IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.08.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.26796/2008, 26962/2008, 11713/2009 and 11714/2009 & M.P.Nos.1 of 2008, 1 of 2009 and 1 of 2011 A.MURUGESAN .. PETITIONER in W.P.26796/2008 M. THIAYAGARAJAN .. PETITIONER in W.P.26962/2008 V.ARUCHAMY .. PETITIONER in W.P.11713/2009 P.VELLINGIRI .. PETITIONER in W.P.11714/2009 Vs 1 THE STATE OF TAMILNADU REP. BY ITS SECRETARY TO GOVERNMENT ANIMAL HUSBANDRY, DAIRYING & FISHERIES DEPARTMENT FORT ST GEORGE, CHENNAI 600009 2 THE COMMISSIONER AND DIRECTOR ANIMAL HUSBANDRY AND VETERINARY SERVICES DMS BUILDING, CHENNAI 600 006 ...Respondents 1 & 2 in all Writ Petitions 3 THE REGIONAL JOINT DIRECTOR ANIMAL HUSBANDRY DEPARTMENT V.O.C. NAGAR THANJAVUR 4 THE ASSISTANT DIRECTOR ANIMAL HUSBANDRY DEPARMTENT KUMBAKONAM THANJAVUR DISTRICT .. RESPONDENTS 3 & 4 IN W.P.Nos.26796 & 26962/2008 Prayer in W.P.Nos.26796 & 26962 of 2008: Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records on the file of the 1st respondent in G.O.M.No. 117 Animal Husbandry Dairying (AH7) https://hcservices.ecourts.gov.in/hcservices/ Fisheries Department dated 28.8.2008 and on the file of the 4th respondent in proceedings 1 Na.KaNo. 3895/A/08-01 dated 19.9.2008 2. NA.Ka.No.3895/A/2008 dated 7.10.2008 and 3. NA.Ka.No.3895/A/2008-2 dated 7.10.2008 and quash the same and direct the respondents to regularize the service of the petitioner with effect from 1.7.99 the date of joining in the regular post as Animal Husbandry Assistant and direct the respondents to sanction increment with effect from 1.7.2000 with all consequential service and monetary benefits so far as the petitioners are concerned. Prayer in W.P.Nos.11713 & 11714 of 2009: Petitions filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the first respondent in G.O.Ms.No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 and quash the same in so far as it directs regularisation of petitioners' services only from the date of issue of the said order and direct the respondents to regularise the Petitioners' services in the post of Animal Husbandry Assistant with effect from the date of their appointment in the post of Animal Husbandry Assistant namely 1.4.1999 and grant them all consequential benefits. For Petitioner in W.Ps.26796 & 26962/2008 :: Mr.A.Elangovan For Petitioner in W.Ps.11713 & 11714/2009 :: Mr.P.Manoj Kumar For Respondents in all W.Ps :: Mr.V.Subbiah, Spl.G.P. COMMON ORDER All these Writ Petitions arose out of the Government passing an order in G.O.Ms.No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008. By the aforesaid order, the State Government on the basis of the report given by the Commissioner of Animal Husbandry and Veterinary Sciences and on finding that there were 163 casual labourers working in various institutions in the Department decided to regularise the services of those 163 Animal Husbandry Assistants from the date of issuance of the order, namely, 28.8.2008 and also to relax the relevant rules in their favour by exercising power under Rule 48 of the Tamil Nadu General Rules. By the said G.O, the State Government directed the Commissioner to take disciplinary action against all https://hcservices.ecourts.gov.in/hcservices/ those subordinate officers, who are responsible for appointing 163 casual labourers without any Government orders. In para 4 of the said order, it was also stated that annual increments will be sanctioned only on completion of one year from the date of regularisation which will be the date of Government Order regularising their service. 2. In the 1st two Writ Petitions, the contention of the petitioners was that the State Government had issued earlier an order in G.O.Ms.No.116, Animal Husbandry, Dairying and Fisheries (AH6) Department dated 7.5.1997, wherein 1135 persons, who are working as Animal Husbandry were identified and the State Government sanctioned 826 posts of Animal Husbandry Assistants in a scale of pay on temporary basis and also those 826 persons were directed to be accommodated against those posts. Even in that order, it was stated that the subordinate officers who have recruited such casual labourers without any authority were directed to face with disciplinary action. In para 10 of the order, it was stated that after the said G.O., no employment of casual labourers shall be done in the various Institutions/farms of the Animal Husbandry Department. The said order came to be issued on knowing that there were directions given by the Tribunal in various Original Applications filed between the years 1991 and 1996, comprising of 465 persons and the Tribunal directed the State Government to regularize those persons and it is pursuant to the said direction, the case of those persons were considered. 