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The Commissioner, Block Development Office, Thanjavur & Others v/s Sarasu & Others


Company & Directors' Information:- H & R BLOCK (INDIA) PRIVATE LIMITED [Active] CIN = U72900PN2006PTC128344

Company & Directors' Information:- J J DEVELOPMENT PRIVATE LIMITED [Active] CIN = U50300WB1996PTC081491

Company & Directors' Information:- L N DEVELOPMENT LIMITED [Active] CIN = U70102ML1986PLC002590

Company & Directors' Information:- H AND R BLOCK (INDIA) PRIVATE LIMITED [Strike Off] CIN = U00892PN2006PTC128344

Company & Directors' Information:- SARASU PRIVATE LIMITED [Strike Off] CIN = U99999KA1973PTC002346

    W.A. Nos. 206 & 760 of 2020 & C.M.P. Nos. 3125 & 10077 of 2020

    Decided On, 01 December 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MR. A.P. SAHI & THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

    For the Appearing Parties: M/s. R. Govindasamy, P. Solomon, Advocates, V. Jayaprakash Narayanan, State Government Pleader.



Judgment Text

(Prayer in W.A.Nos.206 & 760 of 2020: Writ Appeals are filed under Clause 15 of Letters Patent to set aside the order in W.P.No.1453 of 2015 dated 24.04.2019.)Common JudgmentSenthilkumar Ramamoorthy, J.1. These two writ appeals are filed by the Commissioner, Block Development Office, Papanasam, and by the Director of Rural Development and Panchayat Raj against the order dated 24.04.2019 in W.P.No.1453 of 2015. By the said order, the learned single Judge allowed the writ petition of the first Respondent and directed the Appellants herein to regularize the services of the first Respondent from the date of her appointment.2. The first Respondent was appointed as a sweeper pursuant to the proceedings of the Commissioner of the Papanasam Panchayat Union dated 24.04.1985. Her appointment was on a temporary basis as a sweeper on a monthly salary of Rs.20/- plus other allowances. She was appointed for the purpose of providing services at the Chakkarapalli Hospital and provided such services on a consolidated monthly pay for a number of years. Subsequently, by G.O.Ms.No.39, Rural Development [E5] Department dated 07.05.2013 (G.O. Ms. No.39), she was provided a special time scale of pay in the pay scale of Rs.1300 - 3000 + 300 Grade Pay. G.O.Ms.No.39 stipulates that sanitary workers working at the Government office or local body on daily wages or on consolidated pay, for not less than three years, are entitled to the special time scale of pay as referred to supra. It also adverts to the fact that, at that point of time, about 9896 persons were serving as sweepers in the Village Panchayats, about 187 persons were serving at the Panchayat Union and about 18 persons were serving in Government Offices. Accordingly, the benefit of G.O. Ms. No.39 would extend to all the above mentioned three categories of sweepers whose names were included in the Annexure of the said G.O.Ms.No.39.3. After being put on the special time scale of pay in accordance with G.O.Ms.No.39, the first Respondent filed W.P. No.1453 of 2015 praying for a Writ of Mandamus for regularization from the date of appointment, namely, 24.08.1985. In the affidavit in support of the writ petition, the first Respondent adverted to the fact that she was appointed as a sweeper at the Panchayat Union Dispensary, Chakkarapalli Union Panchayat, Papanasam and that she was sponsored by the Thanjavur Employment Exchange by communication dated 17.04.1985. She further submitted that the Commissioner of the Panchayat Union, by communication dated 15.06.2001 to the Collector, Thanjavur, requested that her services be regularized. Thereafter, further communications dated 13.11.2006 and 22.07.2009 were sent by the Commissioner on this issue. The sheet anchor of the writ petition was G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006 (G.O. Ms. No.22). The first Respondent stated that G.O. Ms. No.22 applies to employees in various Government Departments working on daily wage basis who had completed more than 10 years of service as on 01.1.2006. It provides for the regularization of such persons by appointing them on a time scale of pay in accordance with the service conditions prescribed for the post concerned subject to their being otherwise qualified for the post. According to the first Respondent, the only condition for availing the benefit of G.O.Ms.No.22 is that the employee concerned should have completed 10 years of service as on 01.01.2006. As regards the first Respondent herein, she had completed about 19 years of service as on 01.01.2006. The writ petition was allowed by relying upon G.O.Ms.No.22. The learned single Judge also took into consideration the fact that the first Respondent was sponsored by the Employment Exchange and concluded that she is accordingly entitled to be regularized from the date of original appointment along with all monetary benefits arising out of such regularization. The said order is impugned in this proceeding.4. We heard Mr.V.Jayaprakash Narayanan, the learned State Government Pleader on behalf of the Appellant; and Mr.P.Solomon, the learned counsel for the first Respondent.5. Mr.Jayaprakash Narayanan submitted that the first Respondent was appointed on a part-time basis as a sweeper under the proceedings dated 24.08.1982 of the Commissioner of the Panchayat Union of Papanasam. On account of being a part-time worker, he contended that the first Respondent is not entitled to the benefit of G.O.Ms.No.22. In addition, he submitted that G.O.Ms.No.22 was superseded by G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department dated 27.06.2013 (G.O. Ms. No.74). G.O.Ms.No.74 enables regularization of persons who were appointed on a full time basis in the Tamil Nadu Basic Services provided the said persons completed 10 years of service as on 01.01.2006. In such cases, they would be regularized against regular vacancies in the sanctioned cadre strength. By drawing reference to paragraph-6(vi), he pointed out that part time and casual employees are not entitled to the benefit of G.O.Ms.No.74 and that this is stipulated expressly and categorically.6. His next contention is that the benefit of G.O.Ms.No.74 is only available to employees who were appointed in a sanctioned post. In the present case, there was no sanctioned post of sweeper in the Papanasam Panchayat Union and the first Respondent was appointed on a contingent basis on a consolidated salary. Accordingly, he submitted that she is not entitled to the benefit of G.O.Ms.No.74, which superseded G.O.Ms.No.22.7. He further submitted that the learned single Judge proceeded to grant regularization entirely on the basis of G.O.Ms.No.22 without taking into account that G.O. Ms. No.22 had been superseded by G.O.Ms.No.74. He further submitted that the first Respondent and others, who are similarly situated, were provided a special dispensation by way of G.O.Ms.No.39 which provides for a special time scale of pay for such persons. By drawing reference to the said G.O.Ms.No.39, he submitted that the special time scale of pay was extended to about 9896 persons working as sweepers in Village Panchayats, about 187 persons working at Panchayat Unions and 87 persons working in Government Offices. As a result of the impugned order of the learned single Judge, all the others who were extended the benefit of a special time scale of pay would also claim regularization from the date of their original appointment notwithstanding the fact that such