Madras High Court
A. Krishnammal vs The Director on 6 September, 2021
W.P.(MD).No.9847 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.9847 of 2014
and
W.P.(MD).No.1976 of 2015
and
W.M.P.(MD).No.10160 of 2017
1.A. Krishnammal
2.T. Ramani
3.P. Pangajamathivathani ...Petitioners inW.P(MD)No.9847/2014
4.T.Jegan Mohini ...Petitioner in W.P(MD)No.1976/2015
Vs.
1.The Director,
Backward Class Welfare Department,
Chepauk,
Chennai – 600 005.
2.The District Backward Class and Minorities Welfare Officer,
Sivagangai,
Sivagangai District. ... Respondents in both W.Ps
Common Prayer: Writ Petitions filed under Article 226 of the Constitution of
India, for the issuance of Writ of Certiorarified Mandamus, to call for the
records pertaining to the impugned order in Na.Ka.Y.1/452/2014, dated
10.04.2014 and 02.09.2014 on the file the respondent No.2 and quash the same
as illegal and consequently to direct the respondents to regularize the service of
the petitioners in the post of cook with effect from 25.09.1998 on par with the
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W.P.(MD).No.9847 of 2014
similarly appointed persons with all monetary benefits within the time
stipulated by this Court.
For Petitioner in
both W.Ps : Mr. G. Chandrasekar
For R1 and R2 : Mr. M.Linga Durai
in both W.Ps Government Advocate
COMMON ORDER
These writ petitions are filed for issuance of writ of Certiorarified
Mandamus to quash the impugned order passed by the second respondent dated
10.04.2014 and 02.09.2014 and to direct the respondents to regularize the
service of the petitioners in the post of cook with effect from 25.09.1998 on par
with the similarly appointed persons with all monetary benefits.
2.The petitioners were appointed in the year 1997 as cook helper and
they were posted on various girls hostels in the year 1998 by revising salary of
the petitioner. All the petitioners in W.P.(MD)No.9847 of 2014 were appointed
by proceedings dated 22.09.1997 and the petitioners in W.P.(MD)No.1976 of
2015 was appointed on 22.01.1997. Their appointments was on consolidated
pay of Rs.100/- per month. Later, the consolidated pay of the petitioners was
enhanced from Rs.100/- per month to Rs.500/- per month. It is the case of the
petitioners that they completed the period of probation. It is also stated by the
petitioners that they were regularized by an order of regularization dated
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W.P.(MD).No.9847 of 2014
31.12.2010 and 31.08.2007 respectively.
3.The grievances of the petitioners is that the petitioners were
regularized with effect from 2007, whereas several other persons, who are
appointed along with the petitioners were regularized with effect from the date
of appointment upon completion of 10 years of service. Stating that there is no
logic in denying regularization as it was given to other persons with effect from
the date of appointment upon the completion of 10 years of service.
4.The learned counsel appearing for the petitioners submitted that the
order of appointment given to the petitioners in the year 1997 is against the
permanent vacancy and therefore they cannot be treated differently. The
petitioner's counsel submitted that the impugned order was highly arbitrary and
suffers from non-application of mind and apart from that being violative of
Articles 14 and 16 of the Constitution of India. Since all the petitioners were
appointed as Cook Assistants, different yardstick cannot be adopted. This
Court is unable to reject the contention of the petitioners on the basis of
explanation made by the respondents in the counter affidavit.
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W.P.(MD).No.9847 of 2014
5.In the counter affidavit filed by the second respondent, in para No.
5, it is stated as follows:
“5.It is true that service of Arumugam and
Muthuramalingam service were regularized made prior the
petitioner's service regularization since the earlier vacancy arose
in the men hostel at Kombukaranenthal and Maravamangalam
men hostel in view of creation of new hostel and the said vacancy
was filed by Arumugam and one K. Muthiah. As regards
Muthuramalingam is concern there was vacancy arose due to the
death of Asirvatham who was working as cook at Puduvayal
Government men hostel. Hence according to seniority among
from men cook his service was regularized and posted at
puduvayal under time scale of pay. Even in the proceedings in Na.
