Madras High Court
R.Murugesan vs The State Of Tamil Nadu on 9 August, 2023
W.P.(MD).No.23727 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.08.2023
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)No.23727 of 2022
and
W.M.P(MD)Nos.17802 & 17803 of 2022
R.Murugesan ... Petitioner
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary,
Public Works Department,
Fort St. George,
Chennai – 600 009.
2.The Chief Engineer & Engineer in Chief (General),
Public Works Department,
Chepauk,
Chennai – 600 005.
3.The Chief Engineer (Buildings),
Public Works Department,
Chepauk,
Chennai – 600 005.
4.The Executive Engineer,
Public Works Department,
Building, Construction and Maintenance,
Sub-Division,
Theni. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified Mandamus, to call for the
1/18
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W.P.(MD).No.23727 of 2022
records pertaining to the impugned letter No.125/C2/2017-3 dated
31.07.2017 on the file of the first respondent and quash the same as
illegal and consequently direct the respondents to regularize the
petitioner's service on completion of ten years ie., 01.02.2003 and
disburse all service benefits with consequential benefits within the time
stipulated by this Court.
For Petitioner : Mr.T.Thirumurugan
For Respondents : Mr.P.Thambidurai
Government Advocate
ORDER
The present Writ Petition has been filed for issuance of a
Writ of Certiorarified Mandamus, to quash the impugned letter No.
125/C2/2017-3 dated 31.07.2017 on the file of the first respondent
and consequently direct the respondents to regularize the petitioner's
service on completion of ten years ie., 01.02.2003 and disburse all
service benefits with consequential benefits within the time stipulated
by this Court.
2.Heard Mr.T.Thirumurugan, learned counsel appearing for
the petitioner and Mr.P.Thambidurai, learned Government Advocate
appearing for the respondents and perused the materials available on
record.
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3.The impugned letter, dated 31.07.2017 is issued by the
first respondent with respect to the regularization of 32 employees,
who were working as NMR in the Public Works Department.
Challenging the said impugned letter, a Writ Petition came to be filed
before this Court in W.P.No.20846 of 2019, dated 08.02.2023
(D.Thomas and others Vs. The Principal Secretary to Government and
others) in which this Court has quashed the impugned letter, dated
31.07.2017 and the relevant portion of which is extracted as follows:-
“2. To the request of the petitioners for regularization
of their services on completion of 10 years of service on NMR basis,
the Government, through the impugned letter dated 31.07.2017, had
rejected their request, by stating that they have rendered services on
both Nominal Muster Roll (NMR) basis and on contract basis,
during which period, they have been receiving wages through private
contractors and that there is no rule provision to include the contract
period for arriving 10 years of service. It was further stated therein
that the petitioners have not completed 10 years of service also.
Challenging the same, the present writ petition has been filed.
3. All the petitioners herein were engaged as NMRs
between 01.04.1996 and 01.09.1997. The reasoning adopted by the
first respondent in rejecting the petitioners' request on the ground
that relaxation of the 10 years period, under G.O.Ms.No.22,
Personnel and Administrative Reforms (F) Department, dated
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28.02.2006 and G.O.Ms.No.74, Personnel and Administrative
Reforms (F) Department, dated 27.06.2013, as well the entitlement
of NMRs/contract workers for regularization, is no more res integra.
4. The Hon'ble Division Benches of this Court, on
several occasions, had dealt with this issue and have directed the
Government to regularize the services of similarly placed NMRs.. A
learned single Judge of this Court, in a batch of writ petitions, in the
case of G.Sivagiganesan and others Vs. State of Tamil Nadu, Public
Works Department passed in W.P.Nos.29346 of 2014, etc. dated
22.04.2022, had placed reliance on such decisions and granted
regularization to the petitioners therein. The relevant portion of the
order reads as follows:-
"3. The batch of writ petitions allowed by this
Court was a subject matter of Writ Appeals in W.A.Nos.2875,
2644 of 2018 and 1015 to 1019 of 2018. The Division Bench
heard the appeals and disposed of the same by order dated
16.08.2019 holding that it was well within the prerogative of
the Government to change its policy by superseding its earlier
G.O.Ms.No.22 Personnel and Administrative Reforms (F)
Department, dated 28.02.2006 vide G.O.Ms.No.74, Personnel
and Administration Reforms(F) Department dated 27.06.2013.