appointment was not to a sanctioned post. For all these reasons, he submits that the impugned order of the learned single Judge is liable to be set aside.8. On the contrary, the learned counsel for the first Respondent, Mr.Solomon, submitted that the first Respondent was appointed on a full-time basis and that the contention by Mr. Jayaprakash Narayanan that she was appointed on a part-time basis is contrary to the facts. For this purpose, he referred to the proceedings of the Commissioner of the Panchayat Union, Papanasam, dated 24.08.1985, and pointed out that it does not refer to appointment on a part-time basis. Likewise, he also referred to the proceedings dated 13.10.2014 of the Panchayat Union President which referred to and annexed the particulars of the appointment of the first Respondent. In particular, he pointed out that this document discloses that she was sponsored by the employment exchange. It also indicates that she was on a consolidated pay between 11.08.1985 and 06.05.2013 and that she was put on the special time scale of pay pursuant to G.O.Ms.39. He further pointed out that the said resolution adverted to her absorption by the Health Department.9. On the basis of the above facts, the learned counsel submitted that the first Respondent is entitled to regularization from the date of appointment, namely, 24.08.1985. In response to the question as to whether either G.O.Ms.22 or G.O.Ms.No.74 enables regularization from the date of appointment, he submitted that the denial of regularization from the date of appointment violates Article 14 of the Constitution. Accordingly, both G.O.Ms.No.22 and G.O.Ms.No.74 would be unconstitutional unless the benefit of regularization is extended from the date of appointment.10. We considered the submissions of the learned counsel for the respective parties and examined the materials on record.11. The question that arises for consideration in these appeals is whether the first Respondent was entitled to regularization from the date of initial appointment as per the applicable Government Order. The learned single Judge relied largely on G.O.Ms.No.22. G.O.Ms.No.22 was issued on 28.02.2006 and provides for further action to regularize the services of daily wage employees working in Government Departments provided they had completed 10 years of service as on 01.01.2006. Such persons were to be appointed on a time scale of pay in the post in accordance with the service conditions prescribed for the post concerned and subject to their being otherwise qualified for the post. From the above, it is clear that it applies to persons working on daily wage basis in Government Departments provided they had completed 10 years of service as on 01.01.2006. In the present case, the documents on record disclose that the first Respondent was appointed pursuant to a sponsorship letter dated 17.04.1985 of the Assistant Director, Thanjavur District Employment Exchange. Her appointment was temporary and on a monthly salary of Rs.20/- plus other allowances. The learned counsel for the first Respondent referred to the communication relating to the request for regularization of the first Respondent. The representation dated 13.07.1992, in this regard, from the first Respondent to the Commissioner of the Panchayat Union, Papanasam discloses that she was employed as a temporary worker under a contingency fund. The communication dated 15.06.2001 from the Commissioner of Panchayat Union, Papanasam to the District Collector, Thanjavur, also discloses that she was employed on a contingent basis. Eventually, on the basis of G.O.Ms.No.39, by proceedings of the Commissioner of Papanasam Panchayat Union, she was extended the benefit of a special time scale of pay as per G.O.Ms.No.39 with effect from 07.05.2013.12. The documents referred to above indicate clearly that she was appointed on a temporary basis as a contingent worker and was paid out of the contingent fund by the Panchayat Union. As such, the contention of the learned Government Pleader that she was not appointed to a sanctioned post appears to be correct. However, it was not an illegal appointment inasmuch as she was sponsored by the Thanjavur District Employment Exchange and appointed pursuant to the resolution passed at the proceedings of the Commissioner of Panchayat Union, Papanasam on 24.08.1985. Therefore, it remains to be seen as to whether she is entitled to regularization as per G.O.Ms.No.22 or G.O.Ms.No.74. As stated earlier, G.O.Ms.No.22 applies to daily wage employees in Government Departments. It is clear from G.O.Ms.No.22 that it only applies if there are sanctioned posts to which the eligible daily wage employees can be appointed. In this case, as stated earlier, there is no sanctioned post and the first Respondent was appointed on a contingent basis and paid out of the contingent fund until she was extended the benefit of a special time scale of pay with effect from 07.05.2013. In addition, we find that G.O.Ms.No.22 was superseded by G.O.Ms.No.74 with retrospective effect from 01.01.2006. Thus, G.O.Ms.No.74 was in force as of the date of filing of the writ petition and certainly as of the date of the impugned order. Consequently, the eligibility of the first Respondent should be tested against G.O. Ms. No.74 and not G.O. Ms. No.22. Upon perusal of G.O.Ms.74, we find that it applies to persons working on full time basis as daily wage employees and expressly excludes persons working on part time basis or as casual employees. In addition, such persons should have completed 10 years of service as on 01.01.2006 to be entitled to the benefit of G.O.Ms.No.74. Paragraph-6 of the G.O.Ms.No.74 is of significance and the said paragraph is extracted below:“6) In supersession of the orders issued in the Government Order read above, the Government now issue revised orders on regularization of services of full time daily wage employees working in all Government departments as detailed below:(i) This Order shall be deemed to have been come into force with retrospective effect from 01.01.2006;(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange to discharge the function of the post in the Tamil Nadu Basic Service and completed 10 (ten) years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned cadre strength;(iii) In cases of relaxation of service rules, the service rule relating to the educational qualification and mode of recruitment shall not be relaxed;(iv) In cases, where relaxation of rules are involved, monetary benefit shall be allowed with effect from the date of issue of orders as per Rule 23 (a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services;(v) In cases where relaxation of rules are not involved, monetary benefit shall be allowed with effect from the date of regularisation;(vi) The part-time and casual employees are not entitled to the concession referred to at para (ii) above;(vii) The services of the full time daily wage employees who have completed 10 years of service after 01.01.2006 shall not be regularized;(viii) All the appointing authorities should adhere to the above instructions scrupulously in future. Failing which, it will be viewed seriously and necessary disciplinary action will be initiated as per rules against the person who is responsible for the said lapses. All the Heads of Departments are directed to ensure that all the above said instructions are followed without fail and lapses if any found, responsibility will be fixed against them;(ix) Al

