IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.11.2011 CORAM: THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN Writ Petition No.49601 of 2006 A.Kalaiselvi ... Petitioner -Vs- 1. The Government of Tamilnadu, rep. by the Secretary to Govt., Education Department, Fort St.George, Chennai-9. 2. The Director of School Education, College Road, Nungambakkam, Chennai-6. 3. The Chief Educational Officer, Kanchipuram, Kanchipuram District. 4. The District Educational Officer, Chengalpattu, Kanchipuram District. ... Respondents Writ petition under Article 226 of the Constitution of India praying this Honourable Court as stated therein. For petitioner : Mr.K.Thennan For Respondents : Mr.V.Subbiah Special Govt. Pleader ORDER The petitioner was initially appointed as School Assistant on 5.8.1975 by order dated 1.8.1975 under Rule 10(a)(1) of General Rules of Tamil Nadu State and Subordinate Service Rules. 2. The petitioner's father was working as Tamil pandit in Government High School, Latheri, Vellore District. He died on 26.8.1974 while in service. Hence the first respondent issued G.O.No.2391 Education Department dated 21.12.1979 providing https://hcservices.ecourts.gov.in/hcservices/ compassionate appointment to the petitioner as School Assistant. The appointment was made by granting relaxation of condition No.5 specified in G.O.No.650 Labour and Employment dated 3.8.1977. The aforesaid condition stipulates that no one could be appointed on compassionate ground to a post higher than Junior Assistant. The said condition was relaxed and the petitioner was appointed by the aforesaid G.O.No.2391. 3. The petitioner requested the Government to regularise her services from the date of her initial appointment. The second respondent passed an order dated 4.5.2000 refusing to regularise the services from the date of initial appointment. The petitioner filed O.A.No.5543 of 2001 to quash the said order dated 4.5.2000 of the second respondent and for direction to the respondents to regularise her services from the date of her initial appointment on 5.8.1975. 4. No reply affidavit is filed. On abolition of the Tribunal, O.A.No.5543 of 2001 got transferred to this Court and re-numbered as W.P.No.49601 of 2006. 5. Heard both sides. 6. The learned counsel for the petitioner submits that the persons, who were appointed along with the petitioner under Rule 10(a)(1) of General Rules of Tamil Nadu State and Subordinate Service Rules, were regularised from the date of initial appointment. Hence there is no reason to deny the same benefit to her. It is also his submission that once the first respondent granted relaxation while granting compassionate appointment, the appointment should relate back to the date of her initial appointment. The petitioner cannot be made to lose the service between 5.8.1975 and 21.12.1979. He has also relied on an unreported decision of this Court in W.P.Nos.3491 to 3493 of 2007 (Sheik Mohamed Ali v. The Secretary to Government and another) dated 20.10.2011. 7. On the other hand, the learned Special Government Pleader submits that there is no infirmity in the impugned order. His submission is based on oral instruction. 8. I have considered the submissions made on either side. 9. The petitioner pleaded that others who were appointed under Rule 10(a)(1) of the General Rules of Tamil Nadu State and Subordinate Service Rules were regularised with effect from initial appointment. The same should not be denied to her. 10. There is no counter affidavit filed by the respondents disputing the aforesaid fact. Furthermore, the https://hcservices.ecourts.gov.in/hcservices/ petitioner has enclosed the order dated 20.2.1982 issued by the Joint Director of School Education regularising the services of one V.Bikshandi from the date of his initial appointment. 11. The Judgment rendered by me dated 20.10.2011 in W.P.Nos.3491 to 3493 of 2007 (cited above) following the other Judgment of this Court directly applies to the facts of this case. Para Nos.7, 12 and 13 are extracted hereunder:- "7. The learned counsel for the petitioners relied on the decisions of the learned single Judge of this Court dated 10.01.2007 in the case of P.GANAPATHY v. THE GOVERNMENT OF TAMILNADU, REP. BY THE SECRETARY TO THE GOVERNMENT AND ANOTHER made in W.P.No.28263 of 2006 and in the case of V. PERUMAL v. COMMISSIONER AND SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, FORT ST.GEORGE, CHENNAI reported in 2006(2) M.L.J. 339. .... ... 12. The issue as to whether the first respondent is justified in not regularising the service of the petitioners, while relaxing their educational qualification, from the date of their initial appointment. The post of Irrigation Assistant requires that the concerned person should have passed 8th standard. In such circumstances, the impugned G.O was passed by the Government regularising the services of the petitioners from the date of issuance of Government Order relaxing the educational qualification. But the regularisation was not granted from the date of their initial appointment. The petitioners were initially appointed on compassionate ground in the posts of Night watchman. The post of Night watchman does not require the educational qualification of 8th standard. Under such circumstances, when the first respondent sought to relax the educational qualification of the petitioners, the respondents ought to have regularised their services from the date of initial appointment and not from the date of issuance of G.O. The judgments relied on by the learned counsel for the petitioners squarely cover the issue. The order in W.P.No.20197 of 2006 is based on the order in the judgment reported in 2006 (2) MLJ 339 and the judgment dated 10.1.2007 in W.P.No.28263 of 2006. Paragraph 6 to 8 of the decision referred to above in W.P.No.20917 of 2006 reads as follows: "Learned counsel appearing for the petitioner strenuously contended that the petitioner was appointed as early as on 21.3.1975 and at that time, she has passed the certificate course Bakery and https://hcservices.ecourts.gov.in/hcservices/ Confectionary in second class. There was no adhoc rules for the said post at that point of time. Only after the petitioner was appointed, the adhoc rules have been framed by the Government. Further more, by