IN THE HIGH COURT OF JUDICAURE AT MADRAS DATED:29.08.2011 CORAM: THE HON'BLE MR.JUSTICE K.CHANDRU W.P.Nos.1286,2175,887,and 7821 of 2009 W.P.NO.128/09 1 A.BABYSABEENA 2 D.PAVULRAJ 3 S.AJINTHAKUMARI 4. E.CHELLADURAI 5 K.SURENDRABABU 6 N.RAMACHANDRAN 7 T.THANGAPPAN 8 P.JOHNSON 9 B.HARIKUMAR. 10 S.MARIA XAVIER 11 A.RAJENDRAN 12 A.SATHYANESAN 13 U.KANDASAMY 14 K.KRISHNA PILLAI 15 K.THANGARAJ 16 R.RETHINARAJ 17 J.MELTAMERY 18 R.AASAITHAMBI 19 L.P.SELVAM 20 P.ABHIMANYU 21 L.NATESAN 22 A.CHINNATHAMBI 23 G.MURUGESAN 24 R.RAJEE 25 M.THAKKAN 26 S.PALANIVEL 27 T.R.RAVEENDRAN 28 M.GANESAN 29 P.RAMAN 30 L.GOVINDARAJ 31 K.SURESH 32 S.GANGADHARAN 33 R.PANDU 34 S.MANI 35 G.RAMAMURTHY 36 K.JANARTHANAN 37 M.GUNASEKARAN 38 P.GOVINDASAMY https://hcservices.ecourts.gov.in/hcservices/ 39 V.PONNUSAMY 40. N.RAMASAMY 41. P.PICHANDI 42 S.ASOKAN 43 G.MAHENDRAN 44 K.MOHAN 45 M.RAJAGOPAL 46 P.G.MANI 47 M.MAHENDRAN 48. CHELLAKUMAR 49 R.RAJANGAM 50 E.BALAMURUGAN 51 R.V.ANANTHARAMAN 52 C.THANGASAMI 53 T.KUMAR 54 K.MANALRAJ 55 S.SUKUMARAN 56 P.SRINIVASAN 57 P.MURUGAN 58 N.SANKAR 59 R.VASU 60 L.VENKATRAMAN 61 K.SAIT JAKIR HUSSAIN 62 R.SRINIVASAN 63 P.SELVARAJ 64 A.ANSAR 65 P.KOTHANDARAMAN 66 M.PRABHAKARAN 67 M.MAHABOOBKHAN 68 A.SAHADEVAN 69 G.ASHOK KUMAR 70 S.PARTHASARATHY 71 S.DHILESH PONNIAH 72 G.KADIRESAN 73 T.MURUGAN 74 B.SANKAR 75 T.SURESH 76 V.KASI VISWANATHAN 77 C.KARUPPIAH 78 P.ASHOK KUMAR 79 P.ANBAZHAGAN 80 R.MANI 81 M.ASOKAN 82 M.RAJI 83 K.MAYILSAMI 84 R.VEERAPPAN 85 P.SELVARAJ 86 S.MURTHI 87 R.SUBBIAN 88 R.NAGARAJAN https://hcservices.ecourts.gov.in/hcservices/ 89 K.SUNDARAM 90 K.CHINNARAJ 91. K.SELVAM 92 N.RAJENDRAN 93 R.SUBBARAJ 94 M.CHINNARAJ 95 M.THANGAVEL 96 N.NAGARAJ 97 P.SWAMINATHAN 98 K.BOSE. 99 M.SEKAR 100 B.RATHINASAMY 101 V.RAMANATHAN 102 R.GANESAN 103 V.KANAKARAJ 104 R.MATHIAZHAGAN 105 R.SUDHAKAR 106 T.PADAIKATHAN 107 R.ANANDHAKUMAR 108 K.MUTHUKRISHNAN 109 P.MATHIAZHAGAN 110 R.ARASAPPAN 111 R.GUNASEKARN 112. B.BASKARAN 113 M.P.NATARAJAN 114 M.KADIRESAN 115 V.ARUL 116 A.SIRPRASADAM 117 P.DURAIRAJ 118 L.SOWRIMUTHU 119 A.MURUGESAN 120 M.CHINNATHAMBI 121 L.SAIT 122 A.VELAYUDHAM 123 A.GANESAN 124 S.ANNAMALAI 125 M.MARI 126 M.MUNIAPPAN 127 A.MUNIAPPAN 128 E.GOPI 129 G.GANGA 130 A.KASIAMMAL 131 M.NAGARANI 132 J.POONGODHAI 133 A.PONNUSAMI 134 G.PALANI 135 M.JAYAPAUL 136 T.KRISHNAN 137 M.MAYAKANNAN https://hcservices.ecourts.gov.in/hcservices/ 138 K.ARUMUGAM 139 R.NAGENDRAN 140 D.PANDURANGAN 141 M.KANNAN 142 M.MANGAI 143 P.MANICKAVACHAGAM 144 M.GNANASEKARAN 145 S.RAJENDRAN 146 R.RAJARAMAN 147 M.NATARAJAN 148 M.SANTHI 149 B.NEDUNCHEZHIAN 150 D.AROKIADASS 151 R.MARIMUTHU 152 V.S.MURUGAIAN 153 K.CHANDRAN 154 A.NOORUDEEN 155 K.MURUGESAN 156 C.BALUSAMY 157 S.SRINIVASAN 158 T.RAMESH 159 K.SARAVANAN 160 G.ETHIRAJALU 161 J.EDWIN 162 K.CHANDRASEKARAN 163. S.SELVARAJ 164 C.CHINNATHAMBI 165 S.SARAVANAN 166 P.MATHESWARAN 167 C.VIJAI 168 R.NANDAKUMAR 169 N.DHANASEKAR 170 S.SENTHILKUMAR 171 N.SIVAPUNNIAM 172 B.RAMALINGAM 173 T.SEKAR 174 K.SHANMUGAM 175 S.MANIARASAN 176 M.RAJENDRAN 177 V.KUMAR 178 M.KENNADY 179 S.RAJENDRAN 180 K.PALANIAMMAL 181 A.AROKIARAJ 182 M.SELVARAJ 183 J.NAGESWARAN 184 M.MAVADIYAN 185 K.CHITRASU 186 R.POONGODI 187 R.RANGARAJAN https://hcservices.ecourts.gov.in/hcservices/ 