High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 07.01.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.1308 of 2007and M.P.No.2 of 20071. The Director of Elementary Education College Road, Chennai – 62. The Assistant Educational Officer Kalasapakkam – 606 751. Appellantsv.S.Durairaj Respondent Writ Appeal filed under clause 15 of the Letters Patent againstthe order dated 1.3.2006 made in W.P.No.27628 of 2005 to issue awrit of Mandamus to direct the respondents to regularise the serviceof the petitioner from the initial date of appointment with effectfrom 6.10.80 or in the alternative w.e.f.1.6.81 with allconsequential benefits including arrears of pay emoluments andallowances on par with other government employees holding the postof watchman in elementary schools on regular basis includingarrears in respect of the same.For Appellants:Mr.S.Rajasekar,AGPFor Respondent:Mr.T.V.Sai Sanjan JUDGMENT(Judgment of the Court was delivered byK.RAVIRAJA PANDIAN, J.)The correctness of the order dated 1.3.2006 passed by thelearned single Judge in W.P.No.27628 of 2005 is questioned in thisappeal, wherein the relief of regularisation of service of therespondent/writ petitioner with effect from 1.6.1981 has beengranted by the learned single Judge. 2. The said order came to be passed by the learned single Judgeby placing reliance on a Government Order in G.O.Ms.No.1279,Education Department dated 29.6.1981 and the order passed by thesecond respondent in Na.Ka.No.275/A1/90 dated 10.4.1990 in respectof one K.Ramesbabu. https://hcservices.ecourts.gov.in/hcservices/

3. The case of the respondent/writ petitioner was that he wasappointed as a night watchman with effect from 6.10.1980 by theCommissioner, Panchayat Union in the contingent post in accordancewith the rules in force. As per G.O.Ms.No.1279, EducationDepartment dated 29.6.1981, all the the Basic Servants such as peonsand watchmen working in Panchayat Union Schools throughout theState would become Government Servants with effect from 1.6.1981. Asper the said Government Order, the Assistant Educational Officerswere to draw the pay and allowances of Basic Servants of PanchayatUnion Schools from the Treasury. The said Government Order has notbeen implemented in the case of the respondent and he was givenregularisation only from 6.10.1990 after the completion of tenyears of contingency service. The respondent also pointed out theorder of the second respondent in Na.Ka.No.275/A1/90 dated10.4.1990 giving benefit covered in the said G.O.Ms.No.1279 dated29.6.1981 to one K.Ramesbabu and claimed the same benefit to him. 4. The learned single Judge after hearing the learned counselfor the respondent/writ petitioner and taking note of the fact thatin spite of repeated time granted by the Court, the Government hasnot filed any counter and upon reading of the Government Orderproduced by the petitioner has come to the conclusion that the saidGovernment Order in G.O.Ms.No.1279 dated 29.6.1981 established theright of the petitioner to get his service regularised from 1.6.1981and on that reasoning allowed the writ petition and directed theappellants to regularise the services of the respondent from1.6.1981 in accordance with the Government Order in G.O.Ms.No.1279,Education Department dated 29.6.1981 and further directed allconsequential benefits shall be paid to the respondent within sixweeks from the date of receipt of copy of the order. 5. The learned Government Pleader assailing the order of thelearned single Judge has submitted that it is true that therespondent has not filed counter affidavit. Thus, there was nooccasion for the respondent to put forth the Government Order inG.O.Ms.No.85 Education Science and Technology Department dated8.2.1994. Hence the order came to be passed by the learned singleJudge without considering the Government Order in G.O.Ms.No.85Education Science and Technology Department dated 8.2.1994. In thatGovernment Order, it is very categorically stated in paragraph No.2that the the contingent staff who had been appointed prior to1.6.1981 and have completed ten years of continuous service from thedate of appointment should be brought into regular establishment andthat the monetary benefit should be granted from the date of issueof the Government Order in G.O.Ms.No.85 Education Science andTechnology Department dated 8.2.1994.6. However, the learned counsel appearing for therespondent/writ petitioner submitted that on a conjoint reading ofG.O.Ms.No.52 Finance (FR.II) Department dated 14.1.1977,G.O.Ms.No.1279, Education Department dated 29.6.1981 coupled with https://hcservices.ecourts.gov.in/hcservices/ the proceedings of the second appellant in Na.Ka.No.275/A1/90 dated10.4.1990 clearly established that the respondent is entitled to beregularised with effect from the date of G.O.Ms.NO.1279 i.e.,1.6.1981. He alternatively contended that as the respondent is goingto be retired by 2010, his right to approach the Government forappropriate order for regularisation from 1.6.1981 may be preservedso as to enable the respondent to get some retirement benefits. Therespondent is willing to forego the monetary benefits. 