J. Poongothai vs The Government of Tamil Nadu

B. Rajendran, J.—The petitioner was appointed as Junior Assistant in the Adult Education Unit, Thiruvallur under Rule 10(a)(i) of the Tamil

Nadu State and Subordinate Service Rules on 31.12.1981 through employment exchange. After a period of three years, she was ousted from

service for want of vacancy on 31.03.1984. Again, the petitioner was re-appointed as Junior Assistant on 29.06.1984. Though the petitioner has

completed ten years of service, her service was not regularised on the ground that she was not in service as Junior Assistant on 25.06.1984 for

regularisation as contemplated under G.O. Ms. No. 996 dated 22.09.1984 by which ban was imposed for employment and the re-appointment of

the petitioner on 29.06.1984 by the Chief Educational Officer during the ban period is contrary to G.O. Ms. No. 996 dated 22.09.1984.

According to the petitioner, the respondents have not regularised her service either from the initial appointment or atleast from the date of her re-

appointment. At this juncture, it is to be pointed out that originally, the petitioner filed O.A. No. 5980 of 1984 for a direction to the respondents to

regularise her service from the date of her appointment namely 31.12.1981, subsequently a petition was filed to amend the prayer and accordingly

the prayer was amended seeking regularising her service atleast from the date of re-appointment namely 29.06.1984.

In the Original Application, it was contended by the petitioner that she is entitled for regularisation of her service in terms of G.O. Ms. No. 259,

P&AR Department dated 24.08.1989 on the basis of the service rendered by her from 1981 to 1984 also. The Tribunal, by order dated

24.12.1994 issuing certain direction, but that order was not complied with. Therefore, the petitioner has filed Contempt Application No. 343 of

1995 before the Tribunal. When the contempt petition was filed, the respondents regularised the service of the petitioner by proceedings dated

14.06.1995 with effect from10.04.1990 on the ground that the government has allotted the post of Junior Assistant only on 10.04.1990.

Subsequently, by an order dated 23.02.1996 of the District Educational Officer, Villupuram, the petitioner''s service was regularised in the post of

Junior Assistant with effect from 10.04.1990 on condition that the period of probation would be completed as per the condition imposed by the

Rules. The Tribunal therefore closed the contempt application on 09.07.1996 giving liberty to the petitoner to make representation to the

respondents seeking regularisation of her service from the date of appointment. Pursuant to such direction, the petitioner submitted a representation

dated 11.03.1997 to regularise her service from the date of her initial appointment, but no order has been passed. Therefore, the petitioner has

filed the above Original Application No. 5406 of 1998 before the Tribunal. On abolition of the Tribunal, the matter stood transferred to this Court

and re-numbered as WP No. 33784 of 2006. Pending disposal of the writ petition, the prayer was amended before this Court and now the

petitioner is challenging the order dated 14.06.1995 of the first respondent by which the petitioner''s service was regularised only with effect from

10.04.1990.

The petitioner was sent to training on 31.12.1996 after regularisation of her service by order dated 14.06.1995 of the first respondent. The

training commenced on 31.12.1996 and the completion of the probation of the petitioner was ordered with effect from 28.02.1997 by

proceedings dated 06.06.1997. As the petitioner completed the training in the year 1997, the petitioner was granted with annual increment from

March 1997 and she has been denied increments for the earlier period. The grievance of the petitioner is that though she was working from

31.12.1981 and subsequently re-appointed on 29.06.1984, her services ought to have been regularised at least from 31.03.1984 and then she

should have been given the increments. The regularisation of her service with effect from 10.04.1990 on the ground that the post itself has been

allotted only on that date is legally not sustainable to deny her retrospective regularisation. Therefore, under law, she is entitled to seek for

regularisation from the date of her original appointment.

In this context, the learned Counsel for the petitioner relied on the decision reported in ( V. Perumal Vs. The Commissioner and Secretary to the

Government, Health and Family Welfare Department, The Director of Medical Education and The Dean, to say that when regularisation was made

by the respondents, it cannot be prospective and it should date back to the original date of appointment. In that case, this Court held that the

Government relaxed the qualification in favour of the petitioner and having regard to the appointment of the petitioner at a regular post with effect

from 19.03.1965, there is no justification on the part of the Government to restrict the regularisation only from the date of the order. Relying on the

said decision, the learned Counsel for the petitioner submitted that the petitioner ought to have been regularised from 29.06.1984 and not from

10.04.1990.

The learned Counsel for the petitioner further relied on the decision reported in (R. Mohan v. Special Commissioner and Commissioner for

Revenue Administration, Chepauk, Chennai and Anr.) 2006 WLR 480 to say that if irregular appointment have been ratified, it will confer right to

get appointment for an employee from the date of his initial appointment and hence the same is applicable to the case on hand and prayed for

allowing the writ petition.

