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2014 DIGILAW 435 (MAD)

S. Pachaiyappan v. Government of Tamil Nadu

2014-02-21

M.VENUGOPAL

body2014
Judgment : 1. The Petitioner has focused the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents to forthwith regularise his services in the post of Junior Assistant with effect from the date on which he was initially appointed on 31.12.1991 in terms of G.O.(1D) School Education (R1) Department dated 28.09.2009 and the order of the 4th Respondent in Na.Ka.No.4875/A1/2007, dated 28.09.2009 by considering his representation dated 17.09.2012. 2. According to the petitioner, he was initially appointed to the post of Night Watchman on compassionate grounds on 31.12.1991 at Government High School, Vedanatham, Thiruvannamalai District. His father late M.Subramaniam, served as Office Assistant in the Respondents/Education Department and he died while in service. Later, he applied to the Respondents requesting them to appoint him on compassionate grounds. At the time of applying for the said post, he did not possess S.S.L.C. qualification. Later, he passed the S.S.L.C. examination conducted in October 1991. He was issued with the S.S.L.C. certificate on 31.12.1991. 3. In fact, the 4th Respondent through his proceedings in Na.Ka.No.14058, dated 31.12.1991 appointed the petitioner to the post of Night Watchman. Although, on the date of appointment i.e., on 31.12.1991, he possessed the qualification for the appointment to the post of Junior Assistant, he was appointed to the post of Night Watchman. However, he joined and served in the Respondent/Education Department as Night Watchman till 06.05.2009. 4. Since he possessed the qualification of S.S.L.C. on the date of appointment, he ought to have been appointed to the post of Junior Assistant. Even as per the clarifications issued by the Government in G.O.Ms.No.1499, Labour and Employment Department dated 03.08.1989, a person appointed to a lower post like Record Clerk and Sweeper on compassionate grounds, but, possessing the qualification required for the post of Junior Assistant at the time of initial appointment to the lower post, may be appointed as Junior Assistant. 5. He made a representation on 08.10.2003 to the Respondents 2 to 4, requesting them to upgrade him to the post of Junior Assistant. The 4th Respondent/District Educational Officer (High School), Thiruvannamalai District, by his proceedings dated 05.01.2004 returned his representation to the Headmaster to forward the application with all certificates. 6. The Headmaster, Government High School, Vedanatham through proceedings dated 12.01.2014 forwarded his representation complying the defects pointed out by the 4th Respondent enclosing with all his certificates. The 4th Respondent/District Educational Officer (High School), Thiruvannamalai District, by his proceedings dated 05.01.2004 returned his representation to the Headmaster to forward the application with all certificates. 6. The Headmaster, Government High School, Vedanatham through proceedings dated 12.01.2014 forwarded his representation complying the defects pointed out by the 4th Respondent enclosing with all his certificates. The 4th Respondent through proceedings in A.Thi.Mu.No.00838/A1/2004 dated 27.01.2004 passed an order rejecting his representation. Also the 4th Respondent wrongly mentioned that he had not passed the S.S.L.C. examination on the date of his appointment. 7. He challenged the 'Rejection Order' of the 4th Respondent dated 27.01.2004, by filing W.P.No.23209 of 2004 before this Court and this Court on 23.03.2007, passed an order, which runs as under: "8. I have considered the rival submissions and also the relevant Government Order issued in G.O.Ms.No.1499 dated 03.08.1989 and also the SSLC certificate issued to the petitioner on 30.12.1991 wherein it is stated that the petitioner appeared in October 1991 examination as private candidate and passed in English Paper, which he failed to get pass in the examination conducted in April, 1991. The registration number of the certificate issued to him is 544654 and the certificate is dated 30.10.1991. 9. The appointment order issued to the petitioner in the post of Night Watchman is dated 31.12.1991. Therefore, it is not in dispute that before the appointment of the petitioner, he was having SSLC pass certificate and is eligible to be appointed as Junior Assistant. The Headmaster of the School also through his proceedings dated 12.01.2004 recommended the claim of the petitioner to the second respondent for upgrading his post as Junior Assistant from the post of Night Watchman. Without reference to all these certificates and documents, the second respondent rejected the request of the petitioner and the same is unsustainable as it is contrary to records and passed on non-application of mind. 10. In view of the above, the second respondent is directed to consider the recommendation submitted by the Headmaster of the Government High School, Vedanatham, through his proceedings No.87/2003 dated 12.01.2004 and pass fresh orders taking note of G.O.Ms..No.1499 Labour and Employment Department dated 03.08.1989 within eight weeks from the date of receipt of copy of this order". 8. 10. In view of the above, the second respondent is directed to consider the recommendation submitted by the Headmaster of the Government High School, Vedanatham, through his proceedings No.87/2003 dated 12.01.2004 and pass fresh orders taking note of G.O.Ms..No.1499 Labour and Employment Department dated 03.08.1989 within eight weeks from the date of receipt of copy of this order". 