Madras High Court
V.Gopal vs The Joint Director Of School ... on 13 July, 2021
W.A.No.208 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.07.2021
CORAM
The Honourable Mrs.Justice Pushpa Sathyanarayana
and
The Honourable Mr.Justice Krishnan Ramasamy
W.A.No.208 of 2015
V.Gopal ... Appellant
vs
1.The Joint Director of School Education (Personnel),
Chennai – 600 006.
2.The Chief Educational Officer,
Salem,
Salem District.
3.The Headmaster,
Government Higher Secondary School,
Sathaithanampatti,
Mettur Dam,
Salem District – 636 404.
4.The Commissioner of Revenue Administration,
Chepauk,
Chennai - 600 005. ... Respondents
Prayer:
Writ Appeal filed under clause 15 of the Letters Patent Act against the
final order dated 11.10.2012, made in W.P. No.7218 of 2011.
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W.A.No.208 of 2015
For Appellant : Ms.V.Kaaviya
For Respondents : Mr.C.Jayaprakash
Government Advocate
JUDGMENT
(Delivered by Krishnan Ramasamy.J., )
This Writ Appeal is directed to be filed against the order of the learned
Single Judge in W.P.No.7218 of 2011 dated 11.10.2012.
2. The brief facts of the case are as follows:
(i) The appellant was originally appointed as Noon Meal Organizer on
03.06.1985. On 19.06.2003, the Government issued order, vide G.O.(Ms).No.83
of School Education (Q2) Department, to conduct a Special Recruitment
Examination for B.Ed degree holders, who were working under Puratchi
Thalaivar M.G.R. Nutritious Meals Scheme. The appellant participated in the
said examination and was selected as Junior Grade School Assistant on temporary
basis in exercise of special power vested in the Government with certain
conditions. On 24.06.2004, the order of appointement was issued to the appellant
and re-joined on14.07.2004. Subsequently, his appointment was regularised from
01.06.2006.
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W.A.No.208 of 2015
(ii) While so, during January 2010, the appellant came to know that his
date of birth was wrongly recorded as ''12.06.1952'' instead of ''08.08.1956'', at the
time of entry into service and the same was reflected in his service register.
Therefore, he made a request by way of representation dated 15.02.2010, to the
first respondent to correct his date of birth as 08.08.1956 instead of 12.06.1952 in
his service register with all supportive documents. However, on 24.07.2010, the
first respondent rejected the same on the ground of limitation, since the
representation was made after the expiry of stipulated period of 5 years from the
date of his original appointment. Aggrieved over the same, the appellant filed a
Writ Petition in W.P.No.7218 of 2011.
iii) The learned Single Judge, after hearing the arguments of both sides
counsel and examining all the documents produced before him, dismissed the
Writ Petition, by order, dated 11.10.2012 Challenging the said order, the appellant
has filed the present Writ Appeal.
3. Ms.V.Kaaviya, the learned counsel appearing for the appellant
submitted that the appellant was originally appointed as Noon Meal Organizer on
03.06.1985. Thereafter, he was appointed as School Assistant on temporary basis
on 14.07.2004 and subsequently, his appointment was regularised with effect
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W.A.No.208 of 2015
from 01.06.2006. During January 2010, the appellant came to know that his date
of birth was wrongly recorded in his service register and therefore, he filed a
application before the first respondent on 15.02.2010, to rectify the same in terms
of Rule 49 (c) of the Tamil Nadu State and Sub-ordinate Serivce Rules
(hereinafter, referred to as Rule 49 (c) for the sake of brevity). However, the said
application was rejected by the first respondent on 24.07.2010, stating that the
application is barred by limitation.
3.1 The learned counsel for the appellant further submitted that the
though the appellant was originally appointed as Noon Meal Organizer on
03.06.1985 and thereafter, he was appointed as School Assistant on temporary
basis with effect from 14.07.2004 to 31.05.2006, those service cannot be
considered as Government Service, since the appellant worked only on temporary
basis. The appellant's service was regularised only w.e.f. 01.06.2006, and
therefore, the limitation period starts only from 01.06.2006, for correcting the date
of birth in terms of Rule 49 (c). However, the learned Single Judge has not
considered these aspects in a proper prespective and dismissed the Writ Petition,
by wrongly holding that during the fag end of retirement, the appellant invented
novel devise to get extension of service. Therefore, the learned counsel stressed
this Court that the limitation will apply only from the date of regularisation and
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W.A.No.208 of 2015
the application submitted by the appellant seeking correction of his date of birth is
well within the period of limitation. Hence, the order passed by the learned
Single Judge is liable to be set aside.
4. Per contra, Mr.C.Jayaprakash, learned Government Advocate
appearing for the respondents submitted that the appellant was originally
employed in the government service as Noon Meal Organiser with effect from
03.06.1985 to 13.07.2004, and thereafter, as per G.O.(Ms).No.83 dated
19.06.2003, the Tamil Nadu Teacher Recruitment Board conducted the Special
Written Examination for B.Ed degree holders working under Nutritious Meals
Scheme, in which, the appellant partcipated and selected for the post of School
Assistant on contract basis with effect from 14.07.2004. Thereafter, his service
was regularised from 01.06.2006.
