IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.10.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.No.451 of 2009 and M.P.No. 1 of 2009 V.Subramanian .. Petitioner Vs. 1.The Commissioner, Sericulture Department, Anaimedu, Salem-636 001. 2.Assistant Director of Sericulture Dindigul, Dindigul District. .. Respondents Prayer : Writ Petition is filed under article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the 1st respondent in his proceedings Na.Ka.No.851/G.3/2008 dated 22.01.2008 and to quash the same, and direct the respondents to reinstate the petitioner in service and to regularize his service in the time scale as per the orders issued in G.O.Ms.No.22. Personnel & Administrative Reforms Department, dated 28.02.2006. For Petitioner : Mr.T.Sellapandian. For Respondents : M/s.V.Viswanathan, AGP. ORDER The writ petition is filed against the proceedings of the 1st respondent in his Na.Ka.No.851/G.3/2008 dated 22.01.2008 to quash the same and to direct the respondents to reinstate him and to regularise him in service in the time scale as per G.O.Ms.No.22, Personnel and Administrative Reforms department dated 28.02.2006 with all consequential benefits. 2. The petitioner was after completing his +2 in 1981 appointed on 11.04.1999 by the 2nd respondent/Assistant Director of Sericulture as NMR on daily basis in Government Cocoon Market, Dindigul. The petitioner was one of the candidates sponsored by the employment exchange and the petitioner was appointed only after holding personal interview and has been continuously working as NMR from 1991. While so, the petitioner was at the instruction of the 2nd respondent not allowed him to work on 22.03.2004 and the petitioner's efforts to represent to the 2nd respondent to permit him to rejoin duty were in vein. Further representations to the Labour Officer and to the Commissioner of Labour during 2004 to 2005 and to the Commissioner of Sericulture and Chief Minister https://hcservices.ecourts.gov.in/hcservices/ Special Cell were also of no avail. As a result, the petitioner was constrained to file W.P.No.10848 of 2007 and the same was disposed of on 20.12.2007 with direction issued to the 1st respondent/Commissioner of Sericulture department to duly consider and dispose of the petitioner's representation and the same is followed by the impugned order dated 22.01.2008 rejecting the petitioner's representation on the ground as the petitioner was not in employment as required under G.O.Ms.No.22, dated 28.02.2006, the petitioner is not entitled to claim the benefit of regularisation as per the same. 3. The validity and the correctness of the same is now challenged in this writ petition. The learned counsel for the petitioner has questioned the impugned order on two grounds, that the action of the 2nd respondent in orally stopping the petitioner from duty without passing any order of termination after duly following the procedure is bad in law. Secondly, the petitioner has completed more than 10 years from the date of issuance of G.O.Ms.22 and the rejection of his representation for regularisation on the ground that he does not come within the eligibility zone is biased, arbitrary and unfair. It is further represented that the similarly placed persons by names 1.M.Chinnasamy, 2. Sathish, 3.Kasi Viswanathan, 4. Mani and 5. Selvakumar who were employed as NMR in 2004 are already extended the benefit and the denial of benefit of the G.O. to the petitioner is discriminatory in nature, offending Article 14 of the Constitution of India. 4. Per contra the Learned Additional Government Pleader has seriously opposed the claim of the petitioner mainly on the ground, that the petitioner stopped from duty on his own and the benefit of G.O.Ms.No.22 is applicable only to those who are continuously in duty for more than 10 years on 01.01.2006 and not to the petitioner who was out of employment much before the issuance of G.O.MS.No.22 dated 28.02.2006. 5. I have considered the rival submissions made on both sides. 6. The facts that the petitioner was sponsored through employment exchange and was appointed as Casual Labour on daily wage basis in 1991 in Government Cocoon Market, Dindgul by the 2nd respondent and he was continuously working in the same capacity nearly 13 years and he was out of employment from 22.03.2004 are not denied. While according to the petitioner his non employment from march 2004 is on account of the attitude of the 2nd respondent/Asst. Director sericulture department, Dindigul in not allowing him to work and his representation to various authorities did not bring forth any desired result and the impugned order came to be passed only in pursuance of the direction issued by our High Court on earlier occasion and the impugned order is perse illegal. According to learned Additional Government Pleader, the non employment of the petitioner is on his own and he voluntarily absented himself from attending the work. 7. Be that as it may, the petitioner has come forward with https://hcservices.ecourts.gov.in/hcservices/ this writ petition to reinstate him and to regularise him in service on the basis of G.O.Ms.No.22, Personnel and Administrative Reforms department dated 28.02.2006 the copy of which is enclosed at page 6 of the typed set of papers. The reading of the G.O. reveals that the same is issued for the benefit of the employees working in various Government departments on daily wage basis and who have completed more than 10 years of service as on 01.01.2006. The G.O. reads that such of those employees who satisfy the norms shall be regularised by appointing them in the time scale of the post in accordance with the service conditions prescribed for the post concerned if being otherwise qualified for the post. 8. In my considered view the plain reading of the G.O. would only support the stand taken by the official respondents that the benefit of the G.O. is to be applied only for those employees who have rendered more than 