1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29.07.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.8217 of 2011 M.P.(MD)No.2 of 2011 1.T.Murugan 2.A.Nagesh 3.A.Kalimuthu 4.A.Selvam 5.M.Kumar 6.K.Karuppasamy 7.L.Sudalaipandi 8.M.Samudharam 9.K.Manjunathan 10.N.Perumal 11.T.Krishnan 12.P.Muthuraj 13.S.Murugan 14.S.Maharajan ... Petitioners Versus 1. The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Dept., Fort St. George, Chennai 600 009. 2. The Director of Town Panchayats, Kuralagam, Chennai 600 108. 3. The Executive Officer, Special Grade Town Panchayat, Vadukku Valliyur, Tirunelveli District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writs of Certiorarified Mandamus, to call for the records from the second and third respondents relating to their proceedings Na.Ka.No.3051/2006/A3, dated 26.07.2006 and Na.Ka.No.70/2006/A1, dated 27.07.2006 respectively, quash the same, insofar as regularization of the service of the petitioners are concerned and consequently, direct the respondents herein to regularise the service of the petitioners on time scale of pay after expiry of three years from the date of their appointment made pursuant to and in accordance with G.O.Ms.No.199, MA & WS(TP2) Department, dated 12.08.1997, with all attendant benefits. For Petitioners .. Mr.V.Venkkatasamy For Respondents 1 & 2 .. Mr.B.Pugalenthi, Spl.G.P., For 3rd Respondent .. Mr.T.S.Mohammed Addl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R With the consent of the parties, the writ petition itself is taken up for disposal. 2. When the matter came up on 22.07.2011, learned Special Government Pleader was directed to take notice, as to whetherin the judgment made in W.P.No.9726 of 2011, dated 26.04.2011, where a learned Single Judge of this Court, has set aside the order, 27.02.2006, directing regularisation of the petitioners therein in time scale of pay, after the expiry of three years from the date of appointment made, pursuant to G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, is applicable to the facts of this case. 3. On this day, when the matter came up for hearing, learned Additional Government Pleader appearing for the third respondent submitted that the above said judgment applies to the facts of this case. However, he submitted that as the request of the petitioners therein to regularise their services has been made belatedly, rejection of the same cannot be said to be manifestly illegal. He also submitted that in similar circumstances, another learned Single Judge has dismissed the writ petition on the ground of laches. Objection of the learned Additional Government Pleader is place on record. 4. Short facts leading to the writ petition are as follows: As per G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, the Director of Town Panchayat is empowered to create new posts of sanitary workers in the Town Panchayat. Accordingly, a list has been called for from the District Employment Exchange and respondents 1 to 14 were selected and appointed as Sweepers in the Executive Officer, Special Grade Town Panchayat, Vadukku Valliyur, Tirunelveli District, third respondent herein. The petitioners were also appointed as sweepers in the said Town Panchayat on different dates, viz., on 26.03.1998, 20.07.1998 and 01.04.2000. As per the said Government Order, the newly appointed employees would get a consolidated pay of Rs.900/- p.m., with 10% increase, per annum for three years and after completion of three years, they would be placed on regular time scale of pay. The petitioners have completed three years period on 25.03.2001, 19.07.2001 and 31.03.2003 respectively, without any blemish. 5. The petitioners have further submitted that since there was a ban on appointments, the third respondent did not take any steps to regularise their services in time scale of pay, as per G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997. In view of the said ban, the petitioners also could not make any request to regularise their services, as per the abovesaid G.O. Lateron, the Secretary to the Government, Municipal Administration and Water Supply Department, Chennai, first respondent https://hcservices.ecourts.gov.in/hcservices/ 3 herein, has issued orders in G.O.Ms.No.60, Rural Development and Panchayats (Special Grade) Department, dated 23.06.2006, regularising the services of the employees, who has worked on consolidated pay and Non-Muster Roll on daily wages in Special Grade Town Panchayats. By the said G.O., sweepers like the petitioners, employed in the Special Grade Municipalities, were regularised in the time scale of pay from 23.02.2006. When the petitioners came to know that the employees, who are similarly placed, had approached this Court and obtained for a direction to regularise their services on time scale of pay, as per G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, they were under the impression that the Government of Tamil nadu would issue a general order in compliance with the directions of this Court to implement the abovesaid Government Order. As there was no response, the petitioners have filed the present writ petition for the relief as stated supra. 