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2010 DIGILAW 2980 (MAD)

R. Gnansundari v. The Secretary to Government

2010-07-21

T.S.SIVAGNANAM

body2010
Judgment :- 1. With the consent of the learned counsel appearing on either side, the Writ Petition itself is taken up for disposal. 2. The prayer in the Writ Petition is for issuance of a writ of certiorarified mandamus to quash the Government Order in G.O.Ms.No.710 Home (Personnel II) Department dated 17.8.2005 in so far as fixing the age limit and physical measurement and efficiency to the petitioner is concerned and to direct the respondents to absorb the petitioners as female warders from the date from the date of their appointment with other benefits. 3. All the petitioners were appointed through Employment Exchange as Female Escort Warders to escort the female prisoners. The petitioners 1 to 4, 6, 8 and 9 were appointed in the year 1998 and 7th petitioner in the year 1999 and the fifth petitioner in the year 2000. According to the petitioners all of them are fully qualified to hold the post of Grade II Female Warders in the Prison Department. As per the Government Orders, the petitioners were paid daily wages till 24.2.2006. Subsequently, their services were disengaged. Therefore, the petitioners and similarly placed persons filed Original Applications before the Tamil Nadu Administrative Tribunal. The Tribunal by an order dated 30.8.2002 in O.A.No.5305 of 2000 etc. batch, disposed of the Applications, directing the Government to take a decision and prepare a scheme to absorb as many applicants as possible apart from issuing other directions. Since the order passed by the Tribunal was not complied with, petitioners filed W.P.No.34262 of 2004 to implement the order passed by the Tribunal. 4. After nearly a period of three years, the first respondent passed the impugned order in which a special selection has been ordered to appoint female escort warders to the post of Grade II Women Warders in Jail Department as one time measure. Aggrieved by the impugned order, the petitioners have approached this Court contending that the age limit fixed as 35 years on the date of selection cannot be applicable to the petitioners since the delay in implementing the order passed by the Tribunal is solely attributable to the respondents. It is further contended that all the petitioners have worked continuously for five years and they are fully qualified to hold the post. It is further contended that all the petitioners have worked continuously for five years and they are fully qualified to hold the post. It is further contended that a similarly placed persons namely T. Daisy Bai filed O.A.No.172 of 1990 before the Tamil Nadu Administrative Tribunal and based on the directions issued by the Tribunal, the Government by G.O.Ms.No.1316 dated 1.9.1993 relaxed the age in favour of said Daisy Bai and appointed her as Grade II Female Warder. The petitioners claim that they should also be treated in the same manner. 5. The petitioners also relied on G.O.Ms.No.3020 dated 30.5.1982 and G.O.Ms.No.10071 dated 17.4.1986, where the Government relaxed the age and educational qualifications to individuals who were appointed as Jail Warders and terminated for want of qualification. 6. The learned counsel appearing for the petitioners would contend that in identical circumstances, this Court in W.P.Nos.8269 of 2006 and 42319 of 2006 by an order dated 7.3.2008, considered a similar matter and allowed the Writ Petitions and directed that the petitioner therein should be regularised in service. The order passed in the Writ Petitions were also confirmed by the Honble Division Bench of this Court in Writ Appeal Nos.179 and 180 of 2009 dated 26.4.2010. The learned counsel would also rely on the order in Writ Petition No.9331 of 2007 dated 3.9.2009 in support of her contention. 7. The learned Government Advocate appearing for the respondents by relying upon the counter affidavit would submit that based on the representation of persons like the petitioners, the Government passed G.O.Ms.No.710 dated 17.8.2005 and provided relaxation of educational qualification, physical standards in efficiency test etc. and the age was relaxed to 35 years in respect of general category candidates as against 18 to 24 years as per Rules and 40 years for scheduled tribe candidates as against 29 years as per Rules and also the height restriction and physical efficiency/endurance test was also reduced. It is further submitted that the Government had ordered to conduct special selection by the Departmental Promotion Board to select temporary female escort warders to the post of Grade II Warder (female) and the selection was conducted on 16.3.2006 and 79 candidates appeared for the selection and only 31 candidates were found qualified and they have been appointed. It is further submitted that the Government had ordered to conduct special selection by the Departmental Promotion Board to select temporary female escort warders to the post of Grade II Warder (female) and the selection was conducted on 16.3.2006 and 79 candidates appeared for the selection and only 31 candidates were found qualified and they have been appointed. It is further contended that only if the petitioners are found eligible in terms of G.O.Ms.No.710, they cannot be selected and all the petitioners have been not found to be qualified based on the age criteria. Therefore, it is submitted that the non selection of the petitioners is perfectly legal and valid. 8. I have considered the submissions made by the counsel appearing on either side and perused the materials available on record. 