Madras High Court
The State Of Tamil Nadu vs A.Balakrishnan on 26 March, 2025
Author: R.Subramanian
Bench: R.Subramanian
2025:MHC:791
W.A.No.738 of 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.03.2025
PRONOUNCED ON : 26.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.A.No.738 of 2025
and
C.M.P.No.6249 of 2025
1.The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Public (Maintenance) Department,
Secretariat,
Chennai - 600 009.
2.The Under Secretary to Government,
Public (Maintenance) Department,
Secretariat,
Chennai - 600 009. ... Appellants /Respondents
versus
1.A.Balakrishnan
2.B.Sarasu
3.E.Santhi
4.S.Nageswari
5.A.C.Prabudoss ... Respondents / Petitioners
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, to set aside
the order passed in W.P.No.18248 of 2020 dated 19.12.2023.
1/16
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W.A.No.738 of 2025
For Appellants : Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.P.Ananda Kumar
Government Advocate
For Respondents : Mr.A.R.Suresh
for Mr.K.Arumugam - R1 to R4
Door Locked - R5
JUDGMENT
(Judgment of the Court was made by G.ARUL MURUGAN, J.)
This Writ Appeal challenges the order dated 19.12.2023 made in
W.P.No.18248 of 2020, wherein the order of the first appellant was set aside
and the services of the respondents were directed to be regularised on
completion of 10 years of their services with all consequential benefits.
2. The respondents were appointed as Mazdoors on daily wage
basis with effect from 1989 to 1990 in the Secretariat. Their respective dates
of appointments are as given below:-
Name Date of Appointment
A.Balakrishnan 05.04.1989
B.Sarasu 31.03.1989
E.Santhi 05.02.1990
S.Nageswari 24.09.1990
A.C.Prabudoss 21.04.1990
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3. In respect of several others who were also working as
Mazdoors along with the respondents, their services were regularised
through separate Government Orders issued in G.O.(Ms.)No.764 Public
(Maintenance) Department dated 08.07.1997, G.O.(Ms.)No.457 Public
(Maintenance) Department dated 30.03.2000 and G.O.(Ms.)No.835 Public
(Motor Vehicles) Department dated 28.06.2000. But however, when the
proposal for regularising the services of the respondents in the available
vacant posts was sent in the year 2001 itself, still the services of the
respondents were not regularised citing the ban imposed by the Government
in G.O.(Ms.)No.212 Personnel & Administrative Reforms (P) Department
dated 29.11.2001 [hereinafter referred to as “G.O.(Ms.)No.212 dated
29.11.2001”]. Eventually, the services of the respondents only came to be
regularised vide two separate Government Orders in G.O.(Ms.)No.1016
Public (Maintenance) Department dated 21.09.2006 and G.O.(Ms.)No.4565
Public (Maintenance) Department dated 29.11.2007.
4. The persons who got regularisation prior to 2003 came under
the regular pension scheme. But since the services of the respondents were
regularised after 2003, they were only covered under the Contributory
Pension Scheme (hereinafter referred to as “CPS”) introduced by the
Government with effect from 01.04.2003. In this regard, relying on the
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Government Orders issued in G.O.(1D)No.286 School Education (GE1)
Department dated 19.07.2016, wherein services of 26 persons were
regularised with effect from 1998 onwards, and another G.O.(Pa)No.72
School Education (G.E) Department dated 28.02.2019 whereby the services
of 11 persons were also regularised from 1998 onwards, the respondents
have made a representation to regularise their services with effect from the
date of submission of the proposal, i.e., 2001 onwards.
5. The respondents had also relied on G.O.(Ms.)No.524 Personnel
& Administrative Reforms (P) Department dated 06.06.1983 [hereinafter
referred to as “G.O.(Ms.)No.524 dated 06.06.1983”], wherein the Mazdoors
who had put in continuous service of 5 years on daily wage basis were to be
regularised. However, the first appellant, by order dated 22.05.2020 rejected
the claim of the respondents on the ground that since their services had been
regularised only after 01.04.2003 by which the CPS had come into effect,
only the new scheme will be applicable to them and they cannot be brought
under the old pension scheme. Assailing the rejection, the respondents
preferred the writ petition.
6. The writ court, by considering the fact that similarly placed
persons like the respondents have been regularised in view of
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G.O.(Ms.)No.524 dated 06.06.1983 on completion of 5 years of service on
daily wage basis and also taking into account that the respondents have
completed 10 years of service from the years 1998-2000 and further the
proposals for their regularisation had already been sent in the year 2001
itself, set aside the impugned order and had directed the appellants to
regularise the services of the respondents with effect from the date of
completion of 10 years of service. Aggrieved, the State is on appeal.
