IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 33784 of 2006 J. Poongothai .. Petitioner Versus 1. The Government of Tamil Nadu rep. by its Secretary to Government Education Department Fort St. George Chennai – 600 009 2. The Director of School Education Madras – 600 006 3. The Chief Educational Officer Villupuram District Villupuram 4. The District Elementary Educational Officer Villupuram Villupuram District .. Respondents O.A. No. 5406 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records of the first respondent in relation to the letter No. 30458/R2/94-10 dated 14.06.1995 issued by the first respondent and quash the same and consequentially direct the respondent to regularise the petitioner's service in the post of Junior Assistant from the date of re-appointment i.e., 29.06.1984 with service and monetary benefits. (Prayer amended as per order dated 09.04.2009 made in MP No. 1 of 2010 in WP No. 33784 of 2006) For Petitioner : Mr. R. Saseetharan For Respondent : Mrs. Lita Srinivasan Government Advocate ORDER The petitioner was appointed as Junior Assistant in the Adult Education Unit, Thiruvallur under Rule 10 (a) (i) of the Tamil Nadu State and Subordinate Service Rules on 31.12.1981 through employment exchange. After a period of three years, she was ousted from service for want of vacancy on 31.03.1984. Again, the petitioner was re- appointed as Junior Assistant on 29.06.1984. Though the petitioner https://hcservices.ecourts.gov.in/hcservices/ has completed ten years of service, her service was not regularised on the ground that she was not in service as Junior Assistant on 25.06.1984 for regularisation as contemplated under G.O.Ms. No.996 dated 22.09.1984 by which ban was imposed for employment and the re- appointment of the petitioner on 29.06.1984 by the Chief Educational Officer during the ban period is contrary to G.O. Ms. No. 996 dated 22.09.1984. According to the petitioner, the respondents have not regularised her service either from the initial appointment or atleast from the date of her re-appointment. At this juncture, it is to be pointed out that originally, the petitioner filed O.A. No. 5980 of 1984 for a direction to the respondents to regularise her service from the date of her appointment namely 31.12.1981, subsequently a petition was filed to amend the prayer and accordingly the prayer was amended seeking regularising her service atleast from the date of re- appointment namely 29.06.1984. 2. In the Original Application, it was contended by the petitioner that she is entitled for regularisation of her service in terms of G.O. Ms. No. 259, P&AR Department dated 24.08.1989 on the basis of the service rendered by her from 1981 to 1984 also. The Tribunal, by order dated 24.12.1994 issuing certain direction, but that order was not complied with. Therefore, the petitioner has filed Contempt Application No. 343 of 1995 before the Tribunal. When the contempt petition was filed, the respondents regularised the service of the petitioner by proceedings dated 14.06.1995 with effect from10.04.1990 on the ground that the government has allotted the post of Junior Assistant only on 10.04.1990. Subsequently, by an order dated 23.02.1996 of the District Educational Officer, Villupuram, the petitioner's service was regularised in the post of Junior Assistant with effect from 10.04.1990 on condition that the period of probation would be completed as per the condition imposed by the Rules. The Tribunal therefore closed the contempt application on 09.07.1996 giving liberty to the petitoner to make representation to the respondents seeking regularisation of her service from the date of appointment. Pursuant to such direction, the petitioner submitted a representation dated 11.03.1997 to regularise her service from the date of her initial appointment, but no order has been passed. Therefore, the petitioner has filed the above Original Application No. 5406 of 1998 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court and re- numbered as WP No. 33784 of 2006. Pending disposal of the writ petition, the prayer was amended before this Court and now the petitioner is challenging the order dated 14.06.1995 of the first respondent by which the petitioner's service was regularised only with effect from 10.04.1990. 3. The petitioner was sent to training on 31.12.1996 after regularisation of her service by order dated 14.06.1995 of the first respondent. The training commenced on 31.12.1996 and the completion of the probation of the petitioner was ordered with effect from 28.02.1997 by proceedings dated 06.06.1997. As the petitioner completed the training in the year 1997, the petitioner was granted with annual increment from March 1997 and she has been denied increments for the earlier period. The grievance of the petitioner is that though she was working from 31.12.1981 and subsequently re- appointed on 29.06.1984, her services ought to have been regularised https://hcservices.ecourts.gov.in/hcservices/ at least from 31.03.1984 and then she should have been given the increments. The regularisation of her service with effect from 10.04.1990 on the ground that the post itself has been allotted only on that date is legally not sustainable to deny her retrospective regularisation. Therefore, under law, she is entitled to seek for regularisation from the date of her original appointment. 4. In this context, the learned counsel for the petitioner relied on the decision reported in (V. Perumal vs. Commissioner and Secretary to the Government, Health and Family Welfare Department, Fort St. George, Chennai and others) 2006 2 MLJ 339 to say that when regularisation was made by the respondents, it cannot be prospective and it should date back to the original date of appointment. In that case, this Court held that the Government relaxed the qualification in favour of the petitioner and having regard to the appointment of the petitioner at a regular post with effect from 19.03.1965, there is no justification on the part of the Government to restrict the regularisation only from the date of the order. Relying on the said decision, the learned counsel for the petitioner submitted that the petitioner ought to have been regularised from 29.06.1984 and not from 10.04.1990. 5. The learned counsel for the petitioner further relied on the decision reported in (R. Mohan vs. Special Commissioner and Commissioner for Revenue Administration, Chepauk, Chennai and another) 2006 Writ Law Reporter 480 to say that if irregular appointment have been ratified, it will confer right to get appointment for an employee from the date of his initial appointment and hence the same is applicable to the case on hand and prayed for allowing the writ petition. 