S. Maripandian & Ors. v. Director of Town Panchayats, Kuralagam, Chennai – 108 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 02.04.2009CoramTHE HONOURABLE MR. JUSTICE P. JYOTHIMANIANDTHE HONOURABLE MRS. JUSTICE ARUNA JAGADEESANW.A. No.1039 of 2008 1. S. Maripandian2. M.H. Abdul Khadar..Appellants/Petitioners..Vs..1. Director of Town Panchayats, Kuralagam, Chennai – 108.2. Executive Officer, Courtallam Town Panchayat, Courtallam, Tenkasi Taluk, Tirunelveli District.3. S. Mariappan ..Respondents (3rd Respondent is not a necessary party given-up)Appeal filed against the order dated 15.7.2008 passed in W.P.No.5167 of 1999 on the file of this Court petition presented to thisCourt under Article 226 of the Constitution of India to issue a writof certiorari calling for the records pertaining to the order passedby the 1st respondent in his proceedings Na.Ka.No.16122/98/A3 dated3.3.99 and quash the same.For Appellant : Mr. P. SrinivasFor Respondents : Mr. R. Thirugnanam, Spl. Govt. Pleader for R1 Mr. G. Sankaran, Spl. Govt. Pleader (Edn.) for R2 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment was delivered by P. JYOTHIMANI, J.)This writ appeal is directed against the order dated15.7.2008 passed by the learned Judge on the writ side in W.P.No.5167 of 1999, by which, the learned Judge held that the pay andallowance, paid to the appellants between 11.6.1999 and 2.6.2002 inexcess of consolidated pay, has to be recovered, on the premise thatthe appellants have been wrongly regularised with effect from11.1.1999 instead of 3.6.2002, the date on which the other workerswho are similarly placed have been brought under regularisation interms of G.O. Ms.No.125 Municipal Administration and Water SupplyDepartment dated 27.5.1999. Learned Judge has also taken note of thecontention of the respondents that the appellants' services as wasregularised with effect from 3.6.2002 in the case of others, wouldnot be affected and disposed of the said writ petition, recording theundertaking given by the respondents.2. The appellants, who were originally writ petitioners,have challenged the order of the first respondent dated 3.3.1999, bywhich the first respondent, on a representation made by another dailywage employee E. Mariappan, Kutralam Town Panchayat, came to theconclusion that the appointment of the appellants as OfficeAssistants in the pay scale of Rs.2550-55-2660-60-3200 is against theprocess of regularisation effected by the Government by virtue ofG.O. Ms.No.125 Municipal Administration and Water Supply Departmentdated 27.5.1999 and therefore, passed an order that the appellantsshould have been placed equal to that of other persons and they haveto be regularised with effect from 2.6.2002, by virtue of G.O.Ms.No.125 Municipal Administration and Water Supply Department dated27.5.1999.3. The order passed by the first respondent came to bechallenged by the appellants on the basis that the appellants, whowere appointed on consolidated basis originally as per the Tamil NaduTown Panchayat Establishment (Qualification and Recruitment of OfficeAssistant) Rules, 1988, were qualified as per the requirement, whichwas only 8th standard. In fact, the first appellant has completed his+2 examination, while the second appellant has completed his SSLCExamination, apart from the fact that the second appellant happens tobe a handicapped person. 4. In a batch of writ petitions filed by the appellants andothers who raised objections by filing W.P. No.3012 of 1997, thisCourt, by an order dated 22.4.1998, directed the Authorities of theTownship and Municipal authority to decide individual case and if theappellants have completed 240 days, they should be reinstated intoservices with backwages and also directed that those employees whohave completed 240 days should be regularised and the same should be https://hcservices.ecourts.gov.in/hcservices/ completed within the prescribed time i.e. within a period of tenmonths. 