6. On the abovesaid pleadings and placing reliance on an order of this Court made in W.P.No.9726 of 2011, dated 26.04.2011, Mr.V.Venkkatasamy, learned counsel for the petitioners submitted that in similar circumstances, this Court, after elaborately considering the merits of the case, and earlier decisions of this Court, has set aside the impugned order therein, dated 27.02.2006, insofar as, as it restricted regularisation granted to the petitioners therein from 27.02.2006 and consequently, issued a direction to regularise the services of the petitioners therein as sweepers in the municipality from the date of completion of three years, as per G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997. He also submitted that even in that case, where the writ petition was filed only in the year 2011, and this Court has granted the abovesaid relief. Therefore, the objections of delay cannot put against the petitioners alone. 7. According to him, when there is no dispute on the fact that the petitioners were appointed as per G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, all the sweepers in the Town Panchayat should be treated alike and that there cannot be any discrimination in fixing the time scale of pay on the ground of delay and laches. In this regard, he took this Court through G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, subsequent orders issued by the Government in G.O.Ms.No.84, Municipal Administration and Water Supply Department, dated 21.05.1998 and in particular, Paragraph 3 (iv) of the latter G.O., and the orders of appointment of the petitioners, filed along with the typed set of papers. 8.Heard the learned counsel for the parties and perused the materials available on record. 9. Before adverting to the facts of this case, this Court deems it fit to consider the issue that was raised and decided in W.P.No.9726 of 2011, dated 26.04.2011, filed by 10 sweepers, who were https://hcservices.ecourts.gov.in/hcservices/ 4 working in Sathuvacheri III Grade Municipality, Vellore District. In the said writ petition, the Executive Officer, Sathuvacheri III Grade Municipality, Sathuvacheri, Vellore District, third respondent therein, has passed an order, dated 27.02.2006, regularising the services of the petitioners therein from the date of issuance of the order. Seeking to quash the said order and consequently, praying for a direction to the respondents therein to regularise the services of the petitioners in time scale of pay, after a period of three years from the date of appointment, the abovesaid writ petition has been filed. 10. Perusal of the order made in W.P.No.9726 of 2011, dated 26.04.2011, shows that when the matter came up for hearing on 19.04.2011, learned counsel appearing for the petitioners therein have submitted that the matter in issue was already decided in various cases by this Court and one such order was also confirmed in W.A.Nos.47 and 385 of 2010, dated 23.06.2010. Special Leave Petition in SLP (Civil) No.26605 of 2010, filed by the Municipality, was dismissed by the Supreme Court on 27.09.2010 and that the said order was also implemented by the Government in G.O.Ms.No.570, Municipal Administration and Water Supply Department, dated 15.11.2010. 11. Reading of the order, dated 26.04.2011, further shows that the petitioners therein have contended that the Government have granted regularisation to similarly placed persons, numbering 10, on completion of three years of service, in terms of G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997. In the abovesaid writ petition also this Court had considered the objections made in a similar writ petition in W.P.No.25620 of 2006, which was disposed of on 17.09.2008 and that the said objections made by the Government are extracted hereunder:- "G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997 could not be given effect due to the policy decision of the Government not to fill up any post except in Police, Medical and Teacher as per the G.O. Ms.212, P & AR Department dated 29.11.2001 with effect from 29.11.2001. Further, there were instructions from the Government vide proceedings dated 29.7.2002, which directed to keep in abeyance the regularizations of sanitary workers due to financial crunch faced by many of the Town Panchayats. The petitioners could not be regularized in service with effect from 2001 mainly due to the ban orders of the Government for filling up of the vacancies. The petitioners have miserably failed to bring notice about G.O.Ms.No.21, Municipal Administration and Water Supply (MC3) Department, dated 23.2.2006, which was issued for regulariaation of services of workers on consolidated pay and NMRs on daily wages. In view of the policy decision of the https://hcservices.ecourts.gov.in/hcservices/ 5 Government and in view of the financial constraint the services of the petitioners could not regularised with effect from March 2001." 