By holding as such, the Division Bench has held in paragraph
29 which is extracted hereunder.
"29. The order passed by the learned single
Judge quashing clause 6 is set aside. The writ petitions are
remitted to the writ court for fresh consideration to decide
as to whether each of the respondents are eligible for
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W.P.(MD).No.23727 of 2022
regularization in accordance with the order in G.O.Ms.74,
Personnel and Administrative Reforms (F) Department,
dated 27 June 2013, or any other relevant Government
Orders governing the matter. The individual cases must be
decided on merits, taking into account the nature of
service and the period of such service." Thus, these writ
petitions are back on the lap of this Court for
consideration of the claims of these petitioners without
reference to the G.O.Ms.No.22. In view of the present
remit before this Court, the only aspect that is left open
for further consideration of the claim of these writ
petitioners is dehors the conclusion by this Court in
setting aside the offending para No.6 of the G.O.Ms.No.
74, dated 27.06.2013, the order of this Court could still be
sustained or not? The cardinal issue before this Court is
whether the employees' claim for regularisation could still
be considered favourably on other grounds or not?
4. The answer to the above question would
have to be found by making reference to some of the orders
passed by the Division Bench of this Court as relied upon by
the learned counsel for the writ petitioners. The first of the
decisions of the Division Bench of this Court was dated
21.02.2017 rendered in W.A.(MD).No.913 of 2015. The
learned Division Bench of this Court on this issue after
referring to various objections from the Government on the
retrospective implementation of G.O.Ms.No.74 dated
27.06.2013 has held in paragraphs 6 to 10 as follows:
"6. We have heard the learned Special
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W.P.(MD).No.23727 of 2022
Government Pleader appearing for the appellants and the
learned counsel appearing for the respondents.
7. This appeal has been filed based on the
judgment of the Hon'ble Supreme Court in Civil Appeal
Nos.2726 to 2729 of 2014, dated 21.02.2014. According to
the appellants, as per the dictum laid down in the said
judgment, the respondents are not entitled for regularization.
That apart, the learned Special Government Pleader, by
relying upon G.O.(Ms)No.74, Personnel and Administrative
Reforms (F) Department, dated 27.06.2013, has submitted
that as per the said Government Order, the services of the
full time daily wage employees who were initially appointed
on full time basis in consultation with the Employment
Exchange to discharge the function of the post in the Tamil
Nadu Basic Service and those who have completed 10 (ten)
years of service as on 01.01.2006 shall be regularized
against regular vacancies in the sanctioned cadre strength. In
the case on hand, the respondents were not appointed in
consultation with the Employment Exchange. Therefore,
they are not entitled for regularization.
8. Keeping in mind the above said
submission, we have carefully gone through the judgment
relied upon by the learned Special Government Pleader. The
said judgment dealt with the issue relating to Part Time
Sweeper. Coming to the case on hand, we find that the
respondents are the daily wage employees and hence, the
said judgment cannot be made applicable to the facts of the
case to deny the claim of the respondents for regularization.
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W.P.(MD).No.23727 of 2022
9. Yet another submission made by the
learned Special Government Pleader is that as per G.O.
(Ms)No.74, Personnel and Administrative Reforms (F)
Department, dated 27.06.2013, the services of the full time
daily wage employees who were initially appointed on full
time basis in consultation with the Employment Exchange
to discharge the function of the post in the Tamil Nadu
Basic Service and those who have completed 10 (ten) years
of service as on 01.01.2006 shall be regularized. However,
we find that the said Government Order came into effect
only on 27.06.2013 and it was issued by way of clarification
of G.O.Ms.No.22, Personnel and Administrative Reforms
(F) Department, dated 28.02.2006. G.O.Ms.No.74 was
issued only on 27.06.2013, whereas, the respondents were
appointed in the year 1984, 1995 and 1998 respectively, that
is to say, much earlier to the said Government Order.
