1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.09.2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.11158 of 2011 and MP(MD)No.1 of 2011 P.Venkatachalam ... Petitioner Vs. 1.The State of Tamilnadu rep. By the Secretary to Government, Agriculture Department, Secretariat, Chennai-600 009. 2.The Director of Agriculture, Chepauk, Chennai-5. 3.The Joint Director of Agriculture, Training and Visit, Nagercoil. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the respondents to regularize the service of the petitioner with effect from 01.03.84 in the post of watchman/Office Assistant in the light of the Government order in G.O. (MS) No.78, Agriculture, (Ve,Ni) Department, dated 25.04.2011 and the order passed by this Honourable Court in 2006 2 MLJ 339 and 2006 (5) CTC 320 (Mad) with all monetary and service benefits including the arrears of Regular Pension from the date of retirement, i.e, 28.02.2006, Commutation of pension, Gratuity, Periodical pay commission benefits and all other monetary benefits available to a regular employee on his retirement from the post of watchman/Office Assistant with 18% interest per annum with cost. For petitioner : Mr.R.Singgaravelan For Respondents : Mr.S.Chandrasekar Government Advocate ORDER The petitioner, who was appointed on daily wages as watchman on 01.03.1984 and regularised under the orders of the Government in G.O.Ms.No.399 Agriculture (Ve.Ni4) Department dated 22.12.2006, with effect from the date of issuance of the abovesaid Government Order, has come forward with the present writ petition seeking for a mandamus directing the respondents to regularise his services with effect from 01.03.1984 in the post of Watchman/Office Assistant in the light of G.O. (Ms).No.78, Agriculture, (Ve,Ni) Department, dated 25.04.2011 and the order passed by this Hon'ble Court in 2006 2 MLJ 339 and 2006 (5) CTC 320 (Mad) with all monetary and service benefits including the arrears of regular pension from the date of retirement, i.e, 28.02.2006. The petitioner has also prayed for such other monetary benefits like https://hcservices.ecourts.gov.in/hcservices/ 2 Commutation of pension, Gratuity and revision as per pay commission reports. 2.The main contention of the petitioner is that, about 94 persons, who were working for long number of years on daily wages, in various offices/capacities, were directed to be regularised by relaxing the relevant rules, in exercise of powers under rule 48 of Tamil Nadu State and Subordinate Services Rules and accordingly, the Government issued orders in G.O.Ms.No.399 Agriculture (Ve.Ni4) Department dated 22.12.2006. It is the grievance of the petitioner that the services rendered by him before 1984 in the following offices, have not been considered. i)Magistrate Court, Nagercoil as Office Assistant from 22.08.1969 to 08.10.1969 ii)Land Survey Office as Section Writer from 01.12.1970 to 26.01.1973 iii)P.W.D Raman River Dam, Kadayam as NMR from 01.12.1975 to 25.01.1978 iv)Thiruchendur temple Devasthanam as Luscar from 01.07.1978 to 31.12.1979 3.It is also the contention of the petitioner that having accepted that the petitioner is in continuous service, from 01.03.1984 onwards, the respondents ought to have regularised his services from the said date. In order to substantiate, the abovesaid contention, learned counsel for the petitioner, placed reliance on a decision of this Court in (V.Perumal vs Commissioner and Secretary to the Government, Health and Family Welfare Department, Fort St. George, Chennai and others) reported in (2006) 2 MLJ 339, wherein, the learned Judge, after taking note, of the length of services put in by the petitioner therein, from 1975 onwards, and the consequential relaxation granted by the Government for the purpose of regularisation of his services, observed that the period of service rendered by the petitioner therein for 20 years should not be obliterated and so saying, held that the action of the first respondent in restricting the regularisation only from 27.06.1995, that is the date on which, the Government issued orders in G.O.D.No.841, dated 27.06.1995, as unreasonable and arbitrary. Reliance has also been placed on a judgment of this Court in O.A.Chinna Alagi vs State of Tamil Nadu, rep. By the Secretary to Government, Municipal Administration and Water Supply Department, Secretariat, Chennai-9 and others) reported in 2006 (5) CTC 320, where the correctness of an order, denying regular pension was tested by this Court. In the reported judgment, the petitioner had worked as contingent staff for a period of 21 years. Regular pension was denied on the ground that she was only a contingent staff and not a regular employee. After considering the rival submissions and G.O.Ms.No.437, Finance (Pension) Department dated 23.06.1988, referred to in the impugned order, this Court, at paragraph No.7, has held as follows: “As far as rejection of the petitioner's claim on the ground that he is a contingent staff is concerned, as per G.O.Ms.No.437, Finance (Pension) Department dated 23.06.1988, which is referred in the impugned order, service rendered as a contingent staff can be taken into account for calculating the qualifying service for grant https://hcservices.ecourts.gov.in/hcservices/ 3 of regular pension. As far as the petitioner is concerned, he had retired from service prior to this Government Order. But, the object of granting pension is to enable the