1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.11.2011 C O R A M THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)No.13342 of 2011 and M.P(MD)Nos.1 and 2 of 2011 T.Mahali ... Petitioner Vs. 1.The Government of Tamil Nadu Rep by its Secretary to Government, Highways Department, Fort, St. George, Chennai – 600 009. 2.The Accountant General (A and E), 361, Anna Salai, Teynampet, Chennai 600 018. 3.The Chief Engineer, Highways Department, Chennai 600 005. 4.The Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul – 624 001. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records relating to the order Na.Ka.No.768/2011/B2 dated 15.03.011 passed by the 4th respondent and quash the same and consequently direct the respondents to count the break of service in respect of the petitioner for the period from 01.11.1992 to 11.06.1998 and to count half of the service rendered by the petitioner as NMR Mazdoor from 01.05.1974 to 31.10.1992 as qualifying service for pension and sanction the pensionary benefits to the petitioner with effect from 01.06.2005. For Petitioner :Mr.A.Thirumurthy For R1, R3 & R4 :Mr.B.Pugalenthi Spl. Govt. Pleader For R2 :Mr.P.Gunasekaran https://hcservices.ecourts.gov.in/hcservices/ 2 O R D E R The petitioner has come before this Court, challenging the order passed by the 4th respondent, the Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul, in its order dated Na.Ka.No.768/2011/B2 dated 15.03.2011 to quash the same with consequential direction to the respondents to count the past service in respect of the petitioner for the period from 01.11.1992 to 11.06.1998 and to count half of the service rendered by the petitioner as NMR Mazdoor from 01.05.1974 to 31.10.1992 as qualifying service for pension and sanction the pensionary benefits to the petitioner with effect from 01.06.2005. 2.The learned Counsel appearing for the petitioner submitted that the petitioner was employed as NMR Mazdoor (i.e., Gang Mazdoor) in Dindigul Division of Highways and Rural Works Department of the Government of Tamil Nadu from 01.05.1974. He was also assigned seniority No.3 in the Dindigul Division. He was eligible to be considered in the regular establishment on completion of ten years of his service with effect from 01.04.1994. Hence, the petitioner along with other persons made a request to regularize their services. Without accepting the request of the petitioner they were stopped work with effect from 01.08.1991. Subsequently, after 1-½ months, they were again re-employed, but, they were not employed from 01.11.1992. Affected by non-employment, the petitioner and 33 NMR Mazdoors filed an Original Application in O.A.No.4850 of 1994 before the Tamil Nadu Administrative Tribunal seeking a prayer to appoint them on regular vacancies. The learned Tribunal, by its order dated 23.03.1994 accepting the case of the petitioner, directed the respondents therein to appoint them to the regular vacancies based on the past period of service. The Government also subsequently, issued G.O(Nilai) No.114 Highways (HM-2) Department, dated 15.05.1998 appointing the petitioner along with others under the regular establishment with effect from 29.05.1997 relaxing the Rule 3(A), 4(A) and 5(1) of Tamil Nadu Basic Service Rules and Adhoc Rule -3, which relaxes the reservation norms, appointment by employment exchange, age and educational qualification. Subsequently, the petitioner and others were appointed. The petitioner joined duty on 12.06.1998 and thereafter, he retired from the service on attaining the age of superannuation on 31.05.2005 A.N. Therefore, the grievance of the petitioner is, when he was appointed originally on 01.05.1974 and subsequently, he was retrenched from service on 01.09.1992 after a gap of six years, they have re-appointed the petitioner on the basis of the order passed by the learned Tamil Nadu Administrative Tribunal in O.A.No.4850 of 1994 followed by the G.O.