IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.40764 of 2006 (O.A.No.7367 of 2000) G.Pitchandi ...Petitioner Vs 1.The State of Tamilnadu rep. By the Secretary, Home (Jail) Department, Fort St.George, Chennai -9. 2.The Inspector General of Prison, Chennai -2. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorari, to call for the records relating to letter No.68593/Jail 2/99-2 dated 10.12.1999 of the first respondent; quash the same and consequently regularise the services of the petitioner w.e.f. 9/2/1976; to accord all benefits including promotion as chief Head Warder from the date on which his immediate junior has been promoted. For Petitioner : Mr.S.Silambanan, Senior Counsel For M/s.S.Silambanan & Associates For Respondents : Mr.R.Murali, G.A. O R D E R The petitioner filed O.A.No.7367 of 2000 before the Tamil Nadu Administrative Tribunal, seeking to challenge an order dated 10.12.1999 and after setting aside the same seeks for a consequential regularisation of his service with effect from 09.02.1976. 2. The Tribunal ordered notice of motion on the Original Application on 12.10.2000. On notice from the Tribunal, the respondents have filed a reply affidavit dated Nil. 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.40764 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 4. The petitioner had also filed a re-joinder dated 02.01.2011 to the reply affidavit together with typed set of documents. 5. The case of the petitioner was that he was appointed as Grade II Warder on 09.02.1976, after being sponsored by the Employment Exchange. He had put in more than 25 years of service. It was submitted that erroneously, he was ousted from service for want of vacancy on 12.11.1976. Instead of transferring him and posting to a vacant place under the control of the Inspector General of Prison (R2), on a wrong notion, he was sent out of service. When the petitioner was sent out, at the same time, the respondents had appointed M/s.Thangamani (19.04.1976), P.Mohan (01.05.1976), P.Madesh (25.07.1976), K.Chandrasekaran and K.Chandaselvaraj (20.12.1976) and M.Yacub (24.12.1976), and they all continued in service. The petitioner was subsequently appointed on a regular post on 01.10.1977. Therefore, it was claimed that the period from 09.02.1976 to 01.10.1977 should be condoned and his services should be regularised with effect from the date of his entry into service. 6. When the petitioner sent a representation after 23 years of service, by the impugned order, the State Government informed the petitioner that the petitioner was ousted from service even before declaration of his probation and he was once again appointed on 01.10.1977 on being sponsored by the Employment Exchange, his services in the second spell was also regularised. First proviso under Note 1 to Rule 26(a) of Fundamental Rules stipulates the following conditions for condonation of break in service in respect of a Government servant: i) The break in service should have been caused by reasons beyond the control of the Government servant concerned. ii)Service rendered preceding the break should not be less than a year. iii) The break should not be more than six months duration. In the present case, the petitioner's previous service was only 9 months and 4 days and the break was beyond 6 months. Hence, the break cannot be condoned. 7. With reference to other allegations, it was stated in the reply affidavit that temporary establishment was sanctioned to Central Prison, Vellore for guarding the Tripura State prisoners by G.O.Ms.No.2300 Home dated 17.12.1975. Subsequently by G.O.Rt.No.2412 Home dated 20.05.1976, the continuance of the temporary staff were extended for a further period of 6 months. Consequent upon the transfer of all Tripura detenues to Assam Jails on 12.11.1976, the temporary establishment was disbanded. Out of 30 Warders, who were removed for want of vacancy, 8 Warders were absorbed on temporary basis by G.O.Ms.No.2165 Home dated 01.09.1976 for guarding Tamil Nadu Misa detenues and 7 Warders Grade II were appointed temporarily as Warders Grade II in the existing leave vacancies. The entire exercise was done only on the basis of seniority and 15 Warders Grade II including the petitioner who were https://hcservices.ecourts.gov.in/hcservices/ juniors were ousted from service for want of vacancy. Therefore, it was stated that it is not the case of any junior being retained and senior being sent out. 8. The petitioner in his rejoinder contended that petitioner's ousting from service was unwarranted and he should have been accommodated in some other prison where there was vacancy. 9. Mr.Silambanan, learned Senior Counsel for the petitioner placed reliance upon the judgment of this Court in R.Nagarathinam and another v. Government of Tamilnadu rep. By the Secretary to Government and another reported in CDJ 2007 MHC 042, wherein, this Court gave a direction to regularise the services of the petitioner therein by condoning the break in service after relying upon Note 1 to F.R.26(a). But in that case, relaxation was given only from a particular date and thereafter, this Court held that services should be regularised from the date of initial entry. 10. But in the present case, the petitioner's earlier appointment was on temporary basis and that was ousted. The respondents in their reply affidavit had clearly stated that no juniors to the petitioner were retained in service. Even otherwise, the petitioner having been sent out of service in the year 1976 cannot chose to maintain the Original Application after 23 years seeking for retrospective regularisation. The petitioner has not made out any case on merits and apart from that, he is guilty of laches. 11. In the light of the above, this Court is not inclined to entertain the writ petition. Hence, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar svki To 1.The Secretary, The State of Tamilnadu Home (Jail) Department, Fort St.George, Chennai -9. 2.The Inspector General of Prison, Chennai -2. + 1 cc to M/s. S. Silambanan, Advocate Sr.11525 + 1 cc to Government Pleader Sr.11710 W.P.No.40764 of 2006 (O.A.No.7367 of 2000) RSM(CO) EU 3.3.11 https://hcservices.ecourts.gov.in/hcservices/