Therefore, the second submission made by the learned
Special Government Pleader cannot be accepted. Therefore,
we are of the opinion that absolutely, there is no infirmity in
the order passed by the learned Single Judge warranting
interference at the hands of this Court.
10. In fine, the Writ Appeal fails and the
same is dismissed accordingly. The appellants are directed
to comply with the order of the learned Single Judge, within
a period of six weeks from the date of receipt of a copy of
this judgment. No costs. Consequently, the connected
miscellaneous petition is closed."
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5. In the above case, the Division Bench has
confirmed the order of the learned single Judge in respect of
the employees who have completed 10 years of service after
01.01.2006. In that case, Division Bench also held that
G.O.Ms.No.74 was issued well after the appointment of the
casual employees therein and the same cannot negate the
rights of the petitioners therein. By such reasoning, the
Division Bench confirmed the order of the learned single
Judge granting the benefit of regularisation.
6. One other Division Bench, vide its order
rendered in W.A.No.686 dated 12.07.2017, has referred to
G.O.Ms.No.22 dated 28.02.2006 confirmed the order of the
learned single Judge granting regularisation of employees
who have completed 10 years of service after the cut off
date 01.01.2006. The observation of the Division Bench in
paragraph Nos.3 and 4 are extracted hereunder.
"3. Even though the appellant is right in
contending that as on 01 January 2006, the writ petitioner
had not completed 10 years and therefore he cannot avail the
benefit in terms of G.O.Ms.No.22, Personnel and
Administrative Reforms Department, dated 28 February
2006, we are still not inclined to interfere with the order
passed by the learned Single Judge. We note that in similar
cases, the Government had granted relaxation and
regularized such services. For instance in G.O.Ms.No.3,
Environment and Forest Department, 2013, dated 10
January 2013, the services of as many as 14 persons who
were working in the appellant department were regularized.
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In fact the said 14 persons had completed 10 years only as
on 01 January 2011. It is not the case of the appellant that
the writ petitioner had gained back door entry.
4. Admittedly, he had been in service right
from 15 October 1997. There is no break in service. To deny
the benefit of the regularization to an employee, who had
completed 19 years as on date would not be just or
equitable. Taking into account the special circumstances
obtaining in this case, we do not wish to interfere with the
order of regularization made in favour of the respondent
herein."
7. As facts would disclose, against the order,
Special Leave Petition was filed and the same was also
dismissed vide order dated 04.09.2013 (SLP.Diary No.
29276/2019) by the Hon'ble Supreme Court.
8. One the Judges who was part of the
Division Bench who had remitted the matter to this Court
has in fact, is part of the other Division Bench but taken a
contrary view in the matter, in favour of claim for
regularisation. In W.A.No.1133 of 2014 dated 29.06.2018,
the Division Bench referred to the challenge made against
the judgment of the Division Bench in identical issue and
recorded the fact of dismissal order of the Hon'ble Supreme
Court in S.L.P. The Division Bench has referred to certain
earlier orders and finally ruled as under:
"2.The respondent was appointed as a Night
Watchman in the office of the 4th appellant on 02.07.1992.
He has been working as such since then. He made a
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W.P.(MD).No.23727 of 2022
representation on 09.04.2012 seeking regularisation of the
services in terms of G.O.Ms.No.22, P & AR (F)
Department, dated 28.02.2006. Since the said request is not
complied with, the respondent had approached this Court
seeking regularisation as aforesaid.
3. Taking note of similar orders passed by
this Court in WP (MD) No.11707 of 2006 dated 22.12.2006
which was confirmed in WA (MD) No.391 of 2007 on
25.10.2007 and orders in WP No.18126 of 2008 dated
29.07.2008, which was confirmed in WA No.230 of 2009
dated 03.08.2009, the learned Single Judge had allowed the
Writ Petition directing regularisation of the services of the
respondent.
4. Aggrieved, the State is before us by way of
this intra Court Appeal.
5. Mr.V.Anandhamoorthy, learned Additional
Government Pleader appearing for the appellants and
Mr.G.Elanchezhiyan, learned counsel appearing for the
respondent.
