IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23.6.2011 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.13241 of 2007 Angeline Arokiamary .. Petitioner Vs 1. The Government of Tamil Nadu rep. by the Secretary to Government Adhi Dravidar and Tribal Welfare Department Fort St. George, Chennai – 9. 2. The Director of Adhi Dravidar and Tribal Welfare Chepauk, Chennai – 5. 3. The District Adhi Dravidar and Tribal Welfare Officer, Coimbatore District Coimbatore. 4. The District Collector Coimbatore District Coimbatore. 5. The Special Tahsildar Adhi Dravidar Welfare Department Pollachi. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus to call for the records in relation to the order issued in G.O.Ms.No.27, Adhi Dravidar and Tribal Welfare (ADW4) Department, dated 15.2.2006 by the first respondent and the order issued in Na.Ka.No.3780/98/KA2, dated 19.4.2006 by the third respondent and quash the same insofar as the petitioner is concerned, and issue a consequential direction to the respondents to regularize the petitioner's service from 1.6.1987 when the petitioner completes five years of service in the post of Maid Government servant, as per the G.O.Ms.No.107, dated 5.2.1987 and fix regular time scale of pay from 2.6.1987 with the benefit of revision of pay under the various pay commission's recommendations and to pay arrears of salary and other attendant benefits. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.R.Saseetharan For Respondents : Mr.V.Jayaprakash Narayanan Additional Govt. Pleader ORDER The writ petition is directed against the impugned government order in G.O.Ms.No.27, Adi Dravidar and Tribal Welfare (ADW4) Department, dated 15.2.2006, by which the Government has regularised the services of the contingent staff by relaxing Rule 10(a) of the General Rules for the Tamil Nadu State and Subordinate Services and Rules 6(a) and 6(c) of the Adhoc Rules for Cooks and Servant-cum-Watchman in respect of age and educational qualifications and the petitioner, being a contingent staff, is aggrieved by the portion of the government order which, even though regularises the services retrospectively, has made clear that they are not eligible for arrears of pay and allowances to which they are made to be eligible with effect from the date of issuance of the order of the Government, viz., 15.2.2006. 2.1. The case of the petitioner is that she was appointed as a Maid Servant in the Government Girls Hostel, Coimbatore with effect from 2.6.1982. She has approached the Tamil Nadu Administrative Tribunal by filing O.A.No.4888 of 2002 for regularisation of her services with effect from 2.6.1982 and to fix regular scale of pay from the date of appointment with benefit of revision of pay. 2.2. The said original application was transferred to this Court and was renumbered as W.P.No.32190 of 2005. It was the stand of the respondents in the said writ petition that the petitioner was a contingent staff, while it was the case of the petitioner that she has completed 23 years of service and in spite of it she has been kept as contingent staff denying all benefits to her. 2.3. After her appointment as Maid Servant on 2.6.1982, she has completed five years of service on 2.6.1987 and according to her, as per G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987, a contingent staff who completes five years of service is entitled to regularisation and regular time scale of pay. The petitioner was paid Rs.18/- per day with usual allowances, even though the pay of other regular employees has been revised. Therefore, the petitioner claimed that she is entitled to regular time scale of pay with effect from 2.6.1987. The said W.P.No.32190 of 2005 was disposed of by this Court on 30.1.2006 with a direction to the respondents to regularise the services of the petitioner with effect from 2.6.1987, with the benefits of regular time scale of pay. https://hcservices.ecourts.gov.in/hcservices/ 2.4. The grievance of the petitioner is that in spite of such direction having been given by this Court, under the impugned government order, the petitioner has been given the monetary benefit only with effect from the passing of the said government order, viz., 15.2.2006. Therefore, the petitioner has filed the present writ petition on the basis that the denial of such right of regularisation with effect from 2.6.1987 with all monetary benefits is against the order of this Court and that the petitioner having served for more than 23 years is denied the benefit of pay revision as ordered by the Court. 3.1. In the counter affidavit filed by the third respondent, it is stated that the petitioner is the wife of one R.Irudayasamy, who was working as Office Assistant in the Local Fund Audit Department and died on 17.3.1976 while in service. It was thereafter the District Collector, namely the fourth respondent, has appointed the petitioner as Servant Maid by proceedings dated 31.5.1982 and accordingly, she joined in the Girls Hostel, Udumalpet on 1.6.1982 even without appointment order and therefore, she was kept as contingent staff. It is also stated that the petitioner was not appointed on compassionate ground, but she joined only as contingent staff. 3.2. While it is admitted that this Court has allowed W.P.No.32190 of 2005 filed by the petitioner on 30.1.2006 and has directed the respondents to regularise the service of the petitioner as per G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987 within a period of twelve weeks from the date of the said judgment, according to the third respondent, the said government order clearly lays down that contingent staff should be brought to regular establishment in the same post in which she is working on the completion of five years of service and bringing the contingent staff to regular establishment should be completed before 31.3.1987. 3.3. It is stated that pursuant to G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987, the Government has issued the impugned government order by relaxing the provisions of Rule 10(a) of the the General Rules for the Tamil Nadu State and Subordinate services and Rules 6(a) and 6(c) of the Adhoc Rules in respect of 42 contingent staff working in various hostels run by the Adi Dravidar and Tribal Welfare Department clearly stating that they are ineligible for arrears of pay and allowance and they are eligible for notional fixation of pay with effect from the date of regularisation with monetary benefit with effect from the date of issuance of the impugned government order. 