Madras High Court
R.Arumugapandian vs The Government Of Tamil Nadu on 27 July, 2021
W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.733 of 2018
and C.M.P.(MD) No.4307 of 2018
and
W.P.(MD) No.12442 of 2018
and W.M.P.(MD) Nos.11312 and 15533 of 2018
W.A.(MD)No.733 of 2018:
R.Arumugapandian .. Appellant/Petitioner
Vs.
1.The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Municipal Administration Department,
Fort St. George,
Chennai – 600 009.
2.The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Personal & Administrative Department,
Fort St. George,
Chennai – 600 009.
3.The Director of Town Panchayat,
Kuralagam,
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
Chennai – 600 109.
4.The District Collector,
Tirunelveli District,
Tirunelveli.
5.The Joint Director of Town Panchayat,
Tirunelveli Regional,
Tirunelveli.
6.The Executive Officer,
Courtallam Town Panchayat,
Tirunelveli District. .. Respondents/Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent,
praying to set aside the order dated 15.02.2018, in W.P.(MD)No.3653 of
2013.
For Appellant : Mr.J.Ashok
For Respondent Nos.1 to 5 : Mr.Veera Kathiravan,
Senior Counsel for Government
Assisted by Mr.R.Baskaran
Standing Counsel for Government
For Respondent No.6 : Mr.VR.Shanmuganathan
Standing Counsel
W.P.(MD) No.12442 of 2018:
R.Arumugapandian .. Petitioner
Vs.
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
1.The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Municipal Administration Department,
Fort St. George,
Chennai – 600 009.
2.The Government of Tamil Nadu,
Rep. by its Secretary to Government,
Personal & Administrative Department,
Fort St. George,
Chennai – 600 009.
3.The Director of Town Panchayat,
Kuralagam,
Chennai – 600 109.
4.The District Collector,
Tirunelveli District,
Tirunelveli.
5.The Assistant Director of Town Panchayat,
Tirunelveli Region,
Jawahar Nagar, N.G.O. Colony,
Tirunelveli District.
6.The Executive Officer,
Melagaram Town Panchayat,
Melagaram,
Tirunelveli District. .. Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned order in Na.Ka.No.2347/2002/Pa2 dated
06.06.2018 of the 4th Respondent and to quash the same as illegal and
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
consequently, directing the Respondents to regularize the Petitioner's
service with effect from 14.12.1998 (Joined on 23.12.1998) and
consequently, re-fix the scale of pay and to disburse the arrears of salary
with all other attendant benefits.
For Appellant : Mr.J.Ashok
For Respondent Nos.1 to 5 : Mr.Veera Kathiravan,
Senior Counsel for Government
Assisted by Mr.R.Baskaran
Standing Counsel for Government
COMMON JUDGMENT
***************
[Judgment of the Court was delivered by T.S.SIVAGNANAM, J.]
Since the appellant and writ petitioner are one and the same
person and both the matters are inter connected, they are heard together
and disposed of by this common judgment/order.
2.Since the result in the Writ Petition would abide by the result
in the Writ Appeal, we proposed to decide the Writ Appeal at the first
instance.
3.The appellant challenges the correctness of the order passed
in W.P.(MD) No.3653 of 2013 dated 15.02.2018. The said Writ Petition
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
was filed to quash the order passed by the first respondent dated
25.10.2010, by which the proposal sent by the third respondent
recommending the regularization of the appellant was rejected by the
first respondent. The appellant sought for a consequential relief to re-fix
the scale of pay and to disburse the arrears of salary with all other
attendant benefits.
