IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:27.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.25223/2008 & M.P.Nos.1&2/2008 & W.P.No.11322/2009 1.K.Murugesan 2.C.Ganesan 3.O.Viswanathan 4.T.Viswanathan 5.E.Meiyazhagan 6.P.Perumal 7.T.M.S.Balaraman 8.S.Veeramani 9.G.Swamy Raj 10.D.Thasi 11.M.Tamilselvan 12.P.Ganesan 13.K.Thirunavukkarasu 14.O.Viswanathan 15.T.Thangarasan 16.A.Needhi 17.M.Yuvaraj 18.G.Velkumaran 19.G.Veeramani 20.B.Sethuraja 21.S.Thirunavukkarasu ... Petitioners in W.P.No.25223/2008 1.C.Mariappan 2.S.Shanmuga Sundaram 3.M.Vijayakumar 4.R.Chandiran 5.K.Azhagarsamy 6.P.Thangaraj 7.R.Sivalingam ... Petitioners in W.P.No.11322/2009 -vs- 1.The State of Tamil Nadu rep. by this Secretary Cooperative Food & Consumer Protection Department, Fort St. George, Chennai -9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Registrar of Cooperative Societies No.178 E V R Periyar Salai, Kilpauk, Chennai – 600 010 ... Respondents in both W.P.s Prayer in W.P.No.25223/2008 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records relating to the first respondent order made in G.O.Ms.No.(D) 333 Food and Consumer Protection dated 25.09.2008, to quash the same and consequently direct the respondents to reappoint/regularise the petitioners herein as Junior Inspector of Cooperative Societies and to extend all benefits both service and monetary. Prayer in W.P.No.11322/2009 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records relating to the first respondent's order made in G.O.Ms.No.39 Cooperation, Food and Consumer Protection (CL.2) Department dated 06.04.2009 to quash the same and consequently direct the respondents to reappoint/regularise the petitioners herein as Junior Inspector of Cooperative Societies and to extend all benefits both service and monetary. For Petitioners in both :Mr.L.Chandrakumar For Respondents in both :Mr.P.Subramani Addl Govt. pleader COMMON ORDER By consent the Writ Petitions are taken up for disposal. The prayer in the W.P.No.25223/2008 is for issue of writ of Certiorarified Mandamus to quash the order passed by the first respondent in G.O.Ms.No. (D), 333 Food and Consumer Protection dated 25.09.2008 and to direct the respondents to reappoint/regularise the petitioners as Junior Inspector of Cooperative Societies and extend all benefits and the prayer in W.P.No.11322/2009 is for issue of Writ of Certiorarified Mandamus to quash the order passed by the first respondent in G.O.Ms.No.39 Cooperation, Food and Consumer Protection (CL.2) Department dated 06.04.2009 and to direct the respondents to reappoint/regularise the petitioners as Junior Inspector of Cooperative Societies and extend all benefits both service and monetary. Since the issue involved is identical in both the writ petitions, they are disposed of by a common order. 2. In these writ petitions, there are 21+7 (28) petitioners, who are stated have been appointed as Junior Inspectors of https://hcservices.ecourts.gov.in/hcservices/ Cooperative Societies between 1976 & 85 on temporary basis by invoking Rule 10(a)(i), of the General Rules for Tamil Nadu State and Subordinate Service it is stated that the petitioners have rendered minimum of five to maximum of 14 years of service and were allowed to take part in the Special qualifying examination conducted by the Tamil Nadu Public Service Commission for being regularised in service. In such exam conducted by the TNPSC 63 persons were not successful and out of those 63 persons, 21 unsuccessful candidates, who were working in the Cooperative Audit Department were allowed to continue in service and subsequently their services were also regularised by G.O.Ms.No.445 dated 20.12.2005. It is further stated that the petitioners approached the Tamil Nadu State Administrative Tribunal by filing O.A.No.912/1996 for a direction to regularise their services and extend all benefits. This original application was transferred to this Court and re-numbered as W.P.No.28269/2006 and the said writ petition was disposed of by order dated 29.01.2007 by directing the first respondent to consider the case of the petitioners in the light of G.O.Ms.No.445 dated 20.12.2005. Subsequently, by G.O.Ms.No.158 dated 22.05.2007, one of the applicants in the original application by name Thiru.C.Thirupathy was regularised as Junior Inspector of Cooperative Societies. Similarly, one Thiru. S.Velu, who is also a similarly placed person as that of the petitioners filed W.P.No.10864/2006 before this Court and an order was passed by this Court on 19.04.2006 to consider his representation in the light of G.O.Ms.No.445 dated 20.12.2005 and pass appropriate orders within a period of three months. Since the order was not complied with the said Mr.S.Velu filed contempt petition No.101/06 and thereafter the said Mr.S.Velu was also regularised as Junior Inspector of Cooperative Societies by G.O.Ms.No.153 dated 13.08.2008. Subsequently, the first respondent by D.O. letter dated 29.05.2008 addressed the Secretary, TNPSC, stating about the various cases filed by the candidates and the Government orders of regularisation passed in favour of Mr.C.Thirupathi and Mr.S.Velu, requested the Secretary of TNPSC to move the Commission immediately and obtain its concurrence for regularisation of petitioners herein. While the petitioners were eagerly waiting for the Government orders, they were faced with the impugned orders rejecting the request for reappointment as Junior Inspector of Cooperative Societies. The correctness of this orders dated 29.05.2008 and 06.04.2009 are assailed in the present writ petitions. 