IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.07.2011 CORAM THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN W.P.No.6953 of 2011 and M.P.Nos.1 and 2 of 2011 K.Manoharan ... Petitioner vs. 1. The Principal Secretary, Planning Development and Special Initiatives Department, Secretariat, Chennai – 600 009. 2. The Director Evaluation and Applied Research Department, Kuralagam, 3rd Floor, Chennai – 600 108. ... Respondents PRAYER: Petition filed under Article 226 of Constitution of India, for the issuance of a writ of certiorarified mandamus, calling for the records relating to the proceeding of the 2nd respondent dated 03.11.2008 issued in Proceedings No.2259/Ma.Sa.Aa.Thu/A/2007 and the proceeding of the 1st respondent dated 27.12.2010 issued in Letter No.2126/ST 2 & E/2010 and consequential proceedings of the 2nd respondent dated 25.01.2011 issued in Letter No.826/E&ARD/A2/2009 and quash the same and consequently to direct the both respondents to award all benefits to the petitioner except the backwages arising out of the final order dated 17.04.2008 passed in W.P.No.12569/2007 within the prescribed time limit. (Prayer amended as per order dated 25.04.2011 in M.P.No.3 of 2011 in W.P.No.6953 of 2011) For Petitioner : Mr.P.I.Thirumoorthy For Respondents : Mr.S.Gunasekaran, Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R On 04.09.2000, the petitioner was appointed as an Office Assistant cum Driver by the second respondent. The second respondent appointed the petitioner pursuant to the interview conducted on 22.07.2000, when the name of the petitioner being sponsored by the employment exchange. The petitioner was granted scale of pay when he was appointed. He was appointed against the regular vacancy. He was granted increments. But the first respondent directed the second respondent to terminate the services of the petitioner on the ground that the petitioner was appointed during the ban on recruitment, without obtaining prior permission of the Government. Accordingly, the second respondent terminated the service of the petitioner from 17.03.2003, based on the instructions given by the first respondent on 03.03.2003. 2. In these circumstances, the petitioner filed original application in O.A.No.1083 of 2003 to quash the order of termination. On abolition of the Tamil Nadu Administrative Tribunal, the matter was transferred to this Court and renumbered as W.P.No.12569 of 2007. This Court passed an order dated 17.04.2008 setting aside the order of termination and directed the second respondent to reinstate the petitioner into service without backwages. 3. The second respondent appointed the petitioner as a fresh candidate on 03.11.2008. According to the petitioner, the order dated 03.11.2008 of the second respondent, appointing him as a fresh candidate, is contrary to the order of this Court dated 17.04.2008 made in W.P.No.12569 of 2007. The petitioner made a representation dated 22.10.2009 to the second respondent, seeking to count the past services and to bring him under pensionable service that was operating upto 31.03.2003. The second respondent sought clarification from the first respondent on the representation dated 22.10.2009 of the petitioner. The first respondent in its letter dated 27.12.2010 turned down the request of the petitioner. Based on the order dated 27.12.2010, the second respondent also rejected the request of the petitioner in his order dated 25.01.2011. 4. In these circumstances, the petitioner has filed the present writ petition to quash the order dated 27.12.2010 of the first respondent and the order dated 25.01.2011 of the second respondent and consequential direction to the respondent to award all benefits to the petitioner except backwages as per order dated 17.04.2008 made in W.P.No.12569 of 2007. https://hcservices.ecourts.gov.in/hcservices/ 5. The respondents filed counter affidavit refuting the allegations. It is stated that the petitioner was irregularly appointed during the ban period. This Court passed an order dated 17.04.2008 in W.P.No.12569 of 2007 setting aside the termination order and directing the second respondent to reinstate the petitioner without backwages. It is averred that there was no direction to grant him the benefits for past services. Hence, the petitioner was appointed as a fresh candidate. It is stated that there was no specific order by this Court for granting service benefits. Hence, the appointment of the petitioner has to be treated as fresh appointment. 6. Heard both sides. 