1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.10.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA W.P(MD)No.11468 of 2011 A.Kandhan .. Petitioner Vs. 1. The Secretary to Government, Highways & Minor Ports(HMR) Department, Secretariat, Chennai-600 009. 2. The Chief Engineer, Highways Department, Chepauk, Chennai-600 005. 3. The Divisional Engineer(H), Highways, Trichirapalli – 620 020. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus calling for the records connected with the impugned order passed by the first respondent in Lr.No.599/HM2/2011 dated 21.03.2011 and quash the same and consequently direct the first respondent to treat the period from 16.07.2004 to 19.01.2006 as compulsory wait as per the proposals of the second respondent. For Petitioner : Mr.R.Rengaramanujam For Respondents : Mr.M.Alagathevan Special Government Pleader ***** O R D E R This Writ Petition has been filed by the petitioner for a Writ of Certiorarified Mandamus to call for the records connected with the impugned order passed by the first respondent in Lr.No.599/HM2/2011 dated 21.03.2011 and quash the same and consequently direct the first respondent to treat the period from 16.07.2004 to 19.01.2006 as compulsory wait as per the proposals of the second respondent. 2. Heard Mr.R.Rengaramanujam, learned Counsel for the petitioner and Mr.M.Alagathevan, learned Special Government Pleader, who takes notice for the respondents. 3. By consent, the writ petition itself is taken up for final disposal. 4. The petitioner A.Thangam aggrieved by the order passed by the first respondent in Lr.No.599/HM2/2011 dated 21.03.2011 has filed this writ petition seeking for issuance of a Writ of Certiorarified Mandamus https://hcservices.ecourts.gov.in/hcservices/ 2 to call for the records connected with the impugned order passed by the first respondent in Lr.No.599/HM2/2011 dated 21.03.2011 and quash the same and consequently direct the first respondent to treat the period from 16.07.2004 to 19.01.2006 as compulsory wait as per the proposals of the second respondent. 5. The learned Counsel appearing for the petitioner submits that the petitioner A.Kandhan who was appointed as Paver Finisher Operator on 21.11.1974 in the mechanical wing is coming under the control of the third respondent/the Divisional Engineer, Highways Department, Trichirapalli. The petitioner was retired from service on attaining the age of superannuation on 30.04.2007 after rendering nearly 31 years of service. 6. In view of the rationalisation of the highways department, the entire mechanical wing of the Highways Department was wounded up in terms of G.O.Ms.111 (HK3) Department dated 06.06.2003. Consequently out of 980 sanctioned posts of heavy vehicle drivers, only 269 drivers were retained and the rest of the remaining 691 drivers were rendered surplus. After absorption of the surplus workers in suitable categories in accordance with their qualification, the remaining workers had to be retrenched in accordance with their seniority. In view of the several representations were made by the Tamil Nadu Highways Transport machinery Tools and Plants General Workers Association and by keeping in view the persons who have completed 15 to 25 years of service, the Government passed an order absorbing the workers as Office Assistants, Record clerks or as lab Attender etc. in the existing vacancies in the Highways Department by giving pay protection in terms of G.O.Ms.No.39 Highways Department dated 25.02.2004. The said benefit was also given to some of the left out cases in terms of G.O.Ms.No.54 Highways Department dated 26.03.2009, after the intervention of this Court in their cases. 7. In the light of the above, the third respondent submitted proposals to the second respondent for regulation of break in service and the second respondent also by his letter dated 22.05.2009 sent proposals for regularisation of the petitioner's service from the period 16.07.2004 to 19.01.2006 as compulsory wait and the petitioner has not been given any work during the said period. But inspite of the proposal made by the second respondent, the first respondent has not considered the same. His only grievance, therefore, is due to non regularisation of the break in service period of nearly 18 months apart from loosing the salary, he is unable to get full pensionary benefits to which he is legally entitled. As a result, the petitioner has filed a writ petition in W.P.No.14366 of 2010. This Court on 09.12.2010 directed the first respondent to consider his claim based on the proposals submitted by the second respondent dated 22.05.2009 and dispose of the same on merits and in accordance with law. 8. Again the first respondent without properly considering his representation rejected his claim on 21.03.2011 stating that the period of break in service from 16.07.2004 to 19.01.2006 could not be treated either as compulsory wait or sanctioned as extra-ordinary leave on loss of pay on medical grounds by relaxing FR 18(2) rule. https://hcservices.ecourts.gov.in/hcservices/ 3 9. The learned Counsel appearing for the petitioner submits that the petitioner had put in more than 31 years of service and there is no fault on him and the respondent failed to recognise his service from 16.07.2004 to 19.01.2006, for the reason that he was not engaged in any work. Subsequently when the representation was made, the second respondent has also recommended his case. But in the meanwhile the petitioner also retired from service. Therefore his only grievance is that he has not been considered for the pensionary benefits for the period from 16.07.2004 to 19.01.2006. If the first respondent comes forward to consider the said period as compulsory wait, the petitioner will be in a position to get back his full pensionary benefits. 10. Opposing the prayer, the learned Special Government Pleader appearing for the respondents would submit that this is a case where after the entire mechanical wing of the Highways Department was wounded up in terms of G.O.Ms.111 H(HK3) Department dated 06.06.2003 and hundreds of persons working in the department were rendered surplus and he was one among them. Therefore, he was not allotted any work from the said period. However, he was taken into some other department. Therefore, the request for compulsory wait by treating the said period cannot be considered. 11. This submission does not carry any substance for the reason that the petitioner is not asking for monetary benefits for the period he was kept out of the employment. His only grievance is that if the period from 16.07.2004 to 19.01.2006, as recommended by the second respondent, is considered, he would be in a position to get back his full pensionary benefits. Since the petitioner retired from service on 30.04.2007, as the learned Counsel for the petitioner fairly states that the petitioner does not request for monetary benefits except for the purpose of getting pensionary benefits, the writ petition is disposed of by setting the impugned order passed by the first respondent and the first respondent is directed to treat the period from 16.07.2004 to 19.01.2006 as compulsory wait as per the proposal of the second respondent and pass orders within a period of eight weeks from the date of receipt of a copy of this order. No costs. Sd/- Assistant Registrar (A.E) /True Copy/ Sub Assistant Registrar To 1. The Secretary to Government, Highways & Minor Ports(HMR) Department, Secretariat, Chennai-600 009. 2. The Chief Engineer, Highways Department, Chepauk, Chennai-600 005. 3. The Divisional Engineer(H), Highways, Trichirapalli-620 020. + 1 cc to Mr.R.Renga Ramanujam, Advocate, SR No.35024 W.P(MD)No.11468 of 2011 ssl/RJ/28.11.11/(3p/5c) 10.10.2011 https://hcservices.ecourts.gov.in/hcservices/