7. We heard the argument of the learned counsel on either sideand perused the materials on record, particularly, G.O.Ms.No.1279,Education Department dated 29.6.1981 and G.O.Ms.No.85 EducationScience and Technology Department dated 8.2.1994.8. The Government Order in G.O.Ms.No.1279, EducationDepartment dated 29.6.1981 proceeded that the Government directedthat all the Basic Servants such as peons and watchman working inPanchayat Union Schools throughout the State would becomeGovernment Servants with effect from 1.6.1981 and they would beeligible for all the benefits available to Government Servants fromthat date. In respect of other categories of non-teaching staff whodo not come under the category of Basic Servants such as Attenders,Conductresses, paid from contingencies and part time employeesworking in Panchayat Union Schools the pay and allowances would bedrawn adopting the old Panchayat Union Procedure as already orderedin Government Order in G.O.Ms.No.857 Education dated 13.5.1981. TheGovernment Order in G.O.Ms.No.85 Education Science and TechnologyDepartment dated 8.2.1994 makes the position very clear. From thereading of the Government Order, it is very clear that consequent ontaking over of the Panchayat Union Schools by Government, the BasicServants working in Panchayat Union Schools would become GovernmentServants throughout the State with effect from 1.6.1981. However,the non-teaching staff, who were paid from contingencies would becontinued to be paid adopting the old panchayat union procedure. Thequestion of bringing contingent workers in the panchayat unioncouncils, panchayats, etc., was considered on par with theG.O.Ms.No.52 P & A.R. (FR) dated 14.1.1977 and G.O.Ms.No.878 R.D. &L.A. Dated 15.5.1991. Upon considering the proposal of the Directorof Elementary Education that the watchman in panchayat Union School,who were on contingent basis for five or more years might be broughtinto regular establishment and further taking into consideration ofthe further particulars about the total number of persons, who werepaid under contingency were only 214 persons out of which 210 werenight watchman, two were sweepers and two were gardeners, theGovernment has passed the said order i.e., G.O.Ms.No.85 to theeffect that the contingent staff, who have appointed prior to1.6.1981 and have completed ten years of continuous service from thedate of appointment have been brought into regular Establishmentfrom the date of the order i.e. 8.2.1994. We are of the view thatG.O.Ms.No.85 Education Science and Technology Department dated8.2.1994 is very categorical i.e., clarifying G.O.Ms.No.1279,Education Department dated 29.6.1981. https://hcservices.ecourts.gov.in/hcservices/

9. From the undisputed facts as narrated above, as therespondent has been appointed on 06.10.1980 in the contingency post,the respondent is entitled to be regularised from the date ofGovernment Order in G.O. Ms. No.85 Education Science and TechnologyDepartment dated 08.02.1994.10. The other ground of attack pointed out is that the secondappellant has passed an order in respect of one Ramesbaburegularising the services from the date of Government order in G.O.Ms. No.1279, Education Department dated 29.06.1981. It has beenexplained by the appellants in the affidavit filed in support of thestay petition in this appeal by the appellants to the effect thatthe said Ramesbabu was appointed on compassionate ground by theCommissioner, Panchayat Union in the contingent post. However, theCollector ordered the Panchayat Union Commissioner to allow the saidRamesbabu in the regular scale of pay from the date of hisappointment, as it was found that a compassionate appointment cannotbe made in contingent post. The Assistant Elementary EducationalOfficer without ascertaining the availability of regular postcreated by the Government allowed the appointment of Ramesbabu inthe regular scale of pay in the contingent post itself, which isagainst the norms. For his irregularity, action is being takenagainst him. On this point also, we are not able to concur with thelearned counsel appearing for the respondent as the reasoning givenby the appellant is correct that the Assistant ElementaryEducational Officer has committed the mistake in the case of oneRamesbabu by appointing him in the regular scale of pay in thecontingent post itself against the norms. The illegality cannot betaken advantage of by the respondent herein. It is well establishedlegal principle of law that there is no equality in illegality.That solitary case of Ramesbabu cannot be cited as a precedent whenthe Government Order which has the statutory force under Article 162of the Constitution of India provides otherwise. As per theGovernment Order in G.O. Ms. No.85 Education Science and TechnologyDepartment dated 08.02.1994, the respondent cannot claim that heshould be regularised from 29.06.1981. Hence, the order of thelearned single Judge granting the relief has to be set aside and thesame is set aside and thus the writ appeal is allowed. No costs.However, it is open to the respondent to make whateverrepresentation he is legally entitled to make to the appellantGovernment. Consequently, the connected WAMP is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.usk https://hcservices.ecourts.gov.in/hcservices/ To1. The Director of Elementary Education College Road, Chennai – 62. The Assistant Educational Officer Kalasapakkam – 606 751. 1 cc to Government Pleader, High Court, Madras, Sr. 12421 cc to M/s. P.V.S. Giridhar, Associates, Advocate, sr. 1437WA.No.1308 of 2007MA (CO)kk 7/2