Madras High Court
R.Chelladurai vs The Secretary To Government on 23 March, 2023
W.P.(MD).No.8160 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.8160 of 2016
R.Chelladurai ... Petitioner
Vs.
1.The Secretary to Government,
Public Works Department,
St.George Fort,
Chennai.
2.The Engineer in Chief (WRO) and Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai – 5.
3.The Superintending Engineer,
WRO/Public Works Department,
Tamirabarani Basin Circle,
Tirunelveli.
4.The Executive Engineer,
Public Works Department/WRO,
Anti Sea Erosion Division,
Nagercoil – 1. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order passed by the third respondent in his
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W.P.(MD).No.8160 of 2016
proceedings Ka.No.2230/2015/Ni.1/(Napa.3 Varu) dated 13.10.2015 and quash
the same as illegal and consequently directing the respondents to pass suitable
orders by counting the petitioner's prior service rendered as Junior Engineer
from 01.06.1983 to 31.10.1983 and 23.03.1984 to 11.05.1987 for fixing his
salary and other service benefits based on his representation dated 23.11.2015
and in the light of the order passed in W.P.Nos.21987 and 21988 of 2006 dated
26.10.2006 by this High Court.
For Petitioner : Mr.D.Srinivasa Ragavan
For Respondents : Mr.S.R.A.Ramachandran,
Additional Government Pleader.
ORDER
This Writ Petition is filed challenging the impugned order dated
13.10.2015 with a consequential prayer to count the petitioner's prior service
rendered as Junior Engineer from 01.06.1983 to 31.10.1983 and 23.03.1984 to
11.05.1987 for fixing his salary and other service benefits based on his
representation dated 23.11.2015 and in the light of the order passed in W.P.Nos.
21987 and 21988 of 2006 dated 26.10.2006.
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W.P.(MD).No.8160 of 2016
2. The petitioner was initially appointed as NMR Technical Assistant in
the Public Works Department on daily wages basis through Employment
Exchange on 10.02.1982. Thereafter, he was appointed as Junior Engineer vide
proceedings dated 01.06.1983. While the petitioner was working as Junior
Engineer, he was retrenched from service for want of vacancy on 31.10.1983.
Thereafter, he was reappointed as Junior Engineer vide proceedings dated
01.03.1984. The petitioner has worked as Junior Engineer until 11.05.1987, on
which date again he was retrenched from service for want of vacancy.
Thereafter, the petitioner was again appointed as NMR Technical Assistant on
05.08.1991 and worked upto to 06.07.1995. Thereafter, from 07.07.1995, the
petitioner was accommodated as Technical Assistant vide G.O.Ms.No.408,
Public Works (D2) Department, dated 31.05.1995. Then, the petitioner was
appointed as Junior Engineer from 28.02.2001 by Engineer in Chief (WRO)
and Chief Engineer and thereafter, he continued his service as Junior Engineer.
Now, the petitioner has attained superannuation and retired from service on
30.06.2019.
3. The contention of the petitioner is that the petitioner is entitled to
include his service from 1983 to 1987 and by condoning the break in service
for a period of 6 months as per Fundamental Rule 26(a)Note (1), wherein it
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W.P.(MD).No.8160 of 2016
states if any Government servant was discharged due to want of vacancy but
subsequently if he was appointed in the same post, he can draw his last drawn
salary prior to discharge from service and also he is entitled to count such
service for his future increment with time scale of pay.
4. But the respondents rely on G.O.Ms.No.400 P & AR Department dated
29.08.1986, wherein it states that a person who was retrenched cannot count the
service rendered by him in the earlier post. Infact, the impugned order refers to
the said G.O.Ms.No.400 and had declined the relief.
5. On perusal of the said G.O. and Fundamental Rule, it is seen that the
said Government Order states that the retrenched employee is not entitled, but
the Fundamental Rule states that the discharged employee is entitled to
calculate such service for his benefits as well as the salary and other benefits.
Both states “for want of vacancy”, but G.O. states “retrenched”, but FR states
“discharged”. The nomenclature differs but the effect is one and the same.
Especially when there was no vacancy the employee was not continued in the
said service. Therefore, this Court is of the considered opinion that the
petitioner is entitled to the relief.