9. As rightly pointed out by the learned counsel for the petitioners, identical issue came up for consideration before this Court in W.P.No.8269 of 2006 and 42719 of 2006. Writ Petition No.8269 of 2006 was filed by one P.Manjula against the order of termination. The Original Application filed by her before the Tribunal in O.A.No.6001 of 2009 was transferred and re-numberred as W.P.no.42719 of 2006, in which she had challenged the order passed by the Government. The said P.Manjula was also appointed as a Female Escort Warder during 1991. This Court while allowing the Writ Petition by order dated 7.3.2008 held that since the said P.Manjula had put in total service of 17 years in the Jail Department and still receiving wages, is entitled to the concession and the benefits extended to two other persons in G.O.Ms.No.471 dated 24.4.1998. The appeal filed by the Government in W.A.Nos.179 and 280 of 2009 against the said order was also dismissed by the Honble Division Bench by order dated 26.4.2010. 10. In yet another matter which was transferred to this Court from the Administrative Tribunal and re-numberred as W.P.No.9331 of 2007, this Court considered an identical issue. The petitioner therein was also a Female Warder who was recruited through the employment exchange and her services were not regularised and therefore she approached the Tribunal. 10. In yet another matter which was transferred to this Court from the Administrative Tribunal and re-numberred as W.P.No.9331 of 2007, this Court considered an identical issue. The petitioner therein was also a Female Warder who was recruited through the employment exchange and her services were not regularised and therefore she approached the Tribunal. The petitioner therein contended that her case is squarely covered by an earlier order of this Court in W.P.No.2048 of 1987, which directed regularisation of 125 female warders and the Government also by G.O.Ms.No.2617 dated 7.12.1988 regularised their services by relaxing the rule relating to the method of recruitment and also relating to educational qualification. 11. At this stage, it is useful to refer to the said Government Order in G.O.Ms.No.2617 and the relevant portion of the Government Order reads as follows: "In G.O.Ms.No.1091, Home dated 22.4.1957, the Commr. of Police, Madras was empowered to appoint Women Warders for the purpose of escorting Women Prisoners to the Special Prison for Women, Vellore, when they are committed direct to that Jail by Court in the City of Madras and this power has subsequently been delegated to the Asst. Commr. of Police, Armed Reserve, Madras in the G.O. second read above. Accordingly, some persons were employed on daily wages basis as and when they were put on duty of escorting women prisoners. 2. One hundred and twenty five such persons filed Writ Petition No.2048/87 on the file of the High Court Madras to regularise their services, with reference to the orders issued in G.O.Ms.No.107, Personnel and Administrative Reforms (Personnel) Department dated 5.2.1987. In that Writ Petition the High Court directed that the regularisation of the services of the members of the petitioner Association be considered since it is not desirable to keep such persons on daily rated basis, more so, they being women and to pass necessary orders before 31.5.87. The above direction of the High Court was examined by the Government carefully. Since, the female escort Warders engaged by the Madras City Police are employed on daily basis only as and when there is need for them, they will not come under contingent establishment. Hence, their request for regularisation of services were rejected in G.O.Ms.No.1257 Home, dated 28.5.1987. 3. Subsequently the Women Warders filed contempt Application No.123/87 on the file of the High Court Madras. Hence, their request for regularisation of services were rejected in G.O.Ms.No.1257 Home, dated 28.5.1987. 3. Subsequently the Women Warders filed contempt Application No.123/87 on the file of the High Court Madras. The Court directed that the respondents shall explore every possible means to see that the 125 persons whose names agreeable to the Learned Additional Government Pleader be appointed as Women Warders at the earliest. 4. The Government have examined the above directions of the High Court. It is reported that the 125 female warders have been employed for years on daily wages basis. The Commissioner of Police had already reported that many of those 125 persons are illiterate and know only to put their signature and majority of them are overaged. If they are to be appointed as Women Warders they should possess qualifications like age, educational qualifications and method of recruitment through the Employment exchange. If the above qualifications are prescribed for their absorption many of the 125 persons may be found ineligible for absorption on a regular basis. However on humanitarian grounds it has been decided to absorb the 125 people who are paid daily wages into regular establishment as "Ayah" (as their main work is to take the prisoners to Courts, Hospitals etc.) in relaxation of Rule 4(a) relating to method of recruitment through the Employment Exchange and Rule 5(2) relating to the educational qualification of the Special Rules for the Tamil Nadu Basic Service. 5. Sanction is accorded for the creation of 125 posts of (One hundred and twenty five only) Ayahs in the Tamil Nadu Basic Service in the Police Department in the scale of pay of Rs.450-10-570-15-720 upto 31.12.1989 in order to bring the services of the 125 incumbents detailed in the annexure to this order into regular establishment with effect from the persons mentioned in the annexure to this Order resign / retire / die. 6. The expenditure should be debited to the relevant sub-heads under "2055 A 00 Police". 7. The expenditure constituteson item of "New Service" and approval of the Parliament will be obtained in due course. Pending approval of the Parliament, the expenditure will initially be met from the contingency Fund orders regarding which will issue from the Finance (BG.1) Department receipt of necessary application from the Commissioner of Police, Madras together with a copy of this order. 8. Pending approval of the Parliament, the expenditure will initially be met from the contingency Fund orders regarding which will issue from the Finance (BG.1) Department receipt of necessary application from the Commissioner of Police, Madras together with a copy of this order. 