1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.09.2011 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.2942 of 2011 and M.P.(MD) Nos.2 and 3 of 2011 1)M.Arumugam 2)A.Annamalai 3)P.Jeyaraman 4)A.Andi 5)M.Velu 6)L.Munusamy 7)A.Karuppiah 8)M.C.Mathew @ Babu 9)V.Govindan 10)T.C.George Kutty @ Benny 11)C.Subburaj 12)P.Kottaichamy 13)B.Selvakumaran 14)L.Ponnalagar 15)A.Shankar 16)D.Murugan ... Petitioners Vs. 1)The State of Tamilnadu Rep. By the Secretary to Government, Environment of Forest, Secretariat, Chennai-9. 2)The Principal Chief Conservator of Forests, 15, Jeenis Road, Panagal Building Saidapet, Chennai-15. 3)The District Forest Officer, Social Forestry Division, Trichy. 4)The District Forest Officer, Theni Forest Division, Theni. ... Respondents Prayer : Writ petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the records on the file of the 1st respondent in connection with the order passed by him in Letter No.6894/FR-2/2010-6, dated 07.10.2010 and quash the same and direct the respondents to regularise the service of the petitioners as per G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006 and G.O.Ms.No.84, Environment and Forests (FR.5) Department dated 09.08.2007 with effect from the date of initial appointment or atleast with effect from the date of completion of 10 years of service with all monetary and service benefits. https://hcservices.ecourts.gov.in/hcservices/ 2 For petitioner : Mr.R.Singgaravelan For Respondents : Mr.T.S.Mohamed Mohideen, AGP O R D E R The petitioners working as Plot Watchers under the control of the District Forest Officer, Theni Forest Division, Theni, the 4th respondent herein, have sought for a writ of Certiorarified Mandamus, to quash the order dated 07.10.2010 passed by the Secretary to Government, Environment and Forest, Chennai, the 1st respondent herein. 2. According to the petitioners, they were employed as Plot Watchers on various dates. They have further submitted that they have put in more than 15 to 20 years of service without any break. The Government have issued orders in G.O.Ms.No.64, Environment and Forest Department, dated 08.03.1999, to regularise the services of Plot Watchers in a phased manner, on the basis of their placement in the statewide seniority list, which contains 5442 persons. For reasons best known, the names of the petitioners were not included in the said list. The Government have issued further orders in G.O.Ms.No.95, Environment and Forests (F-2) Department, dated 07.08.2009, regularising the services of Plot Watchers/Social Forestry Workers who had put in more than ten years of service. Though this Court, on earlier occasions passed orders, directing inclusion of similarly placed persons in the statewide seniority list, the names of the petitioners were not included for regularisation. 3. It is the further case of the petitioners that the Principal Chief Conservator of Forests, Chennai, the 2nd respondent herein, vide letter dated 23.01.2009, addressed to the 1st respondent/Government, sought for regularisation of Plot Watchers/Social Forestry Workers and that reference was also made to the case of the petitioners. According to them, even in September 2009, the Deputy Secretary, Environment and Forest Department, Chennai, had recommended the case of the petitioners for regularisation. As no orders were passed, the petitioners were constrained to prefer W.P.Nos.3294 and 2871 of 2010, for a Mandamus, directing the respondents therein, to regularise their services in the post of Plot Watchers, as per G.O.Ms.No.95, Environment and Forests (F-2) Department, dated 07.08.2009, as done in the case of similarly placed persons. By order dated 09.03.2010, this Court directed the respondents therein, to verify the service particulars of the petitioners, in accordance with the Government letter dated 13.10.2009 and send necessary proposals to the Government for appointing them as Plot Watchers. It was also directed that on receipt of the proposals, appropriate orders approving the appointment to the post of Plot Watcher, to the petitioners should be passed within a time frame. When no orders were passed within the stipulated time, the petitioners were constrained to send a legal notice dated 20.09.2010, for contempt, and in response to the same, the claim for regularisation of the petitioners