188 S.ELANGOVAN 189 C.MARIMUTHU 190 S.NAGARAJAN 191 S.THIRUMURUGAN 192 SUBRAMANIAN 193 R.MURUGESAN 194 P.KRISHNAN 195 P.KADHIRVEL 196 V.SEKAR 197 M.SANMUGHAM 198 S.KUMAR 199 R.MURUGAN 200 K.AROKIARAJ 201 M.RAJVELU 202 P.MANICKAM 203 P.SURESH 204 E.MADHU 205 A.BALASUBRAMANI 206 P.RAJENDRAN 207 G.TAMILSELVAN 208 T.SARADA 209 A.ARUMUGAM @ MURUGAN 210 S.KANDASAMI 211 G.MANGAYAKARASI 212 M.SULOCHANA 213 K.SELVAM 214 VIJAYAKUMAR 215 M.MANOHARAN 216 E.KANAKAMBARAM 217 R.BABY 218 S.SARASWATHI 219 P.MARAKATHAM 220 C.KANNIAMMAL 221 V.GOVINDAMMAL 222. P.MUNIAMMAL 223 S.MANGAMMAL 224 S.CHINNAMMAL 225 K.VANMAYIL 226 V.DEVAKI 227 R.ANNAMALAI 228 M.SHANMUGASUNDARAM 229 R.SUBRAMANI 230 S.SEKAR 231 P.KUPPAN ...Petitioners Vs 1 THE STATE OF TAMILNADU REP.BY ITS PRINCIPLE SECRETARY PUBLIC WORKS DEPARTMENT FORT ST. GEORGE CHENNAI-9 https://hcservices.ecourts.gov.in/hcservices/ 2 THE ENGINEER IN CHIEF AND CHIEF ENGINEER (GENERAL) CHEPAUK CHENNAI-5 ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for records relating to Paragraph-3(ii) of the order made in G.O.Ms.No.334 Public Works(C2) Dept. dated 19.10.2007 and letter No.12236/C2/2008-4 dated 5.9.2008 to quash the same and consequently direct the respondents to regularise the services of the petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of GO and to extend all consequential benefits forthwith For Petitioners:Mr.L.Chandrakumar For Respondent : Mr.V.Subbiah ] Special Government Pleader W.P.No.2175 of 2009: 1 P.MUTHU MANICKAM 2 V.MASILAMANI 3 S.SRINIVASAN 4 R.MURUGESAN 5 K.MATHIAZHAGAN 6 P. NATARAJAN 7 G. GOVINDARAJ 8 D. SIVASANKARAN ...PETITIONERS Vs 1 THE STATE OF TAMILNADU REP BY ITS PRINCIPLE SCRETARY PUBLIC WORKS DEPT. FORT ST.GEORGE CHENNAI 9. 2 THE ENGINEER IN CHIEF AND CHIEF ENGINEER (GENERAL) CHEPAUK CHENNAI 5. ..RESPONDENTS Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for records relating to the 1st respondent order made in Paragraph-3 (ii) of G.O.Ms. 334 Public Works (C2) Department dt 19.10.2007 and Letter No.12236/C2/2008-4 dt 5.9.2008 to quash the same and consequently direct the respondents to regularize the services of the https://hcservices.ecourts.gov.in/hcservices/ petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of Government order and to extent all consequential benefits forthwith. For Petitioners: Mr.W.M.Abdul Majeed For Respondent : Mr.V.Subbiah ] Special Government Pleader W.P.No.5887 of 2009 1 G.KALIAPERUMAL 2. R.SOUNDARAJAN 3 A.RAJAKUMARAN 4 M. PALANIVEL 5 K.DURAIRAJ 6 K.CHANDRAMOHAN 7 S.ALAGARSAMY 8 R.JAYAPAUL 9 V.THANGAVEL 10 C.RAJAPPA 11 S.PARISUTHAM 12 T. PICHAIMUTHU 13 V. THIRUVANDADURAI 14 A.GANESAN 15 U.GOPAL 16 M. KARUNANIDHI 17 K.K. KUMAR 18 K.JAYARAMAN 19 C. PALANIVEL 0 C.LAKSHMANAN 21 S. NAGARAJAN 22 S.SANTHOSHAM 23 P. MUNUSAMY 24 S. KAMARAJ 25 V.BASKAR 26 S. YESUDAS 27 N. BOOPATHI KANNAN 28 G.PRABHAKARAN 29. K.NEDUMARAN 30 P.SHANMUGAM 31 C. ARUMUGAM 32 K.MARUDHUPANDIARAJ 33 P.RAMESH 34 R.GOVINDASAMY 35 P.MARIMUTHU 36 A. RAJASEKARAN 37 G.MANUNEEDHISELVAN 38 P.EKAMBARAM https://hcservices.ecourts.gov.in/hcservices/ 39 N. TAMIZHVANAN 40 P.VALAOLIMANI 41 S.NATARAJAN 42 D.SIVAGNANAM 43 K.SRINVIASAN 44 K.MATHIALAGAN 45 P. GNANAMURTHY 46 M.ANBANANDAN 47 V. DHANRAJ 48 M.SOMASUNDARAM 