4.The dispute involved in these matters lies in a very narrow
campus. The appellant was born to Mr.M.Ramaiah S/o. Late Mayandi
Devar and Late Shanmuga Vadivu. He was given in adoption to his
father's brother Mr.M.Irulappan and his adoption date backs to
15.09.1977. The adoptive father of the appellant was working as
Executive Officer in North Valliyoor Town Panchayat and he died in
harness on 05.11.1996. The legal heirship certificate shows the name of
the appellant as one of the legal heir of Mr.M.Irulappan and the two
others being wife of Mr.M.Irulappan viz. Mrs.E.Kuthalam and his mother
Mrs.M.Bunamalaiammal. The appellant was paid death cum retirement
gratuity. The other benefits payable to his adoptive father were also paid
to him as he was named as a nominee in the service record. The appellant
is a physically challenged person having 80% disability, which has been
certified by Disability Certificate dated 28.01.1991. The appellant's
mother submitted a request to the respondent department to grant
appointment to the appellant on compassionate ground. Accordingly, his
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
candidature was considered and he was appointed by the fourth
respondent on 14.12.1998. Prior to the same, with a view to reaffirm the
adoption, which took place on 15.09.1977, a document dated 28.04.1988
was executed by way of a confirmation of the adoption, which took place
on 15.09.1977. In the said document, the adoptive mother and biological
parents of the appellant were the signatories. The said document was
registered as document No.22 of 1988, on the file of the Sub Registrar
Pavoorchathiram. The appellant continued to work pursuant to his letter
of appointment dated 14.12.1998 and Service Register was opened on
21.01.1999. Thereafter, the appellant submitted a representation on
23.10.2002 for regularization of his service. This representation was
submitted through proper channel and after collecting all the relevant
documents, the third respondent by an elaborate report dated
19.09.2009, recommended the case of the appellant to the first
respondent. However, the first respondent rejected the recommendation
by passing an order dated 25.10.2010, disbelieving the adoption largely
by referring to the document dated 28.04.1988, which was only a
confirmation of adoption, which took place on 15.09.1977. Challenging
the same the Writ Petition in W.P.(MD) No.3653 of 2013 was filed.
5.The learned Single Bench rejected all the documents, which
were relied on by the appellant to establish that he was given in adoption
to Mr.M.Irulappan. Thereafter, the Court proceeded to make certain
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
observations on how the compassionate appointments have to be made.
There is a reference to the Hindu Adoption and Maintenance Act, 1956,
more particularly, Section 6 of the said Act, which mentions the requisites
of a valid adoption and the Court came to the conclusion that the
deceased employee cannot adopt any son or daughter under the
provisions of the Act and a dead person cannot be claimed as adoptive
father. Ultimately, the Writ Petition was dismissed. Challenging the same,
the appellant is before us by way of filing this Writ Appeal.
6.During the pendency of the Writ Petition, the appellant
continues in employment, but his services were not regularized. The Writ
Appeal was admitted on 27.04.2018 and it was pending. No interim
orders were granted, presumably for the reason that the appellant was
permitted to continue during the pendency of the Writ Petition. While the
Writ Petition was pending, order dated 06.06.2018 was passed by the
District Collector, relieving the appellant from the temporary employment
solely for the reason, the Writ Petition was dismissed. This has been put
to challenge in W.P.(MD) No.12442 of 2018 and the same was entertained
on 12.06.2018 and clubbed along with W.A.(MD) No.733 of 2018 and
admitted on 18.02.2021. Since pursuant to order dated 06.06.2018, the
appellant was relieved from service, there was no interim order granted
in the Writ Petition.
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
7.We have elaborately heard Mr.J.Ashok, learned counsel for the
appellant in the Writ Appeal and petitioner in the Writ Petition, Mr.Veera
Kathiravan, learned Senior Counsel for State Government, assisted by
Mr.R.Baskaran, learned Standing Counsel for Government, appearing for
respondent Nos.1 to 5 in both the Writ Appeal and the Writ Petition and
Mr.VR.Shanmuganathan, learned Standing Counsel for respondent No.6
in the Writ Appeal.
8.The only reason assigned by the first respondent for rejecting
the request for regularization in the order dated 25.10.2010, is that 1½
years after the demise of Mr.M.Irulappan, the former Executive Officer in
North Valliyoor Town Panchayat, the adoption deed dated 28.04.1988 has
been executed. In our considered view, the Writ Court travelled a bit far
than what was required to be considered in the instant case, that is to
say, whether the appellant's services are to be regularized or not. Initially,
the appointment of the appellant on 14.12.1998 was never in question.
Therefore, such appointment cannot be reopened or interfered with.
Thus, the only issue requires to be considered is whether his services can
be regularized. For the first time, the first respondent has raised the issue
with regard to validity of the adoption and at no earlier point of time, the
same was raised by the authorities.
