Madras High Court
M.Dhanaraj vs Government Of Tamil Nadu on 20 September, 2023
W.P.No.9274 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.09.2023
CORAM :
THE HON'BLE MR. JUSTICE J.SATHYA NARAYANA PRASAD
W.P.No.9274 of 2021
M.Dhanaraj ... Petitioner
Versus
1.Government of Tamil Nadu,
Rep. by its Secretary,
Environment and Forests Department,
Fort St.George,
Chennai – 600 009.
2.The Principal Chief Conservator of Forest,
Head of the Forest Department,
Panagal Building,
Saidapet,
Chennai – 600015.
3.The Conservator of Forests,
Office of the Principal Chief Conservator of Forests,
Panagal Building,
Saidapet,
Chennai – 600015. … Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution
of India, praying for issuance of Writ of Certiorarified Mandamus, to call
for the records pertaining to order passed by the 1st respondent in G.O.(2D)
No.39 Environment & Forests (FR.2.II) Department, dated 04.12.2020 and
quash the same as illegal, incompetent and ultravires and consequently
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direct the 1st respondent to regularize the petitioner's service from the date
of initial appointment that is from 01.02.2001 and pay all monetary and
other service benefits.
For Petitioner : Mr. R. Jayaprakash
For Respondents : M/s. C. Meera Arumugam,
Additional Government Pleader
ORDER
This Writ Petition has been filed seeking a direction to call for the
records pertaining to the order passed by the first respondent in G.O.(2D)
No.39 Environment & Forests (FR.2.II) Department, dated 04.12.2020 and
quash the same as illegal, incompetent and ultra-vires and consequently
direct the first respondent to regularize the petitioner's service from the date
of initial appointment that is from 01.02.2001 and to pay all monetary and
other service benefits to him.
2.The case of the petitioner is that he had joined in service as a Jeep
Driver on 01.02.2001 and from the date of his initial appointment, he was
continuously serving in the said post as a daily wage driver. Till date, his
service was not regularized. The petitioner was working in Jamunamarathur
Forest Range, Aringar Anna Zoological Park and also in the Office of the
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Principal Chief Conservator of Forest, Saidapet, Chennai, and presently, he
is working in Tamil Nadu Biodiversity Board. Since the petitioner’s service
regularization was rejected by the first respondent, the petitioner has come
forward with the present Writ Petition before this Court.
3.The learned counsel appearing for the petitioner would submit that
in the year 2006, the Government of Tamil Nadu had issued a G.O.No.22,
Personnel & Administrative Reforms Department, dated 28.02.2006 to
absorb the employees, who were already working in the department as
temporarily more than 10 years. The Environment and Forest (FR2)
Department, dated 07.08.2009 had also issued G.O.Ms.No.95, for
regularizing the service of Plot Watchers/Village Social Forestry workers
based on the completion of 10 years of service on daily wages in the
supernumerary post and as per G.O.(Ms).No.64 of the Environment and
Forest (FR2) Department, directed the respondents to prepare the seniority
list by considering the request and to verify the Plot Watchers, Drivers from
the records available for regularization of service in regular time scale of
pay. Therefore, the petitioner made a representation to the respondents to
absorb his service in a regular time scale of pay based on the completion of
10 years of service and the same was not considered. Thereafter, the
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immediate officers of the department have submitted the proposals for
relaxing the rules, based on the representations, vide letter in
Na.Ka.No.S2/35729/2010 dated 08.11.2011, recommending the
regularization of 15 employees, including the petitioner.
4.Further, the learned counsel for the petitioner submitted that
thereafter, the first respondent in Letter No.15393/FR.2/2012-9,
Environment and Forest (FR2) Department, dated 09.05.2013 has informed
that in G.O.Ms.No.22 Personnel & Administrative Reforms, Department
dated 28.02.2006, the Government has taken a policy decision to regularize
the services of those who had completed 10 years of service as of
01.01.2006 only and it cannot be extended to those who had completed 10
years of service every year thereafter. Since the petitioner has not completed
10 years of service as on 01.01.2006, the proposal sent for grant of
relaxation of rules and to regularize the petitioner’s service was not
entertained by the respondents. The second respondent in his
Ref.No.S2/35729/2010 dated 21.05.2013 communicated a copy of the
Government Letter dated 09.05.2013 to the petitioner.
