W.A. No.42 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 01.03.2022
Coram
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A. Nos.42, 46 and 47 of 2022
and
C.M.P. No.471 and 476 of 2022
W.A. No.42 of 2022
The Commissioner,
Kancheepuram Municipality,
Kancheepuram. ...Appellant
Vs.
1.Mr.I.Kathavarayan
2.The State of Tamil Nadu,
Rep. by its Secretary,
Municipal Administration and Water Supply,
Fort St.George, Chennai-600 009.
3.The Commissioner of Municipal Administration,
and Water Supply, Ezhilagam,
Chennai-600 005. ... Respondents
W.A. No.46 of 2022
1/14
https://www.mhc.tn.gov.in/judis
W.A. No.42 of 2022
The Commissioner,
Kancheepuram Municipality,Kancheepuram. ...Appellant
Vs.
1.Mr.T.Venkatesan
2.The State of Tamil Nadu,
Rep. by its Secretary,
Municipal Administration and Water Supply,
Fort St.George, Chennai-600 009.
3.The Commissioner of Municipal Administration,
and Water Supply, Ezhilagam,
Chennai-600 005. ... Respondents
W.A. No.47 of 2022
The Commissioner,
Kancheepuram Municipality,
Kancheepuram. ...Appellant
Vs.
1.Mr.P.Chinnasamy
2.The State of Tamil Nadu,
Rep. by its Secretary,
Municipal Administration and Water Supply,
Fort St.George, Chennai-600 009.
3.The Commissioner of Municipal Administration,
and Water Supply, Ezhilagam,
Chennai-600 005. ... Respondents
2/14
https://www.mhc.tn.gov.in/judis
W.A. No.42 of 2022
Prayer in W.A.No.42 of 2022: Writ appeal filed under Clause 15 of the
Letter Patent praying to set aside the order in W.P.No.12915 of 2009 dated
17.06.2013.
Prayer in W.A.No.46 of 2022: Writ appeal filed under Clause 15 of the
Letter Patent praying to set aside the order in W.P.No.12914 of 2009 dated
17.06.2013.
Prayer in W.A.No.47 of 2022: Writ appeal filed under Clause 15 of the
Letter Patent praying to set aside the order in W.P.No.12913 of 2009 dated
17.06.2013.
For Appellants : Mr.P.Srinivas
in all Writ Appeals
For Respondent 1 : Mr.K.Shanmugakani
in all Writ Appeals
COMMON JUDGMENT
S.VAIDYANATHAN,J.
AND MOHAMMED SHAFFIQ,J.
The above writ appeals are filed by the Appellant municipality seeking to set aside the common order passed by the learned single in W.P.Nos.12913,12914 and 12915 of 2009, dated 17.06.2013 in and by which a direction was issued to regularize the services of the writ petitioners from the date of Government Order dated 27.05.1999, instead of from the 3/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 date of impugned order. Aggrieved by the same, the Municipality is before this Court as Appellant. As the issue involved in these Appeals are one and the same, they are taken up together for joint disposal.
2. Brief facts of the case are set out hereunder: 2.1.The case of I.Kathavarayan/writ petitioner/first respondent herein in W.P.No.12915/2009 is that he was appointed as Helper in the Virudhachalam Municipality as a Nominal Muster Roll Employee on 4.8.1982 and subsequently, transferred to Kancheepuram Municipality and posted as Helper on 5.7.2001 in the Drinking Water Maintenance of Kancheepuram Municipality. After some time, I.Kathavarayan along with 5 other Non-Muster Roll Employees filed O.A.No.3978/1991 before the Tamilnadu State Administrative Tribunal seeking a direction to regularise their services. The Tribunal by its order dated 12.02.1993 directed the respondents therein to take action for regular appointment of the applicants, if they are eligible for such regular appointment with reference to the requirements of the posts. Even though four months' time was granted in the said order to comply with the direction for regularising the services, the 4/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 respondent did not come forward to do the needful. Therefore, a Contempt Petition was also filed in C.A.No.218/1995 for disobedience of the order dated 12.2.1993. However, after hearing the parties, again the learned Tribunal was pleased to pass order dated 15.4.1997 in C.A.No.218/1995 in O.A.No.3978/1991 holding that no contempt proceedings can be initiated, since the respondents have taken sincere efforts for regularising the services of the writ petitioner. On that score, the Contempt petition was closed. It is further case of the writ petitioner that unfortunately, till date the respondents have not regularised the services of the petitioner and therefore he is before this Court for considering his case in the light of G.O.Ms.No.125, dated 27.5.1999 which clearly stipulates that the writ petitioner should be regularised, if he has completed 10 years of service without any break.