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and W.P.(MD) No.12442 of 2018
9.In fact, when the proposal was sent by the third respondent to
the first respondent for regularization of services of the appellant an
elaborate reference was made to all the documents in possession of the
appellant and accordingly, the third respondent, who is the head of the
department, insofar as the appellant is concerned, has made a positive
opinion to the Government. At this juncture, it would be useful to refer to
paragraph 9 of the recommendation/proposal dated 19.09.2009:
“9.fUiz mogilapyhd gzp epakdk; mspf;f
ghprPypf;fg;gl;lit
1.Rtpjhuh; g[jy;td; jj;J Mtzk;> ght{h; rj;jpuk;
rhh;gjpthsh; mth;fshy; gjpt[ bra;ag;gl;Ls;sJ.
2.muR Miz vz;.8 ntiy tha;g;g[g; gzpj; Jiw ehs;
7.1.1987y; bjhptpf;fg;gl;lthW> Kjy; thhprhd Kd;dhs; bray;
mYtyhpd; Jiztpahh;> fUiz mog;gilapy; epakdk; bra;a>
mDkjpf;fg;gl;l thhpRjhuh;fspy; xUtiu Nominate epakdk; bra;J>
gzpaplk; nfl;L tpz;zg;gpf;fyhk; vd;w mog;gilapy;> jj;J gps;is
Adopted son
bry;td; Mh;.MWKfg; ghz;oad; vd;gtUf;F
gzpaplk; tHq;f ghprPypf;fg;gl;Ls;sJ.
3.fhyk; brd;w bray; mYtyh; jpU.kh.,Usg;gd; vd;gtuJ
gzp gjpntl;oy; tUq;fhy itg;g[ bjhifia bgWtjw;F Rkhh; 20
tUlq;fSf;F Kd;dnu epakdjhuhf bry;td; ,uh.MWKf
ghz;oaid epakdk; bra;Js;shh;.
4.Kd;dhs; bray; mYtyhpd; tsh;g;g[ kfd; vd;gjw;F
milahskhf md;dhuJ FLk;g ml;ilapy; K:d;whtjhf
gjpt[ bra;ag;gl;Ls;sjw;F mj;jhl;rp efy; ,izf;fg;gl;Ls;sJ.
5.md;dhhpd; gpwe;j ehs; 8.3.1976. jj;J vLj;j ehshd
29.04.1998y; 22 taJ vd;gjhy; taJ jFjpa[k; cs;sJ.
6.jpU.Mh;.MWKfg; ghz;oad;> cly; CdKw;wth;
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
vd;gjw;F> khtl;l rK:f eyj; Jiw mYtyh; mth;fshy; rhd;W
tHq;fg;gl;Ls;sjw;F mj;jhl;rpahf milahs ml;il cs;sJ.
7.,wg;g[r; rhd;W
fhyk; brd;w muRg; gzpahsh; jpU.k.,Usg;gd; vd;gth;
5.11.96-y; ,we;jikf;F tlf;Fts;spa{h; ngU:uhl;rp
gpwg;g[ ,wg;g[ gjpthsuhy; ,wg;g[r; rhd;W tHq;fg;gl;Ls;sJ mry;
rhd;W ,izf;fg;gl;Ls;ij ,j;Jld; ,izj;jDg;gg;gLfpwJ.
8.thhpRr; rhd;W
bjd;fhrp Jiz tl;lhl;rpah; mth;fspd; 17519/96/m1
ehs; 22.11.96y; gzpapilapy; fhykhd gzpahsUf;F fPH;f;fz;l
thhpRjhuh;fs; cs;sjhf thhpR rhd;W
mspf;fg;gl;Ls;sij ,j;Jld; ,izj;jDg;gg;gLfpwJ.
thpir thhpR bgah; cwt[Kiw taJ
vz;
10.All the above mentioned documents would clearly show that
the appellant was given in adoption to Mr.M.Irulappan soon after he was
born. The registered document dated 28.04.1988 is not an adoption
deed, but a confirmation of what took place in the year 1997. The
disability certificate of the appellant contains the name of
Mr.M.Irulappan. The legal heirship certificate of Mr.M.Irulappan
mentions the name of the appellant as his son. The family card issued to
Mr.M.Irulappan includes the name of the appellant. In the service
register the name of the appellant has been recorded as nominee and
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and W.P.(MD) No.12442 of 2018
several other documents were placed for consideration. Therefore, to
state that the adoption is invalid and the deceased employee could not
have been made adoption is a matter far beyond the scope of the
controversy, which came to the Court to be adjudicated in the Writ
Petition. As noticed above, the appellant is a physically challenged
person, suffering 80% disability. Further more, the appellant has also
obtained a succession certificate from the learned District Munsif,
Tenkasi. All these records will cumulatively inure in favour of the
appellant and the order rejecting his request for regularization dated
25.10.2010, is not sustainable and it has referred to certain issues, which
are beyond the scope of the controversy.
