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2013 DIGILAW 3804 (MAD)

S. Rajangam v. Secretary to Government, Chennai

2013-11-05

K.KALYANASUNDARAM, R.BANUMATHI

body2013
Judgment : R. Banumathi, J. 1. Challenge in these writ appeals – W.A.Nos.226 and 491 of 2012 are the Orders dismissing the Writ Petitions – W.P.Nos.26753 of 2008 and 17559 of 2009 dated 28.09.2011 and 06.07.2011 respectively and declining to issue direction to the respondents to regularise the services of the appellants in the post of “Animal Husbandry Assistant” with effect from the date on which the appellants were brought into regular time scale of pay. 2. The appellants in W.A.No.226 of 2012 (S.Rajangam and N.Thirukasu) were originally appointed as Animal Husbandry Assistants on daily basis on 17.06.1981 and 22.06.1981 respectively and were working continuously for more than 16 years. In the Animal Husbandry Department, number of casual labourers were employed on daily wages apart from the regular employees in various institutions such as District Livestock, Farms Veterinary, Veterinary Dispensaries and other institutions. They were appointed as casual labourers in those institutions based on the need and necessity in the above farms and institutions. To regularise those casual labourers and in order to bring them into regular establishment, Government issued G.O.(Ms) No.116, Animal Husbandry Department dated 07.05.1997 sanctioning 826 posts of Animal Husbandry Assistants in the scale of pay of Rs.775-12-15-1030 on temporary basis to enable the Director of Animal Husbandry to bring the 826 casual labourers into regular establishment and to post them as Animal Husbandry Assistants. Based on the said Government Order, by proceedings in Na.Ka.No.14170/C/97 dated 21.08.1997, the appellants were temporarily appointed as Animal Husbandry Assistants in the scale of pay of Rs.775-12-835-15-1030. By the proceedings of Deputy Director, Animal Husbandry Department, Ramanathapuram, in Na.Ka.No.1762/A/03, dated 14.03.2005, the appellants were directed to withdraw O.A.No.7187 of 1995 filed by the appellants seeking regularisation. It is stated that since the Tribunal was not functioning regularly, the appellants could not immediately withdraw the said O.A.No.7187 of 1995. Subsequently, the appellants filed W.P.No.20036 of 2005 seeking for a writ of mandamus to permit the appellants to withdraw O.A.No.7187 of 1995 on the file of Tamil Nadu Administrative Tribunal. The said Writ Petition was disposed of on 20.06.2005 directing transfer of O.A.No.7187 of 1995 to the High Court to enable the appellants to withdraw the Original Application. Subsequently, the said Original Application is said to have been withdrawn by the appellants. The services of the appellants were not then regularised. 3. The said Writ Petition was disposed of on 20.06.2005 directing transfer of O.A.No.7187 of 1995 to the High Court to enable the appellants to withdraw the Original Application. Subsequently, the said Original Application is said to have been withdrawn by the appellants. The services of the appellants were not then regularised. 3. Subsequently, the Government issued G.O.(Ms) No.117, Animal Husbandry Dairying and Fisheries (AH7) Department dated 28.08.2008 to bring 163 persons into regular establishment as “Animal Husbandry Assistants”. The names of the appellants were included in G.O.(Ms) No.117 dated 28.08.2008 in Sl.Nos.140 and 141 (Ramanathapuram Region). The appellants filed Writ Petition seeking for a writ of certiorarified mandamus to quash the said G.O.(Ms) No.117 dated 28.08.2008 so far as they are concerned and to direct the respondents to regularise the services of the appellants in the post of Animal Husbandry Assistant w.e.f. 21.08.1997. 4. The Writ Court held that whenever a scheme is framed to accommodate a particular number of persons, more number of persons are appointed by subordinate officers and thereby bringing pressure on the State Government to issue further orders under the threat of contempt and referring to the decision of the Supreme Court in State of Karnataka vs. Umadevi reported in (2006) 4 SCC 1 ) and also Union of India and another Vs. Arulmozhi Iniarasu and others reported in (2011) 7 SCC 397 , the learned single Judge held that the appellants cannot seek regularisation as a matter of right and dismissed the writ petition. 5. Based on G.O.