IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.01.2010 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.36168 of 2006 (T) (O.A.6690/98) M.Chellaswamy ... Petitioner versus 1. The Government of Tamil Nadu Rep. by the Secretary to Government, Tamil Development-Culture and Endowments Department, Fort St.George, Chennai – 600 009. 2. The Director of Tamil Development, Kuralagam 2nd Floor, Chennai – 600 108. ... Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.6690 of 1998 from the file of the Tamil Nadu Administrative Tribunal to call for the records pertaining to Government. Letter No.2652/TD2-1/95-1, Tamil Development-Culture Department, dated 05.04.1995 and Govt.Lr.No.11853/TD2-1/96-7, Tamil Development-Culture and Endowments Department, dated 09.06.1998 and direct the respondents to treat the period of non-employment as continuous service period with all service and monetary benefits. For Petitioner : Mr.G.Elanchzhiyan For Respondents: Mr.S.Shiva Shanmugam Government Advocate O R D E R The Original Application in O.A.No.6690 of 1998 before the Tamil Nadu Administrative Tribunal is the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner was appointed as Night Watchman on contingency basis with effect from 24.12.1980 by the second respondent. Subsequently, the second respondent appointed him in the vacant post of Office Assistant with effect from 08.07.1981. The second respondent sent proposals to the Government seeking approval for the appointment of the petitioner. As the appointment was irregular, the Government directed the second respondent to terminate the services of the petitioner. Accordingly, he was terminated from service on 31.10.1985. The petitioner filed W.P.No.12935 of 1985 praying to set-aside the order of termination. On constitution of the Tamil Nadu Administrative Tribunal, the writ petition was transferred to the Tribunal and was re-numbered as T.A.NO.564 of 1989. The Tribunal passed an order dated 16.05.1989 in T.A.No.564 of 1989, setting aside the termination. 3. The petitioner was reinstated into the service by the second respondent by an order dated 09.06.1989. He joined duty on 12.06.1989. He made a representation to the second respondent to treat the period of non-employment from 01.11.1985 to 11.06.1989 as duty period. The same was rejected by the second respondent by the orders dated 05.04.1995 and 09.06.1998. 4. The petitioner filed O.A.6690 of 1998 (W.P.No.36168 of 2006) to quash the orders dated 05.04.1995 and 09.06.1998 of the second respondent and to direct the respondents to treat the period of non-employment as continuous duty period with all benefits. 5. The respondents filed reply affidavit refuting the allegations made in the Original Application. It is stated that the order of the Tribunal was strictly complied with and the petitioner was reinstated and also the non-employment period from 01.11.1985 to 11.06.1989 was regularised, as directed by the Tribunal and prayed for dismissal of the Original Application. 6. Heard Mr.G.Elanchzhiyan, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondents. 7. The learned counsel for the petitioner submits that since the petitioner was not eligible for leave for the non- employment period, he was not granted increments for the period and he made to suffer heavy loss. Therefore, he prays for treating the period of non-employment as duty so as to get increments for the period. 8. On the other hand, the learned Government Advocate brought to my notice the following direction issued by the Tribunal in the order dated 16.05.1989 in T.A.No.564 of 1989:- https://hcservices.ecourts.gov.in/hcservices/ "Accordingly we set-aside the impugned order of the first respondent in R.C.No.A3/9735/84, dated 31.10.1985 and direct the respondents to reinstate the applicants forthwith. The period of non-employment of the applicants will be treated as one of leave to which they are eligible." 9. The learned Government Advocate submits that the Tribunal gave a specific direction to treat the non-employment period as one of leave to which the petitioner is eligible. Hence, the non-employment period from 01.11.1985 to 11.06.1989 was regularised by granting earned leave for the period 01.11.1985 to 15.11.1985 and extraordinary leave for the period 16.11.1985 to 11.06.1989. He has brought to my notice paras 5 and 6 of reply affidavit and submits that the second respondent acted as directed by the Tribunal. Paras 5 and 6 of the reply affidavit are extracted here-under:- "5. As per the Tamil Nadu Administrative Tribunal orders the applicant was reinstated and joined duty on 12.06.1989 F.N. As per direction given by the Tamil Nadu Administrative Tribunal the non-employment period from 01.11.1985 to 11.06.1989 was regularised as below:- From 01.11.1985 to 15.11.1985 as Earned leave 16.11.1985 to as Extra Ordinary Leave and his pay was fixed in accordance with the Tamil Nadu Administrative Tribunal's orders. 6. It is submitted that the orders of the Tamil Nadu Administrative Tribunal were implemented in true spirit. Later M.Chellachamy requested to Government to treat the period of non-employment as duty and to pay salary for that period. Since his period of non-employment has to be created as leave for which he is eligible. The period without leave eligibility has been treated as leave on loss of pay. The period of leave on loss of pay cannot be taken for increment. Therefore the loss of increment in this case is unavoidable. There is no provision in the rules to compensate the above and accordingly a reply had been furnished to the individual by the Government. As per the directions of the Tamil Nadu Administrative Tribunal Thiru.M.Chellachamy was reinstated as his non-employment period were regularised." 10. As rightly contended by the learned Government Advocate, the Tribunal gave a specific direction to treat the period of non-employment of the petitioner as one of leave to which he is eligible. The order of the Tribunal was complied with and https://hcservices.ecourts.gov.in/hcservices/ accordingly, the orders were passed by the respondents. The respondents cannot be found fault with for non treating the period of non-employment as duty and for not sanctioning increments, since the respondents followed the directions of the Tribunal. I find no infirmity in the impugned orders. 11. Hence, the writ petition is dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. rns To 1. The Secretary to Government, Government of Tamil Nadu Tamil Development-Culture and Endowments Department, Fort St.George, Chennai – 600 009. 2. The Director of Tamil Development, Kuralagam 2nd Floor, Chennai – 600 108. 1 cc to Mr.G. Elanchezhiyan, Advocate, SR. 4528 1 cc to the Government Pleader, SR. 4225 W.P.No.36168 of 2006 KK (CO) kk 8/2 https://hcservices.ecourts.gov.in/hcservices/