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l the proposals for regularization of the services of full time daily wage employees should be sent to the Government even in cases where relaxation of rules are not involved.”From the above paragraph-6, it is clear that regularization is permissible under G.O.Ms.No.74 against regular vacancies in the sanctioned cadre strength. In the case at hand, the contention of the learned State Government Pleader that there are no sanctioned posts and that the appointment was on a contingent and temporary basis appears to be correct. He also submitted that G.O.Ms.No.39 was issued primarily to provide the benefit of special time scale of pay for persons who were employed as sweepers on a contingent basis.13. When the impugned order of the learned single Judge is examined in light of the facts set out above, we find that the learned single Judge did not advert to G.O.Ms.No.74 although it superseded G.O.Ms.No.22 with retrospective effect from 01.01.2006. Besides, neither G.O.Ms.No.22 nor G.O.Ms.No.74 enable regularization except against sanctioned posts. Moreover, neither G.O. enables regularization from the initial date of appointment. For all these reasons, we conclude that the impugned order of the learned single Judge cannot be sustained.14. Accordingly, we set aside the impugned order dated 24.04.2019 by allowing these appeals. Nonetheless, the first Respondent shall be entitled to the benefit of G.O.Ms.No.39 and any other monetary benefits that may be extended to such persons in future. Consequently, connected miscellaneous petitions are closed. No costs.
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