12. While repelling the abovesaid objections in W.P.No.25620 of 2006, this Court at Paragraphs 6 to 9, held as follows: "6. It is not in dispute that the petitioners were appointed as sanitary works initially on consolidated basis in Palladam Municipality in pursuant to G.O.Ms.No.199, Municipal Administration and Water Supply Department dated 12.8.1997. As per the said G.O., the sanitary workers shall be regularized on completion of three years of service. The petitioners, who have been appointed on 27.3.1998 as per the said G.O., ought to have been regularised by 27.3.2001. The reason for not regularizing their services as per the counter affidavit of the respondents is that there was a ban for recruitment except, in Police, Medical and Teachers service and hence the services of the petitioners could not be regularized. The ban imposed could only be for a new appointment and the petitioners, who have been already appointed prior to the ban imposed by the Government cannot be denied regularization of their services citing the said ban. All the petitioners have already been appointed and it is not as if new posts are being created or new appointments are made. Hence the contention raised by the learned Special Government Pleader appearing for the respondents that the services of the petitioners could not be regularized in view of the ban imposed by the Government cannot toe accepted. 7. Yet another reason that has been stated by the respondents is that due to financial crunch, such regularization could not be made. Again this cannot be the reason for refusing the regularization of the petitioners in service. The petitioners have been appointed in pursuant to G.O.Ms.No.199, referred to above, wherein, it is specifically provided that after the completion of three years, their services should be regularised. In view of the said fact, the said contention of the learned Special Government Pleader appearing for the respondents cannot also be accepted. 8. Further more as rightly pointed out by the learned counsel appearing for the petitioners G.O.Ms.No.21, Municipal Administration and Water Supply (MC3) Department, dated 23.2.2006 referred to by the respondents, does not refer about G.O.Ms.No.199, Municipal Administration and Water Supply (MC3) Department, dated 12.8.1997. Thus, the respondents cannot be permitted to say that the services of the https://hcservices.ecourts.gov.in/hcservices/ 6 petitioners could be regularized only as per G.O.Ms.No.21 Municipal Administration and Water Supply (MC3) Department, dated 23.2.2006 cannot also be accepted. 9. Considering the above facts and circumstances, I am of the considered view that refusal to regularize the services of the petitioners with effect from 27.3.2001 is totally erroneous. In the result, the impugned proceedings of the third respondent, dated 27.2.2006 directing the regularization of the services of the petitioners only with effect from 23.2.2006 is required to be set aside and accordingly set aside and the writ petition stands allowed." 13. The order made in W.P.No.25620 of 2006, dated 17.09.2008, has been challenged by way of an appeal in W.A.No.47 of 2010 along with connected W.A.No.385 of 2010. The Division Bench, while confirming the order of the learned Single Judge, by judgment, dated 23.06.2010, has passed the following orders, "2. The short facts leading to the filing of these appeals are stated hereunder:- The petitioners in both the writ petitions were appointed as Sweepers / Sanitary Workers by the concerned Town Panchayats, on a consolidated pay of Rs.900/- with effect from 27.3.1998 and 30.4.1998 respectively. They joined duty on different dates in the year 1998. As per the Government Orders, dated 17.8.1999, on completion of three years of service on consolidated pay, they should have been brought under the time scale of pay with effect from the date when they completed three years. But by means of the orders impugned in the writ petitions, they were brought under the time scale of pay only with effect from 23.2.2006 in so far as W.A.NO.47 of 2010 is concerned and with affect from 23.6.2006 in so far as W.A.No.385 of 2010 is concerned. The said orders were challenged in the writ petitions. 