8. That apart, through his letter dated 21.04.2007, the petitioner submitted a copy of the order of this Court dated 23.03.2007 passed in W.P.No.23209 of 2004 to the Respondents by registered post with the acknowledgment due by making a request to them to promote him to the post of Junior Assistant. However, the 4th respondent through proceedings in Na.Ka.No.4475/A1/07, dated 13.07.2007 passed rejection order on the ground that he had not passed the S.S.L.C. examination on the date of his initial appointment and further stated that G.O.Ms.No.1499 Labour and Employment Department dated 03.08.1989 was not applicable to him. 9. As against the said order of the 4th Respondent dated 13.07.2007, he filed W.P.No.31339 of 2007 before this Court and this Court on 23.04.2008 in the said writ petition not only set aside the order of the 4th Respondent's proceedings in Na.Ka.No.4475/A1/07, dated 13.07.2007 but also gave direction by adverting to the portion of the order of this Court, which is extracted as under: "8. The above order in the said writ petition will amply make it clear that this Court has observed that the petitioner was possessing the required qualification by having S.S.L.C. Pass certificate on the date of appointment and he is eligible to be appointed as Junior Assistant. The Headmaster of the concerned school also by his proceedings dated 12.01.2004 had recommended the claim of the petitioner. When such a considered order has been passed by this Court as referred to above, the second respondent without considering the orders passed there on, had rejected the claim of the petitioner without applying its mind at all. The order passed by the second respondent virtually amounts to disobedience of the order passed by this Court. 9. When such a considered order has been passed by this Court as referred to above, the second respondent without considering the orders passed there on, had rejected the claim of the petitioner without applying its mind at all. The order passed by the second respondent virtually amounts to disobedience of the order passed by this Court. 9. In view of the above stated position, I am inclined to set aside the order of the second respondent dated 13.07.2007 and direct the Respondents to promote the petitioner to the post of Junior Assistant and the said process has to be carried out by the Respondents within six weeks from the date of receipt of a copy of this order. It is needless to say that the petitioner is entitled to all attendant benefits". 10. Through his letter dated 03.06.2008, he forwarded the copy of the order dated 23.04.2008 passed in W.P.No.31339 of 2007 to the respondents and requested them to comply with the order of this Court. 11. Being dissatisfied with the order dated 23.04.2008 passed in W.P.No.31399 of 2007 passed by this Court, the Respondents herein preferred in W.A.No.1035 of 2008 and the same was dismissed on 08.09.2008. Even the Special Leave Petition to Appeal was also filed before the Hon'ble Supreme Court of India which came to be dismissed on 02.03.2009. 12. The stand taken on behalf of the petitioner is that inspite of the dismissal of the Special Leave Petition, the Respondents had not complied with the order of this Court dated 23.04.2008 passed in W.P.No.31399 of 2007. 13. The petitioner was perforced to file Contempt Petition No.1258 of 2008 for the compliance of the order dated 23.04.2008 in W.P.No.31399 of 2007. When the Contempt Petition came up for hearing, on behalf of the Respondents side, it is submitted before this Court that G.O.(1D)No.153, School Education (R1) Department dated 20.04.2009 was issued by the Government, in and by which, the Second Respondent was instructed to appoint him as Junior Assistant from the date on which, he was initially appointed as Night Watchman. 14. The 4th Respondent, pursuant to the Government Order in G.O.(1D)No.153, School Education (R1) Department dated 20.04.2009, through proceedings in Na.Ka.No.4875/A1/2007 dated 28.09.2009, passed an order appointing the petitioner to the post of Junior Assistant with retrospective effect from 31.12.1991 and posted him at Government Higher Secondary School, Pazhayanur, Tiruvannamalai District. 15. 14. The 4th Respondent, pursuant to the Government Order in G.O.(1D)No.153, School Education (R1) Department dated 20.04.2009, through proceedings in Na.Ka.No.4875/A1/2007 dated 28.09.2009, passed an order appointing the petitioner to the post of Junior Assistant with retrospective effect from 31.12.1991 and posted him at Government Higher Secondary School, Pazhayanur, Tiruvannamalai District. 15. Pursuant to the aforesaid Government Order he was paid a sum of Rs.62,216/- towards Junior Assistant Pay Fixation arrears (for the period from 31.12.1991 to 30.06.2012) through proceedings of the 4th Respondent in Na.Ka.No.752/A1/2011, dated 18.07.2012. Recording the aforesaid payment, the Contempt Petition 1258 of 2008 was closed by this Court on 20.07.2012. 16. The main grievance of the petitioner is that even though he was appointed as Junior Assistant with retrospective effect from the date on which he was initially appointed as Night Watchman i.e. on 31.12.1991 by the Respondents, still his services have not been regularised and because of the non regualarisation of his service, he was paid the lesser salary than his juniors. 