7. Mr.P.Kumaresan, learned Additional Advocate General,
instructed by Mr.P.Ananda Kumar, learned Government Advocate, appearing
for the appellants contended that, even as per G.O.(Ms.)No.524 dated
06.06.1983, the service of Mazdoors on completion of 5 years of service is
considered for regularisation only on seniority based on the available
vacancies.
8. He further contended that 49 Mazdoors were engaged between
the years 1983 and 1990 and as per the available vacancies, the services of
the eligible persons were regularised periodically. When the respondents
became eligible in view of the vacancies, the Government had issued
G.O.(Ms.)No.212 dated 29.11.2001 by which a ban was imposed on filling
up of the regular vacancies.
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9. Learned Additional Advocate General further contended that
even though by G.O.(Ms.)No.49 Personnel & Administrative Reforms (F)
Department dated 14.05.2002, the Government had ordered that the work of
all Group “D” categories shall be progressively outsourced, still the
respondents were considered for regularisation of their services.
10. It is his further contention that the respondents were irregularly
appointed as they have not been sponsored through Employment Exchange
and since they did not possess the necessary qualification and crossed the
age criteria, the Government had issued orders regularising the services of
the respondents after relaxing the required criteria. Admittedly, when the
services of the respondents were regularised only on 21.09.2006 and
29.11.2007 respectively, by which dates the CPS had already been
introduced with effect from 01.04.2003, the respondents cannot claim for
retrospective regularisation as the regularisation can take effect only from
the date of issuance of the order.
11. He further submitted that though the learned Judge had found
that there was a ban imposed in G.O.(Ms.)No.212 dated 29.11.2001 and only
due to which there was a delay in regularisation, still had directed the
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appellants to regularise the services of the respondents with effect from the
date of completion of 10 years of service, which is erroneous, he contended
and sought for indulgence of this Court.
12. Mr.A.R.Suresh, learned counsel, instructed by Mr.K.Arumugam
appearing for the respondents 1 to 4 by relying on the various orders issued
by the Government contended that when the Government had issued orders
regularising the services of several persons with effect from 1998 onwards
and had extended the benefits of pension, the appellants cannot discriminate
the respondents alone.
13. It is his further contention that when the vacancy was available
in the year 2001 and the respondents were also recommended for
regularisation of their services, there was no impediment for the appellants
in granting regularisation but the same has been delayed, citing the ban,
which will no way be impediment for grant of regularisation.
14. Heard the rival submissions and perused the materials available
on record.
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15. It is not in dispute that the respondents have been appointed as
Mazdoors in the Secretariat in the years 1989-1990 on the respective dates
as indicated above. The Government had issued G.O.(Ms.)No.524 dated
06.06.1983 by which the temporary daily wage employees who have been
working continuously for more than 5 years in the Public (Maintenance)
Department in the Secretariat are to be regularised. The Government Order
also provides that the exemptions has to be provided wherever required for
grant of regularisation.
16. Later, based on G.O.(Ms.)No.2055 Public Department dated
18.12.1987, around 49 daily wage Mazdoors came to be engaged between
the years 1983 and 1990. It is also not in dispute that out of 49 Mazdoors, 3
orders in G.O.(Ms.)No.764 Public (Maintenance) Department dated
08.07.1997, G.O.(Ms.)No.457 Public (Maintenance) Department dated
30.03.2000 and G.O.(Ms.)No.835 Public (Motor Vehicles) Department dated
28.06.2000 came to be issued on the respective dates by which the services
of 31 Mazdoors came to be regularised during the period from 1997 to 2000
based on the available vacancies. Since two Mazdoors were on long absence,
their services were not considered.
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17. Out of the remaining 16 Mazdoors, it is admitted that the
proposals to bring 8 Mazdoors, into the regular establishment by
regularising their services were made in the year 2001 in view of the
available vacancies. The respondents herein were among the 8 Mazdoors,
for whom the proposals were sent for regularisation. However, after a long
delay, the services of the respondents came to be regularised only on
21.09.2006 and 28.11.2007, respectively. In the meantime, since the pension
rules came to be amended and the Government had introduced the CPS for
the employees who had entered into service from 01.04.2003, the pensionary
benefits under the old pension scheme were denied. The claim made by the
respondents to grant regularisation on par with the similarly placed persons
whose services also came to be regularised only in the year 2016, but
however, with effect from 1998, came to be rejected.