3.4. It is the case of the third respondent that the petitioner's service has been regularised with effect from https://hcservices.ecourts.gov.in/hcservices/ 1.4.1987, viz., on completion of five years of service as contingent staff, however the monetary benefits were fixed with effect from 15.2.2006. Therefore, in effect, the third respondent has in clear and categoric terms admitted that as per G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987, the petitioner's services have been regularised with effect from 1.4.1987. 4. On an overall consideration of the facts and circumstances of the case, it is not known as to how, under the impugned government order, the Government can postpone the monetary benefits due to the petitioner from 2.6.1987 till the date of passing of the impugned order. The time taken by the Government for passing the impugned order for regularising the services, viz., nearly 19 years, cannot be imputed on the petitioner and inasmuch as the petitioner cannot be made responsible for such a long delay made by the Government, in my considered view, the denial of the right of the petitioner as conferred under G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987 by regularising her after five years of her service as contingent staff with all monetary benefits is totally illegal. 5. That apart, the impugned government order is against the order of this Court dated 30.1.2006 made in W.P.No.32190 of 2005. As admitted by the third respondent in the counter affidavit, in the order dated 30.1.2006 made in W.P.No.32190 of 2005, this Court has directed the respondents to regularise the services of the petitioner in accordance with G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987, which is as follows: "5. This is the case of an employee, who has completed 23 years of service, in spite of more than one order of the Government still she is kept as contingent staff. Consequently she could not enjoy the benefits of time scale pay. For regularising the service of an employee what is required is an existence of post and the required number of years of service of the concerned individual and an order of the state Government to this effect. In the case of the petitioner, though these conditions are satisfied, on a flimsy reason, her service is not regularised. The respondents cannot take advantage of their own wrong and deny the regularisation of service to the petitioner. Benefit of welfare measure cannot be denied to the petitioner basing on the error committed by the respondents. Hence, the writ petition is allowed and the respondents are directed to regularise the services of the petitioner as per the above referred to Government Order viz. G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated https://hcservices.ecourts.gov.in/hcservices/ 5.2.1987, within a period of twelve weeks from the date of recept of a copy of this order." 6. A reading of G.O.Ms.No.107, Personnel and Administrative Reforms Department, dated 5.2.1987, which is intended for the purpose of regularising the contingent staff bringing them under the regular establishment after completion of five years of service as contingent staff, makes its clear that the Government has directed the departments to send proposals for the purpose of creation of posts and appointments and such work of bringing the contingent staff to regular establishment was directed to be completed by 31.3.1987. The relevant portion of the said government order is as follows: "4. The Government after careful examination accept the recommendation of the One Man Committee and accordingly direct that the Heads of Departments are empowered to create posts to bring the contingent staff to regular establishment after a careful review of the need for the posts and to appoint a contingent staff in the post if no relaxation of Rules is involved. In case where relaxation is involved, necessary proposals both for creation of post and appointments there to shall be sent to Government. The work of bringing the contingent establishment to regular establishment should be completed before 31.3.1987." 7. While so, the impugned government order has also stated that out of 74 contingent staff and 133 Cooks employed in Adi Dravidar Welfare Hostels/Government Tribal Residential Schools, the department has sent proposal for regularisation only in respect of 42 contingent staff, which includes the petitioner, belatedly. The contents of the impugned government order as if the appointment in respect of the 42 contingent staff has been irregular is totally unfounded. In any event, when under the impugned government order the Government has regularised the services of the said 42 contingent staff, including the petitioner with effect from the date of completion of five years as contingent staff, there is no reason adduced for the purpose of denying the monetary benefits with effect from the date of regularisation, viz., 2.6.1987. Even in the counter affidavit no reason has been adduced. In such view of the matter, the denial of monetary benefits to the petitioner from the date of regularisation, viz., from 2.6.1987 onwards, is unjust and illegal and therefore, that portion of the government order insofar as it relates to the petitioner in refusing to pay the monetary benefits from the date of regularisation, viz., 2.6.1987, is set aside and the respondents are directed to pay the monetary benefits from the date of regularisation and the arrears shall be computed and paid to the https://hcservices.ecourts.gov.in/hcservices/ petitioner within twelve weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly. No costs. sasi Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1. The Secretary to Government Adhi Dravidar and Tribal Welfare Department Government of Tamil Nadu Fort St. George, Chennai – 9. 2. The Director of Adhi Dravidar and Tribal Welfare Chepauk, Chennai – 5. 3. The District Adhi Dravidar and Tribal Welfare Officer, Coimbatore District Coimbatore. 4. The District Collector Coimbatore District Coimbatore. 5. The Special Tahsildar Adhi Dravidar Welfare Department Pollachi. + 1 cc to Government Pleader, SR No.36525 VD(CO) SR/20.7.2011 W.P.No.13241 of 2007 https://hcservices.ecourts.gov.in/hcservices/