IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2010 CORAM: THE HONOURABLE MR.JUSTICE T. RAJA W.P.No.37275 & 39507 of 2004 W.P.No.37275 of 2004 E.Muthappa ... Petitioner Vs. 1. The Govt. Of Tamil Nadu Rep. by its Secretary Rural Development Department Fort St.George, Chennai – 600 009. 2. The Director of Rural Development Panagal maligai, Saidapet Chennai – 600 015. 3. The District Collector Tirunelveli District Tirunelveli. 4. The Secretary Tamil Nadu Public Service Commission Chennai. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus, directing the respondents to regularise the service of the petitioner in the cadre of Junior Assistant with effect from the date of his initial appointment viz., 20.01.1993 with all consequential benefits such as arrears of pay, refixation of pay, increment, arrears of pension etc. W.P.No.39507 of 2004 C. Dharmaraj ... Petitioner Vs. 1. The Govt. Of Tamil Nadu Rep. by its Secretary Rural Development Department Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Director of Rural Development Panagal maligai, Saidapet Chennai – 600 015. 3. The District Collector Tirunelveli District Tirunelveli. 4. The Secretary Tamil Nadu Public Service Commission Chennai. ... Respondents Prayer: Petition filed under Article 226 of The Constitution of India praying to issue a Writ of Mandamus, directing the respondents to regularise the service of the petitioner in the cadre of Junior Assistant with effect from the date of his initial appointment viz., 21.01.1993 with all consequential benefits such as arrears of pay, refixation of pay, increment, arrears of pension etc. For Petitioner : Mr.V. Suthakar For Respondents : Mr. B.Vijay (GA) For R1 to R3. No Appearance For R4 ORDER The petitioners E.Muthappa and C. Dharmaraj have filed separate writ petitions seeking issuance of writ of mandamus directing the respondents to regularise the service of the petitioners in the cadre of Junior Assistant with effect from the date of his initial appointment viz., 20.01.1993 and 21.01.1993, respectively, with all consequential benefits such as arrears of pay, refixation of pay, increment, arrears of pension etc. 2. The petitioners E.Muthappa and C. Dharmaraj, were appointed as part time panchayat clerk at Pappakudi Panchayat Union with effect from 10.12.1970 and 01.06.1972 respectively. Subsequently, in the year 1981 Muthappa was appointed as full time panchayat clerk in the same village panchayat. The Government of Tamil Nadu has issued G.O.Ms.No.963 & 964 Rural Development Department dated 28.11.1998, regarding the method of filling up the 10% of the vacancies in the post of Junior Assistant from among the Record Clerks working in the panchayat union and part time panchayat clerks of village panchayat. The District Collector based on the aforesaid Government orders started filling up the 10% vacancies in the cadre of Junior Assistant/Rural Welfare Officer Gr.II and part time panchayat clerk by following the seniority and educational qualification and on that basis on 13.01.1993 the petitioner was appointed as Junior Assistant in the Panchayat Union Cheranmadevi by invoking Rule 39(a)(1) of the General rules. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned counsel appearing for the petitioner submits that at the time of their appointments the petitioners had got all the qualifications for the post of Junior Assistant, since they possessed S.S.L.C as educational qualification and also have put in more than 5 years of satisfactory service and therefore, they were appointed as Junior Assistant through the appointing committee consisting of District Collector, Tirunelveli, Personal Assistant to the District Collector (Panchayat Development) and Assistant Director of Town Panchayat, Tirunelveli. However the appointment of the petitioner E.Muthappa, was also subject to the concurrence to be given by the Tamil Nadu Public Service Commission in as much as the post of Junior Assistant is coming under the purview of Tamil Nadu Public Service Commission. Thought the petitioner Muthappa was working as Junior Assistant for about 9 years, even after the lapse of 9 years the service of the petitioner needs to be regularised only from the date on which the concurrence was given by Tamil Nadu Public Service Commission but not from the date of his initial date of appointment as Junior Assistant. The respondent did not give the benefit of regularisation from the initial date of appointment but the respondent has chosen to give the benefit only from the date of concurrence, and thereby the petitioner lost his 9 valuable years of service. Therefore, it was contended that, for the mistake committed by the respondent in not obtaining the minimum concurrence, the petitioner cannot be put against. In support of his submission the learned counsel appearing for the petitioner relied on G.O.Ms.No.963 and 964 dated 28.11.1990, wherein in paragraph 5 of the said Government order specifically says, that