reason to take a different view.
8. Hence the Writ Appeal fails and the same is dismissed, confirming the order of the learned Single Judge. However, in the circumstances there will be no order as to costs. Consequently, the connected miscellaneous petition is closed."
9. One other Division Bench had occasion to consider similar issue in W.A.No.493 of 2016 dated 25.04.2016. The Division Bench has held that the rights already accrued to the employees cannot be taken away by the issuance of the subsequent G.O. and dismissed the appeal. The observation of the Division Bench in paragraph Nos.6 and 7 is extracted hereunder:
6. The learned Single Judge allowed the writ petition by order dated 4.7.2012, directing the appellants to regularise the services of the respondents within a period of eight weeks and also to pay the arrears of salary within a period of four weeks thereafter, but, the appellants without complying with the orders passed by the learned Single Judge, filed the writ appeal belatedly, based on G.O., viz., G.O.(Ms) No.74 Personnel and Administrative Reforms (F) Department, dated 27.06.2013, which came to be passed subsequent to 13/18 W.P.No.29346 of 2014 etc.
the orders passed by the learned Single Judge. The orders passed by the learned Single Judge reached finality before the issuance of G.O. viz., G.O.(Ms) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013, the appellants without obeying the order and regularizing the services of the respondents, cannot take advantage of the subsequent G.O., which came to be passed nearly after one year of the orders passed by the learned Single Judge and deny the regularization of services of the respondents. The modalities laid down in G.O. viz., G.O.(Ms) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 cannot be made applicable to the respondents.
7. In the above circumstances, we find no merit in the present writ appeal and the same fails consequently, it is dismissed. No costs. The connected miscellaneous petition is closed.
The said Division Bench decision was followed by another Division Bench subsequently in W.A.No.631 of 2016 dated 13.06.2016.
10. In view of the numerous decisions which had upheld the orders of the learned single Judge granting the benefit of regularisation for even such of those 14/18 W.P.No.29346 of 2014 etc.
employees who had completed 10 years of service after 01.01.2006, it cannot be gainsaid that by restoration of paragraph 6 of G.O.Ms.No.74 dated 27.06.2013 the substratum of the claim of the petitioner would stated to be negated or reversed.
11. The Government itself has recognised the directions issued by this Court in various writ petitions and had implemented the same by regularising the services of several casual employees who had completed 10 years of service after 01.01.2006. In that view of the matter, Articles 14 and 16 are directly attracted in support of the claims of these writ petitioners. Therefore, their claims need not ultimately dependent on this Court setting aside paragraph No.6 of G.O. Ms.No.74 dated 27.06.2013 and their claims could otherwise also be allowed and sustained on the basis of the decisions of this Court rendered in the interregnum between 2006 and 2013 where two G.Os. were in force (G.O.Ms.No.22 and G.O.Ms.No.74). The above narrative would also point the fact that some of the decisions of this Court granting regularisation have also been confirmed by the Hon'ble Supreme Court.
12. In the light of the finality being reached in the matter, the present remit to this Court becomes legally immaterial for this Court adopt a different legal position in the matter. Further, one of the learned Judges of the Division 15/18 W.P.No.29346 of 2014 etc.
Bench which remitted the matter to this Court presided over another Bench and had taken a contrary decision in the matter in favour of the employees in W.A.No.1133/2014 dated 29.06.2018.
13. In the light of expressing diametrically opposite views in the matter and also in the light of the various other decisions of this Court confirmed in Writ Appeals by various Division Benches, the present view taken by the Division Bench which was the basis for remitting the matter to this Court may not have any material impact in consideration of the matter in question.
14. On the whole, this Court is of the view that these petitioners even otherwise are entitled for grant of the relief. The writ petitions stand allowed accordingly.
15. There shall be a consequential direction to the respondents to grant the benefit of regularisation to the writ petitioners with effect from the date they were originally appointed and grant them all benefits like pay fixation, continuity of service and other service benefits on notional basis.
16. The respondents are directed to pass appropriate orders in this regard within a period of eight weeks from the date of receipt of a copy of this order. 16/18 W.P.No.29346 of 2014 etc.
No costs. Consequently, connected miscellaneous petitions are closed.
22.04.2022 Index: Yes/No Speaking Order: Yes/No vsi To
1. The Secretary, Public Works Department, Fort St.George, Chennai - 9.
2. The Chief Secretary to Government, Personnel & Administrative Reforms (F) Department, Fort St.George, Chennai - 9.
3. The Principal Chief Engineer (Buildings) and Chief Engineer (General) Public Works Department, Chepauk, Chennai - 5.
V.PARTHIBAN, J.
vsi 17/18 W.P.No.29346 of 2014 etc.
Pre-delivery Order in W.P.No.29346 of 2014 22.04.2022 18/18