6. Mr.V.Anandhamoorthy, learned Additional
Government Pleader appearing for the appellants would
contend that in view of the subsequent Government Order in
G.O.Ms.74, P & AR (F) Department, dated 27.06.2013, the
respondent cannot be regularised as the same would amount
to creation of supernumerary post. Very same issue was
considered by the Division Bench of this Court in WA No.
273 of 2016 dated 16.03.2016. The same contention raised
by the learned Additional Government Pleader placing
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W.P.(MD).No.23727 of 2022
reliance on G.O.Ms.74, P & AR (F) Department, dated
27.06.2013 was rejected by the Division Bench. The
Division Bench had concluded that the subsequent G.O.
cannot take away the rights, which are already accrued to
the respondent therein.
7. The Special Leave Petition filed by the
State challenging the said judgment of the Division Bench
in WA No.273 of 2016 was also dismissed by the Hon'ble
Supreme Court on 25.01.2018. We see no reason to take a
different view.
8. Hence the Writ Appeal fails and the same
is dismissed, confirming the order of the learned Single
Judge. However, in the circumstances there will be no order
as to costs. Consequently, the connected miscellaneous
petition is closed."
9. One other Division Bench had occasion to
consider similar issue in W.A.No.493 of 2016 dated
25.04.2016. The Division Bench has held that the rights
already accrued to the employees cannot be taken away by
the issuance of the subsequent G.O. and dismissed the
appeal. The observation of the Division Bench in paragraph
Nos.6 and 7 is extracted hereunder:
"6.The learned Single Judge allowed the writ
petition by order dated 4.7.2012, directing the appellants to
regularise the services of the respondents within a period of
eight weeks and also to pay the arrears of salary within a
period of four weeks thereafter, but, the appellants without
complying with the orders passed by the learned Single
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Judge, filed the writ appeal belatedly, based on G.O., viz.,
G.O.(Ms) No.74 Personnel and Administrative Reforms (F)
Department, dated 27.06.2013, which came to be passed
subsequent to the orders passed by the learned Single Judge.
The orders passed by the learned Single Judge reached
finality before the issuance of G.O. viz., G.O.(Ms) No.74,
Personnel and Administrative Reforms (F) Department,
dated 27.6.2013, the appellants without obeying the order
and regularizing the services of the respondents, cannot take
advantage of the subsequent G.O., which came to be passed
nearly after one year of the orders passed by the learned
Single Judge and deny the regularization of services of the
respondents. The modalities laid down in G.O. viz., G.O.
(Ms) No.74, Personnel and Administrative Reforms (F)
Department, dated 27.6.2013 cannot be made applicable to
the respondents.
7. In the above circumstances, we find no
merit in the present writ appeal and the same fails
consequently, it is dismissed. No costs. The connected
miscellaneous petition is closed." The said Division Bench
decision was followed by another Division Bench
subsequently in W.A.No.631 of 2016 dated 13.06.2016. 10.
In view of the numerous decisions which had upheld the
orders of the learned single Judge granting the benefit of
regularisation for even such of those employees who had
completed 10 years of service after 01.01.2006, it cannot be
gainsaid that by restoration of paragraph 6 of G.O.Ms.No.74
dated 27.06.2013 the substratum of the claim of the
petitioner would stated to be negated or reversed.
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11. The Government itself has recognised the
directions issued by this Court in various writ petitions and
had implemented the same by regularising the services of
several casual employees who had completed 10 years of
service after 01.01.2006. In that view of the matter, Articles
14 and 16 are directly attracted in support of the claims of
these writ petitioners. Therefore, their claims need not
ultimately dependent on this Court setting aside paragraph
No.6 of G.O. Ms.No.74 dated 27.06.2013 and their claims
could otherwise also be allowed and sustained on the basis
of the decisions of this Court rendered in the interregnum
between 2006 and 2013 where two G.Os. were in force
(G.O.Ms.No.22 and G.O.Ms.No.74). The above narrative
would also point the fact that some of the decisions of this
Court granting regularisation have also been confirmed by
the Hon'ble Supreme Court."
5. The aforesaid order came to be passed in the second
respondent's own department and the facts involved therein are
identical to the present case.
