The petitioner is seeking to call for the records relating to Government letter No.20443/Na.Pa.1/2001-7 dated 3.1.2002 issued by the first respondent herein, quash the same and direct the respondents herein to regularise the services of the petitioner herein as a Typist in the Office of the Commissioner of Municipal Administration, Chennai with effect from the date of the first appointment with consequential fixation of time scale for the post with continuity of service and pay all the arrears within a date that may be fixed by this Court.
2. The case of the petitioner is as follows:
The petitioner has passed S.S.L.C. during the year 1986 and got her name registered in the District Employment Exchange, Chennai. Subsequently, she acquired Typewriting Higher in both English and Tamil and registered her name for appointment to the post of Typist. The petitioner's name was sponsored by the District Employment Exchange on 6.2.1991 and she was appointed as a Typist under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules. The petitioner joined the post on 8.2.1991 and has been continuously discharging her duties without any break whatsoever. To protect the interest of 10(a)(i) employees, the Government of Tamil Nadu brought out a scheme by which special qualifying examinations were conducted during 1996 for the purpose of regularisation. All the 10(a)(i) were directed to appear for the examination. The petitioner has also participated in the examination but failed. Though she failed in the examination, she was not terminated from service on the ground that the petitioner was having enough experience in the department besides there were short of regular hands as against the sanctioned posts. Thus, the petitioner has been holding a regular vacancy right from 1991 till date for 18 long years. But till date, her service has not been regularised. Though there are Government orders directing regularisation of such temporary hands, the benefit has not been extended to the petitioner.
3. The petitioner therefore submitted her representation to the third respondent on 7.3.2001 to regularise her service in the post with effect from the date of appointment i.e. 8.2.1991. The Director of Municipal Administration, also recommended her case for regularisation by his proceedings dated 6.6.2001. However, the Government did not regularise her services. On the otherhand, the Government directed the third respondent herein by letter No.20443/Na.Pa.1/2001/7 dated 3.1.2002, Municipal and Water Supply Department, to terminate the services of the petitioner. Challenging the said order, Original application was filed before the Tribunal, where the petitioner had obtained stay of the impugned order of the Government cited supra. By virtue of the said stay order, the petitioner has been continuing her service as Typist under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules. On transfer, the above Original application has been renumbered as W.P.No.11832 of 2007.
4. I have heard the learned counsel appearing for the petitioner and Mr.Edwin Prabhakar, learned Additional Government Pleader appearing for the respondents. I have also gone through the documents available on record.
5. Learned counsel appearing for the petitioner would contend that when the petitioner has been sponsored by the District Employment Exchange and working as a Typist since 8.2.1991, her services ought to have been regularised by the Government. The failure of the petitioner in the Special test could not be put against the petitioner. In a matter of this nature, employees who had failed in the special test have been regularised by the orders of the Government. Moreover, he submits that purpose of the scheme brought out by the Government also is to regularise employees under Rule 10(a)(i). In support of his case, the learned counsel for the petitioner drew my attention to the order passed by the Tribunal in O.A.Nos.3855 and 3856 of 1991, dated 1.7.1994, wherein two employees who also, failed in the Special Test, have been directed to be appointed and their services were to be regularised. He also relied on the judgment reported in Jacob Puthrambil Vs Kera Water Authority (1991)1 SCC 280, wherein it was held as follows:
"Taking all these factors into consideration and the decision of the Hon'ble Supreme Court and other judicial force in this matter, we direct the respondents to regularise the service of the applicants without reference to the special qualifying examination. The applicants had appeared before the special qualifying examination but did not succeed. This does not however mean that the applicants are not competent to discharge their duties as their eligibility had been amply proved over a period of time when they were serving to Government under Rule 10(a)(i). Their experience would be more useful to the employer than what the new entrants would contribute without any experience. Therefore, we consider that the ousting orders given by the respondents are arbitrary and against the well laid principles of
Art.14 of the Constitution."
6.Further, the learned counsel for the petitioner referred to a judgment of a learned Single Judge of the Tamilnadu Administrative Tribunal, in an identical case in O.A.No.4590 of 1995, wherein the learned Judge while considering the case of the petitioner therein held that failure in the qualifying examination cannot be put against the petitioner's regularisation. The learned counsel for the petitioner also referred to an another judgment reported in (2008)5 MLJ 1073, (S.Jalajakumari ad another Vs P.A.(General) to the Collector and others) wherein a Division Bench of this Court while dealing with an identical issue held that long service put in by the temporary candidates have to be given credit while considering regularisation. It is pertinent to add that the judgment of the tribunal made in O.A.No.4590 of 1995 was also referred to in the judgment of the Division Bench cited supra.
7. Therefore, in view of the settled legal position and the orders passed in favour of similarly placed persons as that of petitioner, the learned counsel would contend that when the petitioner has been working from 8.2.1991 till date for more than 18 years as a Typist under Rule 10(a)(i), her case should be favourable considered for regularisation. Hence, the learned counsel seeks appropriate direction to the respondents directing them to pass order regularising the service of the petitioner with consequential benefits.
8. Per contra, Mr.Edwin Prabhakar, learned Additional Government Pleader appearing for the respondents would contend that since the petitioner failed in the qualifying examination conducted for regularising the employees who are rendering their service under Rule 10(a)(i) in regular establishment, the petitioner cannot be treated on par with other employees. Therefore, the order passed by the first respondent does not suffer from any infirmity or illegality.
9. I am unable to accept the submission made by the learned Additional Government Pleader for the reasons that both the Hon'ble Supreme Court and the Division Bench of this court categorically held that failure on the part of the petitioner in the qualifying examination need not be put against the petitioner's regularisation. Moreover, when there are vacancies in the department, the petitioner should be made to serve in the department under regular establishment. Furthermore, the third respondent herein in his proceedings dated 6.6.2001 has recommended to the Government by stating that there are vacancies in the department and the petitioner is also having experience in the department and her services may be regularised. He also referred to the cases of regularisation of similarly placed persons as that of the petitioner. Despite such recommendation made by the head of the department wherein, the petitioner has been serving, the Government rejected the case of the petitioner.
10. Considering the fact that the petitioner has been working as a Typist in the office of the third respondent under Rule 10(a)(i) from the date of appointment i.e. 8.2.1991 till date, for more than 18 years and considering the fact that similarly placed persons as that of the petitioner had the benefit of service regularisation on the orders passed by this Court referred to above, I am of the considered view that the petitioner has made out a case for regularising her services.
11. Therefore, I set aside the order passed by the first respondent in letter No.20443/Na.Pa.1/2001-7 dated 3.1.2002 and consequently, direct the first respondent to regularise the service of the petitioner herein as a Typist in the office of the third respondent herein with effect from the date of her appointment with consequential fixation of time scale for the post with continuity of service and pay all the arrears within three months from the date of receipt of copy of this order.
12. In the result, the Writ petition is allowed. No cost.
vaan To
1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai 9.
2. The Secretary to Government, Personal and Administration Dept., Fort St. George, Chennai 9.
3. The Commissioner of Municipal Administration, Chepauk, Chennai 5