The learned Government Advocate brought to the notice of this Court that the petitioner has been regularised on 10.04.1990 and subsequently,

the petitioner was promoted as Assistant on 24.01.2001 and presently she is working as Assistant in Mitta Mandagapattu Government Higher

Secondary School, Villupuram and therefore the relief sought for in this petition is legally not sustainable.

Heard both sides. As per G.O. Ms. No. 259, P & AR Department dated 27.04.1989, the Government has given concession to those persons,

who were originally appointed under Rule 10(a)(i) between 15.11.1980 and 24.06.1984 and who were ousted on or before 24.06.1984 for want

of vacancy should be rehabilitated. In this connection, the Government has categorically stated in the above said Government Order as follows:

(a) The temporary Junior Assistants, Typists and Steno Typists recruitted to Tamil Nadu Ministerial Service/Tamil Nadu Judicial Ministerial

Service and Typists and Steno-Typists recruitted to Tamil Nadu Secretariat Service through Employment Exchange under General Rule 10(a)(i)

between 15.11.1980 and 24.06.1984 and who had put in a service of one year or more, either continuously or with breaks, and ousted from

service on or before 24.06.1984 for want of vacancy and whose names were already forwarded by the Heads of Departments/Collectors to the

Government alone shall be absorbed in Government service regularly in future vacancies. Their absorption into Government service shall be treated

as Fresh appointments only and their services will be regularised only from the date of their Joining in the Department allotted by the Government in

future vacancies. The rule of reservation (General) Rule 22 shall not apply to these candidates.

As per the above said Government Order, in order to get the benefits of the said Government Order (a) a person should have earlier worked

between 15.11.1980 and 24.06.1984 for more than one year (ii) a person should have ousted from service before 24.06.1984 for want of

vacancy and (c) he or she should have been eligible for fresh appointment with all requisite qualification. The petitioner is possessing the above said

three qualifications. In the Government order, it is also stated that their absorption in the Government service shall be treated as fresh appointments

only and their services will be regularised only from the date of their joining in the department allotted by the Government in future vacancies. The

word ""services will be regularised only from the date of their joining in the department allotted by the Government in future vacancies"" requires to

be interpreted.

The petitioner was originally appointed on 31.12.1981. On 31.03.1984, the petitioner was ousted from service and again she was re-appointed

on 29.06.1984. The petitioner''s service were regularised from 10.04.1990. During the pendency of this writ petition, the petitioner was promoted

as Assistant. These are not in dispute. The crucial date for consideration is the petitioner was in service for more than three years during the

relevant period and she was ousted for want of vacancy on 31.03.1984, however, she was re-appointed on 29.06.1984. Therefore, it has to be

considered whether the petitioner is eligible for regularisation of her service only from 10.04.1990, when the post was sanctioned or since the post

was sanctioned, it will date back to the date when she was appointed or joined duty namely 05.07.1984, the date on which she joined duty after

her re-appointment.

In the decision relied on by the counsel for the petitioner mentioned supra, it was held by this Court that when there is regularation regularising

the service of an employee, such regularsation has to be automatically dates back to the original date of appointment. In fact, in the second

decision relied on by the counsel for the petitioner reported in (R. Mohan v. Special Commissioner and Commissioner for Revenue Administration,

Chepauk, Chennai and Anr.) 2006 WLR 480 it was categorically held that even if irregular appointment is ratified subsequently, a right will be

conferred on the employee to get regularisation from the date of initial appointment. Para-5 of the said judgment is relevant, which reads as follows:

I have heard the learned Counsel on either side. The decision in WP No. 6605 of 1998 and the Supreme Court decision cited supra squarely

apply to the facts of this case. Petitioner having been appointed in the year 1973, assuming his appointment is irregular, following the proposition

laid down in the Supreme Court in the above cited decision, I hold that in this case only a formal ratification is required, but instead, the reversion

order now made is totally unwarranted. The irregular appointment, if it is ratified, will definitely confer a right on the petitioner to get his

appointment ratified from the date of initial appointment. Therefore, the impugned order is liable to be set aside.

It is true that the petitioner was re-appointed as a fresh candidate on 05.07.1984 but when the intention Government in issuing the Government

Order makes it clear by using the word ""from the date of their joining in the department allotted by the Government in future vacancies"", the word

''date of their joining'' would only construe that ratification commences from the date of their re-entry into the department. The ratification has been

given in the present case on 10.04.1990, but as held by this Court in the decision cited supra, the date of regularisation will dates back to the

original date of appointment. In this case, the word ''date of their joining'' used in the Government Order would make it clear that regularisation

itself was given only to those persons who have earlier worked and as such regularation will date back to the original date of appointment, in this

case, being 05.07.1984, the date on which the petitioner joined after her re-appointment. Therefore, the petitioner is entitled for regularisation of

her service with effect from 05.07.1984.

In the light of the above discussion, the writ petition is allowed. No costs.