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W.P.(MD).No.8160 of 2016
6. The Learned Counsel for the petitioner relied on the judgment
rendered in W.P.No.21987 of 2006 and W.P.No.21988 of 2006 dated
26.10.2006 wherein by relying on the said FR 26(a) relief was granted to the
petitioners therein. The relevant portion of the aforesaid judgment is extracted
hereunder:
“12. Fundamental Rule 26(a) specifically provides that all
duty in a post on a time scale counts for increments in that
time scale. Note 1 issued under F.R.26(a), under
G.O.Ms.No.1072 P and A.R. (FR.III) Dept., dated
31.10.1986, makes the Rule position explicit in the
following words:
"Note 1.-If an officiating Government servant in a post,
who has no substantive appointment is discharged from
service for want of vacancy, he shall on appointment to the
same post, draw the pay last drawn prior to his discharge
from service. The periods prior to the discharge from
service shall count for purpose of future increment in the
time scale of pay of that post."
13. A reading of the above Note 1 in F.R.26(a) makes it
clear that even an officiating Government servant, who has
no substantive appointment, is entitled to count his past
service for the purpose of pay fixation as well as future
increments. While that being the case even in respect of
officiating Government servants who have no substantive
appointment, a similar benefit cannot be denied to the
petitioners who were actually Approved Probationers in the
post of Field Assistants, by virtue of their regular
appointment in the year 1981.
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W.P.(MD).No.8160 of 2016
14. Since the Government had not considered the aforesaid
Rule position while fixing the pay of the petitioners, at the
bottom-most stage, on reappointment in the year 1993,
treating the petitioners as fresh entrants, the action of the
respondents is totally illegal. Therefore, the petitioners are
entitled to the relief prayed for in the Original Applications,
now transferred to this Court.
15. Accordingly, the writ petitions are allowed and the
respondents are directed to condone the break in service
suffered by the petitioners in the year 1989 and to grant the
benefit of pay fixation as well as future increments by
counting the entire period of service rendered by them from
the date of their initial appointment in the year 1981, as
duty for all purposes. Such an exercise shall be done by the
respondents and completed within a period of four months
from the date of receipt of a copy of this order or on
production of this order by the petitioner. No costs”.
The issue in the aforesaid judgment is that the respondents therein had
treated the petitioners as fresh entrants and had fixed the pay without taking the
previous service. After considering the same, the Court had held that treating
the petitioners as fresh entrant is illegal and the said service ought to be
counted after condoning the break in service. Therefore, this Court is of the
considered opinion that the petitioner is entitled to condone the break in service
and to count the said service for pensionary benefits.
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W.P.(MD).No.8160 of 2016
7. The next contention that was raised by the respondents is that the
petitioner was serving as Technical Assistant, then was appointed as Junior
Engineer for brief period. Since the petitioner was not taken in the same post,
hence the said relief cannot be granted. It is seen that the petitioner was
retrenched in the post of Junior Engineer from 01.06.1983 to 31.10.1983.
Again, he has rendered the service of Junior Engineer from 23.03.1984 to
11.05.1987. Subsequently, he was again appointed in the post of Technical
Assistant NMR. Since the G.O.Ms.No.408 dated 31.05.1995 states that the
petitioner and the similarly placed persons should be accommodated by
creating supernumerary post, the petitioner was accommodated in the Technical
Assistant. If the respondents have included the petitioner in the Junior
Engineer post, the said service would be continued. When both the services are
available, the respondents ought to have appointed the petitioner in the Junior
Engineer post only. Infact some of the candidates were appointed as Junior
Engineers in the same G.O. Therefore, this Court is of the considered opinion
that declining the benefit by citing that the petitioner was appointed in a
different post is not sustainable. The petitioner is entitled to include the service
rendered for the said period. The respondents shall include the said service
rendered by the petitioner.
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W.P.(MD).No.8160 of 2016
8. The respondents further submitted that if the said period is included
then the respondents would be financially burdened. Moreover, the petitioner
has claimed belatedly. On considering this plea, this Court is of the considered
opinion that the petitioner is not entitled to monetary benefits for the said
period due to efflux of time and due to the financial burden on the respondents.
However, the petitioner is entitled to the effect of such monetary benefits in the
pensionary benefits. Therefore, the impugned order is quashed and the
respondents are directed to count the said period and grant the monetary effect
in the pensionary benefits. The said exercise shall be completed within a period
of eight (8) weeks from the date of receipt of a copy of this order.
9. In view of the above, this Writ Petition is allowed. There shall be no
order as to costs.
23.03.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes/ No
Nsr
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W.P.(MD).No.8160 of 2016
To
1.The Secretary to Government,
Public Works Department,
St.George Fort,
Chennai.
2.The Engineer in Chief (WRO) and Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai – 5.
3.The Superintending Engineer,
WRO/Public Works Department,
Tamirabarani Basin Circle,
Tirunelveli.
4.The Executive Engineer,
Public Works Department/WRO,
Anti Sea Erosion Division,
Nagercoil – 1.
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.8160 of 2016
S.SRIMATHY, J.
Nsr
W.P.(MD).No.8160 of 2016
23.03.2023
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