Madras High Court
G.Neelamegam vs The Secretary To Government on 1 March, 2023
W.A(MD)Nos.664 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2023
CORAM :
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.A(MD)Nos.232 of 2021 & 664 of 2019
and
C.M.P(MD)No.5674 of 2019
W.A(MD)No.232 of 2019:
G.Neelamegam .. Appellant/Petitioner
Vs.
1.The Secretary to Government,
Highways Department,
Fort St.George,
Chennai-600 009.
2.The Chief Engineer,
Highways and Rural Works Department,
Chepauk, Chennai- 600 005.
3.The Divisional Manager,
Highways Department,
Construction and Maintenance Division,
Madurai-625 002.
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W.A(MD)Nos.664 of 2019
4.The Assistant Divisional Manager,
Highways Department,
Construction and Maintenance,
Madurai West, Tallakulam,
Madurai. .. Respondents/Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent Act,
against the order, dated 22.01.2018, made in W.P(MD)No.1305 of 2016.
For Appellant : Mr.R.Devaraj
For Respondents : Mr.D.Sasikumar
Additional Government Pleader
W.A(MD)No.664 of 2019:
1.The Secretary to Government,
Highways Department,
Fort St.George,
Chennai- 600 009.
2.The Chief Engineer,
Highways and Rural Works Department,
Chepauk, Chennai- 600 005.
3.The Divisional Manager,
Highways Department,
Construction and Maintenance Division,
Madurai-625 002.
4.The Assistant Divisional Manager,
Highways Department,
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W.A(MD)Nos.664 of 2019
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W.A(MD)Nos.664 of 2019
Construction and Maintenance,
Madurai West, Tallakulam,
Madurai. .. Appellant/Respondents
Vs.
G.Neelamegam .. Respondent/Petitioner
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent Act,
against the order, dated 22.01.2018, made in W.P(MD)No.1305 of 2016.
For Appellant : Mr.D.Sasikumar
Additional Government Pleader
For Respondents : Mr.R.Devaraj
COMMON JUDGMENT
DR.G.JAYACHANDRAN, J.
and
K.K.RAMAKRISHNAN, J.
Neelamegam, the petitioner in W.P(MD)No.1305 of 2016 joined
Highways Department as NMR in the year 1980. On passing of
G.O.Ms.No.184, Highways Department, dated 24.09.1997, he
approached the State Administrative Tribunal to regularise his service in
the post of Salai Paniyalargal. His O.A.No.5465 of 2006 was transferred
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W.A(MD)Nos.664 of 2019
to the High Court in view of abolition of Service Tribunals. It was taken
on file as W.P(MD)No.28843 of 2006.
2. The said writ petition was filed by eight persons joined together
in which the petitioner was ranked as fourth petitioner. On 22.04.2009,
while the writ petition was taken up for consideration, recording the
undertaking given by the learned Government Advocate that out of eight
petitioners, Nehru and Neelamegam whose names are in Sl.No.2 and 4
have completed 10 years of service and therefore proposal for
regularising their service is under consideration by the Government, the
writ petition was dismissed. Even thereafter, his service was not
regularised which has forced the petitioner Neelamegam to file another
writ petition seeking mandamus for passing order regularising his service
and absorbed him as Salai Paniyalar. This writ petition in W.P(MD)No.
14615 of 2011 was disposed of on 07.11.2012 recording the undertaking
given by the Special Government Pleader who again reiterated the
request of Neelamegam is under consideration and proposal already been
sent to the Government. The Court, while disposing the said writ petition
also recorded that Neelamegam is keep on making representation on
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W.A(MD)Nos.664 of 2019
various cases, but however, no order been passed in his case, but
Highways Department vide order dated 09.11.2007 has regularised 77
similarly placed employees, who were working as daily wagers and
completed 10 years of service on 01.01.2006, but the case of
Neelamegam not yet considered inspite of the undertaking given by the
State and also G.O.Ms.22, Personnel and Administrative Reforms
Department, dated 28.02.2006 specifically directed the respondents to
dispose of the writ petition within a period of three moths from the date
of receipt of the order copy.
3. Though the time bound order was passed on 07.11.2012, nearly
after one year, the Assistant Divisional Engineer in his proceedings,
dated 08.11.2013 issued reappointment order to Mr.Neelamegam as Salai
Paniyalar on condition that his service will be given effect from the date
of order ie., 08.11.2013. This order was challenged by Neelamegam in
W.P(MD)No.130 of 2016 on the ground that his regularisation as Salai
Paniyalar ought to have been given effect on completion of 10 years of
service as NMR, ie., in the year 1990. But inspite of G.O.Ms.No.184
dated 24.09.1997 and directions of the Court to regularise the service in
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W.A(MD)Nos.664 of 2019
terms of G.O.Ms.184 dated 24.09.1997, the respondent which has relied
upon G.O.Ms.No.22 dated 28.02.2006 has not given effect to the
regularisation retrospectively but only prospectively only from
08.11.2013 thereby he has not only been deprived of his regular service
by more than 23 years but also in view of the new Contributory Pension
Scheme which has come into effect from 01.04.2003 he is deprived of
the benefit of pension scheme. This writ petition was resisted by the
Government stating that subsequent to passing of G.O.Ms.22 dated
28.02.2006, a clarification Government Order was issued by the
Personnel Administration and Reforms Department in G.O.Ms.74 dated
27.06.2013 wherein it has been clarified that the effect of regularisation
on completion of 10 years of service will come only from the date of
regularisation and not with retrospective effect and in case of the writ
petitioner, the date of order regularising his service being 08.11.2013,
there is no legal infirmity in the order to interfere and issue certiorarified
mandamus.