7. The petitioner was appointed on 04.09.2000 through Employment Exchange as Office Assistant cum Driver. It is not in dispute that he possesses the requisite qualification. It is also not in dispute that he was appointed against an existing regular vacancies. But the objection of the first respondent is that he was appointed when there was a ban on recruitment. Hence, the first respondent directed the second respondent to terminate the service of the petitioner. Based on the direction issued by the first respondent, the second respondent terminated the service of petitioner by an order dated 17.03.2003. The petitioner filed O.A.No.1083 of 2003 (W.P.No.12569 of 2007) to quash the termination order and to reinstate him with consequential benefits. This Court passed an order dated 17.04.2008 in W.P.No.12569 of 2007, setting aside the termination order. This Court found that the termination order is not fair since the petitioner could not be blamed for appointment at the time of ban on recruitment. This Court also took into account that the petitioner was recruited through Employment Exchange and he served for 3 years. In these circumstances, the order of termination was set aside and the respondents were directed to reinstate the petitioner within a period of 30 days. However, backwages was denied. Paras 7 and 8 of the order dated 17.04.2008, passed in W.P.No.12569 of 2007 are extracted hereunder: "7. Though the impugned order of termination is an order of terminating the petitioner's service simplicitor, the proceeding dated 03.03.2003 which has been enclosed along with the counter affidavit reveals only basing on the directions issued by the Secretary to Government alone, this impugned order of termination is passed and the same is also referred in the termination order and as per the proceeding dated 03.03.2003, the service of the petitioner is terminated only for the reason that he was appointed during the ban period. As rightly contended by the learned counsel for the petitioner, for these, the petitioner cannot be blamed and apart from this, for the mistake https://hcservices.ecourts.gov.in/hcservices/ committed by the respondent Department, the petitioner cannot be panelized. That apart, the appointment is also through Employment Exchange and as rightly pointed out by the learned counsel for the petitioner, after a lapse of three years, if the service of the petitioner is ousted, again he has to enroll himself in the Employment Exchange as a fresh candidate, which will have severe consequence in getting employment in future. 8. Consequently, the order of termination is set aside and the respondents are directed to reinstate the petitioner within a period of thirty days from the date of receipt of a copy of this order. However, the petitioner is not entitled for the backwages. The learned counsel for the petitioner also submitted that the petitioner will not seek any backwages. This writ petition is disposed of in the above terms. No costs." In the said order only backwages was denied. Once the termination is set aside, the petitioner is deemed to have been in service. In normal course, this Court could also order the backwages once it is found that the termination is bad. However, this Court deprived the backwages. While Depriving the backwages, this Court did not deprive the past services. There is no order of this Court directing the respondents to appoint the petitioner as a fresh entrant. Hence, when this Court directed reinstatement, it means that the petitioner should be restored into service with consequential benefits, except backwages as it was specifically deprived. But, the second respondent passed an order dated 03.11.2008 appointing the petitioner as a fresh entrant. The petitioner made a representation dated 22.10.2009, seeking to count the past service, otherwise, he would not come under the pensionable service. The second respondent sought clarification on the representation of the petitioner from the first respondent. The first respondent declined the request of the petitioner by an order dated 27.12.2010 citing that the appointment of the petitioner has to be treated as fresh appointment. The consequential order dated 25.01.2011 was passed by the second respondent. As I have held that those orders are contrary to the order dated 17.04.2008 passed in W.P.No.12569 of 2007 where in para 7 of the order, this Court categorically directed reinstatement, the petitioner should be paid all other benefits. Since this Court deprived backwages, the petitioner should be reinstated with all benefits except backwages. The respondents are not correct in treating the petitioner as a fresh entrant thereby depriving the service from 2000 for 8 years, particularly, when this Court passed a categorical order directing the respondents to reinstate the petitioner without backwages. In these circumstances, I have no hesitation to quash the impugned orders. Accordingly, the impugned orders are quashed. The writ petition is allowed. The respondents are directed to award all https://hcservices.ecourts.gov.in/hcservices/ benefits to the petitioner except the backwages. The respondents are directed to comply with the aforesaid direction within a period of eight weeks from the date of receipt of a copy of this order. 8. The writ petition is allowed in the above terms. No costs. Consequently, connected miscellaneous petitions are closed. ogy Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Principal Secretary, Planning Development and Special Initiatives Department, Secretariat, Chennai – 600 009. 2. The Director Evaluation and Applied Research Department, Kuralagam, 3rd Floor, Chennai – 600 108. + 1 cc to Mr. P.I. Thirumoorthy, Advocate SR No.45857 + 1 cc to Government Pleader, SR No.45610 VD(CO) SR/19.8.2011 W.P.No.6953 of 2011 https://hcservices.ecourts.gov.in/hcservices/