2.2. Insofar as The case of T.Venkatesan/writ petitioner/first respondent herein W.P.No.12914/2009 is concerned he was sponsored through employment exchange and joined the service on 01.10.1993 as Nominal Muster Roll Employee in the Tamil Nadu Water Supply and Drainage Board and was posted at Tirupparkadal Water Head Works. Subsequently, the said water Head Works was made over to the 5/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 Kancheepuram Municipality along with his services by the said TWAD Board. He continued with the Kancheepuram Municipality as non-muster roll employee and Working as Electrician Grade II in the Kancheepuram Municipality. The respondents have not even considered the repeated representations made for regularisation on the basis of G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999.
2.3.The case of Mr.P.Chinnasamy/writ petitioner/first respondent herein W.P.No.12913/2009 is that he had joined the service on 30.12.1986 in the Kancheepuram Municipality as contingency staff and posted in the Bus stand/water tank watchman on daily wage basis. Though he has given representation for regularising his services on the basis of G.O.Ms.No.1644, Rural Development, dated 12.10.1979, which states that every employee on completion of 10 years of service is eligible for regularisation, but, he was not regularised and he was paid only daily wages.
The grievance of the employees/first respondent is that the appellant, while regularising their services refused to give the benefit of G.O.Ms.No.125, dated 27.05.1999.
6/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022
3. Aggrieved over the same the employees/first respondent in all the appeals have filed W.P.Nos.21252 to 21254 of 2008 and this Court by order dated 16.12.2008 issued a direction to consider the representations. By virtue of the said order, the Appellant, instead of giving the benefit of G.O.Ms.No.125, dated 27.5.1999 wrongly passed yet another proceedings dated 06.02.2009 in Na.Ka.No.30711 of 2008 and refused to give the benefit of G.O.Ms.No.125, dated 27.05.1999. When the said proceeding was challenged, learned Single Judge quashed the same with a direction dated supra, against which the appellants have filed the present appeals.
4.The learned counsel for the Appellant submitted that, after the Government Order was passed in G.O.Ms.No.125 dated 27.05.1999, there was a ban for regularisation of employees from the year 2001 to 2006, which was revoked by G.O.Ms.No.21 dated 23.02.2006, wherein it has been decided that the employees will be absorbed into the regular time scale of pay depending upon the post existed/ available. It was further stated in the said Government Order that the Appointing Authority should not appoint daily wages or consolidated wages in the Municipality or Corporation in 7/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 future. Thus, vide G.O.Ms.No.21, the right accrued to the writ petitioner has been taken away and it has been postponed from the date of issuance of G.O.Ms.No.21 i.e., 23.02.2006 and that in terms of G.O.Ms.No.125, the employees would not be entitled to any benefit.
5. The learned counsel for the appellant further submitted that out of the 3 employees, 2 employees have already attained superannuation and in respect of their case, the question of granting monetary benefits alone arises and the same will be considered depending on the outcome of the S.L.P.19874 of 2017.
6. Mr.K.Shanmugakani, learned counsel appearing for the 1st respondent (employees) in all the Writ Appeals contended that these employees have been employed since 1980 and that they have rendered almost two decades of service and the question of back door entry does not arise. In any event, as the appellant did not insist about the back door entry in terms of G.O.Ms.No.125, these writ petitioners have been taken into service pursuant to G.O.Ms.No.125 and put on consolidated wages for 8/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 Rs.2,000/- per month in terms of order of G.O.M.S.No.125 dated 27.05.1999.