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5.Further, the learned counsel for the petitioner submits that in respect
of the very same issue, a Writ Petition in W.P.No.22740 of 2010 was filed
before this Hon'ble Court sought to quash the order passed by the second
respondent and to regularize the service of the petitioner from the date of
initial appointment and the same was ordered on 15.12.2017 by quoting the
covered order passed in W.P.(MD).No.11106 of 2013, dated 01.12.2016, for
better appreciation, it is extracted hereunder :-
“10. In view of issue being covered in the
above said orders, this Court cannot take a different
view in the instant case and therefore, this Court has
no hesitation in allowing the writ petition and the
impugned order Pro.C.No.52469 of 2008 S2, dated
.03.2009 (Signed on 16.04.2009) is set aside, with a
consequential direction to the respondents to
regularize the service of the petitioner as driver from
the date of petitioner's initial appointment with all
attendant benefits.
11.It is also made clear that on such
regularization, the petitioner is not entitled to
arrears of differential wages, however he is entitled
to other service benefits on such regularization. The
said direction shall be complied with by the
respondents, within a period of eight weeks from the
date of receipt of a copy of this order.”
Thereafter, aggrieved by the order dated 15.12.2017 in W.P.No.22740
of 2010, the Government of Tamil Nadu had preferred an appeal in
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W.A.No.2796 of 2018 and the same was dismissed by the Hon'ble Division
Bench of this Court on 02.01.2019. Even after that, the Government of
Tamil Nadu filed a Review, by order dated 14.06.2019, which was also
dismissed by this Court.
6.The learned counsel for the petitioner again stressed the contention
with regard to the service of the petitioner that he has been working in the
said post for the past 19 years without any blemish on records. Further, he
stated that the petitioner's request for regularizing his service from the date
of initial appointment i.e., 01.02.2001, was not considered and even after
several representations made by him, the respondents kept silent. Without
giving up his efforts, the petitioner again sent a detailed representation
dated 19.04.2019 to regularize him, but, the respondents did not initiate any
action to regularize the services of the petitioner. Hence, the petitioner
approached this Court by way of filing a Writ Petition in W.P.No.16942 of
2019 and the same was ordered on 04.09.2019, wherein, this Court directed
the respondents to consider the petitioner's representation dated 19.04.2019
and to pass order on merits and in accordance with the law, within a period
of eight weeks from the date of receipt of a copy of that order. Even though
there were various Judgments passed by this Court, the petitioner's
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regularization was not considered.
7.The core contention of the learned counsel for the petitioner is that
the persons who suffered the very same issue, were regularized by the first
respondent as per G.O.(Ms).No.3 and G.O.(Ms).No.48 Environment and
Forest (FR2-II) Department, dated 11.01.2019 and 27.05.2019 and enjoyed
the fruits of the said G.Os., and the same benefits ought to have been
extended to the petitioner, but, the respondents have failed to consider the
regularization of the petitioner. While being so, similarly placed persons
approached this Court by way of batch of Writ Petitions in W.P.Nos.6632,
6635 & 6638 of 2020, challenging the G.O.(2D).No.3, 4 & 5 of the
Environment and Forest (FR-II) Department, dated 09.01.2020, and by
order dated 16.09.2020, this Court has held as follows:-
“ 9. In view of the above circumstances, all the
writ petitions are allowed and G.O.(2D).No.3, 4, 5,
Environment & Forests (FR.2.II) Department, dated
09.01.2020 are hereby quashed. The first respondent
is directed to regularize the services of the
petitioners on completion of 10 years of service from
the date of initial appointment on daily wages by
extending the benefit conferred in G.O.(Ms).No.3,
Environment and Forests (FR.2.II) Department,
dated 11.01.2019 & G.O.Ms.No.48, Environment &
Forests (FR.2.II), Department, dated 27.05.2019
with all consequential service and monetary benefits
and the first respondent shall pass appropriate
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orders accordingly, within a period of eight weeks
from the date of receipt of a copy of this
order..........”
8.The learned counsel for the petitioner would further submit that the
regularization was against the sanctioned post, hence, rejecting the claim of
the petitioner on fragile grounds is a serious miscarriage of justice and it is
liable to be quashed. Moreover, the first respondent ought to have
considered the petitioner's service for regularization with a par to
G.O.(Ms).No.3 & 48, Environment and Forests (FR.2.II) Department, dated
11.01.2019 & 27.05.2019 respectively, wherein the said benefits had been
extended to the similarly placed persons too. Therefore, the order passed by
the first respondent is against the dictum laid down by the Hon'ble Apex
Court and this Court and the act of the first respondent is violation of
Article 14, 16 & 21 of the Constitution of India.
