Madras High Court
State Of Tamil Nadu vs V.Thankavale on 8 April, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
WA(MD). No.4 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 08/04/2024
CORAM
The Hon`ble Mr.Justice N.SESHASAYEE
and
The Hon`ble Mr.Justice P.VADAMALAI
WA(MD). No.4 of 2018
and CMP(MD) No.18 of 2018
1.State of Tamil Nadu
Represented by the
Commissioner cum Secretary to Government
Public Works Department
Fort St. George,
Chennai 9
2.The Chief Engineer (General)
Public Works Department
Chepauk, Chennai 5
3.The Assistant Executive Engineer (i/c)
Buildings and Construction Sub Division,
Thuckalay
Kanyakumari District ... Appellants
Vs
1.V.Thankavale
2.The Accountant General
Anna Salai, Chennai 18. ... Respondents
1/8
https://www.mhc.tn.gov.in/judis
WA(MD). No.4 of 2018
PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent
against the order dated 09.06.2016 in WP(MD) No.1320/2009.
For Appellants : M/s.V.Nirmal Kumar
Government Advocate
For Respondents : Ms.M.Padmavathy for R1
Mr.P.Gunasekaran for R2
JUDGMENT
(Judgment of the Court was delivered by N.SESHASAYEE, J.)
This appeal is preferred by the respondents in WP(MD) No.1325/2009,
which, the learned Single Judge has taken for final disposal along with
another petition, by which, the learned Single Judge did not approve the
retrospective application of G.O.Ms.No.142 Public Works Department
dated 03.02.1973 and redesignating the petitioner to a post with lower
pay scale.
2. The facts are as below:
a) On 01.02.1961, the writ petitioner joined the Public Works
Department on a temporary basis as an Assistant. Thereafter, the
Government came out with G.O.Ms.No.95 Public Works
Department dated 09.01.1971, whereby the Government had
provincialised those who have been in non-provincialised service
https://www.mhc.tn.gov.in/judis
for more than five years experience as on 24.11.1970. This benefit
was extended to the petitioner.
b) On 09.01.1971, by an order, the Government had redesignated the
Work Assistant as Technical Assistant. Subsequently, on
03.02.1973, the Government came out with another Government
order in G.O.Ms.No.142 Public Works Department and prescribed
minimum educational qualification for Work Assistant, now
known as Technical Assistant. The qualification thus prescribed
was possession of a Diploma or a Degree, but the petitioner
possessed neither.
c) In these circumstances, the petitioner was redesignated to the next
lower post, namely, Work Inspector after he was posted as Work
Assistant. According to the petitioner, this has happened after 13
years.
d) While so, the petitioner had superannuated sometime in 1994.
Some 14 years thereafter, the petitioner had approached the third
https://www.mhc.tn.gov.in/judis
respondent with a representation to redesignate him to the original
post as Work Assistant based on an order passed by the State
Administrative Tribunal dated 24.11.1970. This came to be
rejected on 29.11.2018 and that had become the subject matter of
the present writ petition.
3. The third respondent had filed his counter, wherein, it is inter-alia
pleaded that the petition is hit by laches and contended that original order
dated 29.01.1974, by which the Government had retrospectively given
effect to G.O.Ms.No.142 dated 03.02.1973 was not challenged, which
implies, that the petitioner's challenge is about 34 years old, since he was
redesignated, and some 14 years after his superannuation.
4. As outlined earlier in the opening paragraph, this petition was
considered by the learned Single Judge along with another case, wherein,
the learned Judge has relied on an order passed by this Court in
WA(MD) Nos.581, 582 and 602 of 1984, whereunder this Court has
directed that any clarification subsequently prescribed cannot be given
retrospective effect to affect all those who have already entered a post.
https://www.mhc.tn.gov.in/judis
6. Mr.V.Nirmal Kumar, learned Government Advocate, made a pointed
submission that the present petition was inordinately delayed and in
fitness of things, the appellant should have challenged the original order
dated 29.01.1974, by which he was redesignated from the post of Work
Assistant to a Work Inspector post on G.O.Ms.No.142 dated 03.02.1973.
But that was not done. Today, this will have enormous financial
implications on the State, and hence this Court may not condone the
delay of 34 years in granting a relief to one, who had all the opportunity
of challenging it when he was still in service.
7. Per contra, the learned counsel for the writ petitioner/first respondent
herein submitted that while delay may be a factor that the Court may
reckon but it cannot be the sole ground for refusing to invoke this Court's
jurisdiction under Article 226 of the Constitution.
8. Rival submissions are carefully weighed. While as a general
preposition that delay and laches may not be the sole criteria that may
influence a Court in invoke its jurisdiction under Article 226 of the
Constitution, to condone the same depends on the facts and
https://www.mhc.tn.gov.in/judis
circumstances affecting each particular case.
9. Here is a case where the writ petitioner had all the opportunity to
challenge it but he chose to challenge it some 14 years after his
superannuation. This is plainly inexplicable. Having stated thus, when
this Court had passed its order in a batch of writ appeals in WA Nos.581,
582 and 602 of 1984 that itself was a notice to the respondents/appellants
herein to correct all the records vis-a-vis, those who were similarly
affected by the retrospective application of G.O.Ms.No.142 dated
03.02.1973.
10. That the petitioner ought to have claimed his right is one part, but it
should also be underscored that it is the duty of the Government to
implement what is due to its servants. This Court, therefore, chooses to
strike a balance to provide some degree of comfort to this writ petitioner.
11. In the result, this appeal is partially allowed. The respondents are
directed to redesignate the writ petitioner as Technical Assistant from
29.01.1974. However, he would not be entitled to any arrears of salary
https://www.mhc.tn.gov.in/judis
based on such re-designation nor pension till 09.06.2016, the date on
which, the learned Single Judge has passed its order. In other words, the
writ petitioner would be entitled to pension, based on the re-designation
only from 09.06.2016. The appellants are directed to complete the
process within a period of three months (12 weeks) from the date of
receipt of the judgment. No costs. Consequently connected
Miscellaneous Petition is closed.
(N.S.S.,J.) (P.V.M.,J.)
08.04.2024
NCC : Yes/No
Index : Yes/No
RR
TO
1.The Commissioner cum Secretary to Government
Public Works Department
Fort St. George, Chennai 9
2.The Chief Engineer (General)
Public Works Department
Chepauk, Chennai 5
3.The Assistant Executive Engineer (i/c)
Buildings and Construction Sub Division,
Thuckalay Kanyakumari District
https://www.mhc.tn.gov.in/judis
N.SESHASAYEE, J.
and
P.VADAMALAI, J.
RR
08.04.2024
https://www.mhc.tn.gov.in/judis