3. Mr.L.Chandrakumar, learned counsel appearing for the petitioners would contend that the impugned order is a classical case of hostile discrimination, since similarly placed persons have been regularised as Junior Inspectors of Cooperative Societies and applying different yardstick to the petitioners alone is arbitrary and violative of Article 14, 16 & 21 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India. The learned counsel would further submit that all the petitioners are similarly placed to that of the other two candidates, namely Mr.C.Thirupathi and Mr.S.Velu and therefore, they cannot be treated differently. By placing reliance on the D.O. letter dated 29.05.2008, the learned counsel would submit that the claim of the petitioners was favourably considered, but has now been arbitrarily rejected or untenable grounds. The reasons given in the impugned orders are that the petitioners were ousted from service and the other failed candidates, who were working as Cooperative Junior Auditors were continuing in service by virtue of Court orders and their case was considered and G.O.Ms.No.445 dated 20.12.2005 was passed regularising their service, and that since the writ petitioners were not in service, they cannot be equated. The learned counsel would therefore submit that the reasons assigned in the impugned orders are paternally illegal and on this ground also the impugned orders are liable to be set aside. 4. Per contra, Mr.P.Subramani, Addl Govt. Pleader, by placing reliance on the counter affidavit filed, would submit that the yardstick, which was applied in the case of the candidates covered in G.O.Ms.No.445 dated 20.12.2005 cannot be applied to the petitioners and the orders passed in favour of Mr.C.Thirupathi and Mr.S.Velu was as per the directions of the Tribunal and this Court in the original application and writ petitions and the same cannot be a reason for reappointing the petitioners as Junior Inspectors. It is further stated that the Government have issued orders stating that the temporary Junior Inspectors who were not successful in the Special qualifying examination will be continued in service depending on the number of vacancies and will be ousted on expiry of the need, after cooperative elections are held or will be replaced by candidates selected through the TNPSC. Therefore, the learned Additional Government Pleader would submit that there is no error in the impugned order. 5. I have carefully considered the submissions on either side and perused the materials on record. 6. The petitioners were appointed on temporary basis under Rule 10 (a) (i) of the General Rules, as Junior Inspectors of Cooperative Societies between 1974 to 25.06.1984 by various authorities such as the Deputy Registrar of Cooperative Societies, erstwhile District Cooperative Audit Officers etc. In order to accommodate the directly recruited Junior Inspectors of Cooperative Societies some of the Junior Inspectors recruited on temporary basis were ousted for want of vacancy. Since the proposal to regularise the temporary Junior Inspectors was dropped by the Government, representations were made by those temporary Junior Inspectors for recommending them to be regularised in https://hcservices.ecourts.gov.in/hcservices/ service and the Government after considering their plight issued orders in G.O.Ms.No.271 dated 10.11.1998 for conducting special qualifying examination for such temporary Junior Inspectors. This examination is stated to have been conducted on 15.10.1989. The petitioners herein were not successful in the examination, however such of those Junior Inspectors who were working as Junior Cooperative Auditors in the Department of cooperative audit were ousted from service of expiry of the need or after cooperative election and from among the 63 failed candidates 21 candidates who were working in the cooperative audit department were continued in service and these candidates approached the Tamil Nadu State Administrative Tribunal for regularisation of their service from 16.10.1989 i.e., the next day after the date of the conduct the special qualifying examination (15.10.1989). 7. Based on the direction issued by the Tribunal, the Government by G.O.Ms.No.445 dated 20.12.2005 regularised the 21 temporary Junior Inspectors, who were working as Junior Cooperative auditors and they were regularised with effect from 16.10.1989. This appears to be the starting point of the controversy. The petitioners moved the Tribunal and filed O.A.No.912/96 and based their claim on G.O.Ms.No.445. This original application was transferred to this Court and renumbered as W.P.No.28269/2006 and this Court by order dated 21.09.2007 directed the first respondent to consider the case of the petitioners in the light of G.O.Ms.No.445. Prior to the direction of this Court on 21.09.2007, the Government passed G.O.Ms.No.158 dated 22.05.2007. It is relevant to note that the beneficiary under the G.O.Ms.No.158 was one Mr.C.Thirupathi and his services were regularised as Junior Inspector and he was also one among the petitioners in W.P.No.28296/2006. Another candidate Mr.S.Velu by relying upon the G.O.Ms.158 dated 22.05.2007 filed another Writ Petition in W.P.No.10864/206 based on the directions issued by this Court, the Government in G.O.Ms.No.153, dated 13.08.2008 decided to appoint the said Mr.S.Velu as Junior Inspector with effect from the date of the Government order i.e., 13.08.2008. 