THE HONOURABLE MR v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.2.2006CORAM:THE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE R.SUDHAKARW.P.No.11375 of 2002&W.P.M.P.No.15333 of 2002M.Gomathi.. Petitionervs.1. The State of Tamil Nadu, rep. by its Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai-600 009.2. The Commissioner, Adi Dravidar & Tribal Welfare, Chepauk, Chennai-600 005.3. The Director of Medical Education, Kilpauk, Chennai-600 010.4. The Dean, Government Stanley Hospital, Chennai.5. The Registrar, Tamilnadu Administrative Tribunal, Chennai. .. Respondents Writ Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a writ of certiorarified mandamus, asstated therein.For petitioner : Ms.T.AnanthiFor respondents : Mr.V.Raghupathi, Government Pleader for RR-1 to 4 R-5 Tribunal https://hcservices.ecourts.gov.in/hcservices/ ORDERR.SUDHAKAR,J.The prayer in the writ petition is for issuance of a writ ofcertiorarified mandamus, calling for the records on the file of thefourth respondent in connection with Ref.No.20901/E1/2/1995, dated5.1.1999 and on the file of the fifth respondent in connection withthe order dated 15.3.2002 in O.A.No.544 of 1999 and O.A.No.503 of2002 and quash the same and consequently direct the respondents toregularise the service of the petitioner with effect from 7.9.1993by condoning the break in service and grant all consequentialservice and monetary benefits.2. Heard learned counsel for the parties.3. The petitioner belonging to the B.C. community and fullyqualified was appointed as a Social Worker by the fourth respondentunder Rule 10(a)(i) of the Tamil Nadu State and Subordinate ServiceRules by his proceedings dated 7.9.1993. The petitioner wassponsored by Employment Exchange. Subsequently she was removed foradministrative reasons on 30.11.1995. On the basis of the appealdated 31.1.1996 preferred by the present petitioner, by an order ofthe fourth respondent, she was again allowed to continue with effectfrom 28.2.1996 on condition that she will not claim any right byvirtue of the temporary appointment and worked as such till6.1.1999. The fourth respondent by proceedings dated 5.1.1999, onthe basis of the instruction received from the second respondentpassed an order of removal, solely on the ground that the petitionerbelonged to the B.C. community, whereas, the vacancy is meant forSC/ST community according to communal rotation. Subsequently, thepetitioner filed O.A.No.544 of 1999, wherein, by order dated28.1.1999, the proceedings dated 5.1.1999 was stayed and thepetitioner was allowed to rejoin on 10.5.1999. 4. Thereafter, since several regular vacancies have arisen dueto retirement, the petitioner filed O.A.No.503 of 2002 claimingregularisation of service in Backward Community category. Both theO.As. were taken up by the Tribunal and by a common order dated15.3.2002, the Tribunal, while dismissing the Original Applications,recommended to the Government in the following manner:-" .... 4. I can only recommend to theGovernment that if there is a vacancy, the vacancycan be filled up by allowing the applicant tocontinue in the post. The applicant is notentitled as a matter of right for permanentappointment in the Department. It is open to the https://hcservices.ecourts.gov.in/hcservices/ Government to consider the case of the applicantand similarly placed persons in view of the longservice they have put in. The Applications arehowever liable to be dismissed. The applicationsare ordered to be dismissed subject to theobservation made above."5. Thereafter, the present writ petition has been filed againstsuch a common order of the Tribunal. While admitting the writpetition, a Division Bench of this Court, by an order dated5.4.2002, granted the following relief to the petitioner inW.P.M.P.No.15333 of 2002:"Learned counsel for the petitioner statesthat the petitioner is in service as on today.Even though the direction is to seek forpermanent status in the post which thepetitioner is holding, we cannot grant the sameat this juncture. However, we make it clear thatif the petitioner is working even temporarily as10(a)(i) candidate as on today, she shallcontinue in service until further orders.Notice."It is not disputed that the petitioner is continuing in service insuch capacity. 6. Learned counsel for the petitioner filed additionalaffidavit of the petitioner and additional typed set of papers andsubmitted as follows:Several Social Workers had retired and have been transferredduring the period in which she was working as Social Worker.Therefore, she should have been fitted in any one of the vacantposts in the B.C. Category as and when the vacancy arose. Arepresentation dated 5.2.1999 was made by the petitioner to theappropriate authority in this regard and the same has not beenconsidered on merit. Subsequently, on 22.12.2001, she made anotherrepresentation for regularisation. In this representation also, shehas referred to the vacancy which arose out of the retirement andtransfer of three persons and therefore, prayed for absorbing thepetitioner in any of the said vacancy. Again on 31.3.2002, she madefurther representation to the authorities stating that the vacancyin respect of BC, MBC has not been filled up and petitioner shouldbe considered for regularisation. On 11.8.2003, she sent yet anotherrepresentation to the first respondent giving the details of theeight vacancies to the post of Social Worker on several dates andthe community to which the vacancy was to be allotted. In the saidlist, there are several vacancies for BC and MBC candidates.Therefore, petitioner once again sought for regularisation in any https://hcservices.ecourts.gov.in/hcservices/ one of the eight vacancies on the ground that she belongs to MBCcategory and has served in the institution for more than 12 years.The learned counsel for petitioner also referred to the proceedingsdated 9.6.2005 of the fourth respondent where he has held that thepetitioner is liable to pay her contribution to the GeneralProvident Fund with effect from March 1994. As per the Annexure tothe communication dated 9.6.2005, the petitioner's date of joiningis stated as 8.9.1993 and the petitioner was directed to depositarrears of Rs.63,915/- besides paying the contribution for thefuture. 