49 K. RAVIKUMAR 50 D.BALASUBRAMANIAM 51 T.SELVAM 52 R.RAJASEKARAN 53 P.SETTU 54 N.MANIMARAN 55 K.BALASUBRAMANIAM 56 M.MEENAKSHI SUDNARAM 57 S.SELVAM 58 R. ILANGO 59 P.KALYANA SUNDARAM 60 P.SATHYA BAMA 61 S. SWAMINATHAN 62 S. RAJASEKARAN 63 G. GANDHI 64 V.KUMAR 65 M.SIVA ALAGUPANDI 66 V.BABASAMY 67 D.MANIVANNAN 68 N.KARUNANIDHI 69. V.RAMALINGAM 70 KALIAPERUMAL 71 S. THAMBUSAMI 72 G.RAVISHANKAR 73 A. RAVI 74 V.SELVARAJ 75 T.DAMODARAN 76 N.CHANDRASEKARAN 77 V.JAYAPAUL 78 A.VETRIVEL 79 V.IYYAPA SAMY 80 A.MANI 81 R.KRISHNASAMY 82. R.KALIAMURTHY 83 R.RAVIKUMAR 84 S.RAJENDRAN 85 S.SEKAR 86 P.GANESAN 87 T.RAMACHANDRAN 88 G.VEERAPPAN https://hcservices.ecourts.gov.in/hcservices/ 89 P.MOHAN 90 P.MARIMUTHU 91 R.KALIAPERUMAL 92 K.BALU 93 V.RAMALINGAM 94 J.BALASUNDARAM 95 S.MATHIVANAN ...Petitioners Vs 1 THE GOVERNMENT OF TAMILNADU REP BY ITS SECRETARY TO GOVERNMENT PUBLIC WORKS (C-2) DEPARTMENT FORT ST.GEORGE CHENNAI 9. 2 THE CHIEF ENGINEER IN GENERAL PUBLIC WORKS DEPT. CHEPAUK CHENNAI 5. ...Respondents Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus call for the records pertaining to G.O.Ms. No.334 Public Works Department dt 19.10.2007 and consequential letter bearing no. 12236/C2/2008-4 dt 5.9.2008 of the 1st respondent and the consequential letter dt 28.10.2008 bearing No. 4(1)/24927/08 of the 2nd respondent herein and quash the same in so far it relat4s to para 3 (ii) of G.O.Ms. No.334 Public Works Department dt 19.10.2007 and further direct the respondents to regularize the service of the petitioners from the date of completion of ten years of service as Nominal Muster Roll and grant financial benefits notionally from the date of their regularization and further grant actual benefits from the date of issuance of the impugned Government order dated 19.10.2007 with all consequential benefits. For Petitioners: Mr.V.Suthakar For Respondents: Mr.V.Subbiah Special Government Pleader W.P.No.7821 of 2009 K.CHAKRAVARTHY ...Petitioner Vs. 1 THE GOVERNMENT OF TAMILNADU REP BY ITS SECRETARY TO GOVERNMENT PUBLIC WORKS (C-2) DEPARTMENT FORT ST.GEORGE CHENNAI 9. https://hcservices.ecourts.gov.in/hcservices/ 2 THE CHIEF ENGINEER IN GENERAL PUBLIC WORKS DEPT. CHEPAUK CHENNAI 5. ...Respondents . Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for records relating to Paragraph-3(ii) of the order made in G.O.Ms.No.334 Public Works(C2) Dept. dated 19.10.2007 and letter No.12236/C2/2008-4 dated 5.9.2008 to quash the same and consequently direct the respondents to regularise the services of the petitioners herein from the date of completion of ten years of casual labourer services and to revise and refix the scale of pay by arriving at the notional increment till the date of GO and to extend all consequential benefits forthwith For Petitioner:Mr.W.M.Abdul Majeed For Respondents: Mr.V .Subbiah Special Government Pleader O R D E R In all the four writ petitions, the petitioners have come forward to challenge G.O.Ms.No.334 Public Works(C2) Department dated 19.10.2007 and seeks to challenge Para.3(ii) of G.O.Ms.No.334 Public Works Department dated 19.10.2007. In the said G.O. The State Government framed a scheme for absorption of 1506 Nominal Muster Roll employees to adjust them