18. It is the vehement contention of the appellants that only since
there was a ban imposed by the Government in G.O.(Ms.)No.212 dated
29.11.2001, the services were not able to be regularised and immediately
after the ban was lifted, their services came to be regularised and in such
circumstances, the respondents cannot claim for any retrospective
regularisation.
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19. As referred earlier, it could be seen that there were available
vacancies in the year 2001 and the respondents were eligible for
regularisation of their services, for which the proposals were also sent in
2001 itself. The G.O.(Ms.)No.212 dated 29.11.2001 only imposes a ban on
filling up of all the vacant posts. The said Government Order reads as
follows:-
“Public Services-Filling up of vacant posts except certain categories
of posts such as Teachers, Doctors and Police Constabulary-
Completely banned-orders-Issued.
PERSONNEL & ADMINISTRATIVE REFORMS (P) DEPARTMENT
G.O. (Ms) No: 212 Dated: 29.11.2001
ORDER
The Government have decided to effect economy in
expenditure and accordingly direct that filling up of vacant posts
shall be completely banned except certain categories of posts such
as Teachers, Doctors and Police Constabulary which may be
identified and declared as essential posts. Proposals for filling
vacant posts considered essential by any Department will be placed
before a Committee consisting of Chief Secretary, Finance Secretary
and Secretary (Personnel & Administrative Reforms)
(By order of the Governor)
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P. SHANKAR,
Chief Secretary to Government”
20. Even though the above Government Order imposes a ban on
filling up of vacant posts, it could be applied only for fresh appointments to
be made and cannot be extended to regularisation of the services of eligible
persons. When admittedly even after the issuance of the above Government
Order, the respondents were continued to be in service, the action of the
appellants to delay the process of regularisation citing the above
Government Order imposing a ban is not justified.
21. When the respondents have been engaged in services from the
years 1989-1990 and as per G.O.(Ms.)No.524 dated 06.06.1983, the services
of Mazdoors, who have completed 5 years of continuous service on daily
wages, are to be regularised and out of the 49 Mazdoors who had been
engaged during this period, nearly the services of 31 persons have been
regularised as per the available vacancies, the services of the respondents
also ought to have been regularised in the available vacancies, for which the
proposals were submitted in the year 2001 itself.
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22. The ban imposed in G.O.(Ms.)No.212 dated 29.11.2001 cannot
be a bar or a valid ground to delay the regularisation of the services which
they were lawfully entitled to. Even though the orders regularising their
services came to be issued in the years 2006-2007 respectively, still the date
of regularisation ought to have been granted from the date of the available
sanctioned vacancies and proposal that was submitted in the year 2001.
23. Further, the Government had issued G.O.(Ms.)No.22 Personnel
& Administrative Reforms (F) Department dated 28.02.2006, by which the
services of daily wage employees who had rendered 10 years of service as
on 01.01.2006 be regularised. The writ court by observing that when a
welfare measure is implemented by giving benefits to the similarly placed
persons, the same must be extended to the rest of the persons in the same
category. Considering the fact that the respondents, having been appointed in
the years 1989-1990 have completed their 10 years of service in the years
1999-2000, the learned Judge had directed for regularisation of their services
from the date of completion of 10 years of their services.
24. In view of the fact that the Mazdoors, who have been appointed
during the above period, have been periodically regularised based on the
available vacancies and the vacancies in respect of these respondents had
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arisen in the year 2001, for which the proposals for regularising the services
of the respondents were sent and since the ban imposed in G.O.(Ms.)No.212
dated 29.11.2001 cannot be put against the respondents to delay their
regularisation. In our considered opinion it would only be appropriate that
the services of the respondents are regularised with effect from the vacancies
that arose and the proposal for regularisation that was submitted in the year
2001.
25. In view of the above, the Writ Appeal is disposed of, by
partially modifying the order of the writ court, directing the appellants to
regularise the services of the respondents with effect from the date of
proposals submitted in the year 2001 for regularisation based on the
available vacancies and grant all consequential benefits as directed by the
writ court. The time granted by the writ court is extended by a period of
eight (8) weeks from the date of receipt of a copy of this order.
26. With these modification and directions, this Writ Appeal stands
disposed of. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
(R.S.M., J.) (G.A.M., J.)
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26.03.2025
Speaking order
Index : Yes
Neutral Citation : Yes
sri
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To
1.The Principal Secretary,
Government of Tamil Nadu,
Public (Maintenance) Department,
Secretariat, Chennai - 600 009.
2.The Under Secretary to Government,
Public (Maintenance) Department,
Secretariat, Chennai - 600 009.
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R.SUBRAMANIAN, J.
and
G.ARUL MURUGAN, J.
sri
Pre-Delivery Judgment made in
and
26.03.2025
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