has been rejected on the following grounds:- (i) The petitioners have not completed 10 years of service; and (ii) they were not included in G.O.Ms.No.64, Environment and Forest Department, dated 08.03.1999. https://hcservices.ecourts.gov.in/hcservices/ 3 4. Assailing the correctness of the impugned orders and inviting the attention of this Court to G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006 and G.O.Ms.No.84, Environment and Forests (FR.5) Department, dated 09.08.2007, Mr.R.Singgaravelan, learned counsel for the petitioners submitted that the clear intention of the Government is that when employees were engaged on daily wage basis for ten years and above, and when there is a need to engage them in the activities of the concerned department, orders were issued directing regularisation in suitable posts and if necessary, by relaxing the respective rules in their favour, namely, age, educational qualification and rules regarding method of recruitment. 5. He further submitted that the petitioners have been working for more than 15 to 20 years as Plot Watchers in Trichy and Theni Social Forestry Divisions continuously, and that therefore, their services should have been regularised. He further submitted that the proceedings of the District Forest Officer dated 21.03.2007 would itself prove that the petitioners have worked for more than ten years as Plot Watchers. 6. Learned counsel for the petitioners further submitted that while enumerating the persons who have completed ten years of service as Plot Watchers/Social Forestry Workers, some of them were not included, as they did not fulfill the norms for regularisation and subsequently, either under the orders of the Court or considering the individual representations, with the service particulars, orders were also issued regularizing them. Merely because the names of the petitioners were not included in the statewide seniority list by the respondents, at the time of issuance of Government Order in G.O.Ms.No.64, Environment and Forest Department, dated 08.03.1999, regularising the services of thousands of Plot Watchers/Social Forestry Workers in the state, taking into consideration the continuous need in Forest Department, the genuine claim of the petitioners for regularisation, based on the length of service put in by them should not be ignored and thereby their claim should not be denied. 7. Learned counsel for the petitioners further submitted that the details furnished in the counter affidavit are distorted and that the details of Plot Watchers/Social Forestry Workers etc., given by the District Forest Officer, enclosed in the typed set of papers would itself show that the 1st respondent has failed to consider the case of the petitioners properly, in accordance with the directions granted by this Court in W.P.Nos.2871 and 3294 of 2010 dated 09.03.2010. 8. He also submitted that all the Plot Watchers have been engaged continuously by the department and one of the reasons for rejection of the case of the petitioners that they were not engaged against sanctioned posts, is quite contrary to the very proceedings of the Principal Chief Conservator of Forest, Chennai, dated 23.01.2009, addressed to the Principal Secretary to Government, Environment and Forests Department, Chennai, to create supernumerary posts to accommodate the Plot Watchers/Social Forestry Workers employed on daily wages/consolidated pay. According to the learned counsel, the reason for rejection reflects non application of mind and it is arbitrary. 9. Learned counsel for the petitioners further submitted that when thousands of Plot Watchers/Social Forestry Workers have been regularised, https://hcservices.ecourts.gov.in/hcservices/ 4 the petitioners who have completed Standard X or even less educated have been asked to work in the department for many years and that they were also paid wages in the concerned ranges, without getting their signatures. According to him, break of service mentioned in the counter affidavit are not correct. Even assuming that they were some artificial break, he submitted that taking into consideration the object of the Government to ameliorate the plight of Plot Watchers/Social Forestry Workers working in the department for long time, the 1st respondent out to have regularised the services of the petitioners. 