(Ms.) No.116 dated 07.05.1997, the appellant in W.A.No.491 of 2012 was appointed as Animal Husbandry Assistant in the regular time scale of pay in Coimbatore Region along with others. By the proceedings in Roc.No.108018/RR1/96 dated 16.06.1999, the name of appellant – K.Krishnasamy was included in G.O.(Ms) No.117 dated 28.8.2008 in Sl.No.147 (Coimbatore Region). The appellant in W.A.No.491 of 2012 had also filed writ petition seeking for writ of certiorarified mandamus to quash the G.O.(Ms.) No.117 dated 28.08.2008 so far as relating the appellant and to direct the respondents to bring him into regular time scale of pay on par with his juniors. The learned single Judge dismissed the writ petition holding that the appellant cannot seek for regularisation from the date on which he was brought into regular time scale of pay. 6. The learned single Judge dismissed the writ petition holding that the appellant cannot seek for regularisation from the date on which he was brought into regular time scale of pay. 6. Learned counsel for appellants Mr.S.M.Subramanian contended that the appellants in W.A.No.226 of 2012 were appointed as Animal Husbandry Assistants bringing them into regular time scale of pay by the proceeding dated 21.08.1997 and since then the appellants were working in the regular post in the regular time scale of pay and therefore, their services are to be regularised only from 21.08.1997. Learned counsel further submitted that since the Tribunal was not functioning, there was a delay in withdrawing the case and only by filing writ petition in W.P.No.20036 of 2005, the appellants could withdraw O.A.No.7187 of 1995 and while so, the names of appellants were mistakenly included for the second time in G.O.Ms.No.117 dated 28.08.2008, which was an administrative mistake without referring to the fact that the names of the appellants were also included in G.O.(Ms) No.116 dated 07.05.1997. The learned counsel further submitted that in respect of Sl.No.25 (S.Mathiyalagan) in G.O.Ms.No.117 dated 28.08.2008, the Government subsequently regularised him with retrospective effect from the date on which he was brought into regular time scale of pay and also issued G.O.Ms.No.49 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 20.02.2013 to that effect and therefore, prayed for allowing of Writ Appeal. 7. Reiterating the submissions, the learned counsel Mr.P.Veeraraghavan appearing for the appellant in W.A.No.491 of 2012 submitted that the appellant is similarly placed as that of S.Mathiyalagan, whose services were regularised with effect from 01.07.1999 from the date on which he was brought into regular time scale of pay and the appellant is also entitled to be regularised with effect from 28.06.1999, the date on which he was brought into regular time scale of pay. 8. Mr.V.R.Kamalanathan, learned Additional Government Pleader submitted that the appellants cannot be treated on par with S.Mathiyalagan and claim the same benefit of regularisation from the date on which they were brought into regular time scale of pay as Animal Husbandry Assistants. 8. Mr.V.R.Kamalanathan, learned Additional Government Pleader submitted that the appellants cannot be treated on par with S.Mathiyalagan and claim the same benefit of regularisation from the date on which they were brought into regular time scale of pay as Animal Husbandry Assistants. The learned Additional Government Pleader further submitted that the Government issued G.O.Ms.No.49 Animal Husbandry, Dairying and Fisheries (AH6) Department dated 20.02.2013, regularising the services of S.Mathiyalagan in the post of Animal Husbandry Assistant with effect from 01.07.1999 i.e. the date of joining in the regular post, only in pursuance of the order of the Court in writ petition and merely because the Government has implemented the order passed in the writ petition in W.P.No.7049 of 2009, the same order cannot be extended to all other persons, who are included in G.O.Ms.No.117 dated 28.08.2008. 9. We have considered the submissions of the learned counsels for the appellants and the learned Additional Government Pleader for the respondents. 10. As pointed out earlier, the appellants in the writ appeal in W.A. No.226 of 2012 were already covered in G.O.Ms.No.116 dated 07.05.1997. Only based on the said G.O.Ms.No.116 dated 07.05.1997, the appellants in W.A.No.226 of 2012 were brought into regular time scale of pay in the post of Animal Husbandry Assistant with effect from 21.08.1997. Since the Tamil Nadu Administrative Tribunal was not sitting, as directed by the authorities, the appellants could not withdraw O.A.No.7187 of 1995. The appellants filed W.P.No.20036 of 2005 and only by the order of the Court dated 20.06.2005, the appellants could withdraw O.A.No.7187 of 1995 filed before the Tamil Nadu Administrative Tribunal. Therefore, the appellants cannot be faulted for not withdrawing O.A.No.7187 of 1995 to deny them the benefit of regularisation with effect from the date of their joining in the regular post of Animal Husbandry Assistant i.e. 21.08.1997. 