Ka. No. B4/13407/06 dated 18.12.2006 issued by the first
respondent it is stated that men should be appointed in men hostel
and women should be appointed in women hostel. That is why we
have maintained the separate seniority between men and women
irrespective of date of appointment between men and women. The
persons who are working as cook on consolidated pay will be
bright under time scale of pay based on their seniority as well as
vacancy.”
The averments made in para No.5 of the counter affidavit filed by the second
respondent is not acceptable. It is not disputed that the petitioners were also
appointed along with several other persons and hence there cannot be a
discrimination. It is the specific case of the petitioners that the petitioners were
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W.P.(MD).No.9847 of 2014
appointed along with various others and that the respondents cannot reject the
regularization of the petitioners by citing artificial reasons.
6.The learned counsel appearing for the petitioners relied upon the
judgement of the Hon'ble Supreme Court in the case of Sabha Shanker Dube -
vs- Divisional Forest Officer and others, in Civil Appeal No.10956 of 2018,
wherein the Hon'ble Supreme Court has held as follows:
“11.In view of the judgment in Jagjit Singh (supra),
we are unable to uphold the view of the High Court that the
appellants herein are not entitled to be paid the minimum of the
pay sales. We are not called upon to adjudicate on the rights of
the appellants relating to the regularization of their services. We
are concerned only with the principle laid down by this Court
initially in Putti lal (supra) relating to persons who are similarly
situated to the appellants and later affirmed in Jagjit Singh
(supra) that temporary employees are entitled to minimum of the
pay scales as long as they continue in service.”
7.This court is unable to reject the contention of the petitioner's
counsel that the appointment of the petitioners were against the sanctioned post
and that equals cannot be treated unequal, while providing employment or
granting pay scale to employees. It is brought to the notice of this Court that the
services of several others were regularized with effect from 01.07.1998. When
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W.P.(MD).No.9847 of 2014
all the persons were appointed pursuant to a process of recruitment, they should
be treated as equals. In this case, it is admitted that the petitioners were
appointed on consolidated pay against sanctioned post. All the petitioners were
appointed as sponsored by the employment exchange. The petitioners and
others were given consolidated salary of Rs.100/- per month till the salary was
revised, by order dated 25.07.2011 from Rs.100/- per month to Rs.500/- per
month. By proceedings of the respondents, several other employees were
appointed as against the sanctioned post were regularized long before the
petitioners were regularized. No valid reason is assigned in the counter affidavit
to justify such discrimination. Though it is stated in the counter affidavit that
the petitioners are different from others, it is not demonstrated before this court
how the others are different from the petitioners in service or different from the
petitioners. It is not specifically disputed that the petitioners were also
appointed against the regular post. By artificial means, the nature of posts in
which the petitioners were appointed cannot be made different. It is admitted
before this Court that the petitioners and other candidates were appointed on
the same day. It is also stated that as per the list sponsored by the employment
exchange, the petitioners were seniors.
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W.P.(MD).No.9847 of 2014
8.In such circumstances the petitioners should be considered as
seniors to others cannot be denied the benefits of regularization as it was
extended to other candidates, who are juniors to the petitioners. Therefore, the
petitioner are entitled to succeed, accordingly the impugned orders passed by
the second respondent, are quashed. The respondents are directed to regularize
the petitioners in the post of cook with effect from 25.09.1998 on par with
similarly appointed persons. It is needless to say that the petitioners are also
entitled to all other monetary benefits which are consequential. This Writ
Petition is allowed accordingly. No costs. Consequently, connected
miscellaneous petitions are closed.
06.09.2021
Index : Yes / No
Internet: yes / No
Sn/Ns
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.
To
1.The Director,
Backward Class Welfare Department,
Chepauk,
Chennai – 600 005.
2.The District Backward Class and Minorities Welfare Officer,
Sivagangai,
Sivagangai District.
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W.P.(MD).No.9847 of 2014
S.S. SUNDAR, J.,
Sn/Ns
W.P.(MD).No.9847 of 2014
06.09.2021
https://www.mhc.tn.gov.in/judis/