10. Learned counsel for the petitioners further submitted that though the petitioners have been engaged continuously, they are not being paid their wages and therefore, prayed for appropriate directions to the respondents to regularise the services of the petitioners with effect from the date of their initial appointments and pay all service benefits. 11. On the basis of the averments made in the counter affidavit filed by the Principal Chief Conservator of Forests, Chennai, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader submitted that the Tamil Nadu Forest Department has been engaging a number of Plot Watchers from 1961 and large number of Village Social Forestry Workers from 1980 onwards and they could not be considered for appointment as Forest Watchers and Malis, according to the statewide seniority, in view of the fact that most of them do not possess the educational qualification of SSLC. Therefore, the Government took a policy decision and issued orders in G.O.Ms.No.64, Environment and Forest Department, dated 08.03.1999, that a statewide seniority list of Plot Watchers and Village Social Forestry Workers who were employed under daily wages/consolidated pay, be prepared and those who were able to read and write in Tamil, be appointed as Forest Watcher and Malis, in the existing and future vacancies, according to their seniority, by relaxing the recruitment and age rules, considering their continued engagement for a long period. Accordingly, a statewide seniority list of Plot Watchers and Village Social Forestry Workers was drawn up and a total number of 5442 persons were included in the list. Action was pursued to appoint the Plot Watchers and Village Social Forestry Workers in the post of Forest Watchers and Malis respectively, on regular basis in the vacancies when arose in the department. The Government have also issued orders in G.O.Ms.No.148, Environment and Forests (FR.2) Department, dated 21.12.2006, to the effect that the Plot Watchers and Village Social Forestry Workers whose names figure in the statewide seniority list may also be appointed as Office Assistants and Office Night Watchman Bungalow Watchers and Drivers in the existing and future vacancies in the department, provided they possess all the qualifications required as per the rules. Subsequently, the names of some other Plot Watchers and Village Social Forestry Workers were also included in the list, on the basis of the direction from Courts and that the number of persons in the statewide seniority list has increased to 5521. 12. Learned Additional Government Pleader further submitted that the Government have issued orders in G.O.Ms.No.95, Environment and Forests (F-2) Department, dated 07.08.2009, that out of 3058 persons available in the statewide seniority list, those who have rendered service of more than ten years, be appointed as Plot Watchers in the supernumerary posts created with special scale of pay of Rs.2500-5000 https://hcservices.ecourts.gov.in/hcservices/ 5 with the grade pay of Rs.500/- and that orders were also issued stating that their services would be regularised from the date of issue of the order. 13. Learned Government counsel further submitted that pursuant to the directions of this Court made in W.P.Nos2871 and 3274 of 2010 dated 09.03.2010, the case of the petitioners were considered with reference to their service particulars. Accordingly, when the 1st respondent examined the service particulars, it was found that all the petitioners excepting those mentioned in serial No.1 to 7, 13 and 16 have intermittent break in service and they have not worked continuously as contended by the petitioners. 14. He also submitted that the names of the petitioners were not included in the statewide seniority list of Plot Watchers/Village Social Forestry Workers, for non production of certificates relating to date of birth, and that there was also break in service etc., the details of which are set out in the counter affidavit. 15. Learned Additional Government Pleader further submitted that when the petitioners were not included in the statewide seniority list, for non production of valid certificates for proof of date of birth for inclusion in the statewide seniority list and when they were not continuously engaged as Plot Watchers/Social Forestry Workers against any sanctioned posts, the 1st respondent has rightly rejected their case for regularisation. 