regularising the service of the petitioner only from 14.5.1991, her service from 21.3.1975 to 13.5.1991, that is for a period of 16 years and 2 months has been ignored by the Government. This will cause considerable hardship to her. Further the learned counsel for the petitioner cited a decision reported in V.PERUMAL vs. COMMISSIONER AND SECRETARY TO THE GOVERNMENT, CHENNAI (2006 (2) M.L.J. 339) wherein this court has held as follows: "The grievance of the petitioner is that there is no justification to restrict the relaxation applicable prospectively and not from the date of petitioner's passing the Nursing Assistant test from 30.8.1975. The Government have relaxed the qualification in favour of the petitioner and having regard to the appointment of the petitioner as Hospital Servant on regular basis with effect from 19.3.1965 and having appointed the petitioner as Nursing Assistant Grade II temporarily and the petitioner having completed training on 30.8.1975, there is no justification on the part of the Government to restrict the relaxation only from the date of the order. The relaxation is granted by the Government for the purpose of regularisation of petitioner's service. The regularisation of service cannot be made after 20 years of the petitioner's service. If the impugned Government Order is applied strictly the petitioner's valuable service of 20 years will get obliterated and the petitioner will not be in a position to get annual increments and other benefits. Hence, the action of the first respondent in restricting the relaxation only from 27.6.1996 is unreasonable and arbitrary in exercise of power." Further the learned counsel for the petitioner relied upon an unreported judgment of this Court in W.P.No.28263 of 2006 dated 18.1.2007 in which this Court held as follows:- "6. In normal circumstances, what the Government could have been approved, since any order granting relaxation and regularising the services of a person can https://hcservices.ecourts.gov.in/hcservices/ take only prospective effect. But in this case the action of the Government cannot be approved for two reasons namely: a) 17 years of service of the petitioner from 1974 to 1991 is sought to be wiped out by a single stroke by way of a Government order and the same is arbitrary and unfair." By citing those judgments, learned counsel for the petitioner contended that there is no justification on the part of the respondent to regularise the service of the petitioner only from 14.5.1991 and not from the date on which originally she was appointed on 21.3.1975. Further learned counsel submitted that if her service is regularised only from 14.5.1991, her valuable service for the past 16 years and two months will get obliterated and the petitioner will not be in a position to get other benefits. The said submission of the learned counsel for the petitioner appears to be well founded. When the petitioner was appointed on 21.3.1975, she had possessed certificates course in Bakery and Confectionary in second class. The Government of Tamil Nadu has not issued any adhoc rules at that point of time. The adhoc rules came into effect only after the petitioner was appointed as Baker. Further more, when the Government thought it fit to relax the educational qualification, considering the fact that the petitioner was appointed as early as on 11.3.1975, it is not known as to why the relaxation shall be given effect to only from 14.5.1991 and not from 21.3.1975, when the petitioner was appointed. As contended by the learned counsel for the petitioner, the petitioner's valuable service for the past 16 years and 2 months will get obliterated and the petitioner will not be in a position to get any monetary benefits. Learned Additional Government Pleader is unable to point out why such benefit should not be conferred on the petitioner. Hence, for all the reasons stated above, the impugned order of the respondent in G.O.Ms.No.1062, Education (I) Department, dated 6.11.1992 regularising the service of the petitioner only with effect from 14.5.1991 and not from 21.3.1975, the date on https://hcservices.ecourts.gov.in/hcservices/ which the petitioner was appointed is liable to be quashed and the same is quashed." In the result, the writ petition stands allowed directing the respondent to treat the service of the petitioner regularised with effect from the date of appointment namely, 21.3.1975 and to grant all consequential benefits within a period of three months from the date of receipt or production of the copy of this order. No costs." 13. In the light of the above said judgments, the impugned order is liable to be quashed and the same is quashed to the extent that it refuses to grant regularisation of the service of the petitioners from the date of their initial appointment. This Court hereby directs the first respondent to regularise the service of the petitioners from the date of their initial appointment and to pay the monetary benefits accordingly. The first respondent is directed to pass appropriate orders in this regard within a period of eight weeks from the date of receipt of a copy of this order." 12. In view of the aforesaid Judgment, the petitioner is also entitled to regularisation of services from the date of her initial appointment. 13. Accordingly, the impugned order is quashed and a direction is issued to the respondents to regularise the services of the petitioner from the date of her initial appointment as School Assistant and to pay the monetary benefits. The respondents are also directed to undertake the exercise within a period of eight weeks from the date of receipt of a copy of this order. 14. With the above direction, the writ petition is allowed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar vks https://hcservices.ecourts.gov.in/hcservices/ Copy to:- 1. The Secretary to Govt., Education Department, Fort St.George, Chennai-9. 2. The Director of School Education, College Road, Nungambakkam, Chennai-6. 3. The Chief Educational Officer, Kanchipuram, Kanchipuram District. 4. The District Educational Officer, Chengalpattu, Kanchipuram District. 1 cc to Mr.K.Thennan , Advocate, Sr.No.73702 1 cc To Government Pleader, SR.No.73648 W.P.No.49601 of 2006 tej(o) pmk.19.12.2011 https://hcservices.ecourts.gov.in/hcservices/