(Judgment was delivered by P. JYOTHIMANI, J.) This writ appeal is directed against the order dated 15.7.2008 passed by the learned Judge on the writ side in W.P. No.5167 of 1999, by which, the learned Judge held that the pay and allowance, paid to the appellants between 11.6.1999 and 2.6.2002 in excess of consolidated pay, has to be recovered, on the premise that the appellants have been wrongly regularised with effect from 11.1.1999 instead of 3.6.2002, the date on which the other workers who are similarly placed have been brought under regularisation in terms of G.O. Ms.No.125 Municipal Administration and Water Supply Department dated 27.5.1999. Learned Judge has also taken note of the contention of the respondents that the appellants' services as was regularised with effect from 3.6.2002 in the case of others, would not be affected and disposed of the said writ petition, recording the undertaking given by the respondents.
2. The appellants, who were originally writ petitioners, have challenged the order of the first respondent dated 3.3.1999, by which the first respondent, on a representation made by another daily wage employee E. Mariappan, Kutralam Town Panchayat, came to the conclusion that the appointment of the appellants as Office Assistants in the pay scale of Rs.2550-55-2660-60-3200 is against the process of regularisation effected by the Government by virtue of G.O. Ms.No.125 Municipal Administration and Water Supply Department dated 27.5.1999 and therefore, passed an order that the appellants should have been placed equal to that of other persons and they have to be regularised with effect from 2.6.2002, by virtue of G.O. Ms.No.125 Municipal Administration and Water Supply Department dated 27.5.1999.
3. The order passed by the first respondent came to be challenged by the appellants on the basis that the appellants, who were appointed on consolidated basis originally as per the Tamil Nadu Town Panchayat Establishment (Qualification and Recruitment of Office Assistant) Rules, 1988, were qualified as per the requirement, which was only 8th standard. In fact, the first appellant has completed his +2 examination, while the second appellant has completed his SSLC Examination, apart from the fact that the second appellant happens to be a handicapped person.
4. In a batch of writ petitions filed by the appellants and others who raised objections by filing W.P. No.3012 of 1997, this Court, by an order dated 22.4.1998, directed the Authorities of the Township and Municipal authority to decide individual case and if the appellants have completed 240 days, they should be reinstated into services with backwages and also directed that those employees who have completed 240 days should be regularised and the same should be completed within the prescribed time i.e. within a period of ten months.
5. Pursuant to this order, the second respondent-Municipality, in the meeting held on 28.12.1998, has unanimously decided that the appellants are to be appointed from daily wages to that of the Office Assistants while the other three persons viz. Muthukumarasamy, V. Mariappan, G. Chandran are to be regularised on daily wage basis in which they are working. However, after the said resolution, the second respondent has passed an order dated 29.12.1998 regularising the appellants only on daily wage basis. Subsequently, by proceedings dated 30.12.1998, which is as follows, as per the resolution of the second respondent-Municipality, which was passed pursuant to the earlier order of this Court stated supra, has appointed the appellants as Office Assistants on a scale of pay of Rs.2550-55-2660-60-3200, however stating that the said appointment is temporary.
VERNACULAR (TAMIL) PORTION DELETED
6. After the order dated 30.12.1998 was passed by the second respondent, it appears that one of the five persons viz. Mariappan, who was directed to be regularised on daily wage basis, has raised objection to this order by making representation to the first respondent. The first respondent, without giving opportunity to the appellants, passed an order dated 3.3.1999. In the said order, the first respondent has chosen to state that even though at the time when the appellants were appointed in the year 1998, G.O. Ms.No.125 Municipal Administration and Water Supply Department has not come into existence, which came into force only in May, 1999, by virtue of the subsequent order of a Division Bench of this Court, the appellants should also be equal to that of daily wage workers and they should also be regularised with effect from 2.6.2002 as per the said G.O.
7. The first respondent, by taking such wrong view, without even giving opportunity to the appellants, who have been appointed as per the direction given by this Court, has directed that the appellants are drawing more than the salary to which they are eligible and excess amount has been paid to them between 11.6.1999 and 2.6.2002, the date on which the benefit under G.O.Ms. No.125 dated 27.5.1999 has been conferred to the daily wage workers.
8. On the face of it, there is no difficulty to conclude that the appellants are drawing more salary than the candidates who have been regularized on daily wage basis after advent of G.O.Ms.No.125 dated 27.5.1999. In fact, the learned Special Government Pleader Mr.G.Sankaran has also brought to the notice of this Court that even before G.O.Ms. No.125 dated 27.5.1999 came into existence, on various occasions, the regularization of the daily wages employee has been done by the respondents and not as if G.O.Ms.No.125 dated 27.5.1999 was introduced for the first time for the purpose of regularisation of the workers, who have worked on daily wage basis more than 240 days. However, the appointment of the appellants i.e. in December, 1998, which was much before passing of G.O. Ms.No.125 dated 27.5.1999, cannot be equated to the candidates, who have been regularized as per G.O.Ms. No.125 dated 27.5.1999. The case of the appellants is certainly different from the candidates who have been conferred benefit under G.O.Ms.No.125 dated 27.5.1999.
9. In such view of the matter, the decision of the learned Judge that the appellants are to be regularized from 2.6.2002 and the same has not been disturbed, certainly it would cause hardship to the appellants, who are different from the candidates conferred benefit under G.O.Ms.No.125 dated 27.5.1999. Since the benefit conferred to the daily wagers as per G.O.Ms.No.125 is with effect from 2.6.2002, the appellants, having been appointed in December, 1998 itself, cannot be deprived of their right, which has already been accrued to them.
10. In such view of the matter, the order passed by the learned Single Judge stands set aside and the writ appeal stands allowed. No costs.
ssa.
To
1. Director of Town Panchayats, Kuralagam, Chennai 108.
2. Executive Officer, Courtallam Town Panchayat, Courtallam, Tenkasi Taluk, Tirunelveli District