16. It is his further submission that only daily wages employees working in the department and rendered 10 years of continuing service alone can be regularised by appointing them in time scale of pay, subject to satisfaction of the qualifications prescribed for the post and in the case on hand, when the petitioners do not satisfy the requirements, they cannot seek for regularisation, as a matter of right from the date of the initial appointment. For the abovesaid reasons, he prayed for dismissal of the writ petition. 17. Heard the learned counsel for the parties and perused the materials available on record. 18. In G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, the Government have issued orders to pursue action to regularise the services of the daily wages employees working in all Government departments, who have rendered 10 years of service as on 01.01.2006, in consultation with the respective Heads of Departments, wherever necessary in special cases, by relaxing the rules. The Government ordered that the Heads of Department should send the proposals. 19. Perusal of G.O.Ms.No.84, Environment and Forests (FR.5) Department dated 09.08.2007, shows that when multi various activities were carried on every day by engaging some casual labourers, continuously to achieve the twin objectives of “Existu-Conservation” and “Education” in Arignar Anna Zoological Park, vandalur, Children's Park, Guindy and Mini Zoos belonging to the Government, the Government regularised 28 casual labourers who have completed 10 to 20 years of service on daily wages as permanent Mazdoors in the scale of pay of Rs.2550-55-2600-60- https://hcservices.ecourts.gov.in/hcservices/ 6 3200 in and by relaxing respective rules in favour of them i.e., age, educational qualification and the rules regarding mode of recruitment. 20. Perusal of the proceedings dated 23.01.2009 of the Principal Chief Conservator of Forests, Chennai, addressed to the Principal Secretary to the Government, Environment and Forest Department, Chennai, shows that when the Government was informed of the difficulties in accommodating the statewide seniority list of Plot Watchers numbering 5442 in the difficulties in the existing posts of Plot Watchers/Malis and the likelihood of many who would attain the age of 60 years, within next 5 to 10 years and going out from the department, without being considered for appointment in regular posts even after their engagement in Forest Department for more than 30 to 40 years, the Government have issued orders to the effect that in addition to their appointment as Forest Watchers and Malis, Plot Watchers/Social Forestry Workers who have completed more than 10 years of service on daily wages can also be considered and appointed in the existing vacancies on the basis of their educational qualifications, in the posts of Office Assistant, Office Watchman, Driver etc. It was also ordered that their case can also be considered in future vacancies in the abovesaid posts. Thus it could be seen from the sequence of events that the intention of the Government is to regularise the services of the Plot Watchers/Social Forestry Workers who had rendered more than 10 years of service. 21. Material on record shows that when the services of the petitioners were not regularised along with others and about 81 persons left out, based on their representation, the Government have issued a letter dated 13.10.2009, directing the Principal Chief Conservator of Forests, Chennai, to take steps to verify about the service conditions and then give proposals for the purpose of appointing them as Plot Watchers, as per G.O.Ms.No.95, Environment and Forests (F-2) Department, dated 07.08.2009. The relevant portion of the letter dated 13.10.2009 as extracted in the common order made in W.P.Nos.2871 and 3294 of 2010 dated 09.03.2010 is extracted hereunder:- “I am directed to enclose a copy of the representation cited wherein the President of Tamil Nadu Forest Department Plot Watchers Welfare Association has represented that 81 persons mentioned in the list therein are working continuously under the Forest Department from 1972 onwards and receiving their monthly wages regularly under the muster role. But, since their names they have not been included due to no fault of them and only due to administrative reasons, they are unable to get their appointment as Plot Watchers as per the orders issued in G.O.Ms.No.95, Environment and Forests Department, dated 07.08.2009. 