7. Learned counsel for the petitioner therefore contended thatthe Department had accepted the fact that she is in service from8.9.1993. It was contended that though her appointment wasinitially under the SC and ST quota for want of qualified hands, sheshould be considered as having been appointed under BC quota as andwhen vacancy arose, the details of which have been set out in thevarious representations made to the respondents. In any event, itwas submitted by learned counsel for the petitioner that since noqualified person from the SC and ST community was available forseveral years, there can be no impediment in absorbing thepetitioner in the post meant for SC and ST in view of the non-availability of candidates belonging to SC and ST category. Thereservation for SC/ST candidate can be adjusted in the subsequentvacancy by applying the 'carry forward' rule. It was also submittedthat one Tmt.Y.Rose Mary had obtained similar orders forregularisation from the respondent-Tribunal and the officialrespondents have accepted the order and regularised her. Petitionerpleads for similar treatment to her also. In this connection,learned counsel for the petitioner would rely upon the followingjudgments of the Supreme Court reported in 1995 (29) AdministrativeTribunals Cases 349 (State of Bihar vs. Bageshwari Prasad) and 1995(31) Administrative Tribunals Cases 772 (Jogendra Sethi vs.Rabindranath Behura and others):1995 (29) Administrative Tribunals Cases 349:"4. ... Therefore, the general candidates,when were promoted to the post of OfficeSuperintendent, the second vacancy which ought tohave been reserved for Scheduled Castes andfourth for Scheduled Tribes, have been filled bythe general candidates since Scheduled Castes andScheduled Tribes were not, then available. Whensixth vacancy had arisen, the claim of thereserved candidate was available and theauthorities are enjoined to consider the claim ofthe reserved candidate. The High Court wasclearly in error in relying the ratio in PaswanCase (1988 (2) SCC 214) which stood entirely on adifferent situation to hold that the post cannotbe reserved. Under these circumstances, the order https://hcservices.ecourts.gov.in/hcservices/ of the High Court is set aside and the secondrespondent was rightly considered for promotionand was legally promoted as Superintendent. Thewrit petition stands dismissed. The appeal isallowed. But in the circumstances withoutcosts."1995 (31) Administrative Tribunals Cases 772:"7. In the present case after the promotionof a candidate from general category in 1982 thepost of Head Typist became available forpromotion only in 1988 and there was norecruitment by promotion on that post in between.Therefore, the next recruitment year after 1982was 1988. Having regard to the carry-forwardrule the post of Head Typist which becameavailable for promotion in 1988 had to beassigned to the Scheduled Caste candidate and theDepartmental Promotion Committee did so rightly.The tribunal was in error in holding that thesaid post could not be assigned to a ScheduledCaste as per the carry-forward rule."8. Therefore learned counsel for the petitioner submitted thateven if the petitioner's claim is not considered as per theabovestated ruling, since the petitioner was appointed throughEmployment Exchange and fully qualified and having served in theinstitution for 12 years, her claim for regularisation should beconsidered on the date on which the vacancy arose in the MBC/BCcommunity category. Counsel for the petitioner submitted thatpetitioner having reached the age of 36, will not be able to get newemployment. It was submitted that petitioner's right under theConstitution of India has been affected. 9. After having heard the learned counsel for both parties, andafter going through the impugned order, in law, it cannot be saidthat there is any illegality in such an order of the Tribunal.However, the fact remains that the respondents have not filled upthe post in the regular basis for several years, may be, because ofthe non-availability of a suitable candidate. Moreover, thepetitioner has apparently gained valuable experience as a SocialWorker and has rendered a service for more than 12 years. This factcannot be ignored.10. There is much force in the contention of the learnedcounsel for the petitioner that there are several vacancies in theMBC and BC categories due to retirement and transfer of SocialWorkers, the details of the same are set out in the representationsreferred to above. This fact is not disputed by the respondents.Several representations have been made by the petitioner to https://hcservices.ecourts.gov.in/hcservices/ regularise her in the said vacancies of MBC/BC category. Therecannot be any impediment for the respondents to consider the claimof the petitioner for regularisation in the BC/MBC category in viewof the fact that she has been sponsored by Employment Exchange andshe is fully qualified to hold the post. Therefore, the claim ofthe petitioner that she should be considered for appointment in theBC category has to be accepted. The respondents in proceedings dated9.6.2005 have accepted that she is in employment since 8.9.1993 andthey have directed her to pay the GPF contribution from March 1994.Therefore, the petitioner's claim for regularisation should beconsidered on the basis of the vacancy available in the MBC/BCcategory that has occurred during the relevant period in any eventon and after 8.9.1993. The petitioner may be allowed to continue inthe post which she is now occupying until such procedure iscompleted. 11. With the above observations, the writ petition is disposedof. No costs. W.P.M.P. is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.csTo1. The Secretary to Government, State of Tamil Nadu, Health & Family Welfare Department, Fort St.George, Chennai-600 009.2. The Commissioner, Adi Dravidar & Tribal Welfare, Chepauk, Chennai-600 005.3. The Director of Medical Education, Kilpauk, Chennai-600 010. https://hcservices.ecourts.gov.in/hcservices/

4. The Dean, Government Stanley Hospital, Chennai.5. The Registrar, Tamilnadu Administrative Tribunal, Chennai.1 cc to M/s. T. Ananthi, Advocate, Sr. 93911 cc to the Govt. Pleader, Sr. 9286W.P.No.11375 of 2002SR (CO)kk 6/3