IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.02.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.6864 of 2006 J.Gunasekaran ... Petitioner vs. 1. The Secretary, Government of Tamil Nadu, Law Department, Chennai-9. 2. The Director of Legal Studies, TNHB Buildings, Nandanam, Chennai-35. ... Respondents Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the first respondent in Lr.No.10520/Sa.Ka./03, dated 20.08.2003, quash the same and consequently direct the respondents to extend the similar benefits given to the Markers working in the Arts and Science College as per G.O.Ms.No.602, Higher Education (G2) Department, dated 04.12.1997 and regularize the petitioner's service also with retrospective effect from 04.12.1997 and confer all the attendant benefits. For Petitioner : M/s.Anand & Suryas For Respondents : Mr.A.Arumugam, Addl. Govt. Pleader O R D E R The petitioner has sought a Writ of Certiorarified Mandamus to quash the order of the first respondent in Lr.No.10520/Sa.Ka./03, dated 20.08.2003 and consequently, direct the respondents to extend the similar benefits given to the Markers, working in the Arts and Science College, as per G.O.Ms.No.602, Higher Education (G2) Department, dated 04.12.1997 and regularize his service with retrospective effect, from 04.12.1997 and confer all attendant benefits. 2. Brief facts leading to the Writ Petition are as follows: The petitioner is a Marker in Dr.Ambedkar Law College, Chennai. Initially, he was appointed as pickup boy and gradually, stepped up to the post of Marker in the year 1970 and as on the date of filing the Writ Petition, he was paid a consolidated pay of Rs.925/- per month. The Government in G.O.Ms.No.4, Education, Science & Technology (G2) Department, dated 03.01.1997, issued orders granting consolidated pay as follows: Category-I Markers: For service upto 14 years, an amount of Rs.1000/- of consolidated salary may be paid. Category-II Markers: For service of 15 years and above, an amount of Rs.1,500/- of consolidated salary may be paid. Category-III Markers: Some markers are already paid higher salary (consolidated amount by private Schools/Colleges). This need not be disturbed." 3. The petitioner has further submitted that the Government in G.O.Ms.No.602, Higher Education (G2) Department, dated 04.12.1997, issued orders by bringing the Markers working in Government/Aided Colleges in Tamil Nadu into regular establishment and allowed time scale of pay of Rs.750-12-870-15-945. It is the grievance of the petitioner that while issuing the above Government Orders, the Government have failed to consider the Markers working inLaw Colleges in the State of Tamil Nadu. 4. The petitioner has further submitted that since the Government has denied similar benefits enjoyed by the Markers working in the Government Arts & Science Colleges/Aided Colleges, he sent a representation, dated 30.01.2002 to the Government. When the Government took considerable time in disposing of the said representation, the petitioner was constrained to file O.A.No.826 of 2003, before the Tamil Nadu Administrative Tribunal, Chennai. Pursuant to the direction of the Tribunal, the first respondent, vide his letter No.10520/Sa.Ka./03, dated 20.08.2003, rejected the request of the petitioner. Aggrieved by the same, the petitioner has preferred this Writ Petition for the relief as stated supra. 5. The first respondent in his counter affidavit has submitted that at present, the petitioner is working as Marker in the Dr.Ambedkar Government Law College, Chennai. The Government in the Higher Education Department, issued orders in respect of Markers working in the Arts and Science Colleges, functioning under the Department of Collegiate Education with regard to the payment of consolidated salary and subsequently, by G.O.Ms.No.602, Higher Education Department, dated 04.02.1997, they were brought under regular establishment and time scale of pay of Rs.750-12-870-15-945 (now revised to Rs.2550-55-2600-60-3200). It is further submitted that the above said Government Order is issued only in respect of Markers working in the Government Arts and Science Colleges in the Collegiate Education Department and it has no application to the Markers working in Government Law Colleges under the control of the Director of Legal Studies. The first respondent has further submitted that the Government has considered the representation of the petitioner in the light of G.O.Ms.No.49, P & AR Department, dated 14.05.2002 and rejected the case of the petitioner and therefore, prayed for dismissal of the Writ Petition. 6. Learned counsel for the petitioner submitted that the Markers working in the Government Law Colleges within the State of Tamil nadu are discharging the same duties and functions as that of Markers in the Government Arts and Science Colleges. Referring to G.O.Ms.No.602, Higher Education (G2) Department, dated 04.12.1997 and G.O.Ms.No.314, Higher Education (G2) Department, dated 02.09.2005, he further submitted that when the Markers working in the Government Colleges/Aided Colleges of the Tamil Nadu and the Government Engineering and Polytechnic Colleges were brought under regular establishment, the respondents have erroneously rejected the case of the petitioner by relying on G.O.Ms.No.49, P & AR Department, dated 14.05.2002. He further submitted that the respondents have applied a different yardstick in the case of Markers working in the Government Law Colleges, violating Article 14 of the Constitution of India. 7. Learned counsel for the petitioner further submitted that though the Markers working in the Government Arts and Science Colleges, Engineering and Polytechnic Colleges are enjoying the benefits of the Government Orders, rejection of the case of the petitioner, who is working for more than 30 years in the Department of Legal Studies, amounts to discrimination. He further submitted that the Government Order in G.O.Ms.No.49, P & AR Department, dated 14.05.2002, is not applicable to the case of the Markers working in the Colleges and it applies only to Group 'D' categories, like Sweeper, Scavenger, Cleaner and Gardener and therefore, prayed for a direction to regularise the petitioner and confer all attendant benefits. 