T. Duraiswamy v. State of Tamilnadu, rep. By its Secretary to Govt. , Finance [T & A] Department, Chennai
2013-06-21
M.JAICHANDREN, M.M.SUNDRESH
body2013
DigiLaw.ai
JUDGMENT M.M. Sundresh, J. 1. This Writ Appeal has been preferred against the order passed by a learned single Judge, dated 1.3.2010, made in W.P.No.2580 of 2009. 2. The appellant herein was originally appointed as Junior Assistant under Rule 10[a][i] of the General Rules for Tamil Nadu State Subordinate Service, in the year 1970. Thereafter, he had served in the said capacity, during the following period, in the following stations:- 14.04.1972 to 07.03.1974 Sub Treasury Office, Gingee 08.03.1974 to 16.05.1974 District Treasury Office, Cuddalore 17.05.1974 to 25.06.1976 Sub Treasury Office, Kallakurichi 20.08.1977 to 17.12.1977 Office of the Assistant Director of Fisheries, Cuddalore. 21.01.1978 to 12.09.1980 Judicial Second Class Magistrate Court, Tirukoilur. The appellant appeared for the examination conducted by the Tamil Nadu Public Service Commission through the Special Recruitment examination in the year 1977. Since he became the successful candidate, he was appointed as a Junior Assistant w.e.f. 12.9.1980 and retired from service on 30.6.2005. In the meanwhile, he filed O.A.No.6954 of 2000, on the file of the Tamil Nadu Administrative Tribunal, which was transferred and re-numbered as W.P.No.26866 of 2005. In the said writ petition, the appellant challenged the order rejecting his request to take into consideration the services put in by him from 1970 onwards. The writ petition was dismissed on 8.2.2006 directing the 1st respondent to consider and pass orders on the appeal petition filed by the appellant. Considering the said appeal petition filed by the appellant, the 1st respondent once again rejected his request, in and by the order dated 4.5.2006. The appellant once again challenged the same before this Court. The learned single Judge dismissed the writ petition on the ground that the Government order passed in G.O.Ms.No.1034, dated 1.11.1983, is not applicable to the case of the appellant, as he being under temporary service for the period just few days prior to the cut off date, and hence he is not entitled to the benefit for the relief sought for. Challenging the same, the present appeal has been preferred. 3. The learned Senior Counsel appearing for the appellant would submit that even though the services rendered earlier from 1970 cannot be counted for the purpose of seniority, the same can be taken into account for the purpose of monetary benefits.
Challenging the same, the present appeal has been preferred. 3. The learned Senior Counsel appearing for the appellant would submit that even though the services rendered earlier from 1970 cannot be counted for the purpose of seniority, the same can be taken into account for the purpose of monetary benefits. Even otherwise, the services rendered by the appellant, at least from 21.1.1978 ought to have been taken into consideration as per the G.O.Ms.No.1034, dated 1.11.1983. Therefore, the appeal will have to be allowed. 4. Per contra, the learned Additional Government Pleader would submit that the appellant has not challenged the earlier order of rejection passed against him. The said order as well as the order passed by the learned single Judge, on the earlier occasion, have become final. The appellant has raised a new plea, for the first time, in the appeal, that too in the course of arguments. The appellant has since retired, a stale claim is sought to be revived after a number of years. Therefore, the appeal will have to be dismissed. 5. We do not find any merit in the appeal. Admittedly, the appellant was working in a temporary capacity having been appointed under Rule 10[a][i] of the General Rules for Tamil Nadu State Subordinate Service. The Government Order in G.O.Ms.No.1034 also do not provide for counting the temporary services of the appellant. He has been appointed as Junior Assistant pursuant to his passing the Special Recruitment examination conducted in the year 1977. Therefore, there is no ground made out for taking into account the services rendered by the appellant in a temporary capacity, prior to 1977. 6. Insofar as the second contention of the learned single Judge that the services rendered by the appellant from 21.1.1978 to 12.9.1980 have to be counted, is concerned, the said contention is also rejected for the reason that the appellant having accepted the appointment and having not challenged the same, cannot be allowed to raise it at the time of his retirement. The appellant has not raised the said plea in the writ petition, except to raise it by way of an argument before us. The appellant has since retired and the question as to whether the appellant is entitled to count his service from 21.1.1978 or not, is the disputed question, which cannot be raised, for the first time, before us, during arguments in this appeal.
The appellant has since retired and the question as to whether the appellant is entitled to count his service from 21.1.1978 or not, is the disputed question, which cannot be raised, for the first time, before us, during arguments in this appeal. Furthermore, the claim of the appellant is hit by delay, laches and acquiescence. Accordingly, the writ appeal stands dismissed. No costs.