1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated:06.04.2011 Coram: THE HONOURABLE MS. JUSTICE K. SUGUNA and THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY Writ Appeal (MD)No.361 of 2011 S. Loreth Xavier, S/o. Siluvai Antony, No.370, South Market Street, Vadakkankulam, Tirunelveli District - 627 116. :Appellant -Vs- 1. The State of Tamil Nadu Rep. by Secretary to Government, Department of Education (H.S), Fort. St. George, Chennai. 2. The Joint Director of School Education, (High Schools), College Road, Chennai - 600 006. 3. The Correspondent, St. Theresa's Higher Secondary School, Vadakkankulam, Tirunelveli District - 627 116. 4. Chief Educational Officer, Thirunelveli, Thirunelveli – 9. :Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 10.11.2010 of the learned Single Judge in W.P.(MD)No.11384 of 2008. WP No.11384/08:Writ Petition filed under article 226 of the Constitution of India, praying for Issuance of a writ of certiorarified mandamus, calling for the records in the impugned order Na.Ka.No.40452/VI/K3/08, dated 05.0.2008 passed by the 2nd respondent and quash the same and direct the 1st, 2nd and 4th respondents to regularize the petitioners service as Double Part- time vocational teacher at the 3rd Respondent's school and pay all arrears of salary, pension and all other attendent benefit to him within a time limit fixed by this court. For Appellant :Mr.C. Dhanaseelan For Respondents:Mr.R.Janakiramulu for R-1, R-2 and R-4, Special Government Pleader JUDGMENT (Judgment of the Court was delivered by K. SUGUNA, J.) This Writ Appeal is filed as against the order passed by the learned Single Judge dated 10.11.2010 in W.P.(MD)No.11384 of 2008. 2.The said writ petition in W.P.(MD)No.11384 of 2008 has been filed challenging an order dated 05.05.2008 whereby the request of the appellant / petitioner for taking into account his part time service for the pensionary benefit has been rejected on the ground that even his service was not https://hcservices.ecourts.gov.in/hcservices/ 2 regularized. The learned Single Judge of this Court has dismissed the said writ petition, as against which, this Writ Appeal is filed. 3.According to the learned counsel appearing for the appellant, the appellant/petitioner was appointed as a "Double Part-Time Vocational Teacher" from 16.07.1984 in the third respondent school. However, his service was not regularized, though the services of number of other single part time instructors as well as double part time instructors have been regularized. According to the learned counsel for the appellant, since the appellant was not qualified enough, his service was not regularized However, it is the stand of the learned counsel appearing for the appellant that as per the averments in the counter affidavit, even the service of the unqualified persons was regularized, consequently, on the appointment of the appellant / petitioner, he is deemed to have been qualified to the post of Vocational Instructor. Under such circumstances, denying the benefit of regularization and the consequential retirement and other benefits are arbitrary, according to the learned counsel for the appellant. 4.We have considered the submissions of the learned counsel appearing for the appellant. 5.It is an admitted fact that as far as the appointment of Vocational Instructor is concerned, certain qualifications have been prescribed and the appellant is not possessing the said qualifications, consequently, his service was not regularized. As far as the post of Vocational Instructor is concerned, initially their services were not regularized. However, during 1990, certain orders were passed by the Government. Subsequently, a Government Order in G.O.Ms.No.834 Education, Science and Technology(HS II) Department dated 23.09.1994 was issued basing on which the services of number of single as well as double part time instructors were regularized and they were brought into the regular stream of appointment. It is not the case of the learned counsel for the appellant that the appellant was possessing all the required qualifications. However, it is an admitted fact from the records that the appellant had served as a double part time instructor from 1984 to 1996. As per the decision of the Hon'ble Supreme Court also, experience is the better qualification than that of the academic qualification. When the service of the appellant was not regularized, the question of calculating the qualifying service for pension will not arise Since the proposal was not forwarded by the third respondent school, the case of the appellant was not considered. 6.The fact remains that the appellant had served for a period of 12 years as double part time instructor and the services of other single as well as double part time instructors' have been regularized since they possess the required qualification. Taking note of the overall circumstances and the fact that the appellant had served for a period of 12 years, we are of the view that the case of the appellant deserves to be considered for regularization in relaxation of the Rule. However, the power of relaxation of Rule lies only with the first respondent. Consequently, the petitioner is at liberty to make a request before the first respondent within a period of four weeks from the date of receipt of a copy of this order and in the event of any such request made by the appellant, the first respondent is directed https://hcservices.ecourts.gov.in/hcservices/ 3 to pass orders within a period of four weeks thereafter. The third respondent is also directed to send the proposal with regard to the regularization of service of the appellant to the first and second respondents taking note of the service of the appellant as double part time instructor for a period of 12 years. Taking note of the fact that the appellant is aged about 73 years, the first respondent is directed to consider and pass orders on the same within a period of four weeks thereafter. 7.With the above observations, this Writ Appeal is disposed of However, there will be no order as to costs. Sd/- Deputy Registrar (LA) / TRUE COPY / Assistant Registrar To: 1. The Secretary to Government of Tamil Nadu, Department of Education (H.S), Fort. St. George, Chennai. 2. The Joint Director of School Education, (High Schools), College Road, Chennai - 600 006. 3. Chief Educational Officer, Thirunelveli, Thirunelveli - 9. +1CC to Mr.C.Dhanaseelan, Advocate. SR.No.12743. Dpn/- W.A.(MD)No.361 of 2011 RP/09.04.2011/3P/5C. 06.04.2011 https://hcservices.ecourts.gov.in/hcservices/