5. Pursuant to this order, the second respondent-Municipality, in the meeting held on 28.12.1998, has unanimouslydecided that the appellants are to be appointed from daily wages tothat of the Office Assistants while the other three persons viz.Muthukumarasamy, V. Mariappan, G. Chandran are to be regularised ondaily wage basis in which they are working. However, after the saidresolution, the second respondent has passed an order dated29.12.1998 regularising the appellants only on daily wage basis.Subsequently, by proceedings dated 30.12.1998, which is as follows,as per the resolution of the second respondent-Municipality, whichwas passed pursuant to the earlier order of this Court stated supra,has appointed the appellants as Office Assistants on a scale of payof Rs.2550-55-2660-60-3200, however stating that the said appointmentis temporary. "ghh;itapy; gof;;fg;gl;l Mtz';fspd; mog;gilapy;jpdf;Ryp njhl;lf; fhtyh; jpU/v!;/khhpg;ghz;oad; vd;gtiujpdf;Typ gzpapypUe;J khWjy; K:yk; ,t;tYtyfj;jpy;fhypahf cs;s mYtyf cjtpahsh; gzpaplj;jpy;2550?55?2660?60?3200 vd;w Cjpa tpfpjj;jpy; epakdk;bra;J cj;jputplg;gLfpwJ.,e;epakdk; jw;fhypfkhdJ vd ,jd; K:yk;bjhpptpf;fg;gLtJld; kUj;JfjFjp rhd;W rkh;g;gpj;Jcld; gzpapy; nru ,jd; K:yk; Mizaplg;gLfpwJ.@6. After the order dated 30.12.1998 was passed by thesecond respondent, it appears that one of the five persons viz.Mariappan, who was directed to be regularised on daily wage basis,has raised objection to this order by making representation to thefirst respondent. The first respondent, without giving opportunityto the appellants, passed an order dated 3.3.1999. In the saidorder, the first respondent has chosen to state that even though atthe time when the appellants were appointed in the year 1998, G.O.Ms.No.125 Municipal Administration and Water Supply Department hasnot come into existence, which came into force only in May, 1999, byvirtue of the subsequent order of a Division Bench of this Court, theappellants should also be equal to that of daily wage workers andthey should also be regularised with effect from 2.6.2002 as per thesaid G.O.7. The first respondent, by taking such wrong view, withouteven giving opportunity to the appellants, who have been appointed asper the direction given by this Court, has directed that theappellants are drawing more than the salary to which they areeligible and excess amount has been paid to them between 11.6.1999 https://hcservices.ecourts.gov.in/hcservices/ and 2.6.2002, the date on which the benefit under G.O.Ms. No.125dated 27.5.1999 has been conferred to the daily wage workers.8. On the face of it, there is no difficulty to concludethat the appellants are drawing more salary than the candidates whohave been regularized on daily wage basis after advent ofG.O.Ms.No.125 dated 27.5.1999. In fact, the learned SpecialGovernment Pleader Mr.G.Sankaran has also brought to the notice ofthis Court that even before G.O.Ms. No.125 dated 27.5.1999 came intoexistence, on various occasions, the regularization of the dailywages employee has been done by the respondents and not as ifG.O.Ms.No.125 dated 27.5.1999 was introduced for the first time forthe purpose of regularisation of the workers, who have worked ondaily wage basis more than 240 days. However, the appointment of theappellants i.e. in December, 1998, which was much before passing ofG.O. Ms.No.125 dated 27.5.1999, cannot be equated to the candidates,who have been regularized as per G.O.Ms. No.125 dated 27.5.1999. Thecase of the appellants is certainly different from the candidates whohave been conferred benefit under G.O.Ms.No.125 dated 27.5.1999.9. In such view of the matter, the decision of the learnedJudge that the appellants are to be regularized from 2.6.2002 and thesame has not been disturbed, certainly it would cause hardship tothe appellants, who are different from the candidates conferredbenefit under G.O.Ms.No.125 dated 27.5.1999. Since the benefitconferred to the daily wagers as per G.O.Ms.No.125 is with effectfrom 2.6.2002, the appellants, having been appointed in December,1998 itself, cannot be deprived of their right, which has alreadybeen accrued to them.10. In such view of the matter, the order passed by thelearned Single Judge stands set aside and the writ appeal standsallowed. No costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. The Director of Town Panchayats, Kuralagam, Chennai – 108. https://hcservices.ecourts.gov.in/hcservices/

2. The Executive Officer, Courtallam Town Panchayat, Courtallam, Tenkasi Taluk, Tirunelveli District.+ 1 c.c. to Mr. P. Srinivas, Advocate. S.R.No.11503.+ 1 c.c. to The Government Pleader. S.R.No.11544. W.A.No.1039 of 2008BV (CO)GSK 17.04.2009.