against the vacancies available in the particular category and also accommodate them in those categories. In the said order, it was stated that Nominal Muster Roll employees of both coming under the Civil and Electrical who have completed 10 years of service, will be brought under regular establishment and their services will be regularised. In the said G.O., the names of employees, their date of birth, their community date of appointment, date of completion of ten years, their educational qualifications and also the relevant recruitment rules which are to be relaxed their favour for the purpose of bringing them under regular establishment. 2. The State Government in the very same G.O. also cancelled the earlier annexures I & II which were appended to the G.O.Ms.No.321 Public Works Department dated 28.09.2007 and the present G.O. comprised of 1056 Nominal Muster Roll employees. In Paragraph 5 of the said order, it was stated that the Chief Engineer (General) Public Works Department and the Regional Chief Engineers concerned are responsible to the facts and figures given in their proposals in respect of regularization and in the said G.O. Impugned, Annexures I to XIV contained the names of employees including the petitioners herein. The State Government in the penultimate https://hcservices.ecourts.gov.in/hcservices/ paragraph, had stated that for the purpose of regularization, it is established that there will be an expenditure of Rs.4,44,52,887/- in this regard and necessary proposal will have to be sent to the financial department. 3. The petitioners were beneficiaries of the said order. However, in these writ petitions, curiously they have come forward to challenge Paragraph 3(ii) of the G.O. which reads as follows: "3(ii) where relaxation of eligibility criteria is involved, the financial benefit will be reckoned from the date of relaxation. In other cases, from the date they have completed 10 years of service. In either case actual monetary benefit will accrue from th date of issue of Government orders." 4. As noted in the said paragraph , it is stated that insofar as relaxation of eligibility criteria is concerned the financial benefit will be reckoned from the date of relaxation, in other case, they have completed 10 years of service in either case, either monetary benefit will accrue from the date of issue of the Government Order. The letter dated 05.09.2008, the Principal Secretary to Government addressed to the Chief Engineer(General), Public Works Department had informed that in respect of the G.O. it is implied that the date of relaxation is the date of issue of orders namely 19.10.2007 and the monetary benefits will accrue from the date of issuance of orders. Hence, the pay of the 1056 NMRs issued in the G.O. cited to be fixed in the minimum of the time scale on 19.10.2007, at a starting stage as well as the monetary benefit will have to be allowed from that date. 5. The contention of the petitioners as set out in the affidavit is that confining the monetary benefits from the date of G.O. is without basis and suffers from want of application of mind. Once the Government chooses to invoke the power of relaxation under Rule 48 of the General Rules