IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.9.2011 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.14736 of 2009 R.Srimathi .. Petitioner Vs. 1. The Director of Rural Development Saidapet, Chennai – 600 015. 2. The District Collector Krishnagiri District. 3. The Block Development Officer Kelamangalam Panchayat Union Kelamangalam, Krishnagiri District. .. Respondents (writ petition dismissed against respondents 1 and 2 by order dated 15.4.2010)MJJ. PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the respondents in connection with the impugned order passed by the third respondent in Na.Ka.No.1882/02/45, dated 3.5.2007 and the consequential order passed by the second respondent in Na.Ka.No.1795/2004/K3, dated 25.2.2009 and quash the same and further direct the respondents to appoint the petitioner as Typist and regularise the services of the petitioner from the date of her initial appointment, viz., 1.5.1989, with all consequential service, monetary service benefits. For Petitioner : Mr.R.Dhinesh Kumar For Respondents : Mr.A.Arumugam for 3rd respondent ORDER The petitioner was appointed in the third respondent/Kelamangalam Panchayat Union, Krishnagiri District as a Typist on daily-wages basis with effect from 1.5.1989. Thereafter, she moved the State Administrative Tribunal with O.A.No.1984 of 2002. https://hcservices.ecourts.gov.in/hcservices/ The prayer in the original application was for a direction to regularise her services in the post of Typist with effect from the initial date of appointment. 2. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.30682 of 2006. At that time, the third respondent filed a counter affidavit saying that the petitioner herself stayed away from work from April, 2002 and hence, the question of removing her from service does not arise. It was also stated that she was not entitled to any benefit. However, this Court did not go into the merits of the case, but merely observed that the respondents should be directed to consider the case of the petitioner in accordance with law vide order dated 20.3.2007. 3. Thereafter, the matter was mentioned by the counsel for the petitioner and it was re-listed before the Court on 4.4.2007. At that stage, the counsel for the petitioner informed this Court that the petitioner was entitled to get relief in terms of G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.2.2006. That submission was also incorporated in the order and a revised order was released. 4. It is pursuant to the said direction, the third respondent informed that it is only the District Collector who can pass appropriate orders pursuant to the direction issued by this Court. It was thereafter the petitioner's counsel sent a legal notice to the District Collector and the District Collector, Krishnagiri, by the impugned order dated 25.2.2009, informed the petitioner that the petitioner was not eligible for any restoration to service and conferment of permanent status in the light of G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.2.2006. Therefore, the petitioner is once again before this Court. 5. The contention of the petitioner proceeded on the basis as if this Court in the earlier round of litigation recommended the right of the petitioner for seeking relief under G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.2.2006. On the contrary, what was recorded by this Court was only an assertion made by the counsel for the petitioner and no finding on the relative rights of the petitioner or the obligation of the respondents was mentioned in the order. In fact, the words "in accordance with law" will clearly show that the Court did not give any finding on the claim made by the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 6. In this writ petition, notice of motion was ordered on 29.7.2009. On notice from this Court, the second respondent has filed a counter affidavit dated 25.8.2009. But when the matter came to up on 15.4.2010 in the default list, the petitioner was given time to comply with the requirement of paying process fee and outer limit was given to rectify the defects on or before 29.4.2010. Since the said defects were not cured in respect of respondents 1 and 2, by virtue of the order dated 15.4.2010, the writ petition was dismissed in respect of respondents 1 and 2. 7. In the counter affidavit, in paragraph [10] it was averred as follows: "10. ..... I submit to state that the statement of the petitioner could not be acceptable, as it is against the existing Government Orders and Rules in force. It is submitted that the petitioner Tmt. R.Srimathi was working only as a N.M.R. Typist not appointed on regular basis. She was working without any appointment orders issued by the Block Development Officer, Panchayat Union, Kelamangalam. Further it is submitted that the petitioner herself stayed away from duty from 04/2002 onwards for the reasons best known to her. The petitioner was not continuously worked as she claimed and in fact she was paid her remuneration based upon her works in a month ranging for about 25 or 26 days depends upon availability of works with a break of five or six days a month. Therefore, it is crystal clear that the petitioner is hiding the actual facts which are against the Government norms and rules." 8. There was no reply filed to controvert the stand taken by the respondents. On the contrary, the counsel for the petitioner placed reliance upon two judgments in support of his contention. The first judgment is by a Division Bench of this Court presided by P.K.Misra,J. (as He then was) in S.Jalajakumari v. Personal Assistant (General) to the Collector, [2008] 5 MLJ 1073. In that case, the Division Bench after referring to the peculiar facts of the petitioners who had unbroken record of 22 years of service and the government order issued in G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.2.2006, directed the respondents to grant regularisation and if necessary to relax the relevant recruitment rules in their favour. While doing so, this Court also relied upon the judgment of the Supreme Court in U.P.State Electricity Board v. Pooran Chandra Pandey, 2007 AIR SCW 6904 in support of the proposition laid therein. But it must be noted that the subsequently the smaller https://hcservices.ecourts.gov.in/hcservices/ bench judgment in Pooran Chandra Pandey case, supra, came to be severely criticized by the Supreme Court and once again the proposition laid down in State of Karnataka v. Uma Devi(3), [2006] 4 SCC 1 was reiterated. 9. The question of granting regularisation by the Courts and the consequential grant of appropriate relief came to be considered by the Supreme Court in Union of India and another v. Arulmozhi Iniarasu and others, [2011] 7 SCC 397 and the power under Article 226 of the Constitution of India was redefined. In paragraph [26], it was held as follows: "26. Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref. Sushanta Tagore v. Union of India, [2005] 3 SCC 16, U.P. State Sugar Corporation Ltd. v. Sant Raj Singh, [2006] 9 SCC 82, State v. Sashi Balasubramanian, [2006] 13 SCC 252 and State of Orissa v. Prasana Kumar Sahoo, [2007] 15 SCC 129.)" 10. In any event, the State Government by passing appropriate government order has given effect to the judgment in S.Jalajakumari case, supra. But the case of the petitioner does not in any way stand on a par with the S.Jalajakumari case, supra, as the petitioner herein had not been in service from April, 2002. 11. The learned counsel also placed reliance upon the judgment of the Supreme Court in State of Karnataka and others v. M.L.Kesari and others, [2010] 9 SCC 247 for contending that the Uma Devi(3) case, supra, only talked about irregular appointment and not illegal appointment and there is a distinction between illegal and irregular. In that case, after making a distinction between irregular and illegal appointment, the Supreme Court held that in case of irregular appointment it will not dis-entitle the employees the right to be considered for regularisation in the light of the explanation pointed out in Uma Devi (3) case, supra. It is based upon the said explanation, the S.Jalajakumari case, supra, came to be considered. But the case of the https://hcservices.ecourts.gov.in/hcservices/ petitioner is totally different. Once she is not in service, the question of regularisation will not arise and her non employment starting from April, 2002 is not even under challenge in any forum. In the said circumstances, the writ petition is misconceived and bereft of legal reasons. Hence, the writ petition is dismissed. No costs. Consequently, M.P.No.1 of 2009 is closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Director of Rural Development, Saidapet, Chennai-15. 2. The District Collector, Krishnagiri District. 3. The Block Development Officer Kelamangalam Panchayat Union Kelamangalam, Krishnagiri District. + 1 cc to Mr.A.Arumugam, Advocate Sr.SR.55786 + 1 cc to Mr.r. Dinesh kumar, Sr.55253 + 1 cc to the Special Pleader SR.55453 W.P.No.14736 of 2009 JP(CO) eu 22.9.11 https://hcservices.ecourts.gov.in/hcservices/