IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.9.2008 CORAM THE HON'BLE MR.JUSTICE F.M.IBRAHIM KALIFULLA Writ Petition No.4823 of 2000 V.Lingam .. Petitioner Vs. 1. State of Tamil Nadu through the Secretary Education Department Fort St.George, Chennai 9. 2. The Director of School Education Chennai 6. 3. The Inspectress of Girl's School Tuticorin, V.O.C. District. 4. The Valliammal Girls' Teacher Training School, Kulaseharapattinam through its Secretary Kulaseharapattinam, VOC District. .. Respondents Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus or to call for the records relating to the G.O. (ID).No.45 dated 08.02.2000 passed by the 1st respondent herein and to quash the same and consequently directing the respondents to regularise the services of the petitioner as a permanent employee on and from 01.04.1979 with all backwages and emoluments till date of such regularisation. For Petitioner : Mr.A.R.Nixon For Respondents 1&2 : Mr.A.Suresh O R D E R The petitioner, who has retired and ceased to be in the services of the fourth respondent as a last grade servant in the post of Watchman, seeks to challenge the order of the first respondent dated 8.2.2000 passed in G.O.(1D)No.45, School Education Department, in and by which, the first respondent declined to regularise the services of the https://hcservices.ecourts.gov.in/hcservices/ petitioner on the ground that his services were not availed by the fourth respondent as a contingent employee. 2. The case has got a checkered history which requires to be stated. According to the fourth respondent, the petitioner was employed as a contingency Watchman on and from 1.4.1971. Subsequent to such appointment, the first respondent issued G.O.Ms.No.292 dated 31.3.1982, wherein, paragraph 1 (iii) reads as under: "rpy;yiwr; brytpdg; gl;oaypd; fPH;ggzpahw;wath;fs; 5 Mz;Lfs; bjhlh;e;J gzpahw;wpa gpd;dh; muR Miz (epiy vz;/52 epjp. Ehs; 14/1/77,d; go Kiwg;gLj;jg;gl;l gzpapy; fPH;f;bfhz;L tug;gLfpwhh;fs;/ mt;thW bfhz;L tug;gLgth;fSf;F mog;gil gzp tpjpfspy; fz;Ls;sgo cr;r taJ tuk;ngh. vl;lhtJ tFg;g[ Kowa goj;jpUf;f ntz;Lbkd;W fy;tpj;jFjpnah tiuaWf;fg;gltpy;iy/ mth;fSf;F jkpHpy; vGjg;gof;fj; bjhpe;jhny mth;fSila gzp tud;Kiw bra;ag;gLfpwJ/ Mfnt rpy;yiwr; brytpdg; gzpahsh;fs; mth;fs; Kiwg;gLj;jg;gl;l gzpf;Ff; bfhz;L tug;gLk;/ U:/200?5?300 vd rk;gs Vw;wKiwapnyna Cjpak; tH';fgl;L jkpH;ehL mog;gil Chpah; gzp tpjpfspy; tFg;g[ 1d; fPH; bfhz;L tug;gLthh;/" 3. As per the above provision, the contingent employees who had rendered five years of continuous service are to be regularised as per G.O.Ms.No.52, Finance (FR-II) dated 14.1.1977 and that there would be no impediment in regularising their services on the ground of age bar or non possession of minimum qualification of eighth standard. After regularisation, they were to be fit in the scale of pay of Rs.200-5-300. 4. There was a subsequent G.O. in G.O.Ms.No.62, Employment Service Department dated 20.3.1987. In paragraph 3 of the said G.O., the Government took a decision to the following effect. "... That being the case it has now been decided to regularise the services employees of the contingent staff who have been appointed without consulting Employment Exchange also from the date of issue of order and not from the date which the individuals completes five years of service." 5. By a communication dated 19.4.1988, the first respondent issued a general circular to all the Schools in response to a demand made by the association representing the employees of the Schools stating that if the respective Private Teacher Training Schools apply for regularisation of the contingent employees, appropriate action would be taken. There is no dispute that the fourth respondent School is a Teacher Training School. The fourth respondent, in its communication dated 14.11.1988 addressed to the third respondent, informed that the petitioner and one other employee by name Tmt. Valli were employed in their institution as contingent employees. As far as the petitioner is https://hcservices.ecourts.gov.in/hcservices/ concerned, the said communication made it clear that his services commenced as a Watchman on and from 1.4.1971. 6. There was a communication from the office of the second respondent dated 30.10.1991, which, while affirming the State Government's decision made in G.O.Ms.No.52 Finance (FR II) dated 14.11.1987 to bring the contingent employees in aided schools who have completed five years and more of service as on 1.4.1979 into regular establishment, made it clear that no such employees on contingent basis should be made without the approval of the second respondent. 7. It is not in dispute that by a communication dated 14.11.1988, the fourth respondent School approached the third respondent for regularisation of the services of the petitioner and the other employee by name Tmt. Valli. As no orders were passed in the said application, the petitioner approached this Court twice by way of filing writ petitions in W.P.No.16269 of 1992 and W.P.No.18139 of 1993. The first writ petition was disposed of on 21.10.1992 directing the respondents to dispose of the representation. 8. Subsequent to the above order, the third respondent, in its letter dated 18.12.1992, informed the petitioner and the other employee that recommendations for their absorption into regular service have already been made to the second respondent and as and when orders are received from the second respondent, the same would be communicated to them. 9. However, since there were no further communication from the office of the third respondent or the second respondent, the petitioner and the other employee approached this Court again and the petitioner's writ petition was W.P.No.18139 of 1993. For the second time also, this Court, by order dated 23.12.1998, issued directions to the respondents to pass final orders in the representation of the petitioner within twelve weeks from the date of receipt of the representation of the petitioner. 10. The petitioner made a representation on 21.1.1999. Once again, the third respondent sent a formal communication to the petitioner informing that his case has been placed before the second respondent with a recommendation and that as and when any order is received from the second respondent, the same would be intimated to the petitioner. Such communication was dated 19.4.1999. 