retired Government Servant to have means of livelihood till his or her death. Admittedly, the petitioner had served, even as per the impugned order, for a period of 21 years. But, throughout, he was kept as a contingent staff. Since there was a need, without break, continuously, the petitioner was allowed to work for a period of 21 years. In spite of 21 years of service, since he was retained as a contingent staff, certainly, he could not have received the pay paid to regular employees. Having extracted work from an employee for a period of 21 years and retaining him as a contingent staff in spite of the need for his service and denying the due benefits, which he would have received otherwise, that too, in the matter of sanitary workers, who are last grade servants in the Panchayat Union is, in my opinion, unsustainable. Having failed to take any steps to bring the petitioner in the regular cadre and exploiting the workers taking advantage of their ignorance and denying even the retirement benefits on account of the mistake committed by the Department is arbitrary. As such, after extracting work from the petitioner for a period of 21 years and denying the pensionary benefits to which he is eligible, as per G.O.Ms.No.29 dated 10.01.1989 is illegal. As such, the impugned order is set aside and the writ petition is allowed. No costs. Consequently, connected W.P.M.P. is closed.” 4.Learned counsel for the petitioner, has also placed reliance on an order made in W.P.No.10941 of 2009 dated 29.10.2009 filed by one Mr.J.Natarajan, who was one among 97 persons, whose services have been regularised by the Government in G.O.Ms.No.399 Agriculture (Ve.Ni4) Department dated 22.12.2006. In the said judgment, the petitioner therein has sought for a mandamus directing the respondents therein to regularise his services in the post of watchman, with effect from the date of his initial appointment, with monetary and service benefits. He has also sought for a consequential promotion to higher post with effect from the date of promotion given to his juniors for the post of Agricultural Assistant. After considering the rival submissions, at paragraph No.13, this Court has passed the following orders. “In these circumstances, this Court is of the considered view that there is absolutely no justification to keep the matter pending for any other period and as such this Court is constrained to direct the first respondent herein to regularize the petitioner from the date of his appointment, who is working as a watchman for the last more than three decades, on the basis of the proposal sent by the second respondent viz., the Director of Agriculture, Chepauk, Chennai-5 dated 07.06.2002 in his proceedings No.mcg2/93433/2002 and in the light of the orders passed by the Tamil Nadu Administrative Tribunal orders passed by this https://hcservices.ecourts.gov.in/hcservices/ 4 Court dated 07.05.2002 in O.A.NO.2840 of 2002 and also in the light of the orders passed by this Court dated 02.08.2004 in W.P.No.22023 of 2004, 28.10.2005 in W.P.NO.35022 of 2005, 26.06.2007 in W.P.NO.38948 of 2006, within a period of four weeks from the date of receipt of a copy of this order. This Court is also constrained to direct the third and fourth respondents to pay the monthly wages salary, which were not paid to the petitioner, as per the submissions of the learned counsel for the petitioner, from the month of June, 2009 till date, within a period of seven days from the date of receipt of a copy of this order.” 5.As the Government have issued G.O.(Ms).No.78 Agriculture Department, dated 25.04.2011, in order to regularising the services of Mr.J.Natarajan, the petitioner herein has also made a representation seeking for extension of similar orders. 6.Perusal of the service particulars mentioned in annexure No.2 of G.O.Ms.No.399, Agriculture (Ve.Ni4) Department dated 22.12.2006 shows that the writ petitioner has been placed at serial No.3 in the said annexure and Mr.J.Natarajan, for whom, the Government have issued a recent Government order in G.O.(Ms).No.78 Agriculture Department, dated 25.04.2011, is placed at serial No.1. In view of the similarity of the facts, in W.P.No.10941 of 2009 dated 29.10.2009, with the present case, this Court is of the view that it is for the authorities to consider and decide the applicability of the judgment in W.P.No.10941 of 2009 dated 29.10.2009 and other decisions stated supra and pass appropriate orders, on the representation dated 03.08.2011, of the petitioner, if acknowledged. The petitioner is also permitted to send a copy of the abovesaid representation along with the orders referred to in this writ petition. If any such representation is received, the respondents are directed to consider and pass orders, in the light of the observations made by this Court, within a period of 2 months from the date of receipt of a copy of this Court. 7.With the above observation, this Writ Petition stands disposed of accordingly. Consequently, connected M.P.No.1 of 2011 is closed. No costs. Sd/- Assistant Registrar(AS) /TRUE COPY/ Sub Assistant Registrar To 1.The Secretary to Government, Agriculture Department,Secretariat,Chennai-600 009. 2.The Director of Agriculture,Chepauk,Chennai-5. 3.The Joint Director of Agriculture,Training and Visit,Nagercoil. W.P.(MD).No.11158 of 2011 and MP(MD)No.1 of 2011 28.09.2011 vs PA/28.10.2011/4P/4C https://hcservices.ecourts.gov.in/hcservices/