11.Fundamental error has been committed by the first
respondent in passing the order dated 25.10.2010, by considering the
document dated 28.04.1998 as a deed of adoption, whereas it is not a
deed of adoption, but it is a confirmation deed of the adoption, which took
place much earlier ie., on 15.09.1977. Between 1977 and 1998, there are
several records which go to show that the appellant is the adoptive son of
Mr.M.Irulappan. The service record and other statutory records are
presumed to be valid, unless and until it is proved otherwise. It is not
open to the first respondent to disbelieve the entries made in the service
record of Mr.M.Irulappan nor in the family card issued in the year 1989
and in the legal heirship certificate issued in 1996. It may be stated that
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
based on the information furnished and enquiry being conducted the legal
heirship certificate has been issued, but, merely because a person
mentions that he is the legal heir of the deceased, the revenue authorities
will not automatically records the person's name. It is only after enquiry,
the certificate has been issued. Till date there is no change in the legal
heirship certificate nor the Government records in the name of appellant
showing as son of the deceased Irulappan. Therefore, in our considered
view, the order rejecting the request of appellant dated 25.10.2010, calls
for interference.
12.In the result,
i. the Writ Appeal is allowed and the order dated 15.02.2018, in W.P.
(MD) No.3653 of 2013 is set aside and consequentially, the order
passed by the first respondent dated 25.10.2010, is quashed.
ii. In the light of the above decision, necessarily the order dated
06.06.2018, which is impugned in W.P.(MD) No.12442 of 2018 has
to be quashed because this order was passed based on the order
dated 25.10.2010, which is impugned in W.P.(MD) No.3653 of 2013,
which has been set aside by this common judgment/order.
Accordingly, W.P.(MD) No.12442 of 2018 is allowed and the order
dated 06.06.2018, of the fourth respondent is quashed.
iii. The respondents are directed to reinstate the appellant/petitioner
within one week from the date of receipt of a copy of this
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
judgment/order in the post in which he was working prior to his
discharge pursuant to the order dated 06.06.2018.
iv. The respondents 1 to 3 are directed to regularize the services of
the appellant by taking note of the proposal submitted by the third
respondent and pay all consequential monetary and service
benefits.
v. Since the appellant/petitioner was out of employment from
06.06.2018 till today, he is not entitled to monetary benefits during
the said period. However, the said period will be counted for
continued service and reckoned for all other benefits, including
pension.
vi. These directions be complied with within three months from the
date of receipt of a copy of this order.
vii.No costs. Consequently, connected Miscellaneous Petitions are
closed.
[T.S.S., J.] & [S.A.I., J.]
27.07.2021
Index : Yes / No
Internet : Yes / No
sj
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
To
1.The Secretary to Government,
Municipal Administration Department,
Government of Tamil Nadu,
Fort St. George,
Chennai – 600 009.
2.The Secretary to Government,
Personal & Administrative Department,
Government of Tamil Nadu,
Fort St. George,
Chennai – 600 009.
3.The Director of Town Panchayat,
Kuralagam,
Chennai – 600 109.
4.The District Collector,
Tirunelveli District,
Tirunelveli.
5.The Joint Director of Town Panchayat,
Tirunelveli Regional,
Tirunelveli.
6.The Assistant Director of Town Panchayat,
Tirunelveli Region,
Jawahar Nagar, N.G.O. Colony,
Tirunelveli District.
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W.A.(MD)No.733 of 2018
and W.P.(MD) No.12442 of 2018
T.S.SIVAGNANAM, J.
AND
S.ANANTHI, J.
sj
JUDGMENT MADE IN
W.A.(MD)No.733 of 2018
and C.M.P.(MD) No.4307 of 2018
and
W.P.(MD) No.12442 of 2018
and W.M.P.(MD) Nos.11312 and 15533 of 2018
27.07.2021
https://www.mhc.tn.gov.in/judis/