7. He further contended that on completion of one year of service, the appellant ought to have brought these employees in the regular time scale of pay so as to pay and extend the benefits. Merely because there was a ban with regard to recruitment, which was lifted pursuant to G.O.Ms.No.21 dated 23.02.2006 does not entitle the Appellant herein to deprive the monetary benefit that the employee would be entitled pursuant to G.O.Ms.No.125 dated 27.05.1999. He also consented that the reliance placed by the appellant with regard to the Full Bench Judgment of this Court reported in 2013(6) CTC 593 may not be applicable to the present case as an order of stay has been granted by the Supreme Court on 14.08.2017 in S.L.P. No.19874 of 2017 against the order passed in Review Application reported in 2017 (3) CTC 673 filed against the Full Court Judgment (Cited Supra)
8. Heard both parties.
9/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022
9. It is not in dispute that these employees have joined on various dates and rendered more than 15 years of services, prior to the issuance of the G.O.(Rt.)No.125 dated 27.05.1999. These 3 employees have joined the service pursuant to the said Government Order and all of them would have already attained superannuation. As long as G.O.Ms.No.125 is intact which is a promise given by the Government to the employees, it has got to be adhered to by the Government, on completion of one year of service. It is mandatory on the part of the Government to bring the employees on regular scale, which has not been done in the present case on hand, as these employees have been granted time scale of pay in terms of G.O.Ms.No.21 dated 23.02.2006.
10. An Argument has been advanced with reference to the Judgment of the Hon'ble Supreme Court in Umadevi's case reported in (2006) 4 SCC 1 to contend that no appointment can be made against the sanctioned post without following the procedure, as it would be considered as back door entry. However Uma devi's case may not be applicable to the facts of this case, as G.O.Ms.No.21 was issued after the decision of Umadevi's case, 10/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 which means that, by giving a go by to the decision of the Hon'ble Supreme Court that the government have decided to grant time scale of pay on completion of one year to all those persons who are similarly placed like that of the writ petitioner.
11. In addition to the above, the earlier judgement passed in W.P.(MD) No. 1083 of 2012 dated 29.11.2013 was modified by the Full Bench Judgment in the review Application in the year 2017 and therefore, the subsequent judgement made in the year 2017 alone will prevail. Moreover, the judgement of the year 2017 has been stayed by the Hon'ble Supreme Court in SLP(c) No.19874 of 2017. None of these decisions may be applicable to the facts of this case, as G.O.Ms.No.125 is not at all tested/ questioned in this matter. It is reiterated that as long as G.O.Ms.No.125 is intact, denial of benefits to the employees, more so, in the light of G.O.Ms.No.125 dated 27.05.1999 amounts to unfair labour practice and victimisation.
12. In view of the above it is clear that G.O.Ms.No.125 dated 27.05.1999 may not be applicable to the facts of this case as G.O.Ms.No.125 11/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 dated 27.05.1999 has not been tested in any one of above orders/judgments. It is to be noted that while relying on a judgment, if it is found that the factual situation totally differs, then there is no compulsion for the subordinate courts to blindly rely on the same to arrive at a conclusion, as held by the Hon'ble Supreme Court in the case of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, as follows:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
13. We are of the view that the above decisions are not going to have any binding in the present case on hand and in the light of the promise granted by the Government in G.O.Ms.No.125, the employees will be entitled monetary benefits from the date of issuance of G.O.M.sNo.125 dated 27.05.1999.
14. For all the reasons stated above, the writ appeals stand dismissed.12/14
https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 The monetary benefits will have to be extended to the employees within a period of 4 months from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petitions are closed.
(S.V.N., J.) (M.S.Q., J.) 01.03.2022 Speaking order : Yes/No Index: Yes/No smn/mka To:
1. The Commissioner, Kancheepuram Municipality, Kancheepuram.
2. The Secretary, Municipal Administration and Water Supply, Fort St.George, Chennai-600 009.
3.The Commissioner of Municipal Administration, and Water Supply, Ezhilagam, Chennai-600 005.
S.VAIDYANATHAN, J.
and MOHAMMED SHAFFIQ, J.
smn/mka 13/14 https://www.mhc.tn.gov.in/judis W.A. No.42 of 2022 W.A. Nos.42, 46 and 47 of 2022 01.03.2022 14/14 https://www.mhc.tn.gov.in/judis