Madras High Court

The Commissioner vs Mr.I.Kathavarayan on 1 March, 2022

                                                                              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

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                                                                              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




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                                                                                     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

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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

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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

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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.

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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

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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

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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.

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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,

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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

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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.