9.The learned counsel also drew the attention of this Court to the
proceedings of the Principal Chief Conservator of Forest, the second
respondent vide Na.Ka.No.2/39864/2019, dated 09.06.2023 and based on
the same, the first respondent had issued G.O.(2D).No.130, dated
08.06.2023, for regularizing the services of one B. Rathinasabapathy, a
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daily wage driver as regular driver from the date of completion of 10 years
of service excluding the break in service periods. Thereafter, as per the
order that the said B. Rathinasabapathy was allotted to the Office of the
Principal Chief Conservator of Forest at Kolapakkam, from daily wage
driver to regular driver by relaxing Section 58 of the Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 and relaxing rule 2
(mode of appointment), rule 4 (regarding age) of the Tamil Nadu Forest
Subordinate Service Special Rules (Rule 12) as a special case. Further, he
submitted that prior to that also the first respondent had issued
G.O.(2D).No.141, dated 02.09.2022 for regularizing the service of one
G. Rajendran and G.O.(2D).No.154, dated 26.09.2022 for regularizing the
services of one B. Rajan and one K. Chinnapayan, were regularized from
daily wages driver to regular driver by relaxing Section 18(1) & 27 of the
Tamil Nadu Government Servants (Conditions of Service) Act, 2016 and
relaxing rule 2 (mode of appointment), rule 4 (regarding age) of the Tamil
Nadu Forest Subordinate Service Special Rules (Rule 12) as a special case.
There is one another G.O.(Ms.).No.44, dated 03.03.2023, for regularizing
the service of one B.Prakash and 8 others, who were also daily wage drivers
and were engaged on a daily basis on completion of 10 years of services, by
relaxing Section 27 of the Tamil Nadu Government Servants (Conditions of
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Service) Act, 2016 (Reservation in appointment) and relaxing rule 2 (mode
of appointment), rule 4 (regarding age) of the Tamil Nadu Forest
Subordinate Service Special Rules (Rule 12) as a special case.
10.The learned counsel also relied on the orders passed by this Court
in similar cases in W.P.No.9969 of 2021, dated 03.12.2021, and
W.P.No.10652 of 2022, dated 23.06.2022, by which, the respondents were
directed to regularize the services of the petitioners' as regular drivers from
the date of initial appointment of their respective Writ Petitions, with all
consequential and attendant benefits, and also directed the respondents that
the directions shall be complied with by either the first respondent or the
competent authority, within a period of eight weeks. Without adhering the
above said G.O's and the orders passed by this Court, rejecting to regularize
the petitioner's service from the date of initial appointment and passed
G.O.(2D) No.39 Environment & Forests (FR.2.II) Department, dated
04.12.2020, by the first respondent is totally unsustainable. Aggrieved by
the order passed by the first respondent, rejecting the regularization of the
petitioner, he has come forwarded with the present writ petition.
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11.A counter affidavit was filed by the second respondent on
04.01.2022. In reply to the submissions made by the learned counsel for the
petitioner, the learned Additional Government Pleader appearing for the
respondents would submit that the G.O copies submitted by the petitioner
are G.O.(2D).No.141, dated 02.09.2022, G.O.(2D).No.154, dated
26.09.2022, G.O.(Ms).No.44, dated 03.03.2023 and G.O.(2D).No.130, dated
08.06.2023, by which, 12 similarly placed persons like this petitioner, who
were daily wage drivers were regularized as regular Drivers by the first
respondent. But, according to the petitioner, as per G.O.(Ms).No.22
Personnel and Administrative Reforms (F) Department, dated 28.02.2006,
in paragraph No.5 clause (ii) states that “(ii) 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 completed 10 years of service
as on 01.01.2006, shall be regularized.” Further, in which, it is also clearly
stated that:
(i) The part-time / causal employees are not entitled to the concession
referred to the above quoted Clause (ii) in the said G.O.(Ms).No.22;
(ii) The services of the full time daily wage employees who have
completed 10 years of services after 01.01.2006 shall not be regularized;
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12. In the case of the petitioner, he has completed only 4 years 8
months and 11 days of service as of 01.01.2006, therefore, he has not
completed 10 years of service in daily wage capacity as of the cut-off date
01.01.2006, to claim the regularization of the services as per the condition
mentioned in the paragraph No.6(vii) of G.O.(Ms).No.74, Personnel and
Administrative Reforms Department, dated 27.06.2013. Therefore, the
petitioner is not entitled to claim the prayer in the present Writ Petition.