4.1 The learned Government Advocate further submitted that the
appellant worked on temporary basis from his date of appointement on
14.07.2004 to 31.05.2006, which was the probationary period and it will be
counted towards his continuous service. In the said trial period, employees
conduct and suitability would be monitored, and if the employee's work is found
to be satisfactory, his/her service will be confirmed. As such, the appellant's
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W.A.No.208 of 2015
service was regularised from 01.06.2006 and his probationary period from
4.07.2004 to 31.05.2006, will be counted towards the continuous service.
Therefore, the limitation period to correct the error in his service register starts
from 14.07.2004 and not from the date of regularisation i.e on 01.06.2006. The
learned Single Judge has elaborately dealt with this aspect and passed detailed
and well reasoned order, which does not require any interference. Hence, he
prayed for the dismissal of the Writ Appeal.
5. We have given due attention to the submissions of both the learned
counsel and perused the records.
6. The appellant was initially appointed as Noon Meal Organiser on
03.06.1985 and continued till 13.07.2004. The first respondent by virtue of
G.O.(Ms).No.83 dated 19.06.2003, conducted a Special Written Examination
through Tamil Nadu Teacher Recruitment Board in the year 2003-2004, for B.Ed
degree holders, who were working under Puratchi Thalaivar M.G.R.Nutritious
Meals Scheme. One of the pre-conditions for participating in the said
examination was that the candidates should be working under Nutritious Meals
Scheme and should possess B.Ed degree. The appellant, who worked as a Noon
Meal Organiser participated in the said examination and successfully cleared the
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W.A.No.208 of 2015
examination. Therefore, by an order, dated 14.07.2004, the appellant was
appointed as School Assistant on temporary basis. For better appreciation,
condition No.7 prescribed in the said appointement order, in Tamil Version is
extracted hereunder::
“7/ xg;ge;j mog;gilapy; epakdk;bgw;Ws;s ,e;j ,sepiy
gs;sp cjtp MrphpaUf;F muRg; gzpapy; gzpnaw;w ehspypUe;J Ie;J tUl
fhyj;jpw;F khjbkhd;Wf;F U:/4000-? kl;Lk; (U:gha; ehd;fhapuk; kl;Lk;)
bjhFg;g{jpakhf tH';fg;gLk;/ jdpah; Ie;J tUl';fs; gzpapidj;
jpUg;jpfukhf Koj;j gpd;du;jhd;. jdpauJ elj;ij. jFjp. jpwik. gzp
K:g;g[ kw;Wk; tUlthhpahf jdpah; fw;gpf;Fk; ghlj;jpy; fhl;oa njh;rr; p rjtPjk;
nghd;witfl;Fl;gl;L Kiwahd Cjpa tpfpjj;jpw;F bfhz;L tu mt;tkak;
eilKiwapYs;s tpjpfspd;go ghprPypf;fg;gLk;/“
6.1 A perusal of the above condition would show that after successful
completion of five years, the incumbent service will be regularised considering
his conduct, skill and performance. Thus, it is clear that one of the conditions for
regularisation of employee was that the employee should complete his
trial/probationary period satisfactorily and the service rendered during such
probationary period will add towards his continuous service. It is also clear that
for the purpose of regularising the service, the trial/probation period is must.
Since the appellant satisfactorily discharged his duty, his service was regularised
from 01.06.2006 and his service benefits would be reckoned with effect from the
date of his date of appointment as School Assistant on temporary basis, i.e.,from
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W.A.No.208 of 2015
14.07.2004.
6.2 It is relevant to refer Rule 49 (c) of the Tamil Nadu State and Sub-
ordinate Service Rules, which reads as follows:-
“ 49 (c) Any application received after five
years after entry into service or any application, which
is not supported by entries in Secondary School
Leaving Certificate, School, College or University
records birth extract from records of local bodies or
military discharge certificates, shall be summarily
rejected.“
6.3 A careful reading of the above Rule indicates that entry into
Government service is relevant consideration. This also has a reference to
opening of a service register in respect of an employee. Thus, it is clear that
entry of an employee to each service will not accord him a fresh period of five
years so as to make a claim to correct his date of birth. The Government service
as a whole should be taken into consideration. In the present case, the service
register of the appellant was opened on 14.07.2004, when he was appointed as
School Assistant on temporary basis. Therefore, he cannot claim that his service
starts from 01.06.2006, i.e. the date of regularisation. Even prior to his
appointment as School Assistant, his service register would have been opened
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W.A.No.208 of 2015
when he was appointed as Noon Meal Organizer. Therefore, as per Rule 49 (c) ,
limitation period for correcting the appellant's date of birth would start from
03.06.1985, when his service register was opened in regard to his appointment as
Noon Meal Organiser.
6.4 Thus, we are of the considered view that the limitation period for
the appellant to make any correction in the service register starts from his initial
appointment as Noon Meal Organiser on 03.06.1985, since the limitation starts
from the date of his entry into the Government service in terms of Rule 49 (c).