8. In exercise of the powers conferred by rules 48 of the General Rules for the Tamil Nadu State and Subordinate Services, contained in Part II of the Tamil Nadu Services Manual, Volume I of 1977, the Governor of Tamil Nadu hereby relaxes rule 4(a) relating to recruitment through the Employment Exchange and Rule 5(2) relating to Educational Qualification of the Special Rules for the Tamil Nadu Basic Service in favour of the 125 incumbents mentioned in the annexure to this order, so as to bring all the 125 incumbents into regular establishment as "Ayah" with effect from the date of this order. 9. This order issued with the concurrence of the Labour and Employment department vide its U.O.No.75650/A E 2 /88-1 dated 7.12.1988 and of the Finance department vide its U.O.No.1020/DS(CVK)/88-1 dated 7.12.1988". Thus, by relying upon the said Government Order, this Court allowed W.P.No.9331 of 2007 and directed regularisation of service as has been done in the case of 125 female warders with effect from the date of filing of the Original Applications and to grant benefits notionally from the date of regularisation. 12. In the instant case, the petitioners herein had approached the Tribunal during 2000 and filed Original Applications. The Tribunal after elaborately considering the matter issued the following directions: "11............ Directions are given and Inspector General of Prisons, Chennai is directed to submit proposals giving schedule of names of persons who are entitled to be regularised and appointed in the regular posts of Female Warders. It is for the Government to decide on the recommendations made by the respondent with regard to the actual number of posts that have to be filled up by selection among these applicants which also shall be made on reasonable basis and they shall not give room to any whims and fancies, Government is directed to take a policy decision, prepare a scheme and absorb as many applicants as possible. However, direction is given to be implemented immediately with regard to grant of minimum scale of pay to these applicants which regular Female Warders are paid. All these applications are ordered in these terms." 13. However, direction is given to be implemented immediately with regard to grant of minimum scale of pay to these applicants which regular Female Warders are paid. All these applications are ordered in these terms." 13. Thus, a perusal of the direction issued by the Tribunal reveals that the Inspector General of Prisons was to submit a proposal giving names of persons entitled to be regularised and the Government was directed to decide the matter based on the recommendations with regard to actual number of posts that have to be filled up by selection which also shall be made on reasonable basis and without giving any room for whims and fancies and the Government was directed to take a policy decision and framed a scheme. 14. Though this direction was issued as early as 30.8.2002 for reasons best known, the respondents failed to take any action. One of the applicants before the Tribunal and the first respondent herein filed W.P.No.34262 of 2002 to implement the order of the Tribunal and direction was issued by this Court on 25.11.2004 to implement the directions expeditiously. It is thereafter G.O.Ms.No.710 came to be passed. Thus by efflux of time, the petitioners herein could not get the advantage of age relaxation and therefore, the petitioners cannot be put in a disadvantageous position. In fact one Daisy Bai filed O.A.No.172 of 1990 seeking regularisation of her services and the Tribunal by an order dated 31.12.1991 issued directions by relaxing the age qualification. The Government also implemented the order passed by the Tribunal by G.O.Ms.No.1316 dated 1.9.1993 by exercising the powers conferred under Rule 48 of the General Rules and relaxed the age qualification. Therefore, it is not as if the Government has not considered the relaxation of the age qualification on earlier occasion. The submission of the learned counsel is that if the order of the Tribunal had been implemented immediately, the petitioners would not have been driven to approach this Court by way of the present Writ Petition. The delay in implementation of the order of the Tribunal has resulted in loosing their right to get regular appointment. 15. In my view, the petitioners cannot be penalised for the delayed implementation of the direction of the Tribunal by the respondents. The delay in implementation of the order of the Tribunal has resulted in loosing their right to get regular appointment. 15. In my view, the petitioners cannot be penalised for the delayed implementation of the direction of the Tribunal by the respondents. Therefore, this is a fit case in which the Government is required to grant relaxation in favour of the petitioners considering the peculiar facts and circumstances and in view of the earlier directions by the Tribunal coupled with the fact that on earlier occasion, the Government themselves have granted age relaxation. 16. It is submitted that pursuant to the interim direction granted by this Court on 26.4.2006 in W.P.M.P.No.13511 of 2006, the petitioners have attended the selection and in the counter affidavit the only reason for non selection is on account of age criteria and no other reason has been given. Therefore, it is a fit case where the petitioners are entitled to succeed and be granted the benefit of age relaxation. 17. In the result, the Writ Petition is disposed of with a direction to the respondents to regularise the services of the petitioners by granting relaxation of the age qualification stipulated in G.O.Ms.No.710 dated 17.8.2005 by passing appropriate orders under Rule 48 of the General Rules with effect from the date of filing of the Original Application and grant the benefits notionally from the date of regularisation. The respondents are directed to complete the exercise within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.