High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.07.2009CORAMTHE HONOURABLE MR.JUSTICE S.RAJESWARANW.P. No.11832 of 2007(T)(O.A.No.130 of 2002)P.Jeevabai... Petitioner Vs1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai – 9.2. The Secretary to Government, Personal and Administration Dept., Fort St. George, Chennai – 9.3. The Commissioner of Municipal Administration, Chepauk, Chennai – 5. ... RespondentsThis petition came to be numbered on transfer of O.A.No.130 of2002 from the file of the Tamil Nadu Administrative Tribunal, prayingto call for the records relating to the Government LetterNo.20443/Na.Pa.1/2001-7 dated.3.1.2002 issued by the Secretary to theGovernment Municipal Administration and Water Supply Departmentchennai, the first respondent herein quash the same and direct therespondents to regularise the service of the petitioner herein asTypist in the Office of the Commissioner of Municipal AdministrationChennai with effect from the date of first appointment withconsequential fixation of time scale for the post with continuity ofservice and pay all arrears within a date that may be fixed by theHon'ble Court.For Petitioner : Mr.K.RajkumarFor Respondents : Mr.Edwin Prabhakar, A.G.P. https://hcservices.ecourts.gov.in/hcservices/ O R D E RThe petitioner is seeking to call for the records relating toGovernment letter No.20443/Na.Pa.1/2001-7 dated 3.1.2002 issued bythe first respondent herein, quash the same and direct therespondents herein to regularise the services of the petitionerherein as a Typist in the Office of the Commissioner of MunicipalAdministration, Chennai with effect from the date of the firstappointment with consequential fixation of time scale for the postwith continuity of service and pay all the arrears within a date thatmay be fixed by this Court.2. The case of the petitioner is as follows:The petitioner has passed S.S.L.C. during the year 1986 and got hername registered in the District Employment Exchange, Chennai.Subsequently, she acquired Typewriting Higher in both English andTamil and registered her name for appointment to the post of Typist.The petitioner's name was sponsored by the District EmploymentExchange on 6.2.1991 and she was appointed as a Typist under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules. Thepetitioner joined the post on 8.2.1991 and has been continuouslydischarging her duties without any break whatsoever. To protect theinterest of 10(a)(i) employees, the Government of Tamil Nadu broughtout a scheme by which special qualifying examinations were conductedduring 1996 for the purpose of regularisation. All the 10(a)(i) weredirected to appear for the examination. The petitioner has alsoparticipated in the examination but failed. Though she failed in theexamination, she was not terminated from service on the ground thatthe petitioner was having enough experience in the department besidesthere were short of regular hands as against the sanctioned posts.Thus, the petitioner has been holding a regular vacancy right from1991 till date for 18 long years. But till date, her service has notbeen regularised. Though there are Government orders directingregularisation of such temporary hands, the benefit has not beenextended to the petitioner. 3. The petitioner therefore submitted her representation tothe third respondent on 7.3.2001 to regularise her service in thepost with effect from the date of appointment i.e. 8.2.1991. TheDirector of Municipal Administration, also recommended her case forregularisation by his proceedings dated 6.6.2001. However, theGovernment did not regularise her services. On the otherhand, theGovernment directed the third respondent herein by letterNo.20443/Na.Pa.1/2001/7 dated 3.1.2002, Municipal and Water SupplyDepartment, to terminate the services of the petitioner. Challengingthe said order, Original application was filed before the Tribunal,where the petitioner had obtained stay of the impugned order of theGovernment cited supra. By virtue of the said stay order, the https://hcservices.ecourts.gov.in/hcservices/ petitioner has been continuing her service as Typist under Rule 10(a)(i) of the Tamil Nadu State Subordinate Service Rules. On transfer,the above Original application has been renumbered as W.P.No.11832 of2007.4. I have heard the learned counsel appearing for thepetitioner and Mr.Edwin Prabhakar, learned Additional GovernmentPleader appearing for the respondents. I have also gone through thedocuments available on record. 5. Learned counsel appearing for the petitioner wouldcontend that when the petitioner has been sponsored by the DistrictEmployment Exchange and working as a Typist since 8.2.1991, herservices ought to have been regularised by the Government. Thefailure of the petitioner in the Special test could not be putagainst the petitioner. In a matter of this nature, employees whohad failed in the special test have been regularised by the orders ofthe Government. Moreover, he submits that purpose of the schemebrought out by the Government also is to regularise employees underRule 10(a)(i). In support of his case, the learned counsel for thepetitioner drew my attention to the order passed by the Tribunal inO.A.Nos.3855 and 3856 of 1991, dated 1.7.1994, wherein two employeeswho also, failed in the Special Test, have been directed to beappointed and their services were to be