3. The learned Single Judge, on the basis of the judgment rendered by a Division Bench of this Court in W.A.No.1454 of 2007, dated 19.12.2008 in the case of Director of Town Panchayat, Kuralagam, Chennai and two others -vs- R.Sundaradas, allowed the writ petitions and held that the writ petitioners are entitled to the time scale of pay only from the date when they completed three years on consolidated pay and not from any subsequent date. Aggrieved by the same, the respective Panchayats have filed the above appeals. https://hcservices.ecourts.gov.in/hcservices/ 7 4. We have perused the judgment, dated 19.12.2008 rendered by the Division Bench of this Court in the aforementioned appeal. In our view, as rightly held by learned Single Judge, the present cases are squarely covered by the said Division Bench judgment. We do not find any reason to differ with the view taken by the learned Single Judge. There being no merit in the appeals they stand dismissed." 14. The judgment made in the above Writ Appeals has also been challenged before the Supreme Court in SLP (Civil) NO.26605 of 2010 and the same was dismissed on 27.09.2010. Consequently, the order of the learned Single Judge has been complied with by the Government by issuing G.O.Ms.No.570, Municipal Administration and Water Supply Department, dated 15.11.2010. 15. Thus, it is evident from the above, on similar set of facts, the matter had gone upto Supreme Court and consequently, decided in favour of the petitioners therein, who were also sweepers working in Town Panchayat/Municipality. It is well settled that once an identical issue has been considered and has reached finality, the persons similarly placed, should have been extended the benefit of the judgment. On the aspect of extending similar benefits, the Hon'ble Mr. Justice N. Paul Vasanthakumar, in W.P.No.9726 of 2011, dated 26.04.2011, has relied on a decision of this Court in M.S.Balasubramanian v. Food Corporation of India, New Delhi reported in 2006 WLR 327 : (2006) 2 MLJ 572, wherein, at Paragraphs 16 and 17, this Court held as follows: 16.(a) The learned Senior counsel for the petitioner cited the judgment of the Supreme Court reported in AIR1997 SC 3588 (K.C.Sharma v. Union of India), wherein, in para 6 it is held as under: 6. Having regard to the facts and circumstances of the case, we are of the view that this was a fit case in which the Tribunal should have condoned the delay in the filing of the application and the appellants should have been given relief in the same terms as was granted by the Full Bench of the Tribunal. The appeal is, therefore, allowed, the impugned judgment of the Tribunal is set aside, the delay in filing of O.A.No.774 of 1997 is condoned and the said application is allowed. The appellant would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated December 16, 1993 in O.A.Nos.395-403 of 1993 and connected matters. No order as to costs." https://hcservices.ecourts.gov.in/hcservices/ 8 (b) In another decision cited by the learned Senior Counsel for the petitioner reported in (2003) 12 SCC 192: (State of Karnataka and others v. N.Earameshwarappa and others) in paragraphs 8 and 9 the Supreme Court held as under, "8. ... We do not find any reasonable justification to confine the relief to only such of the teachers who approached the court and haying regard to the fact that relief related to the revision of scales of pay, every one of that class of teachers who approached would be entitled to the benefit, notwithstanding that they have not approached the Court. We are in equal agreement with the Division Bench in denying the payment of interest at compounded rates which, in our view, cannot be justified at all on the facts end circumstances of the case wherein a serious and genuine doubt existed about the applicability of the government order dated 30.3.1990, as raised in the proceedings. 9. For all the reasons stated above, the appeals filed both by the State as well as by the private respondent teachers fail and shall stand dismissed. Our declaration to extend the benefits of the judgments to others who have not approached the court, but similarly placed is to do complete and substantial justice. No costs." (c) In yet another decision reported in 1999 SCC (L&S) 788 (Goyind Ram Purohit and another v. Jagjiwan Chandra and others), in para 3 the Honourable Supreme Court held thus, "3. It was lastly contended by the learned counsel for the appellants that whereas the petition had been filed by only Respondent 1, the High Court while finally concluding the matter has given a direction to promote all those, who were senior to the appellants even though they were not, parties to the petition. Once the High Court had placed a particular interpretation on the Rules, the benefit of that interpretation had to go to all those who qualified under the seniority-cum-merit rule. There was no point in waiting for each and every person to file a petition. Therefore, we do not see any reason why we https://hcservices.ecourts.gov.in/hcservices/ 9 should entertain such a technical plea when the High Court has done substantial justice to all concerned." From the analysis of the judgments cited above, it is beyond doubt and clear that once the point is decided in favour of a group of persons, there is no further point in waiting for each and every person to file petition and pray for the same relief. As held by the Honourable Supreme Court, the benefit of the judgment is equally applicable to similarly placed persons to do complete and substantial justice. 