11. In the meantime, the petitioner has reached the age of super annuation on 31.7.1995. Nevertheless, there was no response from the respondents in spite of specific directions by this Court for passing final orders. Ultimately, after the petitioner moved this Court in Contempt Application No.18 of 2000, the impugned order came to be passed on 8.2.2000 rejecting the claim for regularisation. https://hcservices.ecourts.gov.in/hcservices/ 12. Though the impugned order reads that the petitioner was not employed in contingent service and payment for such employment was made from the funds of the fourth respondent themselves, there was absolutely no reason stated as to why the stand of the fourth respondent in its communication dated 14.11.1988 affirming that the petitioner and the other employee were employed on contingent basis was disbelieved. 13. In fact, there is a subsequent communication from the fourth respondent dated 29.2.2000 wherein various communications between 3.11.1989 and 10.2.2000 exchanged between the fourth respondent and respondents 1 to 3 have been referred to, apart from stating that in the course of audit and inspection made by the office of the second and third respondents of the fourth respondent School, the relevant records such as attendance registers, wage disbursement registers and the proceedings sanctioning contingent expenses incurred for the engagement of the services of the petitioner were placed before them and copies of such documents were again presented before them. 14. Apparently, the first respondent appeared to have passed the impugned order without application of mind in order to get rid of the contempt action initiated by the petitioner in Contempt Application No.18 of 2000. When there were recommendations at the instance of the third respondent, after the fourth respondent's claim dated 14.11.1988, to the second respondent for regularising the services, as disclosed in the proceedings of the third respondent dated 18.12.1992 and 19.4.1999, there is absolutely no justification in the action of the first respondent in having passed the impugned order, without referring to any of those communications and simply stating in one line that the petitioner's services were not availed as a contingent employee and he was paid by the fourth respondent out of their own funds. 15. In the above stated circumstances, there is no reason for this Court to disbelieve the various communications which emanated from the office of the fourth respondent between 3.11.1989 and 10.2.2000 and if the records produced by the fourth respondent had been properly analysed by the first respondent, there would have been no scope for the first respondent to pass the impugned order rejecting the valid claim of the petitioner for absorption of service, by way of regularisation. It is not in dispute that the petitioner is entitled to regularisation by virtue of G.O.Ms.No.292 dated 31.3.1982 read along with G.O.Ms.No.52, Finance (FR-II) dated 14.1.1997. 16. Having regard to the fact that the respondents have not disputed the entry of the petitioner into service from 1.4.1971 and his continued employment till the date of his retirement dated 31.7.1995, the petitioner has satisfied the minimum requirement of continuous service of five years in order to gain eligibility for regularisation, as per the above referred Government Orders. As far as the condition that the services of the petitioner were availed as a contingent staff https://hcservices.ecourts.gov.in/hcservices/ is concerned, the stand of the fourth respondent is very clear, which was not disputed throughout between 14.11.1988 and 8.2.2000. As a matter of fact, the third respondent would not have made the recommendations in its letter dated 18.12.1992 and 19.4.1999 to the second respondent for regularisation of the services of the petitioner, unless the third respondent was satisfied to the effect that the services of the petitioner were availed by the fourth respondent as a contingent staff. 17. The learned counsel for the petitioner now states that subsequent to the retirement, the petitioner underwent a major operation and both his legs have been amputated. Having regard to the special facts involved in this case, I am of the view that there is no point in directing respondents 1 to 3 to consider the claim of the petitioner for passing any fresh orders, as, that will not meet the ends of justice. Taking into account the situation in which the petitioner is now placed and as I am satisfied with the materials placed before me that the petitioner is entitled to regularisation of the services rendered by him between 1.4.1971 and 31.7.1995, while setting aside the order impugned in the writ petition, it will be just and appropriate to direct the first respondent to regularise the services of the petitioner from 1.4.1971 and accord all consequential monetary and other benefits by way of salary etc., based on such regularisation, apart from granting the terminal benefits payable to him subsequent to the date of retirement viz. 31.7.1995. The arrears of salary should be paid to the petitioner with interest calculated at the rate of 6% per annum from the date it fell due. 18. This case cannot brook no more delay having regard to the present physical condition of the petitioner. I, therefore, direct respondents 1 and 2 to pass orders as directed above expeditiously, preferably, within six weeks from the date of receipt of a copy of this order. The writ petition stands allowed with the above direction. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kpl https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary Education Department Fort St.George, Chennai 9. 2. The Director of School Education Chennai 6. 3. The Inspectress of Girl's School Tuticorin, V.O.C. District. 1 cc To Mr.A.R.Nixon, Advocate, SR.54397. 1 cc To The Government Pleader, SR.54307. W.P.No.4823 of 2000. RB(CO RVL 14.10.2008 https://hcservices.ecourts.gov.in/hcservices/