However, the learned Single Judge has taken a liberal approach and stated that the
limitation would start from 14.07.2004, when the appellant was appointed as
School Assistant on temporary basis and concluded that the representation made
by the appellant was not within the time limit as per Rule 49 (c). In fact, the
learned Single Judge analysed this aspect elaborately and at this stage, it would be
apposite to extract the relevant portion of the order passed by the learned Single
Judge,which is hereunder.
“10.The learned Government Pleader produced the
service register opened by the Panchayat Union, consequent
to the appointment of the petitioner as a nutritious meal
programme organizer. The service records clearly indicate
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W.A.No.208 of 2015
that the petitioner was employed as a Noon Meal Organizer
from 3 June 1985 to 13 July 2004. He was brought under the
regular time scale of pay during the year 1996. The service
register was signed by the petitioner and the Commissioner,
Panchayat Union. The appointment of the petitioner pursuant
to the proceedings of the District Collector dated 24 May
1985 is also found recorded in the service register. The
petitioner clearly recorded his date of birth as 12 June 1952.
The petitioner was subsequently appointed as School
Assistant. The petitioner is now taking up a contention that
he has become a Government servant only from the date on
which he was appointed as School Assistant. The falsity of
the case pleaded by the petitioner is writ large.
11.The petitioner functioned as Noon Meal
Organizer till he was appointed as School Assistant. The
petitioner would be justified in his contention in case his
appointment as teacher was not related to his earlier
appointment as Noon Meal Organizer. It is a matter of record
that the Government in G.O.Ms.No.83, School Education
(Q2) Department dated 19 June 2003, directed conduct of
special recruitment, so as to given an opportunity to the
employees working under the Puratchi Thalaivar Noon Meal
Programme, to be appointed as School Assistant. The
petitioner, in his capacity as a Noon Meal Organizer, made an
application for appointment. It was only on account of his
functioning as Noon Meal Organizer, he was considered for
special recruitment. The appointment and functioning as
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W.A.No.208 of 2015
Noon Meal Organizer has got a direct bearing on his later
appointment as School Assistant. The only document to
show his later appointment as Noon Meal Organizer and his
continuous employment is his service register. The
Government permitted the petitioner to appear for the special
recruitment, on the basis of the entries made in the service
register. When it is made out that the service register was
opened immediately after his initial appointment, it cannot be
said that such service cannot be counted for the purpose of
Rule 49(c) of the Tamil Nadu State and Subordinate Service
Rules, relating to alteration of date of birth.
12.......
13......
14.The learned counsel for the petitioner by
placing reliance on the order dated 13 July 2004 submitted
that the petitioner submitted his resignation from the earlier
service with retrospective effect and it was accpeted with
effect from 31 May 2006. Therefore, the petitioner wanted
his appointment from 1 June 2006 as School Assistant, as
fresh appointment so as to give him five years time from the
said appointmnet to alter his date of birth. This argument is
clearly an afterthought. The resignation of the petitioner from
a particular post and his appointment in another post would
not give a fresh cause of action to make an application for
correction of date of birth. The resignation and fresh
appointment are not matters relevant to decide the question as
to whether the application for correction of date of birth was
given within a period of five years from the date on which the
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W.A.No.208 of 2015
employee entered relating to date of birth it is the initial entry
into service which alone is material and not the subsequent
appointment. Each appointment would not give a fresh five
years term to make an application under Rule 49 (c) of the
Tamil Nadu State and Subordinate Service Rules. The
learned Additional Government Pleader was fully correct in
his submission that during the fag end of his service, the
petitioner has invented a novel devise to get extension and
only with the said view, he has claimed that during the search
of old records, in January 2010, he has seen his horoscope
and immediately made an application for correcting the
entry.''
6.5 A perusal of the above order of the learned Single Judge would
clearly show that the representation made by the appellant was barred by
limitation in terms of Rule 49 (c) of the Tamil Nadu State and Sub-ordinate
Service Rules. As stated supra, limitation period would start even when the
appellant was appointed as Noon Meal Organiser on 03.06.1985. However, the
learned Single Judge took a liberal approach and held that the limitation for
correcting the date of birth would start from 14.07.2004, when the appellant was
appointed as School Assistant on temporary basis. Therefore, we do not find any
error or infirmity in the order of the learned Single Judge dated 11.10.2012, made
in W.P. No.7218 of 2011.
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W.A.No.208 of 2015
7. In the result, the Writ Appeal stands dismissed. No costs.
[P.S.N., J.] [K.R., J.]
13.07.2021
Index : Yes/No
Internet : Yes/No
Speaking Order/Non Speaking Order
rst
To:
1.The Joint Director of School Education (Personnel),
Chennai – 600 006.
2.The Chief Educational Officer,
Salem,
Salem District.
3.The Headmaster,
Government Higher Secondary School,
Sathaithanampatti,
Mettur Dam,
Salem District – 636 404.
4.The Commissioner of Revenue Administration,
Chepauk,
Chennai - 600 005.
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W.A.No.208 of 2015
PUSHPA SATHYANARAYANA, J.
and
KRISHNAN RAMASAMY, J.
rst
W.A.No.208 of 2015
13.07.2021
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