IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.12.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.24868 of 2008 R.Ravichandran .. Petitioner Vs. 1. The Secretary to Government Municipal Administration and Water Supply Department Fort St.George, Chennai – 600 009. 2. The Commissioner of Municipal Administration, Chepauk Chennai – 600 005. 3. The Commissioner Namakkal Municipality Namakkal. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records relating to the proceedings of the Commissioner, Namakkal Municipality, Namakkal, the third respondent herein made in Na.Ka.No.2720/97 C1, dated 25.8.2005, to quash the same insofar as the same is against the petitioner, namely denial of 10 years services from 1.10.1991 to 1.10.2001 as Meter Reader in Namakkal Municipality for the purpose of earning service benefits and consequently to direct the respondent herein to regularise the services of the petitioner with effect from 1.10.1991 with all consequential fixation of time scale of pay from 1.10.1991 and other service and monetary benefits and disburse all the arrears due to the petitioner. For Petitioner : Mr.K.Rajkumar For Respondents: Mr.T.Seenivasan Addl. Government Pleader for respondents 1 and 2 Ms.S.Anitha for 3rd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDER The writ petitioner was appointed as a Meter Reader in the third respondent Municipality and by the time he was appointed he was having necessary qualification and the appointment was made not only as per the sponsorship from employment exchange, but also after going through the selection process by the competent authority, which was also after passing of resolution by the third respondent/Municipality. 2. When the petitioner has requested for regularisation of his service, the same was not considered. He approached the Tamil Nadu Administrative Tribunal by filing O.A.No.2722 of 1997 and the Tribunal, by order dated 21.11.2002, on the basis of the admission made by the third respondent that the petitioner was employed from 1991 and that his name continued to be in the list to be forwarded to the Director of Municipal Administration, directed the respondents to regularise the services of the petitioner and confer the benefits as per G.O.125, Municipal Administration and Water Supply Department, dated 27.5.1999. 3. It was against the said order of the Tribunal dated 21.11.2002 passed in O.A.No.2722 of 1997, the petitioner has approached this Court by filing W.P.No.17151 of 2004 and the Division Bench of this Court by order dated 23.6.2004, while disposing of the said writ petition, has modified the order of the Tribunal with a direction to the third respondent herein to apply G.O.Ms.No.1644, dated 12.10.1979 to the case of the petitioner instead of G.O.125, dated 27.5.1999 and it was thereafter, the impugned order came to be passed by the third respondent on 25.8.2005 regularising the service of the petitioner with effect from 1.10.2001 on the basis that the petitioner has completed ten years of service as daily wager. 4. The petitioner by treating the said impugned order as a contempt of the Division Bench order in the writ petition stated above, has filed Contempt Petition No.908 of 2004, which came to be disposed by the Division Bench on 21.1.2006 holding that prima facie there is no wilful violation, but if the third respondent has misinterpreted G.O.Ms.No.1644, dated 12.10.1979, it is for the petitioner to workout his remedy in the appropriate forum. It was thereafter the petitioner has filed the present writ petition challenging the impugned order of the third respondent dated 25.8.2005. 5. The only question that is to be decided is as to whether the impugned order is to be sustained to the effect that the petitioner's service is regularised from 1.10.2001 or is the petitioner entitled to regularisation from the date of original appointment as Meter Reader, viz., from 1.10.1991. https://hcservices.ecourts.gov.in/hcservices/ 6. The third respondent has admitted in the counter affidavit that when the petitioner was appointed on 1.10.1991 as Meter Reader the same was by way of selection process, having been sponsored through the employment exchange and therefore, it cannot be said that the appointment of the petitioner as Meter Reader on 1.10.1991 cannot be taken into consideration for the purpose of regularisation. It is also an admitted fact that at that time when the petitioner was appointed, the appointment was within the sanctioned strength and it cannot also be treated as an irregular appointment. In such view of the matter, law is well settled by hierarchy of judgments that the original date of appointment shall be taken into consideration for the purpose of giving effect to regularisation of services. 7. In Indian Council of Medical Research, rep. by its Director General, New Delhi v. K.Rajalakshmi and another, 2005 (1) CTC 488, a Division Bench of this Court comprising of P.Sathasivam and S.K.Krishnan,JJ., as they then were, by referring to the various judgments of the Apex Court, including State of Haryana and others v. Piara Singh and others, AIR 1992 SC 2130 wherein it was held that in service jurisprudence no post can be treated permanently as temporary and temporary means only for certain period, ultimately held on the facts of the said case as follows:' "33. In such circumstances, the services of the first respondent have to be regularised from the date of her initial appointment, i.e. 1.4.1975. When the date of appointment is not disputed and the appointment is regular and there is no violation of any rules in such appointment, the Court cannot postpone the date of regularisation from the date of actual appointment to the date of filing of the Writ Petition or to any other date. In giving effect to the regularisation of the services, the Court can interfere when the date of appointment is in dispute and the appointment is not regular and any violation of rules is found in the appointment of the concerned, and then the Court, according to the facts and circumstances, can fix the date of effect of regularisation, otherwise, the Court cannot interfere.", by treating the services rendered by the employee concerned from the date of his original appointment. 