containd in Part II of the Tamil Nadu State and Subordinate Service Rules, then the regularization so made should not be detrimental to the individual and regularization given long back to the date of regularisation. It should be reckoned to the date on which they have completed 10 years and the failure to do the request made by the petitioner will result in grave injustice. It is also stated that the petitioner have worked and toiled as casual labourer and have long service, G.O. came to be issued and once the qualifying service of 10 years has taken for regularisation, then the benefit should go before the date of completion for 10 years and not the artificial date of taking note of the date of G,.O. https://hcservices.ecourts.gov.in/hcservices/ 6. It is stated that this Court in a catena of judgments have underlined the principles of discrimination in the matter of relaxation. It is also followed the decision of the State Government which has been followed uniformly in the matter of grant of such relaxation from the date on which they have completed ten years. In this context, the petitioner relied upon several G.Os.issued from 1.7.1996 to 15.05.2008 wherein the same practice was made and therefore they are eligible for the benefit as prayed for by them and to the extent, the G.O. Should be amended and that portion of the G.O. should be set aside. 7. The first writ petition was admitted on 23.01.2009. Subsequently, other writ petitions with similar prayer were came to be admitted. Pending the writ petition, this Court declined to grant any interim relief, though the prayer was made, for staying the operation of that portion of the G.O. 8. Mr.L.Chandrakumar, supported by Mr.Sudhakar, counsel appearing for the petitioners contended that in the matter of fixation of benefits, the Government should not discriminate and the policy of the Government inasmuch as it is only to confer the benefits on the date of completion of 10 years,the monetary benefits should be given including the fixation of notional benefits starting from the date and not from the said G.O. 9. Mr.Sudhakar, also placed reliance upon the Judgment of this Court V.Perumal Vs. Commisioner and Secretary to the Government, Health and Family Welfare Department, Fort St.George and others reported in (2006) 2 MLJ 339 and referred to Paragraph 4 of the said Judgment. In that case, the Court held that the regularization made after several years should not deprive the workmen's service. The judgment proceeded on factual basis and there is no reference to any legal precedent quoted in this regard. Time and again it has been held that regularization is purely a discretion of the Government and once it is exercised, there cannot be any improvement on the power of such relaxation. 10. In essence, the petitioner wants to read the present G.O,. In the backdrop of the previous G.Os. which were issued from time to time under different circumstances, the contention to the contrary raised by the petitioner and are liable to be rejected. 