13.Heard the learned counsel for the petitioner and the learned
Additional Government Pleader appearing for the respondents and perused
the material records of the case.
14.On perusal of the records, it can be seen that the similarly placed
persons like the petitioner have been regularized by the first respondent
based on the orders passed by this Court in various Writ Petitions and Writ
Appeals as mentioned supra.
15.One of the contentions raised by the respondents is that the
petitioner was not appointed on the consultation basis through the
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Employment Exchange, but, in G.O.(2D).No.141, dated 02.09.2022 issued
by the first respondent for one G. Rajendran, daily wage driver was
regularized as regular Driver, and he was also not sponsored by the
Employment Exchange and the rules were also relaxed in exercising the
power conferred under Section 58 of the Tamil Nadu Services
(Condition of Services) Act, 2016, the Governor of Tamil Nadu hereby
relaxes Rule 2 & 4 of the Tamil Nadu Forest Subordinate Services
Special Rules, in favour of the individual person like regularizing the
services of the said G. Rajendran, and was ordered accordingly.
16.As rightly contended by the learned counsel for the petitioner,
as per G.O.(2D).No.154, dated 26.09.2022, Thiru. B. Rajan and
K.Chinnapaiyan, for regularizing the services of daily wage drivers as
Drivers and in this case also, no one was recruited through
Employment Exchange, and were regularized by the first respondent,
in exercising the power conferred under Sections 58 of the Government
Servants (Conditions of Service) Act, 2016 (Reservation in
appointment) and relaxing the rule 2 (mode of appointment) rule 4
(regarding age) of the Tamil Nadu Forest Subordinate Service (Special
Rules) Rule 12 as a special case; as per G.O.(2D).No.130, dated
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08.06.2023, one Rathinasabapathi; and as per G.O.(Ms).No.44, dated
03.03.2023, one B.Prakash and nine others, were also regularized, from
the date of completion of 10 years of service excluding the break in
service periods by relaxing Section 27 of the Government Servants
(Conditions of Service) Act, 2016 (Reservation in appointment) and
relaxing the rule 2 (mode of appointment) rule 4 (regarding age) of the
Tamil Nadu Forest Subordinate Service (Special Rules) Rule 12, as a
special case. Therefore, the Government had decided to accord
permission from the Principal Chief Conservator of Forests, to
regularize the services of the individuals, who have already working as
daily wage drivers as regular Drivers from the date of completion of 10
years of service as a special case and to allow them to utilize all the
monetary benefits from the date of completion of 10 years.
17.From the above facts, it is crystal clear and evident that the
Government has regularized the many similar persons like the
petitioner herein, who worked as daily wage drivers as drivers after the
completion of 10 years of service by relaxing the age and other
qualifications, by exercising the power under Section 27 and Section 58 of
the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.
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But, in the case of the petitioner, his request for regularization was rejected,
from which, it shows that this is a clear case of discrimination and the
same is in violation of Article 14 & 21 of the Constitution of India. In
the case of regularization, some of the similarly placed persons were
also not sponsored by the Employment Exchange, but, however, they
were all regularized by relaxing the rules mentioned supra. The same
principle and yardstick has to be applied to the petitioner in the instant
case. Hence, this Court is of the considered view that the order passed by
the first respondent dated 04.12.2010 is liable to be quashed and the same is
hereby quashed.
18.In the result, the Writ Petition stands allowed and the first
respondent is directed to regularize the petitioner's service from the date of
his initial appointment i.e., from 01.02.2001 and to pay all monetary and
other service benefits, within a period of eight weeks from the date of
receipt of a copy of this order. No costs.
20.09.2023
Index : Yes/No
Speaking / Non-Speaking order
Neutral Citation : Yes/No
klt
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W.P.No.9274 of 2021
To:
1.The Secretary,
Government of Tamil Nadu,
Environment and Forests Department,
Fort St.George, Chennai – 600 009.
2.The Principal Chief Conservator of Forest,
Head of the Forest Department,
Panagal Building, Saidapet,
Chennai – 600015.
3.The Conservator of Forests,
Office of the Principal Chief Conservator of Forests,
Panagal Building, Saidapet,
Chennai – 600015.
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J.SATHYA NARAYANA PRASAD,J.
klt
W.P.No.9274 of 2021
20.09.2023
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