regularised. He also reliedon the judgment reported in Jacob Puthrambil Vs Kera Water Authority(1991)1 SCC 280, wherein it was held as follows: "Taking all these factors into consideration andthe decision of the Hon'ble Supreme Court and otherjudicial force in this matter, we direct therespondents to regularise the service of theapplicants without reference to the specialqualifying examination. The applicants hadappeared before the special qualifying examinationbut did not succeed. This does not however meanthat the applicants are not competent to dischargetheir duties as their eligibility had been amplyproved over a period of time when they were servingto Government under Rule 10(a)(i). Theirexperience would be more useful to the employerthan what the new entrants would contribute withoutany experience. Therefore, we consider that theousting orders given by the respondents arearbitrary and against the well laid principles ofArt.14 of the Constitution." 6.Further, the learned counsel for the petitioner referred to ajudgment of a learned Single Judge of the Tamilnadu AdministrativeTribunal, in an identical case in O.A.No.4590 of 1995, wherein the https://hcservices.ecourts.gov.in/hcservices/ learned Judge while considering the case of the petitioner thereinheld that failure in the qualifying examination cannot be put againstthe petitioner's regularisation. The learned counsel for thepetitioner also referred to an another judgment reported in (2008)5MLJ 1073, (S.Jalajakumari ad another Vs P.A.(General) to theCollector and others) wherein a Division Bench of this Court whiledealing with an identical issue held that long service put in by thetemporary candidates have to be given credit while consideringregularisation. It is pertinent to add that the judgment of thetribunal made in O.A.No.4590 of 1995 was also referred to in thejudgment of the Division Bench cited supra. 7. Therefore, in view of the settled legal position and theorders passed in favour of similarly placed persons as that ofpetitioner, the learned counsel would contend that when thepetitioner has been working from 8.2.1991 till date for more than 18years as a Typist under Rule 10(a)(i), her case should be favourableconsidered for regularisation. Hence, the learned counsel seeksappropriate direction to the respondents directing them to pass orderregularising the service of the petitioner with consequentialbenefits.8. Per contra, Mr.Edwin Prabhakar, learned AdditionalGovernment Pleader appearing for the respondents would contend thatsince the petitioner failed in the qualifying examination conductedfor regularising the employees who are rendering their service underRule 10(a)(i) in regular establishment, the petitioner cannot betreated on par with other employees. Therefore, the order passed bythe first respondent does not suffer from any infirmity orillegality.9. I am unable to accept the submission made by the learnedAdditional Government Pleader for the reasons that both the Hon'bleSupreme Court and the Division Bench of this court categorically heldthat failure on the part of the petitioner in the qualifyingexamination need not be put against the petitioner's regularisation.Moreover, when there are vacancies in the department, the petitionershould be made to serve in the department under regularestablishment. Furthermore, the third respondent herein in hisproceedings dated 6.6.2001 has recommended to the Government bystating that there are vacancies in the department and the petitioneris also having experience in the department and her services may beregularised. He also referred to the cases of regularisation ofsimilarly placed persons as that of the petitioner. Despite suchrecommendation made by the head of the department wherein, thepetitioner has been serving, the Government rejected the case of thepetitioner.10. Considering the fact that the petitioner has been https://hcservices.ecourts.gov.in/hcservices/ working as a Typist in the office of the third respondent under Rule10(a)(i) from the date of appointment i.e. 8.2.1991 till date, formore than 18 years and considering the fact that similarly placedpersons as that of the petitioner had the benefit of serviceregularisation on the orders passed by this Court referred to above,I am of the considered view that the petitioner has made out a casefor regularising her services.11. Therefore, I set aside the order passed by the firstrespondent in letter No.20443/Na.Pa.1/2001-7 dated 3.1.2002 andconsequently, direct the first respondent to regularise the serviceof the petitioner herein as a Typist in the office of the thirdrespondent herein with effect from the date of her appointment withconsequential fixation of time scale for the post with continuity ofservice and pay all the arrears within three months from the date ofreceipt of copy of this order.12. In the result, the Writ petition is allowed. No cost.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarvaanTo1. The Secretary to Government, Municipal Administration and Water Supply Department, Fort St. George, Chennai – 9.2. The Secretary to Government, Personal and Administration Dept., Fort St. George, Chennai – 9.3. The Commissioner of Municipal Administration, Chepauk, Chennai – 5.+ 1 cc to Mr.K.Rajkumar,Advocate,SR.30510+ 1 cc to Government Pleader,SR.30559W.P.No.11832/2007(T)(O.A.No.130 of 2002)RS(CO)PMK/26.8.09