the petitioner shall be sent every year to the Tamil Nadu Public Service Commission under intimation to the Commissioner of Rural Development, Madras before 31st December of every year and the panel, approved by the Commission shall be published by the District Collector. On the basis of the said Government order, the respondent ought to have sent the panel to the Tamil Nadu Public Service Commission by proper indication and as the respondent has failed to do so, the petitioner had been put to a loss of 9 years of service. Therefore, it was contended that in similar circumstances the Apex Court in the case of Direct Recruitment Class II Engineering Officers' Association vs. State of Maharashtra and Others reported in (1990) 2 Supreme Court Cases 715; held that if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. 4. The learned counsel for the petitioner, further relied upon two more judgments of this Court, one reported in (2006)2 M.L.J 339 as well as one of my orders passed in the W.P.No.28853 of 2008, dated 26.02.2010 wherein it is stated that, due to the delay caused by the respondents for obtaining sanction from the competent authority in https://hcservices.ecourts.gov.in/hcservices/ giving approval for regularisation, from the date of initial appointment of the petitioner, the same delay cannot be put against the petitioner and on that basis prayed for allowing the present writ petition. 5. In reply, the learned counsel for the respondent would submit that the petitioners would be considered in view of the appointment order dated 20.01.1993, wherein the petitioners at the time of their appointments were appointed to the post of Junior Assistant, subject to the approval of the Tamil Nadu Public Services Commission. Since the said appointment order dated 20.01.1993, is subject to the concurrence to be given by Tamil Nadu Public Service Commission and not from the date of his initial date of appointment as Junior Assistant the regularisation is also subject to the approval of the Tamil Nadu Public Service Commission. Since the Tamil Nadu Public Service Commission had granted approval only from 2002, the learned Government advocate appearing for the respondents prayed for dismissal of the writ petition. 6. Heard the learned counsel appearing on either side. 7. No doubt, the petitioners were appointed on 20.01.1993 and 21.01.1993, respectively in the post of Junior Assistant. At the time of the appointment of the petitioners, the appointment order clearly makes the petitioners very clear that the petitioners appointment shall be subject to the approval of Tamil Nadu Public Service Commission, since the post of the petitioners are coming within the purview of Tamil Nadu Public Service Commission. But the G.O.Ms.No.963 dated 28.11.1990, issued by the Rural Development Department states that the petitioner shall be sent every year to the Tamil Nadu Public Service Commission under intimation to the Commissioner of Rural Development, Madras before 31st December of every year and the panel, approved by the Commission shall be published by the District Collector and further the Commission is also directed to give his approval before 28th February, of the succeeding year. In spite of the above Government order, the names of the petitioners had not been included for being sent to Tamil Nadu Public Service Commission. This shows that the respondent have failed to comply with the Government order but has sent the names of the petitioners only in the year 2002. For the delay caused by the Department/Respondent the petitioners cannot be held responsible. Therefore, the petitioners are entitled to claim the benefit of regularisation from the date of their initial appointments. 8. Taking note of the facts and circumstances of the case, there will be a direction to the third respondent, the District Collector, Tirunelveli District, to regularise the petitioners with effect from the initial date of appointment i.e., 20.01.1993 and 21.01.1993, respectively, with all consequential benefits. It is needles to mention that the petitioner E.Muthappa retired from service on https://hcservices.ecourts.gov.in/hcservices/ 30.06.2004 and therefore he is entitled to receive the benefits till then and similarly, C. Dharmaraj who retired on 29.02.2008, shall also be given the benefit till the date of his retirement. With the above directions, the writ petitions are allowed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar prm To 1. The Secretary, The Govt. Of Tamil Nadu Rural Development Department Fort St.George, Chennai – 600 009. 2. The Director of Rural Development Panagal maligai, Saidapet Chennai – 600 015. 3. The District Collector Tirunelveli District Tirunelveli. 4. The Secretary Tamil Nadu Public Service Commission Chennai. 2 cc To Mr.V.Suthakar, Advocate, SR.27744, 27743. W.P.No.37275 & 39507 of 2004 and W.P.M.P.No.47081 of 2004 AKR(CO) RVL 27.05.2010 https://hcservices.ecourts.gov.in/hcservices/