17. At this stage, a mere perusal of the contents of G.O.(1D)No.153, School Education (R1) Department dated 20.04.2009 interalia points out that based on the orders passed by this Court dated 23.04.2008 in W.P.No.31399 of 2007 and in view of the fact that the petitioner possessed the S.S.L.C. qualification for the post of Junior Assistant, on the basis of Honourable Supreme Court judgment and also on the basis of Government guidelines mentioned in G.O.No.1499 Labour and Employment Department, dated 03.08.1989, the petitioner was directed to be appointed as Junior Assistant and in this regard the School Education Director was instructed accordingly. 18. A perusal of the 4th respondent proceedings dated 07.05.2009 also clearly points out that the petitioner was issued with the order of appointment as Junior Assistant from 31.12.2001 at Government Girls High School (on Compassionate appointment), Sathanoor, Thiruvannamalai District and further the petitioner (Night Watchman) was advised to join in the post of Junior Assistant immediately. 19. It comes to be known that even though the petitioner was appointed to the post of Junior Assistant with retrospective effect in terms of the proceedings of the 4th Respondent dated 07.05.2009, yet he was paid only a sum of Rs.62,216/- towards arrears of his salary (for the period relating to 31.12.1991 to 30.06.2012). 20. 19. It comes to be known that even though the petitioner was appointed to the post of Junior Assistant with retrospective effect in terms of the proceedings of the 4th Respondent dated 07.05.2009, yet he was paid only a sum of Rs.62,216/- towards arrears of his salary (for the period relating to 31.12.1991 to 30.06.2012). 20. According to the Learned counsel for the petitioner, this not a correct one because of the simple fact that the Respondents had not calculated the exact arrears of salary due to the petitioner in a proper and real perspective. Further, it is brought to the notice of this Court that the petitioner received the said sum of Rs.62,216/- from the Headmaster, Government Higher Secondary school, Palayanur, Tiruvannamali District towards his arrears of pay on 17.07.2012 and to that effect he had also given a stamp receipt. 21. The Learned counsel for the petitioner contends that the petitioner was paid only a sum of Rs.62,216/- towards his arrears of salary in the post of Junior Assistant Pay Fixation for the period from 31.12.1991 to 30.06.2012 and in fact the petitioner is to get more amount than the sum of Rs.62,216/- received by him. 22. The petitioner made a representation dated Nill addressed to the 4th respondent/DEO, Thiruvannamali District interalia stating that from 07.05.2009, being the date of his appointment as Junior Assistant, till 17.09.2012 his services were not regualarised and because of the same, he was paid a low salary and with these salary, he was not in a position to look after his old age mother, medical and family expenses etc. Added further, it is relevant for this Court to point out that in the said representation, he had clearly mentioned that his juniors got the promotion and he was to continue in the same post as Junior Assistant and ultimately prayed for his regualrisation. It is to be borne in mind that according to The Shorter Oxford English Dictionary 3rd Edition Volume 11 page 1692 the meaning of 'regularisation' is to make regular. 23. It is to be noted that if a person has suffered damage or loss, then it is proper for the Court to grant a reasonable and legitimate interest based on factual matrix of a given case, as opined by this Court. 23. It is to be noted that if a person has suffered damage or loss, then it is proper for the Court to grant a reasonable and legitimate interest based on factual matrix of a given case, as opined by this Court. Also, a Court of law can take judicial notice of inflation, stagnation and the fall in bank rate of interest. Ordinarily, the grant of interest at 6% p.a. is a reasonable, legitimate, fair and satisfactory one. Furthermore, the award of interest ought to be the rule and refusal is an exception. Added further, a Court of law has discretion to award interest to a party/litigant based on the facts and circumstances of a given case even when not specially asked for in the writ petition. 24. In the upshot of qualitative and quantitative discussions and on a careful consideration of the attendant facts and circumstances of the case in an integral fashion, this Court, on the basis of Equity, Fair Play, Good Conscience and even as a matter of prudence, directs the Respondents to consider the petitioner's representation dated Nil (acknowledged on 17.09.2012) in a Just, Fair, Objective and dispassionate manner and to pay the arrears of salary due to him (of course, deducting a sum of Rs.62,216/- paid already) together with interest at the rate of 6% p.a from 07.05.2009 till date within a period of six weeks from the date of receipt of a copy of this order. 25. Apart from paying the arrears of amount as stated supra, the Respondents are directed to consider the case of the petitioner for promotion if any and to place him at the appropriate place and if situation so warrants to grant him all benefits in the manner known to law and in accordance with law. 26. With the aforesaid observations and directions, this writ petition is disposed of. No costs.