2. I am to request to you specifically examine the case of these 81 persons and if they have been in service as on date and have completed ten years of service, they may be considered for appointment as Plot Watchers immediately. I am to request you to send necessary proposals in this regard to Government positively before 25.10.2009.” After considering the case of the petitioners, this Court has passed the following orders:- https://hcservices.ecourts.gov.in/hcservices/ 7 ”In such circumstances, since it is not in dispute that the petitioners are equally situated as that of those who are conferred benefits by G.O.Ms.No.95, Environment and Forests (F- 2) Department, dated 07.08.2009, which is evident from the very fact the letter dated 13.10.2009, which annexes the names of 81 persons, which includes the names of the petitioners also. The writ petition stands disposed of with a direction to the respondents, to verify the service conditions of these petitioners in accordance with the letter of the Government dated 13.10.2009 and send necessary proposals to the Government for appointing the petitioners as plot watchers and such proposals shall be sent by the 2nd respondent (The Principal Chief Conservator of Forest, Chennai) to the 1st respondent (The State of Tamil Nadu rep. by the Secretary to Government, Environment of Forest, Secretariat, Chennai) within four weeks from the date of receipt of a copy of this order and thereafter, the 1st respondent shall pass appropriate orders approving the said appointment to the post of Plot Watchers to the petitioners and such an order shall be passed within a period of twelve weeks and thereafter while passing such order, the Government shall take note of the letter dated 13.10.2009 as stated above.“ 22. The service particulars of the petitioners enclosed in the typed set of papers are as follows: Sl .N o Name Nature of Duty Date of birth Date from which working Educa- tional qualif i- cation Scheme with head of account Rate of monthly wage 1 V.Govindan Protecti on Watcher 27.10.196 3 01.04.198 2 Vth passed 2406 AB Forest Protectio n 1950/- 2 A.Karuppiah Protecti on Watcher 04.05.195 6 01.01.198 9 IVth passed -do- 1950/- 3 C.Subburaj Depot Watcher 07.02.196 0 01.01.199 1 +2 failed -do- 1950/- 4 A.Shankar Protecti on Watcher 07.04.196 9 01.05.199 1 VIIIth passed -do- 1950/- 5 L.Ponnalagar Protecti on Watcher 07.06.196 6 01.01.199 2 SSLC passed -do- 1950/- 6 P.Kottaicham y Protecti on Watcher 08.05.196 8 01.07.199 4 VIIth failed -do- 1950/- 7 T.C.George Kutty@ Benny Protecti on Watcher 16.05.196 6 01.05.199 5 VIIth failed -do- 1950/- https://hcservices.ecourts.gov.in/hcservices/ 8 Sl .N o Name Nature of Duty Date of birth Date from which working Educa- tional qualif i- cation Scheme with head of account Rate of monthly wage 8 M.C.Mathew @ Babu Protecti on Watcher 25.04.196 2 01.01.199 6 IXth discon - tinued -do- 1950/- 9 B.Selva kumaran Protecti on Watcher 16.05.198 1 01.07.199 7 VIIth passed -do- 1950/- 10 Murugan Night Watcher 05.05.197 9 13.08.199 7 +2 failed -do- 1950/- 23. However, as per the averments made in the counter affidavit, the service particulars of the petitioners are as follows:- Sl.No . Name of the petitioner Date from which engaged Details of break in service if any 1 M.Arumugam 01.04.1980 - 2 A.Annamalai 19.09.1979 - 3 P.Jeyaraman 01.01.1981 - 4 A.Andi 27.01.1974 - 5 M.Velu 01.04.1987 - 6 L.Munusamy 01.12.1985 - 7 A.Karuppiah 01.01.1989 - 8 M.C.Mathew @ Babu 01.10.1994 50 months 9 U.Govindan 02.04.1982 36 months 10 T.C.George Kutty @ Benny 01.10.1994 16 months 11 C.Subburaj 01.01.1991 7 months 12 P.Kottaisamy 01.03.1990 25 months 13 B.Selvakumaran 01.07.1997 - 14 L.Ponnalagar 01.05.1992 20 months 15 A.Shankar 01.05.1991 12 months 16 D.Murugan 07.01.1999 - 24. At this juncture, it is pertinent to note that as per the averments made in the counter affidavit, all the petitioners except those mentioned in Serial No.1 to 7, 13 and 16 have intermittent break in service and they have not worked continuously. The reasons for non inclusion of their names in the statewide seniority as stated by the 2nd