3. It is the case of the petitioner in W.P.NO.26796 of 2008 that pursuant to the said G.O, he was appointed on a temporary basis on 22.6.1999 and in the said G.O, it was stated that for the purpose of sending proposals for relaxing the necessary Rules, they were directed to furnish relevant particulars including medical fitness certificate. It is at that stage, the petitioner filed W.P.No.4926 of 2008 and the said Writ Petition came to be disposed with another Writ Petition by a common order dated 26.2.2008. In that Writ Petition, the prayer of the petitioner was to dispose of his representation. This Court without going into the merits of the case recorded that since the regularisation of the casual labourers was receiving active attention by the State Government and the procedural formalities are taking time and in the light of the statement made by the Department, the Writ Petition was disposed of. 4. A similar order was also obtained by the petitioner in W.P.No.26962 of 2008. He had filed W.P.No.3153 of 2008 for similar prayer and that Writ Petition was disposed of on 14.2.2008 https://hcservices.ecourts.gov.in/hcservices/ recording the statement of the State Government that the proposals were under way. 5. Subsequent to the said order, G.O.Ms.No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 came to be passed as noted already. By the said G.O, the petitioners in these two Writ Petitions as well as Writ Petitions in W.P.Nos.11713 and 11714 of 2009 got their services regularized by getting necessary relaxation of relevant Rules in terms of Rule 48 and as noted already the regularization had taken place only from 28.8.2008 and the increment was sought to be sanctioned only from that date. 6. In respect of the first batch of two Writ Petitions, the grievance of the petitioners as projected in the affidavit was that already proposals were sent by the Department on several days starting from 2004 to 2008. The question of Government considering those proposals and regularising their service long after their eligibility to get regularization was erroneous and by this prospective regularization, the petitioners were bound to lose atleast 9 years of service. Secondly it was stated that at the time of the temporary posting, they were paid annual increments. Pursuant to the order in G.O.Ms.No.117, the regularization also has been ordered. Therefore, they were aggrieved by the recovery of the amount from the salary. 7. In the second batch of two Writ Petitions, the grievance of the petitioners was identical except that it was fairly submitted by Mr.P.Manoj Kumar that the two petitioners were not party to any of the proceedings in the Original Applications before the Tribunal. But, in any event, they have been working continuously from the year 1985 and the posts were sanctioned subsequently and there is no reason why they should be given a prospective regularization and by this process, they are also bound to lose several years of service. In that view of the matter, he seeks for setting aside the order in G.O.Ms.No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 insofar as it restricts the regularization only from the date of issuance of the order and seeks for regularization from the date of original appointment and to grant all consequential benefits. 8. The first two Writ Petitions were admitted on 12.11.2008 and 13.11.2008 and pending the Writ Petitions, this Court granted an interim stay. Aggrieved by the said interim order, a vacate stay application was also filed by the respondents State in https://hcservices.ecourts.gov.in/hcservices/ M.P.No.1 of 2011 together with supporting counter affidavit dated 9.5.2011. 9. In the counter affidavit filed, it was contended that in respect of the first 2 petitioners, they were appointed as per G.O.Ms.No.116, Animal Husbandry Department dated 7.5.1997, in which 826 posts were sanctioned to fill up the post from the casual labourers, who have put in more than 10 years of service as on 6.2.1995. Since it required relaxation, necessary proposals were to the Government for relaxation in respect of age, qualification, cycling and employment registration. It was based upon those proposals, the subsequent order in G.O.Ms.No.117 Animal Husbandry, Dairying and Fisheries (AH7) Department dated 28.8.2008 came to be issued. It was contended that the petitioners are eligible for annual increments only after one year of date of regularization and not for the earlier period. It was further stated that the petitioners' appointments were irregular and only by relaxing the Rules, they were eligible to retain in service and as a temporary Government servant, they are entitled for regular annual increment till their services were regularized. As per Rule 23(a)(ii) of the Tamil Nadu State and Subordinate Service Rules, person is eligible to draw annual incremental arrears in the time scale of pay only from the date of issuance of the Government Order. Any regularization as a matter of policy be ordered only from the date of the order and not retrospectively. The decision to regularise their service was taken due to policy decision taken by the State Government. It was further stated that though the petitioners were appointed as casual labourers, taking note of the long service, the Government took the decision and they have been granted appropriate regularization and the allegation that there was discrimination between the persons regularised earlier and later was stoutly denied. Then on the question of the period of service rendered by them in the earlier capacity cannot be counted for pension, was also denied and it is stated that the temporary service rendered by them was also eligible for qualifying service under the Pension Rules. Therefore, it was argued that the recovery of the excess amount paid was also valid. 10. It is under the said circumstances, it has to be remained whether the impugned Government Order requires any further change that too at the hands of this Court by exercising power under Article 226 of the Constitution. 