6. The learned Government Advocate brought to the notice of this Court that the petitioner has been regularised on 10.04.1990 and subsequently, the petitioner was promoted as Assistant on 24.01.2001 and presently she is working as Assistant in Mitta Mandagapattu Government Higher Secondary School, Villupuram and therefore the relief sought for in this petition is legally not sustainable. 7. Heard both sides. As per G.O. Ms. No. 259, P & AR Department dated 27.04.1989, the Government has given concession to those persons, who were originally appointed under Rule 10 (a) (i) between 15.11.1980 and 24.06.1984 and who were ousted on or before 24.06.1984 for want of vacancy should be rehabilitated. In this connection, the Government has categorically stated in the above said Government Order as follows:- "(a) The temporary Junior Assistants, Typists and Steno Typists recruitted to Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial Service and Typists and Steno-Typists recruitted to Tamil Nadu Secretariat Service through Employment Exchange under General Rule 10 (a) (i) between 15.11.1980 and 24.06.1984 and who had put in a service of one year or more, either continuously or with breaks, and ousted from service on or before 24.06.1984 for want of vacancy and whose names were already forwarded by https://hcservices.ecourts.gov.in/hcservices/ the Heads of Departments/Collectors to the Government alone shall be absorbed in Government service regularly in future vacancies. Their absorption into Government service shall be treated as Fresh appointments only and their services will be regularised only from the date of their Joining in the Department allotted by the Government in future vacancies. The rule of reservation (General) Rule 22 shall not apply to these candidates. 8. As per the above said Government Order, in order to get the benefits of the said Government Order (a) a person should have earlier worked between 15.11.1980 and 24.06.1984 for more than one year (ii) a person should have ousted from service before 24.06.1984 for want of vacancy and (c) he or she should have been eligible for fresh appointment with all requisite qualification. The petitioner is possessing the above said three qualifications. In the Government order, it is also stated that their absorption in the Government service shall be treated as fresh appointments only and their services will be regularised only from the date of their joining in the department allotted by the Government in future vacancies. The word "services will be regularised only from the date of their joining in the department allotted by the Government in future vacancies" requires to be interpreted. 9. The petitioner was originally appointed on 31.12.1981. On 31.03.1984, the petitioner was ousted from service and again she was re-appointed on 29.06.1984. The petitioner's service were regularised from 10.04.1990. During the pendency of this writ petition, the petitioner was promoted as Assistant. These are not in dispute. The crucial date for consideration is the petitioner was in service for more than three years during the relevant period and she was ousted for want of vacancy on 31.03.1984, however, she was re- appointed on 29.06.1984. Therefore, it has to be considered whether the petitioner is eligible for regularisation of her service only from 10.04.1990, when the post was sanctioned or since the post was sanctioned, it will date back to the date when she was appointed or joined duty namely 05.07.1984, the date on which she joined duty after her re-appointment. 10. In the decision relied on by the counsel for the petitioner mentioned supra, it was held by this Court that when there is regularation regularising the service of an employee, such regularsation has to be automatically dates back to the original date of appointment. In fact, in the second decision relied on by the counsel for the petitioner reported in (R. Mohan vs. Special Commissioner and Commissioner for Revenue Administration, Chepauk, Chennai and another) 2006 Writ Law Reporter 480 it was categorically held that even if irregular appointment is ratified subsequently, a right will be conferred on the employee to get regularisation from the date of initial appointment. Para-5 of the said judgment is relevant, which reads as follows:- "5. I have heard the learned counsel on either side. The decision in WP No. 6605 of 1998 and the Supreme Court decision cited supra https://hcservices.ecourts.gov.in/hcservices/ squarely apply to the facts of this case. Petitioner having been appointed in the year 1973, assuming his appointment is irregular, following the proposition laid down in the Supreme Court in the above cited decision, I hold that in this case only a formal ratification is required, but instead, the reversion order now made is totally unwarranted. The irregular appointment, if it is ratified, will definitely confer a right on the petitioner to get his appointment ratified from the date of initial appointment. Therefore, the impugned order is liable to be set aside. 11. It is true that the petitioner was re-appointed as a fresh candidate on 05.07.1984 but when the intention Government in issuing the Government Order makes it clear by using the word "from the date of their joining in the department allotted by the Government in future vacancies", the word 'date of their joining' would only construe that ratification commences from the date of their re-entry into the department. The ratification has been given in the present case on 10.04.1990, but as held by this Court in the decision cited supra, the date of regularisation will dates back to the original date of appointment. In this case, the word 'date of their joining' used in the Government Order would make it clear that regularisation itself was given only to those persons who have earlier worked and as such regularation will date back to the original date of appointment, in this case, being 05.07.1984, the date on which the petitioner joined after her re-appointment. Therefore, the petitioner is entitled for regularisation of her service with effect from 05.07.1984. 12. In the light of the above discussion, the writ petition is allowed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. rsh To 1. The Secretary to Government The Government of Tamil Nadu Education Department Fort St. George Chennai – 600 009 2. The Director of School Education Madras – 600 006 https://hcservices.ecourts.gov.in/hcservices/ 3. The Chief Educational Officer Villupuram District Villupuram 4. The District Elementary Educational Officer Villupuram Villupuram District + 1 cc to Mr.R.Saseetharan, Advocate Sr 25388 W.P. No. 33784 of 2006 RSY (CO) RH (16.6.10) https://hcservices.ecourts.gov.in/hcservices/