8. Therefore, one fact which is apparent from the Government orders referred is that the two candidates, namely Mr.C. Thirupathi and Mr.S.Velu were similarly placed as that of the petitioners herein and they were granted the benefit of appointment as Junior Inspectors. Thus being the factual position the only question to be decided is as to whether the petitioners can be denied the said benefit, which was extended to Mr.C.Thirupathi and Mr.S.Velu. The only reason stated in the impugned orders is that G.O.Ms.No.445, dated 20.12.2005 was issued in favour of the Junior Inspectors, who were working in the cooperative department, since they were continuing in service on account of stay orders granted by this Court restraining the https://hcservices.ecourts.gov.in/hcservices/ Department from ousting them, whereas the petitioners did not obtain any stay and were not in service. This reason assigned in the impugned order is wholly untenable. It is settled legal position that the period of stay, which is granted pending disposal of a writ petition would stand excluded while computing the length of time in matters pertaining to land acquisition cases. Similarly, the Hon'ble Supreme Court has held that while considering cases for conferment of permanent status to workman, the period of employment by virtue of interim orders granted by Courts or Tribunal would stand excluded for the purpose of computing the number of working days for being entitled to be confirmed as the permanent workman. Therefore merely because stay was granted in favour of those employees would not put them in a higher pedestal than the petitioners and the relevant consideration would only be as regards their employment prior to their ousting. 9. When the legal and factual position being thus the reasoning given in the impugned order is ex-facie illegal. The petitioners have based their claims on the ground of discrimination much less hostile discrimination. If the matter is examined from this angle, the discrimination is writ large on the face of the record. The Government having extended the benefit to 21 Junior Inspectors working in Audit Department and having considered the case of Thiru. C. Thirupathi and Mr.S.Velu, and there is no justifiable ground to refuse such benefit in respect of the petitioners, when undoubtedly all the candidates covered by the three Government orders, namely G.O.Ms.No.445, G.O.Ms.No.158 & G.O.Ms.No.153, where similarly placed, as they were all temporary Junior Inspectors and all of them appeared for the special qualifying examination conducted by TNPSC and all of them were unsuccessful in such examination. 10. Therefore, once the Government had taken a decision to regularise the services of the Junior Inspectors in Audit Department by passing G.O.Ms.No.445, they ought to have extended the same benefit to the petitioners also. In fact Mr.C.Thirupathi and Mr.S.Velu were petitioners along with the present writ petitioners in the earlier round of litigation in W.P.No.28269/2006. Therefore, if these two persons could be granted the benefit under G.O.Ms.No.158 & 153 respectively, there is no ground to deny the relief to the petitioners. It would be relevant to note that the first respondent in D.O. letter dated 29.05.2008 addressed to the Secretary of TNPSC requested the Secretary to move the Commission immediately and obtain its concurrence for regularisation of the petitioners. Therefore upto that stage, the Government in principle took a decision to extend the benefit of the earlier Government orders to the petitioners also, but were awaiting the concurrence of TNPSC. In such https://hcservices.ecourts.gov.in/hcservices/ circumstances, it is too late in the day for the first respondent to now contend that the benefit granted to others was because they had benefit of stay in the earlier writ petition and that the TNPSC has not granted concurrence could hardly be stated to be a ground to deny the relief to the petitioners. Further no reasons have been assigned as to on what basis TNPSC declined to grant concurrence. 11. Therefore, I am of the clear view that the impugned orders are arbitrary and unreasonable and totally discriminatory. 12. In the result the above Writ Petitions are allowed and the impugned orders are set aside and the respondents are directed to reappoint the petitioners as Junior Inspectors as has been done in the case of Thiru. C. Thirupathi in G.O.Ms.(D). No.158 dated 22.05.2007 and in the case of Thiru.S.Velu in G.O.Ms.No.153, dated 13.08.2008 within a period of three months from the date of receipt of a copy of this order. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Pbn To 1.The State of Tamil Nadu rep. by this Secretary Cooperative Food & Consumer Protection Department, Fort St. George, Chennai -9. 2.The Registrar of Cooperative Societies No.178 E V R Periyar Salai, Kilpauk, Chennai – 600 010. 2 ccs to MR.L.Chandrakumar, Advocate, SR. 4694 1 cc to Government Pleader, SR. 4731 W.P.No.25223/2008 & W.P.No.11322/2009 AR (CO) kk 1/2 https://hcservices.ecourts.gov.in/hcservices/