(Nilai).No.114 Highways (HM-2) Department, dated 15.05.1998. Hence, the petitioner is entitled to count the break in service from 1974 to 1992. https://hcservices.ecourts.gov.in/hcservices/ 3 3.In support of his arguments, the learned Counsel appearing for the petitioner has also relied upon the Government Order in G.O.No.41, Finance (Pension) Department, dated 09.02.2010 to say that wherever there were break in service before they were absorbed in regular service before the 1st April 2003, the same shall be specifically condoned by the orders of the Head of the Department, in which, the employees were regularly observed and such period of break shall not count for the purpose of pensionary benefits. On the basis of that he prayed for setting aside the order passed by the 4th respondent. 4.The learned Special Government Pleader for the respondent has submitted that the petitioner is not eligible to get the benefit of the G.O.No.41 (Pension) Department 09.02.2011, as the said G.O. explicitly mentioned that wherever there were break in service before their absorption in regular service before 01st April 2003, the same shall be specifically condoned by the order of the Head of Department. But, the case of the petitioner is that he was retrenched, as admitted by the petitioner on 01.08.1991. Even though, they were re-appointed after 1-½ years again they were retrenched subsequently, by order passed by the learned Tamil Nadu Administrative Tribunal in O.A.No.4850 of 1994, dated 23.09.1994. The State Government came forward to issue G.O(Nilai)No.114 Highways (HM-2) Department dated 15.05.1998, and the said G.O., he pleaded, specifically has considered the case of the petitioners by appointing them and by relaxing the Rule 3(A), 4(A) and 5(1) of Tamil Nadu Basic Service Rules and Adhoc Rule 3. The petitioner accepting the said G.O(Nilai)No.114 Highways (HM-2)Department, joined the duty on 12.06.1998. Therefore, the question of counting the break in service on 1993 till 1998 cannot arise for the reasons that the petitioner has not even challenged the said G.O. The said submissions finds force, as rightly contended by the learned Special Government Pleader appearing for the respondent, the petitioner was not in service from 1992 till 1998. However, the petitioner along with 33 others NMR Mazdoor (i.e., Gang Mazdoor) filed Original Application before the Tamil Nadu Administrative Tribunal by its order dated 23.09.1994 and got direction to the respondent to consider the case of the petitioner on regular vacancies based on the period of their service. Subsequently, the Government also issued G.O(Nilai) No.114 Highways (HM-2)Department, by granting the relaxation from rule of reservation appointment through Employment Exchange, age and educational qualification. 5.In view of these reasons, this Court does not find any merits. Moreover, the G.O.No.41 also does not support the stand of the petitioner. For the said G.O. says that wherever, there was break in service before the absorption dated 01.04.2003, the same shall be condoned by the order of the Head of the https://hcservices.ecourts.gov.in/hcservices/ 4 Department. But, in the case of the petitioner, the petitioner was not in continuous employment, after break in service, they were re-employed with a gap of six years. In that view of the matter, I do not find any merits in the arguments advanced by the learned Counsel appearing for the petitioner. Accordingly, the same is dismissed. 6.Another argument advanced by the learned Counsel appearing for the petitioner that the 4th respondent, the Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul has no jurisdiction to pass the order denying the counting of his break in service also does not find force for the reason that the petitioner himself has filed in his additional type set of papers the orders of regular appointment of petitioner, therefore, it is not tenable for the petitioner to say that the 4th respondent has no authority to pass the impugned order. In view of the above, the Writ Petition is dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs. Sd/- Assistant Registrar(AS) /True Copy/ Sub-Assistant Registrar To 1.The Secretary to Government, Government of Tamil Nadu Highways Department, Fort, St. George, Chennai – 600 009. 2.The Accountant General (A and E), 361, Anna Salai, Teynampet, Chennai 600 018. 3.The Chief Engineer, Highways Department, Chennai 600 005. 4.The Divisional Engineer, Construction and Maintenance, Highways Department, Dindigul – 624 001 skn rl/5 c- 9.1.2012 W.P.(MD)No.13342 of 2011 and MP(MD)Nos.1 and 2 of 2011 23.11.2011 https://hcservices.ecourts.gov.in/hcservices/