respondent in his counter affidavit are extracted hereunder. https://hcservices.ecourts.gov.in/hcservices/ 9 Sl. No. Name of the petitioner Reasons for non-inclusion in the state-wide seniority list 1 M.Arumugam Not produced any valid certificates for the proof of date of birth 2 A.Annamalai Not produced any valid certificates for the proof of date of birth 3 P.Jeyaraman Not produced any valid certificates for the proof of date of birth 4 A.Andi Not produced any valid certificates for the proof of date of birth 5 M.Velu Not produced any valid certificates for the proof of date of birth 6 L.Munusamy Not produced any valid certificates for the proof of date of birth 7 A.Karuppiah He was neither engaged as Plot Watcher nor Village Social Forestry Worker. He was otherwise engaged as plantation watcher/fire watcher/depot watcher under various schemes. 8 M.C.Mathew @ Babu There is break in service in their engagements 9 U.Govindan There is break in service in their engagements 10 T.C.George Kutty @ Benny There is break in service in their engagements 11 C.Subburaj There is break in service in their engagements 12 P.Kottaisamy There is break in service in their engagements 13 B.Selvakumaran He was neither engaged as Plot Watcher as Plot Watcher nor Village Social Forestry Worker. He was otherwise engaged as plantation watcher/fire watcher/depot watcher under various schemes. 14 L.Ponnalagar There is break in service in their engagements 15 A.Shankar There is break in service in their engagements 16 D.Murugan He was neither engaged as Plot Watcher nor Village Social Forestry Worker. He was otherwise engaged as plantation watcher/fire watcher/depot watcher under various schemes. 25. Though the Principal Chief Conservator of Forests, Chennai, in his counter affidavit has stated that there were breaks in service in respect of the petitioners 8 to 12, 14, and 15, respectively, he https://hcservices.ecourts.gov.in/hcservices/ 10 categorically admitted that the petitioners 1 to 7, 13 and 16 have worked continuously for more than 10 years. Though the Principal Chief Conservator of Forests, Chennai, in his counter affidavit has given the details relating to the services rendered by the petitioners, the impugned Government letter dated 07.10.2010, does not reflect the exact service details, excepting to state that the service particulars of Thiru.A.Karuppiah and nine others, the petitioners in W.P.(MD).Nos.2871 and 3294 of 2010, whose service particulars furnished by the District Forest Officer, Theni, reveal that they did not work continuously without any break. 26. Perusal of the letter dated 15.12.2009 of the District Forest Officer, Tiruchirapalli, addressed to the Principal Chief Conservator of Forests, Chennai, pursuant to an E-mail and the letter dated 08.10.2009 and 08.12.2009 respectively, shows that the petitioners and several other persons have been working as Daily wages employees for more than ten years, in various divisions in Trichy zone. The Conservator of Forests, Tiruchirapalli, has also assured that particulars in respect of remaining 5 persons would be sent immediately. The enclosure contains the details of 74 persons. 27. Material on record supports the contention of the petitioners that certain names have been omitted to be included in the statewide seniority list. From the details furnished by the District Forest Officer, Theni, incorporated in the foregoing paragraphs, it could be deduced that the petitioners have worked for more than ten years. Even the proceedings dated 15.12.2009 of the District Forest Officer, Tiruchirapalli, supports the case of the petitioners that they have worked for more than ten years. The note reads as follows:- "jpUr;rpuhg;gs;sp kz;ly fl;Lg;ghl;od; fPH; cs;s Bfhl;lA;fspy; jpdf;Typ mog;gilapy; 10 Mz;LfSf;F BkYk; jw;BghJk; gzpg[hpe;J tUk; rKftd CHpah;/Bjhl;lf; fhtyh;fs; tpguA;fisa[k; chpa gotj;jpy; g {h;j;jp bra;J nj;Jld; nizj;J rkh;g;gpj;Js;Bsd; vdg; gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;. BkYk; jq;ir Bfhl;lj;jpy; rhypakA;fyk; kj;jpa kuf; fplA;F rufk; kw;Wk; gl;Lf;Bfhl;il rufA;fspy; gj;jhz;L gzp Koj;J jw;BghJ gzpg[hpe;J tUtjhfj; bjhptpj;J Ie;J egh;fSf;F gl;oay; g {h;j;jp bra;J mDg;gg;gl;ljhft [k; mit KGikahf ny;yhjjhy; jpUg;gpaDg;gg;gl;Ls;sjhf jq;ir khtl;l td mYtyh; bjhptpj;Js;shh;. mt;tpguA;fis Kd;W jpdA;fspy; rkh;g;gpf;f