11. The order impugned viz., G.O.Ms.No.334, Public Works Department dated 19.10.2007 is a scheme framed by the Government in respect of qualified number of NMRs to be relaxed and have put in reckoned service thereafter. Since a Scheme of that nature has to be comprehensive scheme and the petitioners are inasmuch as beneficiaries of the scheme, wherein the Government had relaxed essential qualifications for holding the posts of regular Government https://hcservices.ecourts.gov.in/hcservices/ servants by exercising its power under Rule 48, cannot seek to improve upon the scheme. In any manner showing the previous order will not help their case. It cannot be, contended that what should be the rationale behind the said policy. In fact substantial number of G.Os.cited were issued before the Supreme Court's Judgment in Uma Devi's case reported in 2006 4 SCC 1. In Uma Devi's case (cited supra), a Constitution Bench of the Supreme Court had only mentioned as an one time measure that too in respect of last grade employees by framing a scheme can be regularised only to that extent, the Supreme Court had exempted the State Governments. 12. But, subsequently, when several State Governments gave periodical exemptions citing Uma Devi's case, the Supreme Court frowned upon such regularization. It was directed that any recruitment should be done only in the light of the recruitment rules and any deviation made will be violative of Articles 14 and 16 of the Constitution. In fact, very recently, (a matter which went from this State) the Supreme Court in its decision in Union of India Vs. ArulmozhiIniarasu and others reported in 2011 7 SCC 397 has held that the engagement of casual labourers even for considerably long duration did not confer any legal right on them for seeking mandamus for relaxation of necessary rule. The direction granted for relaxation contained in the recruitment rules, was held to be clearly unsustainable. In the said Judgment, the Court in Paragraph 26 laid down the circumstances under which a writ of mandamus can be issued. Paragraph 26 reads as follows: "26.Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that a writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and corresponding legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality (Ref.Sushanta Tagore Vs. Union of India (2005) 3 SCC 16, U.P.State Sugar C orporation Ltd., V .Sant Raj Singh ((2006) 9 SCC 82 :2006 SCC (L & S) 1610, State v.Sashi Balasubramanian ((2006) 13 SCC 252 : (2007) 3 SCC (Cri) 337 and State of Orissa v.Prasana Kumar Sahoo (2007) 15 SCC 129 :(2010) 2 SCC (L & S) 765." https://hcservices.ecourts.gov.in/hcservices/ 13.Under the said circumstances, this Court is unable to countenance the prayer made by the petitioners in these writ petitions. Accordingly, the writ petitions are dismissed. No costs. Consequently, M.P.Nos. Are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar VJY 1 THE PRINCIPLE SECRETARY PUBLIC WORKS HE STATE OF TAMILNADU DEPARTMENT FORT ST. GEORGE CHENNAI-9 2 THE ENGINEER IN CHIEF AND CHIEF ENGINEER (GENERAL) CHEPAUK CHENNAI-5. 1 cc to Mr. W.M.Abdul Majeed, Advocate, Sr.No.53775 1 cc to Mr.V.Suthakar, Advocate, Sr.No.54134 1 cc to Mr..L.Chandrakumar , Advocate, Sr.No.53869 1 cc To Government Pleader, SR.No.54061, 54070 & 54059 W.P.Nos.1286,2175,5887,7821 of 2009 TS(CO) PMK.19.9.2011 https://hcservices.ecourts.gov.in/hcservices/