Madras High Court
The Commissioner vs M.Mariappan ... 1St on 5 June, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
W.A(MD) No.542 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.06.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE K.RAJASEKAR
W.A(MD) No.542 of 2023
&
C.M.P.(MD)No.5456 of 2023
The Commissioner,
Tirunelveli Corporation,
Tirunelveli-627 001. ... Appellant / 2nd Respondent
Vs
1.M.Mariappan ... 1st Respondent / Writ Petitioner
2.The Commissioner,
(Municipal Administration)
Chepauk,
Chennai-05. ... 2nd Respondent / 1st Respondent
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent, praying
this Court to set aside the order dated 31.10.2022 passed in W.P.
(MD)No.20818 of 2017 on the file of this Court and allow the present
writ appeal.
1/8
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W.A(MD) No.542 of 2023
For Appellant : Mr.S.P.Maharajan
Special Government Pleader
For Respondents : Mr.A.Jayarama Chandran
for R1
: Mr.N.Satheesh Kumar
Additional Government Pleader
for R2
ORDER
(Order of the Court was made by G.R.SWAMINATHAN, J.)
This intra-court appeal is filed against the order dated 31.10.2022
made in W.P.(MD)No.20818 of 2017 filed by the first respondent
herein / Mariappan.
2.Thiru.M.Mariappan was engaged as NMR by the Tirunelveli
Corporation on 05.02.1996. He was absent from service from
05.03.2004. Mariappan was implicated as A8 in a case of train robbery.
He was eventually found guilty and sentenced to a term of imprisonment
vide Judgment dated 26.03.2007 made in S.C.No.21 of 2005 on the file
of the 1st Additional Assistant Sessions Judge, Tirunelveli. Aggrieved by
the same, Mariappan filed Crl.A.(MD) No.217 of 2007. The persons
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who were convicted along with Mariappan had also filed similar appeals.
All the appeals were heard together and allowed by this Court on
22.10.2010. Mariappan was acquitted of the charges framed against him
by giving him benefit of doubt. Thereafter, Mariappan applied to the
corporation for reinstatement by regularizing his service. Since his
request was not considered, he filed W.P.(MD)No.17216 of 2014. The
writ petition was dismissed vide order dated 27.10.2014. Aggrieved by
the same, he filed W.A.(MD)No.92 of 2015. The Hon'ble Division
Bench vide order dated 02.03.2017 directed the corporation to consider
Mariappan's representation. Paragraph Nos.3, 4 & 5 of the order of the
Hon'ble Division Bench reads as follows:-
“3.Today when the appeal was taken up for consideration, the
learned counsel for the appellant submitted that it would be suffice, if a
direction is given to the second respondent to consider the
representation given by the appellant.
4. The learned Government Advocate appearing for the
respondents also submitted that the respondents are ready to consider
the representation of the appellant on merits.
5. In view of the above said submission made by the learned
counsel on either side, the order of writ Court dated 27.10.2014 made
in W.P.(MD)No.17216 of 2014 is set aside. The appellant is directed
to send a copy of the representation along with a copy of this order to
the second respondent, within a period of two weeks from the date of
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receipt of a copy of this Judgment and on receipt of the same, the
second respondent is directed to consider and dispose of the same on
merits and in accordance with law, within a period of four weeks
thereafter. However, it is made clear that this Court has not expressed
any opinion with regard to the merits of the claim made by the
appellant. It is for the second respondent to decide the representation
on its own merits.”
Pursuant to the said direction, Mariappan's representation was considered
and once again, the rejection order was passed. Challenging the same,
the present W.P.(MD)No.20818 of 2017 came to be filed. The learned
single Judge vide order dated 31.10.2022 allowed the writ petition in the
following terms:-
“6. As per the fundamental rules, whenever an employee is
acquitted in a criminal case, then the employee is entitled to regularize
for the period where the employee was out of employment due to
pendency of a criminal case. In the present case, since the petitioner was
not regularized, the respondents have refused to apply the fundamental
rules and therefore, the impugned order is set aside. Since as per
G.O.Ms.No.341 the petitioner's name is in the list for regularization, the
respondents ought to regularize the petitioner.Thereafter, the respondents
are directed to regularize the period when the petitioner was out of
employment period as per the Fundamental Rule 54, within a period of
eight weeks, from the date of receipt of a copy of this order. However, it
is made clear that the petitioner is not entitled to any back wages for the
period of absence under the principle of “No Work No Pay”. The
petitioner is entitled to continuity of service alone.”
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Challenging the same, the corporation has filed this writ appeal.
3. The learned standing counsel for the corporation reiterated all
the contentions set out in the grounds of appeal and called upon this
Court to set aside the order passed by the learned single Judge and allow
the writ appeal.
4. Per contra, the learned counsel appearing for the writ petitioner /
R1 herein submitted that the order passed by the learned single Judge
does not call for interference. He pointed out that when Mariappan was
acquitted in the criminal case that too by the Judgment of this Court, the
factum of his implication in the criminal case ought not to be put against
him. He also drew our attention to G.O.(Ms).No.341, Municipal
Administration and Water Supply (MC) Department, dated 24.07.2007
issued by the Government. He pointed out that in the annexure attached
to the said G.O, Mariappan figured at Serial No.75. Only on the ground
that the criminal cases are pending against him, Mariappan was not
regularized during the relevant time. Since the criminal case had ended
in his favour in October 2010, he ought to have been immediately
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regularized thereafter. He pointed out that the persons shown in the list
were granted the benefit of regularization. Mariappan alone cannot be
discriminated again.
5. We carefully considered the rival contentions and went through
the materials on record.
6. Vide G.O.(Ms.)No.341, dated 24.07.2007, the Government
called upon the Commissioner, Tirunelveli Corporation to send proposal
for regularizing the services of the persons set out in the annexure.
When this G.O was issued, Mariappan was nowhere in the picture.
Mariappan was serving the corporation as NMR from 5.02.1996 till
04.03.2004. On account of his implication in the criminal case,
Mariappan was not serving the corporation in any capacity. His name
must have been included by mistake. It is well settled that only a person
in service can seek regularization. A person who is out of service cannot
seek regularization. When Mariappan was not serving the corporation as
NMR since 05.03.2004, the question of directing his regularization 21
years later does not arise at all. The learned single Judge had not taken
note of the principle that only a serving person can seek regularization.
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7. In this view of the matter, the order of the learned single Judge
is set aside. The Writ Appeal is allowed. No costs. Consequently,
connected miscellaneous petition is closed.
(G.R.S., J.) (K.R.S., J.)
05.06.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
rmi
To
The Commissioner,
(Municipal Administration)
Chepauk,
Chennai-05.
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G.R.SWAMINATHAN, J.
AND
K.RAJASEKAR, J.
rmi
05.06.2025
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