Madras High Court
P.Krishnan vs The Principal Secretary To ... on 13 June, 2022
W.A.(MD)No.438 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :13.06.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.438 of 2022
P.Krishnan ... Appellant/Petitioner
Vs.
1.The Principal Secretary to Government of Tamilnadu,
Municipal Administration and Water Supply Department,
Secretariat,
Fort St. George,
Chennai.
2.The Director,
Directorate of Town Panchayat,
Kuralagam,
Chennai.
3.The Assistant Director(Town Panchayat),
Tirunelveli Zone,
Tirunelveli District.
4.The Executive Officer,
Kalugumalai Town Panchayat,
Thoothukudi District. ... Respondents/Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the
order of this Court dated 09.03.2022 in W.P(MD)No.3326 of 2019.
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W.A.(MD)No.438 of 2022
For Appellant :Mr.G.Chandrasekar
For Respondents :Mr.S.P.Maharajan,
Special Government Pleader
***
JUDGMENT
(Judgment of the Court was delivered by S.S.SUNDAR, J.)
The writ appeal is filed by the writ petitioner in
W.P(MD)No.3326 of 2019, aggrieved by the order of the learned single Judge,
dated 09.03.2022.
2. The brief facts necessary for the disposal of this writ appeal are as
follows:
(i) The writ petitioner was working as Sweeper in the fourth
respondent Panchayat. Initially, he was appointed on consolidated pay as per
G.O.Ms.No.199, Municipal Administration and Water Supply Department,
dated 12.08.1997. The writ petitioner states that he is expected to be
regularized after completion of three years as per G.O.Ms.No.199, dated
12.08.1997. Though the petitioner was appointed and was serving till
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W.A.(MD)No.438 of 2022
11.02.2002, it is admitted by the petitioner himself that he could not report
duty with effect from 12.02.2002 to 31.07.2006 as he was suffering from
mental illness. As the respondents treated him as a person in unauthorised
absent, when he reported back after taking treatment, the petitioner could not
join duty. Hence, the petitioner submitted a representation on 07.02.2005 to
the fourth respondent for joining and thereafter, he filed a writ petition in the
year 2011 in W.P(MD)No.1687 of 2011, for issuance of a Writ of Mandamus to
direct the respondents to permit him to join duty as Sweeper in the fourth
respondent Panchayat. The said writ petition was allowed by order dated
09.01.2014 in the following lines:
“4.The said letter has not been produced either by the
petitioner or by the respondents. However, it is an admitted case
that the petitioner has not been referred to the Medical Board by
the respondents. The only point which permit me to grant a partial
relief to the writ petitioner is that a person by name Mary, who was
absent from 01.02.2002 to 21.12.2004 was reinstated in service,
after producing the Medical Certificate from the Medical Officer,
Tirunelveli, for her illness and the respondents permitted her to
join duty. Since the petitioner is admittedly suffering from mental
illness, he can be considered. He must be in a position to
safeguard himself. The respondent contended that in case this
Court is giving a direction for employment, the petitioner should
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W.A.(MD)No.438 of 2022
not be given any wages for the past period, as it would be a
premium to the petitioner to get wages without work. The
respondent also contended that unless the petitioner completes the
continuous period of five years of service, the said person cannot
be brought into the time scale of pay.
5.Taking note of the above, I direct the respondent to
consider the case of the petitioner to continue his service as
Sweeper, but without backwages, for the period of his absence.
The petitioner will not be entitled to any benefits for the period of
absence, till he is reinstated. However, the period of absence may
be taken only for the purpose of pensionary benefits, if he is
otherwise eligible. The second respondent is directed to complete
the said exercise within a period of 12 weeks from the date of
receipt of a copy of this order. There will be no order as to costs.
However, it is made clear that it is open to the respondents to send
the petitioner to the Medical Board to ascertain the correctness of
the statement of the petitioner regarding his mental ill-health.”
(ii) The order of the learned single Judge was challenged by the
respondents in W.A(MD)No.307 of 2016. The said writ appeal was also
dismissed. While the writ appeal was dismissed, the Honourable Division
Bench has passed an order in the following lines:
“15.Perusal of the impugned order, made in
W.P(MD)No.1687 of 2011 dated 09.01.2014, also makes it clear that
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W.A.(MD)No.438 of 2022
before the Writ Court, a contention has been made, by the appellants,
that in the event of this Court, granting any direction, for
employment, the respondent should not be given any wages, for the
past period, and taking note of G.O.Ms.No.199, Municipal
Administration (Town Panchayat-II) Department, dated
12.08.1997, a further contention, has also been made, that unless the
respondent completes a continuous period of five years of service, he
should not be brought to the time scale of pay. Giving due
consideration to the case of both parties, the Writ Court has directed
the appellants, to consider the case of the respondent, for
continuation of his service as Sweeper, but without backwages for
the period of absence and also categorically held, that the respondent
will not be entitled to any benefits, for the period of absence, till he is
reinstated. Writ Court has further ordered that the period of absence,
may be taken, only for the purpose of pensionary benefits, if he is
otherwise eligible.