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W.A(MD)Nos.664 of 2019
4. However, the learned Single Judge, after considering the tenure
of G.O.Ms.184 passed in the year 1997, the orders passed by the Court in
the case of Neelamegam and the tenure of G.O.Ms.22 dated 28.02.2006
and the clarification G.O.Ms.74 dated 27.06.2013 found that the writ
petitioner, on completion of 10 years of service was qualified for
regularisation and his case ought to have been considered in the light of
G.O.Ms.22 Personnel Administration and Reforms Department dated
28.02.2006 while several of his colleagues similarly placed been
regularised with effect from 01.01.2006 in the light of G.O.Ms.No.22 of
Personnel and Administrative Reforms Department dated 28.02.2006.
The petitioner cannot be regularised with a subsequent date cannot be
applied in the case of the writ petitioner to defer his regularisation by
more than seven years and to the point that the writ petitioner has enter
service through back door and therefore he cannot take advantage of the
Government Order passed to regularise the service, the learned Single
Judge has negatived his plea saying that the petitioner has been
employed as gang mazdoor in the Highways Department for decades
cannot be deprived off right to be regularised.
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W.A(MD)Nos.664 of 2019
5. The learned Single Judge has also clarified that the subsequent
G.O.Ms.74 dated 27.06.2013 not applicable to the case of the writ
petitioner since his right to get regularised in service been crystalised
long before ie., issuance of G.O.Ms.22 dated 28.02.2006 and has been
affirmed by the High Court in two writ petitions filed by Neelamegam
earlier. Thus, the regularisation of the petitioner's service was given
effect from 01.01.2006 and the writ petition was allowed. Aggrieved by
the said order, Department has filed W.A(MD)No.664 of 2019.
Neelamegam has preferred W.A(MD)No.232 of 2021. While State wants
to apply the clarified G.O.Ms.72, dated 27.06.2013, Neelamegam wants
to apply earlier G.O.Ms.184, dated 24.09.1997 and to regularise his
service soon after completion of 10 years, ie.1990.
6. This Court, on perusing the Government Orders passed in case
of NMRs working in the Highways Department for years together and
been regularised the post of Salai Paniyalar finds that the road mazdoors
are NMRs, who were working in Highways Department for years
together but as a daily wagers with regular break in service were making
several representation to the State to regularise their service and that was
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W.A(MD)Nos.664 of 2019
sympathetically considered in the year 1997 and G.O.Ms.184 was issued.
On case to case basis the NMRs, who are completed successfully 10
years of qualified service were considered for regularisation under the
said Government Order. However, similarly placed NMRs in other
departments were also facing uncertainty in service and that was taken
into account by the State while passing G.O.Ms.22 in the year 2006. By
virtue of this Government Order, NMRs who had satisfactorily worked
for 10 years prior to the cut off date ie. 01.01.2006 were regularised and
since there was some confusion in interpreting the clause of the
Government Order, G.O.Ms.74 came to be passed. It is only a
clarification Government Order and a person to whom the right to get
regularised acquired under G.O.Ms.22 cannot be deprived and his right
cannot be delayed by virtue of clarification Government Order which is
not applicable to the person like the petitioner herein. This point has been
well considered by the learned Single Judge and he has ordered that the
regularisation of the writ petitioner should be from 01.01.2006 and not
on 08.11.2013. The delay in regularising his service is
purely on the department and not on the writ petitioner. In fact his right
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W.A(MD)Nos.664 of 2019
to get regularisation was crystalised when G.O.Ms.184 was passed in the
year 1997. However, it was only discretion of the department to consider
the regularisation of service which depends on various other factor like
the service put forth by the NMRs vacancy in the post of Salai Paniyalar
and other factors. But once G.O.Ms.22 was issued, the parameters for
regularisation been clarified, simplified and also it was broad based
Government Order. The writ petitioner Neelamegam squarely entitled for
the benefit of that G.O.Ms.No.22 of Personnel and Administrative
Reforms Department dated 28.02.2006 and get his service regularised
from 01.01.2006. The postponement of the regularisation by the
department is vitiated and therefore, the Single Judge who has pointed
out the error and fixed the date of regularisation as 01.01.2006 is based
on the light of facts and hence, it needs no interference.
7. For the said reason, the Writ Appeal filed by the State as well as
the Writ Appeal filed by Neelamegam deserve to be dismissed,
accordingly dismissed. No Costs. Consequently, connected
miscellaneous petition is closed.
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W.A(MD)Nos.664 of 2019
[G.J.,J.] &
[K.K.R.K.,J.]
01.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
PJL
To
1.The Secretary to Government,
Highways Department,
Fort St.George,
Chennai- 600 009.
2.The Chief Engineer,
Highways and Rural Works Department,
Chepauk, Chennai- 600 005.
3.The Divisional Manager,
Highways Department,
Construction and Maintenance Division,
Madurai-625 002.
4.The Assistant Divisional Manager,
Highways Department,
Construction and Maintenance,
Madurai West, Tallakulam,
Madurai.
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https://www.mhc.tn.gov.in/judis
W.A(MD)Nos.664 of 2019
DR.G.JAYACHANDRAN, J.
and
K.K.RAMAKRISHNAN, J.
PJL
W.A(MD)Nos.232 of 2021 and 664 of 2019
and
W.M.P(MD)No.5674 of 2019
01.03.2023
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