6. Insofar as the stand taken by the respondents that the
petitioners herein have not completed 10 years is concerned, it is
claimed by the respondents that the petitioners were initially engaged
as NMRs on 01.04.1996, 01.09.1997, 01.05.1998 and 01.08.1997
respectively. As on 01.01.2006, these petitioners are short by 4
months to about 1½ years. The Hon'ble Division Bench of this Court,
in the case of The Government of Tamil Nadu, Environment and
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W.P.(MD).No.23727 of 2022
Forest Department and others Vs. S.Murugan passed in W.A.(MD)
No.686 of 2017, dated 12.07.2017, had dealt with such shortage of
service being less than 10 years, in the following manner:-
"3.Even though the appellant is right in
contending that as on 01 January 2006, the writ petitioner
had not completed 10 years and therefore he cannot avail
the benefit in terms of G.O.Ms.No.22, Personnel and
Administrative Reforms Department, dated 28 February
2006, we are still not inclined to interfere with the order
passed by the learned Single Judge. We note that in similar
cases, the Government had granted relaxation and
regularized such services. For instance in G.O.Ms.No.3,
Environment and Forest Department, 2013, dated 10
January 2013, the services of as many as 14 persons who
were working in the appellant department were
regularized. In fact the said 14 persons had completed 10
years only as on 01 January 2011. It is not the case of the
appellant that the writ petitioner had gained back door
entry.
4.Admittedly, he had been in service right
from 15 October 1997. There is no break in service. To
deny the benefit of the regularization to an employee, who
had completed 19 years as on date would not be just or
equitable. Taking into account the special circumstances
obtaining in this case, we do not wish to interfere with the
order of regularization made in favour of the respondent
herein."
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7. In the aforesaid decision, the employees were short
of completion of 10 years of service by 1 year. As such, the reasoning
assigned by the respondents, by stating that the petitioners had not
completed 10 years of service, cannot be sustained.
8. It is needless to point out that the Public Works
Department themselves, in several other cases, have regularized the
services of NMRs who are similarly placed like that of the petitioners
herein. As such, the justification assigned by them in the impugned
order, as well as in the counter affidavit, cannot be sustained.
9. The learned Government Advocate made an attempt
to place reliance on a decision of the Hon'ble Supreme Court in the
case of The Government of Tamil Nadu and others Vs.
C.Nandhakumar passed in Special Leave Petition (C) No.21285 of
2021, dated 30.09.2022. The facts involved in the said decision before
the Hon'ble Supreme Court would not be applicable to the case in
hand. Therein, the claimants had continued in service for only 3 years.
Furthermore, the issue involved therein was not based on the claim
under G.O.Ms.No.22 and G.O.Ms.No.74 or on relaxation of 10 years
of service. Thus, this stand taken by the Government does not deserve
consideration.”
4.Since the petitioners of the Writ Petition in W.P.No.20846
of 2019, dated 08.02.2023 and the petitioner in this Writ Petition fall in
similar lines and are dealt with by the same order and this Court
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W.P.(MD).No.23727 of 2022
following the aforesaid order, quash the impugned letter, dated
31.07.2017 issued by the first respondent with respect to the
petitioner and consequently, there shall be a direction to the first
respondent to pass appropriate orders, regularizing the services of the
petitioner, on completion of 10 years of service and disburse all the
service and monetary benefits within a period of six weeks from the
date of receipt of a copy of this order. Accordingly, this Writ Petition
stands allowed. There shall be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
09.08.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes
ps
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W.P.(MD).No.23727 of 2022
To
1.The Principal Secretary,
Represented by the State of Tamil Nadu,
Public Works Department,
Fort St. George,
Chennai – 600 009.
2.The Chief Engineer & Engineer in Chief (General),
Public Works Department,
Chepauk,
Chennai – 600 005.
3.The Chief Engineer (Buildings),
Public Works Department,
Chepauk,
Chennai – 600 005.
4.The Executive Engineer,
Public Works Department,
Building, Construction and Maintenance,
Sub-Division,
Theni.
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W.P.(MD).No.23727 of 2022
L.VICTORIA GOWRI, J.
ps
W.P.(MD)No.23727 of 2022
09.08.2023
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