16.Going through the material on record and the
challenge to the impugned order, we are of the view that there is no
manifest illegality in the impugned order. made in W.P(MD)No.
1687 of 2011, dated 09.01.2014, warranting interference.
Accordingly, the writ appeal is dismissed. No costs. Consequently,
C.M.P(MD)No.1758 of 2016 is closed.”
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W.A.(MD)No.438 of 2022
(iii) The grievance of the writ petitioner is that the fourth respondent
did not consider his case for regularization of service from the date of
completion of three years as directed by this Court. It is also the case of the
writ petitioner that he is entitled to be regularized with effect from 29.01.2001
on completion of three years. However, the fourth respondent by proceedings
dated 28.06.2018 appointed the writ petitioner on consolidated pay of
Rs.1089/- per month. However, the order of appointment on consolidated pay
was subject to the order of regularization that may be passed by the
Government and that the petitioner will be entitled to all monetary benefits only
on the basis of the order of the Government that may be passed regarding
regularization of the petitioner. Challenging the said order, the petitioner filed
the present writ petition in W.P(MD)No.3326 of 2019.
(iv) The learned single Judge accepting the case of the respondents
that the writ petitioner cannot be reinstated as a permanent employee as though
he has required number of service, has not obtained an order of regularization
from the Government as he was unauthorisedly absent with effect from
12.02.2002. Holding that the writ petitioner did not work for more than
16 years and the period of absence was not regularised and there was no order
of regularization, the learned single Judge dismissed the writ petition with the
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W.A.(MD)No.438 of 2022
observation that it will be open to the writ petitioner to approach the competent
authority for submission of proposal if he is eligible for grant of regularization.
Against the said order, the above writ appeal has been preferred by the writ
petitioner.
3. Heard the learned counsel appearing for the petitioner and the
learned Special Government Pleader appearing for the respondents and perused
the materials available on record.
4. This Court is unable to find any irregularity in the order of the
learned single Judge except the last portion by which the writ petitioner was
again asked to approach the competent authority with the proposal for
regularization.
5. Going by the factual events, this Court is able to see that there is
no regularization order by the Government in favour of the appellant/writ
petitioner so far. When the writ petitioner was working, he is entitled to be
considered for regularization, upon completion of three years and it is for the
Government to take a call subject to the other conditions. So long as the
Government has not passed an order of regularisation and the writ petitioner
did not report duty for a long time, the order in the earlier writ petition cannot
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W.A.(MD)No.438 of 2022
be understood that the petitioner is deemed to be in service as a regular
employee and entitled to time scale of pay. As per the direction in the earlier
writ petition, the writ petitioner is entitled to be considered for regularization
without backwages and he is not entitled to the benefits for the period of
absence even though the period of absence will be taken for the pensionary
benefits if he is otherwise eligible. Without an order or direction from the
Government for regularisation, the petitioner cannot be reinstated on regular
time scale of pay by presuming that there is a proceeding by the Government
regularising the services of the petitioner. Hence, this Court is unable to
interfere with the order of the learned single Judge dismissing the writ petition.
However, it is not necessary for the appellant/writ petitioner to approach the
Government or any person once again, as he has already made representation
for regularisation and such representation can be forwarded to the Government
to be considered in accordance with G.O.Ms.No.199, Municipal Administration
and Water Supply Department, dated 12.08.1997. The Government shall pass
appropriate orders on the question of regularisation. Depending upon the order
of Government on the question of regularisation, the petitioner may be eligible
to get all monetary benefits that would follow as indicated in the order of the
learned single Judge in the earlier writ petition which was confirmed by the
Honourable Division Bench.
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W.A.(MD)No.438 of 2022
6. The first respondent is directed to consider and pass appropriate
orders, within a period of twelve weeks from the date of receipt of a copy of
this order. The first respondent shall pass appropriate orders keeping in mind
the directions of this Court in the earlier writ petition in
W.P(MD)No.1687 of 2011 dated 09.01.2014 and the order of the Honourable
Division Bench in W.A(MD)No.307 of 2016, dated 15.02.2016.
With the above direction, the writ appeal is disposed of. No Costs.
[S.S.S.R., J.] [S.S.Y., J.]
13.06.2022
Index : Yes / No
pm
To
1.The Principal Secretary to Government of Tamilnadu,
Municipal Administration and Water Supply Department, Secretariat,
Fort St. George, Chennai.
2.The Director,
Directorate of Town Panchayat, Kuralagam,
Chennai.
3.The Assistant Director(Town Panchayat),
Tirunelveli Zone, Tirunelveli District.
4.The Executive Officer, Kalugumalai Town Panchayat,
Thoothukudi District.
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W.A.(MD)No.438 of 2022
S.S.SUNDAR, J.
and
S.SRIMATHY, J.
pm
W.A(MD)No.502 of 2022
13.06.2022
https://www.mhc.tn.gov.in/judis