8. N.Paul Vasanthakumar,J. in V.Perumal v. Commissioner and Secretary to the Government, Health and Family Welfare Department, Chennai, [2006] 2 MLJ 339, under similar circumstances while dealing with regularisation of services of employee, has held as follows: "5. Taking note of the facts and circumstances of this https://hcservices.ecourts.gov.in/hcservices/ case and particularly, the recommendations made by the Director Medical Education, I am of the view that the impugned order in restricting the relaxation only from 27.6.1995 is liable to be quashed and the same is quashed. It is represented by the learned counsel for the petitioner that the petitioner retired from service on 31.7.2002 and therefore, the effect of regularisation from 30.8.1975, as ordered now, the salary shall be refixed and arrears of salary payable to the petitioner till the date of retirement shall be calculated and paid within a period of six weeks from the date of receipt of a copy of this order and the revision of pension and arrears of pension shall also be made and paid within a period of three months from the date of receipt of a copy of this order." 9. I had an occasion to decide a similar issue of regularisation whether to be done from the date of original appointment in S.Senthilkumar v. The Commissioner of Municipal Administration, Chennai-600 005 and another (order dated 21.10.2008 made in W.P.No.20797 of 2008). By referring to the above said two judgments, this Court directed the conferment of benefits from the date of original appointment as follows: "11. In Perumal,V. vs. Commissioner and Secretary to the Government, Health and Family Welfare Dept., Chennai [(2006) 2 MLJ 339], while referring to a similar Government Order relating to the granting of relaxation for the purpose of regularisation of service of the petitioner therein, this Court has held that the regularisation cannot be made after 20 years of the petitioner's service merely because the authority has chosen to pass orders after 20 years. The operative portion of the judgment is as follows: "4. 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 ont eh part of the Government to restrict the relaxation only from the date of the order. The https://hcservices.ecourts.gov.in/hcservices/ 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 27.6.1995 is unreasonable and arbitrary in exercise of power." 12. The Division Bench presided over by P.Sathasivam,J. (as he then was) in Indian Council of Medical Research v. K.Rajalakshmi (2005 (1) CTC 488), while differing from the view of the Tribunal that such benefit should be given from the date of filing of the writ petition, has also held that the first respondent therein would be entitled for the benefit from the date of her original appointment. The relevant portion of the judgment is as follows: "31. In the light of the above, we are of the view that when the first respondent puts in more than 25 years of service continuously in NNMB without any break and her appointment is regular and considering her qualification and experience she was promoted to the post of Assistant Research Officer and when especially she is on the verge of retirement, her services have to be regularised with all monetary and service benefits and therefore, we agree with the view taken by the Tribunal that the services of the first respondent have to be regularised. However, we differ from the view of the Tribunal that the services of the first respondent have to be regularised from the date of filing of the writ petition i.e., 25.2.1998 for the following reasons. 32. As already stated above, it is not disputed that the first respondent was appointed on 1.4.1975 and her appointment was regular and thereafter, she was promoted as Assistant Research Officer along with four others on 24.9.1982. Since the services of the first respondent was not regularised, she gave representations even in the year 1987 to https://hcservices.ecourts.gov.in/hcservices/ regularise her services." 13. In view of the above said legal position as well as the admitted factual matrix in this case, there is no difficulty to come to the conclusion that the impugned order passed by the first respondent insofar as it confers the benefit of payment of salary to the petitioner as Junior Assistant from the date of order viz., 23.7.2007 is liable to be set aside and accordingly, the same is set aside with direction to the respondents to pay salary to the petitioner in the post of Junior Assistant from the date of his joining, 23.9.1991 as per the order of original appointment viz., 16.9.1991 and compute all monetary benefits including service benefits due to the petitioner and confer the said benefits on the petitioner expeditiously, in any event within a period of four months from the date of receipt of a copy of this order." 10. That has been the view consistently taken by this Court, as submitted by the learned counsel for the petitioner and as it is seen in another order of the S.Rajeswaran,J. in P.Jeevabai v. The Secretary to Government, Municipal Administration and Water Supply Department, Chennai-9 (Order dated 10.7.2009 made in W.P.No.11832 of 2007). In paragraph 11 of the said order it is stated as follows: "11. Therefore, I set aside the order passed by the first respondent in letter No.20443/Na.Pa.1/2001-7, dated 3.1.2002 and consequently, direct the first respondent to regularise the service of the petitioner herein as a Typist in the office of the third respondent herein with effect from the date of her appointment with consequential fixation of time scale for the post with continuity of service and pay all the arrears within three months from the date of receipt of copy of this order." 11. Applying the consistent view taken by this Court in similar circumstances to the facts and circumstances of the present case, I have no hesitation to hold that the petitioner's original appointment as Meter Reader on 1.10.1991, in which post he has continued throughout, cannot be said to be a temporary appointment and the petitioner is entitled to the benefit of regularisation from the date of his original appointment, viz., 1.10.1991. In such view of the matter, the writ petition is allowed and the impugned order of the third respondent dated 25.8.2005 is set aside insofar as it confers the benefit of regularisation of petitioner https://hcservices.ecourts.gov.in/hcservices/ from 1.10.2001, with a direction to the third respondent to regularise the services of the petitioner from 1.10.1991 as per G.O.Ms.No.1644, dated 12.10.1979 and confer all service, monetary and other consequential benefits by passing fresh orders. Such orders shall be passed by the third respondent expeditiously, in any event within eight weeks from the date of receipt of a copy of this order. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sasi To: 1. The Secretary to Government Municipal Administration and Water Supply Department Fort St.George, Chennai – 600 009. 2. The Commissioner of Municipal Administration, Chepauk Chennai – 600 005. 3. The Commissioner Namakkal Municipality Namakkal. + 1 CC to Mr.K.Rajkumar, Advocate SR NO 69679 + 1 CC to Government Pleader, High Court, Madras SR NO 69985 W.P.No.24868 of 2008 KK (CO) SS (30.12.2009) https://hcservices.ecourts.gov.in/hcservices/