IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 20.10.2011 CORAM THE HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN W.P.Nos.3491 to 3493 of 2011 Sheik Mohamed Ali .. Petitioner in W.P.No.3491 of 2011 K.Thavamani .. Petitioner in W.P.No.3492 of 2011 S.Periaiya .. Petitioner in W.P.No.3493 of 2011 vs 1.The Secretary to Government, Public Works (P1) Department, Fort St. George, Chennai-9. 2.The Chief Engineer (General), Public Works Department, Chennai. .. Respondents in all W.Ps The original application Nos.3849, 3850 and 3851 of 2001 have been filed before the Tamil Nadu Administrative Tribunal and after abolition of the Tribunal, the same were transferred to this Court and renumbered as Writ petitions seeking relief to call for the records relating to the order of 1st respondent dated 21.12.2000 issued in Ref.No.G.O. ( Kg;gjhz;L ) No.109 and quash the same in so far as it relate to regularising the petitioners' service with effect from 21.12.2001 and further direct the respondents to regularise the service of the petitioners with effect from 1.5.1995, 1.6.1985 and 14.11.1984 with all consequential benefits. For Petitioners ... Mr.R.Muthukannu in all cases For Respondents ... Mr.V.Subbiah in all cases Special Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R These writ petitions have been filed to call for the records relating to the order of 1st respondent dated 21.12.2000 issued in Ref.No.G.O.( Kg;gjhz;L ) No.109 and quash the same in so far as it relate to regularise the petitioners' service with effect from 21.12.2001 and further direct the respondents to regularise the service of the petitioners with effect from 1.5.1995, 1.6.1985 and 14.11.1984 with all consequential benefits. 2.The individual petitioners were initially appointed on compassionate ground as Night watchman on 1.5.1985, 1.6.1985 and 14.11.1984 respectively due to the death of their respective fathers. Later, they were appointed as Irrigation Assistant on 25.6.1985, 26.6.1985 and 24.6.1985 respectively. Their services were not regularised in the post of Irrigation Assistant. Ultimately, their services were regularised by G.O.( Kg;gjhz;L ) No.109, Public Works Department, dated 21.12.2000 from the date of issuance of the G.O. but not from the date of their initial appointment. The petitioners have filed Original Appliction Nos.3849 to 3851 of 2001 (W.P.Nos.3492 to 3493 of 2007) to quash G.O.( Kg;gjhz;L ) No.109, Public Works Department, dated 21.12.2000 referred to above and sought a direction to the respondents to regularise their service with effect from the date of their initial appointment with other consequential benefits. 3.The respondents have filed counter affidavit refuting the allegations. 4.It is stated that the petitioners were not regularised in the post of Irrigation Assistant as they lack educational qualification. The Government issued G.O.( Kg;gjhz;L ) No.109, Public Works Department, dated 21.12.2000 relaxing the educational qualification and regularising the services of the petitioners. Hence, the petitioners have no grievance. The respondents have sought for dismissal of the writ petitions. 5.I have heard the submissions made by the learned counsel on either side. 6.The learned counsel for the petitioners submits that whenever the Government relaxed the rule relating to the educational qualification or otherwise in the matters of appointment like compassionate appointment, they should have relaxed the educational qualification and granted the regularisation of service from the date https://hcservices.ecourts.gov.in/hcservices/ of initial appointment and not from the date of issuance of the Government order. 7.The learned counsel for the petitioners relied on the decisions of the learned single Judge of this Court dated 10.01.2007 in the case of P.GANAPATHY V. THE GOVERNMENT OF TAMILNADU, REP. BY THE SECRETARY TO THE GOVERNMENT AND ANOTHER made in W.P.No.28263 of 2006 and in the case of V.PERUMAL V. COMMISSIONER AND SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, FORT ST. GEORGE, CHENNAI reported in 2006(2) M.L.J. 339. 8.The learned counsel for the petitioners submits that both the decisions (cited supra) were followed by another learned single Judge of this Court in the case of C.RENUKADEVI V. THE GOVERNMENT OF TAMILNADU, REP BY ITS SECRETARY TO GOVERNMENT made in W.P.No.20197 of 2006. According to him, these matters are also squarely covered by those decisions. 9.On the other hand, the learned Government Advocate sought to sustain the impugned order based on the counter affidavit. 10.I have considered the submissions made on either side. 11.The facts are not in dispute. 12.The issue as to whether the first respondent is justified in not regularising the service of the petitioners, while relaxing their educational qualification, from the date of their initial appointment. The post of Irrigation Assistant requires that the concerned person should have passed 8th standard. In such circumstances, the impugned G.O was passed by the Government regularising the services of the petitioners from the date of issuance of Government Order relaxing the educational qualification. But the regularisation was not granted from the date of their initial appointment. The petitioners were initially appointed on compassionate ground in the posts of Night watchman. The post of Night watchman does not require the educational qualification of 8th standard. Under such circumstances, when the first respondent sought to relax the educational qualification of the petitioners, the respondents ought to have regularised their services from the date of initial appointment and not from the date of issuance of G.O. The judgments relied on by the learned counsel for the petitioners squarely cover the issue. The order in W.P.No.20197 of 2006 is based on the order in the judgment reported in 2006 (2) MLJ 339 and the judgment dated 10.1.2007 in W.P.No.28263 of 2006. Paragraph 6 to 8 of the decision referred to above in W.P.No.20917 of 2006 reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "Learned counsel appearing for the petitioner strenuously contended that the petitioner was appointed as early as on 21.3.1975 and at that time, she has passed the certificate course in Bakery and Confectionary in second class. There was no adhoc rules for the said post at that point of time. Only after the petitioner was appointed, the adhoc rules have been framed by the Government. Further more, by regularising the service of the petitioner only from 14.5.1991, her service from 21.3.1975 to 13.5.1991, that is for a period of 16 years and 2 months has been ignored by the Government. This will cause considerable hardship to her. Further the learned counsel for the petitioner cited a decision reported in V.PERUMAL VS. COMMISSIONER AND SECRETARY TO THE GOVERNMENT, CHENNAI (2006 (2) M.L.J. 339) wherein this court has held as follows: "The grievance of the petitioner is that there is no justification to restrict the relaxation applicable prospectively and not from the date of petitioner's passing the Nursing Assistant test from 30.8.1975. The Government have relaxed the qualification in favour of the petitioner and having regard to the appointment of the petitioner as Hospital Servant on regular basis with effect from 19.3.1965 and having appointed the petitioner as Nursing Assistant Grade II temporarily and the petitioner having completed training on 30.8.1975, there is no justification on the part of the Government to restrict the relaxation only from the date of the order. The relaxation is granted by the Government for the purpose of regularisation of petitioner's service. The regularisation of service cannot be made after 20 years of the petitioner's service. If the impugned Government Order is applied strictly the petitioner's valuable service of 20 years will get obliterated and the petitioner will not be in a position to get annual increments and other benefits. Hence, the action of the first respondent in restricting the relaxation only from 27.6.1996 is unreasonable and arbitrary in exercise of power." https://hcservices.ecourts.gov.in/hcservices/ Further the learned counsel for the petitioner relied upon an unreported judgment of this Court in W.P.No.28263 of 2006 dated 18.1.2007 in which this Court held as follows:- 6.In normal circumstances what the Government could have been approved, since any order granting relaxation and regularising the services of a person can take only prospective effect. But in this case the action of the Government cannot be approved for two reasons namely: a)17 years of service of the petitioner from 1974 to 1991 is sought to be wiped out by a single stroke by way of a Government Order and the same is arbitrary and unfair." By citing those judgments, learned counsel for the petitioner contended that there is no justification on the part of the respondent to regularise the service of the petitioner only from 14.5.1991 and not from the date on which originally she was appointed on 21.3.1975. Further learned counsel submitted that if her service is regularised only from 14.5.1991, her valuable service for the past 16 years and two months will get obliterated and the petitioner will not be in a position to get other benefits. The said submission of the learned counsel for the petitioner appears to be well founded. When the petitioner was appointed on 21.3.1975, she had possessed certificates course in Bakery and Confectionary in second class. The Government of Tamil Nadu has not issued any adhoc rules at that point of time. The adhoc rules came into effect only after the petitioner was appointed as Baker. Further more, when the Government thought it fit to relax the educational qualification, considering the fact that the petitioner was appointed as early as on 11.3.1975, it is not know as to why the relaxation shall be given effect to only from 14.5.1991 and not from 21.3.1975, when the petitioner was appointed. As contended by the learned counsel for the petitioner, the petitioner's valuable service for the past 16 years and 2 months will get https://hcservices.ecourts.gov.in/hcservices/ obliterated and the petitioner will not be in a position to get any monetary benefits. Learned Additional Government Pleader is unable to point out why such benefit should not be conferred on the petitioner. Hence, for all the reasons stated above, the impugned order of the respondent in G.O.Ms.No.1062, Education (I) Department, dated 6.11.1992 regularising the service of the petitioner only with effect from 14.5.1991 and not from 21.3.1975, the date on which the petitioner was appointed is liable to be quashed and the same is quashed. In the result, the writ petition stands allowed directing the respondent to treat the service of the petitioner regularised with effect from the date of appointment namely, 21.3.1975 and to grant all consequential benefits within a period of three months from the date of receipt of production of the copy of this order. No costs." 13.In the light of the above said judgments, the impugned order is liable to be quashed and the same is quashed to the extent that it refuses to grant regularisation of the service of the petitioners from the date of their initial appointment. This Court hereby directs the first respondent to regularise the service of the petitioners from the date of their initial appointment and to pay the monetary benefits accordingly. The first respondent is directed to pass appropriate orders in this regard within a period of eight weeks from the date of receipt of a copy of this order. 14.These writ petitions are allowed on the above terms. No costs. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ cla To 1.The Secretary to Government, Public Works (P1) Department, Fort St. George, Chennai-9. 2.The Chief Engineer (General), Public Works Department, Chennai. +3 CCS to Mr.R.Muthukannu, Advocate, Sr.No.64621 TO 23 +1 CC to the Government Pleader, Sr.No.64714 W.P.Nos.3491 to3493 of 2007 KJI(CO) MS:10/11/2011 https://hcservices.ecourts.gov.in/hcservices/