11. Likewise, the appellant in W.A.No.491 of 2012 was appointed in the post of Animal Husbandry Assistant by bringing him in the regular time scale of pay by the proceedings of the Directorate of Veterinary Services in ROC No.108018/RR1/96 dated 16.06.1999. 12. 11. Likewise, the appellant in W.A.No.491 of 2012 was appointed in the post of Animal Husbandry Assistant by bringing him in the regular time scale of pay by the proceedings of the Directorate of Veterinary Services in ROC No.108018/RR1/96 dated 16.06.1999. 12. One S.Mathiyalagan, whose name is found in Sl.No.25 of G.O.Ms.No.117 dated 28.08.2008 had fled W.P.No.7049 of 2009 seeking for a direction to withdraw the proceedings of the Clinician, Veterinary Hospital, Kumbakonam dated 18.09.2008 and 30.12.2008 and direct the authorities to regularise the services of S.Mathiyalagan with effect from 01.07.1999 i.e. the date of joining the regular post of Animal Husbandry Assistant and also to sanction the annual increment with effect from 01.07.2000. The said writ petition was allowed interalia issuing directions. The Government implemented the order passed in W.P.No.7049 of 2009, regularising the said S.Mathiyalagan with effect from 01.07.1999 i.e. the date of joining in the regular post of Animal Husbandry Assistant by issuing G.O.Ms.No 49 dated 20.02.2013. While so regularising, the Government had also relaxed Rule 23(a)(ii) of General Rules of Tamil Nadu State and Subordinate Services in favour of the said S.Mathiyalagan. 13. The name of the said S.Mathiyalagan is found in Sl. No.25 of G.O.Ms.No.117 dated 28.08.2008. The names of the appellants in W.A.No.226 of 2012 viz., S.Rajangam and N.Thirukasu are found in Sl.Nos.140 and 141 (Ramanathapuram Region). Likewise, the name of the appellant in W.A.No.491 of 2012 viz., K.Krishnasamy is found in Sl.No.147. When the respondents have regularised the services of S.Mathiyalagan (Sl. No.25 in G.O.Ms.No.117 dated 28.08.2008) in the post of Animal Husbandry Assistant with effect from 01.07.1999 i.e. the date of joining in the regular post of Animal Husbandry Assistant and issued G.O.Ms.No.49 dated 20.02.2013, the respondents are not justified in denying the benefit to the appellants, contending that they are not similarly placed. When the appellants are similarly placed as that of S.Mathiyalagan, the respondents cannot seek to deny the benefit of regularisation of the appellants with effect from the date of joining in the regular post of Animal Husbandry Assistant. We are of the view that the appellants are similarly placed as that of S.Mathiyalagan and the appellants are entitled to be regularised with effect from the date of joining in the regular post of Animal Husbandry Assistant i.e. 21.08.1997 and 16.06.1999 respectively. The orders of the Writ Court cannot be sustained and are liable to be set aside. 14. We are of the view that the appellants are similarly placed as that of S.Mathiyalagan and the appellants are entitled to be regularised with effect from the date of joining in the regular post of Animal Husbandry Assistant i.e. 21.08.1997 and 16.06.1999 respectively. The orders of the Writ Court cannot be sustained and are liable to be set aside. 14. For the foregoing reasons, the orders of the Writ Court in W.P.No.26753 of 2008 and 17559 of 2009 dated 28.09.2011 and 06.07.2011 respectively are set aside and the writ appeals are allowed. The respondents are directed to regularise the services of the appellants in the post of Animal Husbandry Assistant with effect from 21.08.1997 and 16.06.1999 respectively i.e. the date of appellants' joining in the regular post of Animal Husbandry Assistant and grant all the monetary benefits. If for any period, the appellants had been ousted for want of vacancy, the appellants shall not be entitled to any monetary benefit during that period but the same shall be taken into account for continuity of service. The respondents are directed to comply with the order within a period of four months from the date of receipt of a copy of the judgment. No costs.