10 years of service as on the cut off date 01.01.2006 and also working on the date of the G.O. The expression service of employees "working in various Government department" will only mean the employees presently working and not the employee who was out of employment much prior to the date of issuance of the G.O. 9. However, this court is inclined to direct the respondent to consider the claim of the petitioner for extending the benefit of the G.O. for the following reason. The petitioner was sponsored through employment exchange and was appointed in the year 1991 and had completed 13 years of service till he was stopped from service orally on 22.03.2004. Though the petitioner has knocked the doors of Labour and other Government authorities on the ground that his oral termination by the 2nd respondent is arbitrary, unfair and against the procedure and perse illegal no reply is issued by the respondents 1 and 2 in this regard. The petitioner has in his repeated representations made during 2004, 2005 2007 and 2008 explained in detail the mode of his appointment the circumstances under which he was prevented by the 2nd respondent from attending the interview held in office of the District Collector and the misunderstanding between the petitioner and the second respondent etc., and as to how he was prevented from attending his work from 22.03.2004 onwards. 10. Though, one of his representations forwarded to the Chief Minister Special cell is also forwarded to the 1st respondent in the proceeding dated 20.12.2006 of the Secretary to the Government enclosed at page 7 of the typed set of papers the same is not considered till the petitioner approached the High Court and obtained an order. The allegation raised by the petitioner that his non employment is due to the oral instruction given by the 2nd respondent is not at all answered by the Commissioner as such, the observation of the 1st respondent in the impugned order that he stopped from work on his own does not appear to be based on any records regularly maintained in the office of the 2nd respondent. 11. The impugned order does not refer to any report from the 2 nd respondent or any other record in the office of the 2nd respondent based on which is the finding to that effect. Whereas, https://hcservices.ecourts.gov.in/hcservices/ the stand taken by the respondent is sought to be improved in the counter filed by the 1st respondent on his behalf as well on behalf of the 2nd respondent. The respondents have in para 10 of the counter statement stated that the impugned order was passed after actually calling for the records and remarks from the 2nd respondent and was based on such records and reports. But the same was mentioned so in the impugned order. This court is hence not inclined to accept the statement mentioned so in the impugned order. 12. Further the respondents have in the paras 5 and 11 of the counter stated that during the relevant point of time, there was no transaction and there was no marketing activity and the cocoon market was more or all in dormant condition and all the regular staff have already been transferred to other units and there was no question of running the market with heavy establishment and no availability of reelers and non availability of sufficient quantity of cocoon and there was no requirement of casual labour to the above referred Cocoon market. In my opinion, the statement above referred to are if viewed in the light of failure to specifically meet out the allegations raised against the 2nd respondent in the matter of his non employment and the failure to mention about the report-remarks in this regard of the 2nd respondent in the impugned order is sufficient enough to accept the stand taken by the petitioner herein. If that is so, that the contention of the petitioner that the oral termination of the petitioner who was sponsored through employment exchange and appointed on daily basis for more than 13 years is perse illegal contains some bonafide and deserves acceptance. 13. Further, the petitioner has in para 7 of the affidavit filed in support of the writ petition referred to the regularisation of other five employees who are according to the petitioner similarly placed. Whereas, the respondents have also in para 14 of the counter accepted the regularisation of those persons but proceed to say that the claim of the petitioner cannot be compared on par with those persons who had technical knowledge and who were engaged in egg production centre. 14. That being the state of affairs in the matter of employment and non employment and on account of peculiar circumstances discussed above the petitioner's claim can be treated as special case for being duly considered for regularisation in the post to which he is otherwise qualified. The G.O. also in Para 3 provides for extending the benefit of the G.O. in special cases by sending the proposal to the Government for relaxation of rules. Hence, having regard to the circumstances above referred to and the family circumstances of the petitioner the 1st respondent is directed to consider the claim of the petitioner for regularisation for suitable post in the existing vacancy subject to his qualification and subject to the approval of the Government for relaxation of the rule, if warranted. 18. In the result the impugned order of the 1st respondent is https://hcservices.ecourts.gov.in/hcservices/ set aside and the 1st respondent is directed to consider the claim of the petitioner as special case for regularisation as per G.O.Ms.No.22, Personnel and Administrative Reforms department, dated 28.02.2006 within six weeks from the date of receipt of copy of this order. 19. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh To 1.The Commissioner, Sericulture Department, Anaimedu, Salem-636 001. 2.Assistant Director of Sericulture Dindigul, Dindigul District. +1cc to M/s.S.Mani, SR 76098 RB(CO) km/7.12. W.P.No.451 of 2009 https://hcservices.ecourts.gov.in/hcservices/