8. Reiterating the contentions made in the counter affidavit, Mr.A.Arumugam, learned additional Government Pleader submitted that by G.O.Ms.No.602, Higher Education (G2) Department, dated 04.12.1997, the Markers working in the Government and Aided Arts and Science Colleges were brought under regular establishment and it has no application to the post of Marker in the Government Law Colleges, which is coming under the Directorate of Legal Studies. He further submitted that G.O.Ms.No.49, P & AR Department, dated 14.05.2002, has been issued, accepting the recommendations of the Staff and Expenditure Reforms Commission relating to the services of the Group-D employees and the said Government Order is also applicable to the Law Colleges. Heard the counsel appearing for both parties and perused the materials available on record. 9. It is an admitted fact that the petitioner is working as Marker in the Dr.Ambedkar Law College for a long time. It is evident from the G.O.Ms.No.602, dated 04.12.1997 that the Tamil Nadu Markargal Sangam working in Colleges had filed O.A.No.4362 of 1994 before the Tamil Nadu Administrative Tribunal, Chennai seeking fixation of scale of pay and the Tribunal, by its order dated 23.08.1994, directed the Government inter alia, to grant time scale of pay to all the Markers and regularise their services in the phased manner. Subsequently, the Government filed Review Application No.179 of 1996 and the Tribunal, by order, dated 28.10.1996, has dismissed the review petition. Pursuant to the order of the Tribunal, the Government issued orders in G.O.Ms.No.4, Education, Science and Technology, dated 03.01.1997 and directed that since the Markers working in the Schools and Colleges are not Government Servants, they may be paid a uniform and higher consolidated salary from the games fee fund, as stated supra. Perusal of the said Government Order reveals that the Government have taken up the matter upto Supreme Court and filed S.L.P.Nos.9023 and 9024 of 1997, against the orders passed in the review petition by the Tribunal. After examination of the representation of the Markers and considering the length of service, the Government have decided that the markers working in the Government/Aided Colleges, were to be brought into regular establishment, for fixing the time scale of pay and to extend all the benefits which are conferred to basic service. Accordingly, the then existing strength of 63 markers in Government Colleges and the services of 142 markers in Aided Colleges were directed to be brought under the time scale of Rs.750-12-870-15-945, by G.O.Ms.No.602, Higher Education Department, dated 04.12.1997. 10. Pursuant to the decision taken by the Government to bring the markers in the Government/Aided Colleges in the State of Tamil Nadu into regular establishment, the Government have issued orders in G.O.Ms.No.460, Higher Education (G2) Department, dated 09.08.2004, creating posts of Markers in the Collegiate Education Department and framed Adhoc rules for the post of Marker. As per Rule 6 of the Adhoc rules framed for the post of Marker, the holder of the post shall be paid a Scale of Pay of Rs.2550-55-2660-60-3200/-. Perusal of the Government Order in G.O.Ms.No.314, Higher Education (G2) Department, dated 02.09.2005, reveal that pursuant to the direction granted in O.A.No.4159 of 2003 filed by one A.Arumugam, the Director of Technical Education, recommended regularisation of 40 Markers working in the Government/Aided, Engineering Colleges, Polytechnics, in the phased manner. Thereafter, the Government in G.O.Ms.No.315, dated 02.09.2005, have regularised 40 Markers working in Government/Aided Colleges, Engineering Colleges and Polytechnics. 11. It is seen that the Director of Legal Education, in his letter No.4601/A1/97, dated 11.03.1998, has recommended to the Government that the benefits of G.O.Ms.No.602, Higher Education, dated 04.12.1977, issued orders in favour of the Markers working in Government/Aided Colleges, be extended to the Markers working in Law Colleges also. The counter affidavit is silent as to whether any decision is taken by the first respondent in this regard. Whereas, placing reliance on the G.O.Ms.No.49, P & AR Department, dated 14.05.2002, the first respondent has rejected the request of the petitioner. Reading of the above said Government Order, makes it clear that the Government Order has been issued taking into consideration of the recommendations of the Commission appointed to study the out-sourcing of certain employees in the Government Departments. The Government Order applies only to Group D categories like Sweeper, Scavenger, Cleaner and Gardener and there is no reference to the category of the Marker working in Law Colleges. 12. When the post of Marker is filled up as a necessary post in the Government Arts and Science Colleges, Engineering Colleges and Polytechnics and the Markers working in those colleges were brought under regular establishment with time scale of pay, there is no reason as to why the first respondent has applied a different yardstick discriminating the Markers working in the Law Colleges. G.O.Ms.No.49 is not applicable to the case of the Markers working in the Law Colleges. The impugned order is liable to be set aside on the ground of arbitrariness and violation of Article of 14 of the Constitution of India. Sports activity is prevalent in all colleges including Law Colleges in the State and there were persons representing the college at the University and higher levels. There is no dispute about the legality of the appointment. 13. As Markers working in Government Law Colleges discharge similar duties and responsibilities as that of others working in Arts and Science Colleges and Engineering Colleges, the first respondent is directed to consider the case of the petitioner, similar to that of others, working in the same capacity and pass appropriate orders. The Government shall also consider the length of service rendered by the petitioner and similarly placed persons in the Government law colleges and take appropriate decision within a period of eight weeks from the date of receipt of a copy of this order. 14. In the result, the impugned order is set aside and the Writ Petition is allowed as indicated above. No costs. 19.02.2008 Index: Yes Note to Office: Issue on 19.03.2008 skm To 1. The Secretary, Government of Tamil Nadu, Law Department, Chennai-9. 2. The Director of Legal Studies, TNHB Buildings, Nandanam, Chennai-35. S. MANIKUMAR, J. skm W.P.No.6864 of 2006 19.02.2008