17. The Law Department as well as the Finance Department of the respondents/Corporation considered the similarity of the issue involved and recommended to the respondents to pay the recovered amount to the petitioners as well. Hence the denial of the said benefit to the petitioners is unreasonable and violative of Articles 14 and 16 of the Constitution of India. The decisions cited by the learned Additional Advocate General reported in AIR 1996 SC 2890 (State of' Karnataka v. G.Halappa) and AIR 2002 SC 2427 (State of Karnataka v. G.Halappa) have no application to the facts of this case because of the submission that Circular No.13 dated 9.7.1997 was wrongly applied by the respondents while stepping up of the pay. The said contention was raised before the Kerala High court and before the Honourable Supreme court and the same was not accepted. Hence it is not open to the respondents to raise the said plea in this writ petition as they were parties to the proceedings before the Kerala High Court." The said decision is confirmed in W.A.No.956 of 2006 by the Division Bench by Judgment dated 30.10.2006. SLP(C) No.677 of 2007 filed against the same was also dismissed by the supreme Court on 23.4.2007." 16. While disposing of W.P.No.9726 of 2011, the learned single Judge has also observed that from the analysis of the judgments cited above, it is made clear that once the point is decided in favour of a group of persons, there is no further point in waiting for each and every persons to file petition and pray for the same. As held by the Supreme Court, benefit of judgment should be extended equally to the similarly placed persons. In this context, this Court deems it fit to extract paragraphs 27 to 29 in C.L.Pasupathy v. Engineer in Chief (WRO) reported in 2009 (2) MLJ 491, wherein the distinction between judgment-in-rem and judgment-in-personam has been explained. "27. Before adverting to the facts of the case, this court deems it fit to examine as to whether https://hcservices.ecourts.gov.in/hcservices/ 10 the judgement of the Tribunal rendered in O.A.No.7331 of 2001 dated 7.5.2002 is a judgement "in rem" or a judgement "in personam" and therefore it is necessary to explain the distinction between them. Historically the term judgement "in rem" was used in Roman law in connection with actio but not in connection with "jus actio in personam". The effect of "actio in rem" was to conclude against all mankind, but the effect of "actio in personam" was to conclude with regard to the individual only. After the Roman forms of procedure had passed away, the term "in rem" survived to express the effect of an action "in rem" and gradually, it came to import "generally". 28. The judgements "in rem" signified as judgements which are good against all mankind and "judgements in personam" signified the judgements which are good only against the individuals who are parties to them and their privies. The point adjudicated upon in a "judgement in rem" is always as to the status of the "res" and is conclusive against the world as to that status, whereas in a judgement "in personam", the point whatever it may be, which is adjudicated upon, not being as to the status of the "res" is conclusive only between the parties or privies. Reference can be made to Firm of Radhakrishnan Vs. Gangabai, 1928 S 121, Ballantyne vs. Mackinson 1896 2 QB 455. 29. Courts have held that, "Judgement in rem", operates on a thing or status rather than against the person and binds all persons to the extent of their interest in the thing, whether or not they were parties to the proceedings. The judgement "in rem",as distinguished from judgement "in personam" is an adjudication of some particular thing or subject matter, which is the subject of controversy, by a competent Tribunal, and having the binding effect of all persons having interests, whether or not joined as parties to the proceedings, in so far as their interests in the "res" are concerned. In determining whether a judgement is "in rem", the effect of the judgement is to be considered and it is tested by matters of substance, rather than by measure of any particular draft or form." 17. Going through the materials on record and the decision of by the Division Bench of this Court in W.A.Nos.47 and 385 of 2010, dated 23.06.2010 and ultimately, confirmed by the Supreme Court in SLP (Civil) NO.26605 of 2010, dated 27.09.2010, this Court is of the view that the objections raised by the respondents on the ground of delay and laches, are liable to be rejected. As rightly contended by https://hcservices.ecourts.gov.in/hcservices/ 11 the learned counsel for the petitioners, there would be a violation of Article 14 of the Constitution of India, if there is going to be a different