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2014 DIGILAW 1090 (MAD)

V. Mahendran v. Principal Secretary to Government

2014-06-03

R.MAHADEVAN

body2014
Judgment R. Mahadevan, J. 1. Challenge in this Writ Petition is to the order dated 07.12.2009, in and by which, the petitioner was terminated from service. 2. The case of the petitioner is that he was appointed as Junior Assistant, temporarily under General Rule 10(a)(1) of Special Rules for Tamil Nadu State and Subordinate Service, vide proceedings dated 12.07.1990, of the third respondent. He was ousted from service for want of vacancy. However, in terms of G.O. Ms. No. 1223, Public (Services-A) Department, dated 25.06.1965, since the petitioner is a Burma repatriate, he should not be ousted from service and hence, he was appointed as Record Clerk vide order dated 12.01.1995 and subsequently, the petitioner was again appointed as Junior Assistant. But, unfortunately, without considering the fact that the petitioner was working as Junior Assistant on temporary basis, under General Rule 10(a)(1) of Special Rules for Tamil Nadu State and Subordinate Service [hereinafter referred to as the Rules], the petitioner was ousted from service by the third respondent, vide order dated 24.05.1996. Challenging the same, the petitioner filed O.A.No.3116 of 1996 before the Hon'ble Tamil Nadu Administrative Tribunal and upon perusing the documents, the Tribunal granted an order of stay, by order dated 25.06.1996 and it was further extended until further orders and on the abolition of the Tribunal, the said O.A. has been transferred to this Court and the same was numbered as W.P. No. 20546 of 2006. 3. This Court, by order dated 27.07.2009, while disposing of the Writ Petition in W.P. No. 20546 of 2006, has held that though there is no infirmity in the order under challenge, the case of the petitioner should be considered in terms of G.O. Ms. No. 22, Personnel and Administrative Reforms Department, dated 28.02.2006 and also taking note of the fact that the petitioner is continuing in service for nearly 19 years and keeping in mind, at this age, he cannot seek an alternative appointment, a direction was issued to the respondents to pass orders, within a period of two months and till passing of the order, the service of the petitioner should not be disturbed. In spite of direction to regularize the service of the petitioner, by taking into consideration of his age and service, the third respondent, by stating that in view of the rule position under General Rule 10(a)(1) of the Rules, the temporary services of the petitioner as Junior Assistant, could not be allowed to continue, has passed the impugned order, terminating the petitioner from service. Challenging the same, the petitioner is before this Court. 4. The respondents have filed a counter-affidavit by way of vacate stay petition stating that while disposing of the Writ Petition filed earlier, this Court found that there is no infirmity in the termination order and a direction was issued to consider the case of the petitioner, in the light of G.O. Ms. No. 22, Personnel and Administrative Reforms Department, dated 28.02.2006 and accordingly, the respondents considered the case of the petitioner on merit and passed the impugned order of termination. It is further stated that though Burma repatriates were given certain concession for appointing them in Government services, the concessions such as age, education and fee concession, etc., were subsequently withdrawn by the Government in G.O. Ms. No. 183, Personnel and Administrative Reforms Department, dated 15.06.1993. Hence, the respondents, justifying the passing of the impugned order, prayed for dismissal of the Writ Petition. 5. The learned counsel appearing for the petitioner, in support of his contention, relied on the following decisions:- (i) S. Jalajakumari vs. Personal Assistant (General) to the Collector, 2008(5) MLJ 1073 (ii) Joint Director of School Education vs. C. Lesley Jayaseelan, 2011(3) MLJ 673 (iii) T. Manickam vs. Government of Tamil Nadu, 2009(2) LLN 579 6. I have considered the above submissions and perused the records carefully. 7. The petitioner was appointed on 12.07.1990 as temporary worker. Subsequently, various Government Orders were issued empowering the authorities to regularize the services of the petitioner. While this being the case, the petitioner's service was terminated by an order dated 24.05.1996. Aggrieved over the same, the petitioner filed O.A. No. 3116 of 1996 before the Tamil Nadu Administrative Tribunal and on abolition, the same was transferred to this Court and numbered as W.P. No. 20546 of 2006 and this Court, by order dated 27.07.2009, while disposing of the said Writ Petition, referring to G.o. Ms. Aggrieved over the same, the petitioner filed O.A. No. 3116 of 1996 before the Tamil Nadu Administrative Tribunal and on abolition, the same was transferred to this Court and numbered as W.P. No. 20546 of 2006 and this Court, by order dated 27.07.2009, while disposing of the said Writ Petition, referring to G.o. Ms. No. 22, Personnel and Administrative Reforms Department, dated 28.02.2006, observed that the petitioner is entitled for regularization of service and directed the authorities concerned to pass appropriate orders. Thereafter, the petitioner made several representations, but ended in vain. On the other hand, the third respondent, vide impugned order dated 07.12.2009, terminated the service of the petitioner, stating that he was appointed on temporary basis under General Rule 10(a)(1) of the Rules. 8. The very similar issue was considered by this Court in a batch of cases, more particularly, in S. Jalajakumari's case cited supra, wherein, a Division Bench of this Court, while considering the similar issue, has held that though the private individuals have been appointed on ad hoc basis under Rule 10(a)(1), and were not successful in the special qualifying test, when they have entered service on being sponsored by Employment Exchange and have put in more than two decades of service and when the State has the necessary power to grant relaxation to them under Rule 48 of the said Rules, they can be regularized and the order of the Tribunal regularizing their services must be affirmed. 9. In Joint Director of School Education vs. C. Lesley Jayaseelan, 2011(3) MLJ 673 , a Division Bench of this Court has held that order of removal of a Government servant from service passed after the lapse of 22 years, on the ground that he got appointment on compassionate ground by furnishing false information, cannot be sustained, as it would affect the livelihood of his entire family and particularly, when his appointment is not in violation of any statutory regulation and his removal is not based on any misconduct. 10. 10. In T. Manickam vs. Government of Tamil Nadu, 2009(2) LLN 579 , an appointment under Rule 10(a)(1) was considered by this Court and the stand taken by the respondents therein was negatived observing that the respondents are liable to take into consideration the continuous service of the petitioner therein under Rule 10(a)(1) and subsequently, a direction was issued to the authorities to regularize the service of the petitioner therein from the date of his appointment in accordance with law with all benefits. 11. In view of the above stated position, the order under challenge is set aside and the respondents are directed to regularize the services of the petitioner and pass appropriate orders with regard to the benefits, for which, the petitioner is legally entitled to, on regularization. The said exercise shall be completed, within a period of six weeks from the date of receipt of a copy of this order. 12. The Writ Petition is allowed to the extent indicated above. No costs.