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2014 DIGILAW 2348 (MAD)

C. Sankarasubramaniam v. Secretary to Government

2014-08-04

S.VAIDYANATHAN

body2014
Judgment : 1. This writ petition has been filed by the petitioner, praying for issuance of writ of certiorarified mandamus to call for the records relating to the proceedings of the 1st respondent herein dated 12.02.2008 made in Letter No.16803/ADW.1/2006-4 (rejecting the review petition) confirming the proceedings of the 2nd respondent dated 08.04.2006 made in Na.Ka.No.E1/42306-9/02 rejecting the request of the petitioner to regularise his services in the Cadre of Junior Assistant retrospectively with effect from 07.11.1978, quash the same and consequently, direct the respondent herein to regularise his services in the cadre of Junior Assistant in the office of the second respondent retrospectively with effect from 07.11.1978 with due further seniority together with other attended benefits. 2. The petitioner joined services as Section Writer in the office of Directorate of Adi Dravidar Welfare on 17.11.1972 and he was ousted from service by an order dated 29.03.1976. Again he was appointed with effect from 31.07.1986 and again ousted on 15.03.2005, consequent on disbandment of post. The petitioner has preferred an appeal to the Government and he was appointed on 23.01.1996 as Junior Assistant and his services were regularised with effect from 03.02.1986. 3. The case of the petitioner is that there is no reason for disallowing the period of 12 years of services rendered earlier i.e., from 1972. The petitioner also preferred the said appeal quoting various Government Orders and contending that the petitioner being a contingent worker having put in more than 5 years of service has to be brought in to regular establishment. Unfortunately, the petitioner's request was not considered and was rejected by an order dated 08.04.2006 quoting Rule 35(6) of State and Subordinate Service Rules which is extracted below; “The service rendered by him prior to the date of his regular appointment shall not count for promotion, seniority or increment.” 4. The petitioner submitted that he has preferred an appeal and finally by an impugned order dated 12.02.2008, the Secretary to Government rejected the request of the petitioner to regularise his services in the post of Junior Assistant stating that as a special case with effect from 03.02.1986 has already been granted and hence considering the request for retrospective regularisation with effect from 07.11.1978 cannot be accepted. 5. 5. Challenging the said impugned order the present writ petition has been filed seeking for the regularisation of the services in the post of Junior Assistant with effect from 07.11.1978 as the petitioner had completed 5 years of service in terms of the G.O.Ms.No.1352, Labour & Exchange Department dated 07.11.1978, having joined the service in the year 1972. He has also contended that the break in service or disengagement by the respondent Adi Dravidar and Tribal Welfare Department was not due to his fault. 6. The respondent has filed a detailed counter wherein it has been stated that the petitioner was appointed as Section Writer on 17.11.1972, under emergency provision without consulting the Employment Exchange. They have also admitted that the petitioner has put in for more than 12 years of service as Section Writer and his services came to be regularised as Junior Assistant on and from 03.02.1986. The period of services rendered prior to 23.01.1986 cannot be taken in to account as the petitioner was a contingent worker. They have further stated that petitioner served as Section Writer with break in service and since his request to regularise his services from 07.11.1978, cannot be accepted under General Rule 35(6) of Tamil Nadu State and Subordinate Service Rules which is extracted supra, and hence the claim of the petitioner was rightly rejected. However, the period of service was taken in to account i.e., 50% prior to 1986 for the purpose of granting pensionary benefit and the petitioner is getting pensionary benefit which has been increased considerably and therefore, the respondents have prayed for dismissal of the writ petition as devoid of merits. 7. In reply the learned counsel for the petitioner has submitted that the Government by G.O.Ms.No.1352, Labour & Exchange Department dated 07.11.1978 has recommended the case of the petitioner as a special case, even though the appointment was an irregular one as the appointment was made without consulting the employment exchange and there was also a specific warning in the said Government Order that the Director is to ensure that such irregularities do not recur in future. 8. As per the provisions of the Employment Exchange Act, it is very clear that it is only directory in nature and not mandatory i.e., consultation with the employment in the matter making appointments. 8. As per the provisions of the Employment Exchange Act, it is very clear that it is only directory in nature and not mandatory i.e., consultation with the employment in the matter making appointments. In any event, the Government had sent the proposal by G.O.Ms.No.1352, Labour & Exchange Department dated 07.11.1978 which is extracted supra to regularise the services of the petitioner as failure consult the employment exchange is only an irregular but not illegal. 9. That apart, the General Rule 35(6) of Tamil Nadu State and Subordinate Service Rules which is extracted supra, also makes very clear that the services rendered prior to regular appointment shall not count for promotion, seniority or increment. 10. The contention of the respondent that in terms of General Rule 35(6) of Tamil Nadu State and Subordinate Service Rules, the petitioner is not entitled to any relief prior to 1986 cannot be accepted since as already stated supra that his irregular appointment is not his fault, but on the part of the respondents for which petitioner should not be punished. 11. In accordance with the provisions under The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 which came in to force from January 1982, and since the Government itself has recommended the case of the petitioner as a special case which has been accepted and the orders were also issued, the services rendered by the petitioner from 1978 cannot be ignored. Hence, I am of the view that the contention raised by the respondents that the petitioner is not entitled to any benefits, are untenable and the same are rejected. Accordingly, the petitioner is entitled to the relief as prayed for with effect from 07.11.1978 with all the benefits accrued there from. Writ petition is allowed as prayed for.