IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.01.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P. No. 25153 of 2010 & M.P.No.1 of 2010 Dr.G.S.M.P.Khadri .. Petitioner. Versus 1. The Commissioner and Secretary to the Government of Tamil Nadu, Health and Family Welfare Department, Fort St.George, Chennai – 600 009. 2. The Director of Medical Service Kilpauk, Chennai – 600 010. 3. The Dean Kilpauk Medical College, Chennai – 600 010. 4. Director of Pensions Nungambakkam, Chennai – 600 006. .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent pertaining to the G.O.(D) No.946, Health and Family Welfare Department dated 08.08.2007, quash only portion of the order relating to exemption from the date of retirement and direct the 1st respondent to substitute the words "exempted from the date of appointment in the said G.O. For Petitioner : Mr.V.Raghupathi For Respondents : Mrs.E.Ranganayaki Government Advocate O R D E R The petitioner joined service in the year 1981 and after putting 25 years of his dedicated and efficient service, he retired in October 2006. The petitioner, during his service, was posted in a https://hcservices.ecourts.gov.in/hcservices/ Primary Health Centre in the rural area. The work and conduct of the petitioner during service was appreciative and he was honoured with the Best Doctor Award on the Republic Day in the year 2003. The petitioner, though was allowed to retire, was not given any retiral benefits for the service rendered, as he had failed to clear Tamil test. In view of the difficulty faced by the petitioner, a representation was made by the petitioner for exempting him from passing Tamil test. The request of the petitioner stands allowed, but, the exemption is granted only from the date of his retirement, not from the date of his appointment. The exemption granted to the petitioner, therefore, is only a paper exemption, as consequential benefits are extended to him. The petitioner has approached this Court with prayer for issuing a Writ in the nature of Mandamus, directing the respondents to exempt the petitioner from passing Tamil test so as to regularize his service, for the purpose of getting retiral benefit due to him, for the 25 years of service rendered in the department. 2. The learned counsel for the petitioner contended that action of the respondents in not granting exemption from passing Tamil Test from the date of appointment, is totally arbitrary and hit by Article 14 of the Constitution of India, inasmuch as the petitioner is being denied the benefit of long service of 25 years, only for want of Tamil language test, which did not in any way come in the way of performing his duties, as a Doctor. The work and conduct of petitioner was highly appreciated. 3. Learned counsel for the petitioner also contended that not passing of Tamil test, in no way, affected his service, which is clear from the fact that he was honoured by State with Best Doctor Award during his service. It is also the case of the petitioner that experience can be considered to be a substitution for qualification. It was not open to the respondents to allow the petitioner in service without granting exemption, so as to deny him retiral benefit, to which, the petitioner is entitled to, at the time of retirement. 4. The writ petition is opposed by the learned Government Advocate by contending that passing of Tamil is pre-requisite for regularization of service. It was mandatory for the petitioner to pass the test. It is also the contention of the learned Government Advocate that no error can be found with impugned order, inasmuch as exemption can only be granted with prospective effect not with retrospective effect by the State Government. 5. It was for the petitioner to have approached the authorities concerned during his service rather than waiting till date of his retirement. 6. The contention of learned Government Advocate was that the petitioner was made aware that in the event of non clearance of Tamil https://hcservices.ecourts.gov.in/hcservices/ test within 4 years, his service is liable to be terminated, therefore, the petitioner at this stage can have no grievance against impugned order. 7. On consideration, I find force in the contention raised by the learned counsel for the petitioner. It was for the State to have taken action against the petitioner for not passing of Tamil test, but the petitioner was allowed to continue his service in violation of Government Order, therefore, the exemption would be deemed to have been granted in facts and circumstances of the case. The condition of passing of Tamil test is otherwise not mandatory, as would be clear from the impugned order, which shows that the State Government has the authority to relax condition under special circumstances. The grant of exemption, sought, was to avail retiral benefits, as otherwise, it made no sense to grant exemption from passing of Tamil test after the person has retired from service. When the authority of State Government to terminate the service for want of passing of the test has lapsed, the action of the respondents in granting exemption from the date of his retirement, therefore, is totally arbitrary and hit by Article 14 of the Constitution of India. The retiral benefit of meritorious service of 25 years, cannot be denied. 8. In view of the facts and circumstances of the case and keeping in view of the fact that no action was taken to terminate the service of the petitioner within 4 years, as stipulated under Government Order, it would be deemed that the petitioner was granted necessary exemption from passing of Tamil test, as he was allowed to continue in service for 25 years, i.e. till the date of his retirement. In any case, the order granting exemption from passing the test can be made applicable from date of appointment, so as to do substantial justice, in consonance with equity and good conscience. 9. Consequently, the service of the petitioner is ordered to be regularized, and the respondents are directed to calculate the retiral and pensionary benefits etc., which are due to the petitioner, and pay to the petitioner within a period of six months of the date of receipt of certified copy of this order. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar ar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Commissioner and Secretary to the Government of Tamil Nadu, Health and Family Welfare Department, Fort St.George, Chennai – 600 009. 2. The Director of Medical Service Kilpauk, Chennai – 600 010. 3. The Dean Kilpauk Medical College, Chennai – 600 010. 4. Director of Pensions Nungambakkam, Chennai – 600 006. 1 cc to Mr.V.Raghupathi, Advocate, Sr.No.1739 W.P. No. 25153 of 2010 NM {CO} TP/31.1.2011. https://hcservices.ecourts.gov.in/hcservices/