11. Though the petitioners worked in the post of casual labourers appointed by the Unit Level Officers, it cannot be said https://hcservices.ecourts.gov.in/hcservices/ that they have regular appointments. But for the impugned Government Order, the petitioners could not have moved this Court for directing the respondents to consider their regularization. On the other hand, due to the policy decision taken by the State Government, regularization came to be issued and the petitioners after getting the order of regularization cannot improve upon their status by filing such Writ Petitions. 12. The power to relax essential qualification or minimum general educational qualification available under Rule 48 of the General Rules has to be exercised only by the State Government taking into account the relevant consideration. In this case, the regularization order was in terms of 163 named workers. The State Government also found fault with the subordinate officers in appointing such persons without any legal authority and disciplinary action was called for. Therefore, the contention raised by Mr.P.Manoj Kumar that their appointments were regular and proper, cannot be accepted. In any event, having got the benefit of regularization, they cannot improve the case any further. 13. It has been noted by the Supreme Court in the judgment of State of Karnataka vs. Umadevi (3) reported in (2006) 4 SCC 1 that regularization cannot be a source of recruitment and any appointment to the State has to be done only as per the Recruitment Rules consistent with Articles 14 and 16 of the Constitution. In the very same judgment, the Supreme Court has held that in the case of last grade employees, if the State Government had appointed people without reference to Rules as one time measure, the scheme can be evolved by the State Government. It is taking note of the Government Order, the petitioners' service got regularised, for which the petitioners would not have got entry into Government service. Having got the benefit of regularization by a scheme framed by the State Government, the petitioners cannot pick hold the said scheme and cannot seek for alternative scheme by orders of the court. 14. Very recently, the issue relating to relaxation came to be considered by the Supreme Court in Union of India and another vs. Arulmozhi Iniarasu and others reported in (2011) 7 SCC 397. The Supreme Court has held that the engagement of casual labourers even for considerably long duration did not confer any legal right on them for seeking a mandamus for relaxation, especially qualification. After reviewing all the previous orders in paragraph No.25, it was stated that the doctrine of legitimate expectation is not attracted in such case and in paragraph 26, it was observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "26. Lastly, as regards the submission that the action of the appellants is highly discriminatory inasmuch as some similarly situated persons have been appointed/absorbed as Sepoys, the argument is stated to be rejected. It is well settled that writ of mandamus can be issued by the High Court only when there exists a legal right in the writ petitioner and correspondent legal obligation on the State. Only because an illegality has been committed, the same cannot be directed to be perpetuated. It is trite law that there cannot be equality in illegality. (Ref.Sushanta Tagore v. Union of India, U.P.State Sugar Corpn.Ltd. v. Sant Raj Singh, State vs. Sashi Balasubramanian and State of Orissa v. Prasanna Kumar Sahoo.)" 15. In the light of the legal pronouncement, the contentions raised by the petitioners cannot be countenanced. Hence, all the Writ Petitions are liable to be dismissed. 16. However, in W.P.Nos.26796 and 26962 of 2008, the petitioners even for the temporary service were given the benefit of increments by the Unit level officers and it is not due to their fault. If recoveries are made, considering they are class IV employees, their case is squarely covered by the judgment of the Supreme Court in SYED ABDUL QADIR AND OTHERS VS STATE OF BIHAR AND OTHERS reported in (2009) 3 SCC 475. In the light of the same, it is hereby ordered that insofar as the impugned order of recovery dated 7.10.2008 issued by the Assistant Director of Animal Husbandry in respect of the petitioners Mr.A.Murugesan (petitioner in W.P.No.26796 of 2008) and Mr.M.Thiagarajan (petitioner in W.P.No.26962 of 2008) stands set aside. In other respects, the G.O is held valid. 17. Therefore, all the four Writ Petitions stand dismissed except with the above direction. No costs. The connected Miscellaneous Petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ajr https://hcservices.ecourts.gov.in/hcservices/ To 1 THE SECRETARY TO GOVERNMENT ANIMAL HUSBANDRY, DAIRYING & FISHERIES DEPARTMENT FORT ST GEORGE, CHENNAI 600009 2 THE COMMISSIONER AND DIRECTOR ANIMAL HUSBANDRY AND VETERINARY SERVICES DMS BUILDING, CHENNAI 600 006 3 THE REGIONAL JOINT DIRECTOR ANIMAL HUSBANDRY DEPARTMENT V.O.C. NAGAR THANJAVUR 4 THE ASSISTANT DIRECTOR ANIMAL HUSBANDRY DEPARMTENT KUMBAKONAM THANJAVUR DISTRICT 1 cc to Mr.a. Elangovan, Advocate, Sr. 54864 2 ccs to Mr.P. Rajendran, Advocate, sr. 54338, 54339 1 cc to Government Pleader, Sr. 54407 1 cc to M/s. G. Elanchezhiyan, Advocate, Sr. 54380 W.P.Nos.26796/2008, 26962/2008, 11713/2009 and 11714/2009 PVR (CO) kk 19/9 https://hcservices.ecourts.gov.in/hcservices/