(Prayer: Writ Appeal – filed under Clause 15 of the Letters Patent, to set aside the order passed in W.P.(MD)No.8107 of 2024 dated 27.06.2023.)

Dr. G. Jayachandran J

1. The order of the learned Single Judge allowing the writ petition filed by one Thiraviam Pillai, respondent in this appeal, who joined as Watchman on daily wage basis on 08.10.1982 in the third respondent Department got retired on 29.02.2012. He along with three others initially filed writ petition seeking regularization of their services. The said writ petition was transferred to the Tamil Nadu Administrative Tribunal for deciding the service disputes of the State Government Employees and renumbered as T.A.Nos.482 of 1992 and 4 of 1993.

2. The Tribunal held that there is no impediment in regularizing the services of the applicants and they will be entitled to regularization from the date of indicated in the proceedings. The appellants were directed to pass orders within a period of two months from the date of receipt of the order copy. Though the order was passed on 19.04.2002, the appellants herein regularized services of only two out of four applicants and Thiraviam Pillai/writ petitioner was left without being regularized.

3. Therefore, he again filed writ petition in W.P.(MD)No.7155 of 2011 before this Court and in the said writ petition, the learned Single Judge taking note of the fact that Thiraviam Pillai cannot be discriminated without being regularised, in spite of putting more than 28 years of service, directed the respondents therein to consider the representation of the writ petitioner pursuant to G.O.Ms.No.73, Agriculture Department, dated 23.02.1999 and the order passed by the Administrative Tribunal dated 19.04.2002. Unfortunately, even this order was not implemented by the time Thiraviyam Pillai attained superannuation and got retired on 29.02.2012.

4. Thereafter, when his representation was disposed of by the Director of Agricultural Department on 21.08.2014, rejecting the request of Thiraviam Pillai for regularization citing the reason that he has already attained superannuation on 29.02.2012 and the subsequent Government Order in G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013, regarding relaxation of the age under Rule 5(1) of the Special Rules, will not be applicable to him.

5. Being aggrieved by the proceedings of the Director, Agriculture Department, dated 21.08.2014, Thiraviyam Pillai has filed W.P.(MD)No.8107 of 2023. The learned Single Judge vide order dated 27.06.2023, allowed the writ petition directing the first respondent, namely Secretary to Government, Department of Agricultural to pass appropriate orders within a period of eight weeks from the date of submitting the proposal for regularizing the services by Thiraviyam Pillai and disburse his terminal benefits within a period of eight weeks thereafter. The said order is challenged by the respondents in this writ appeal.

6. The learned Additional Advocate General appearing for the appellants submitted that the benefit of G.O.Ms.No.74, dated 27.06.2013 will apply only to the the persons, who are in service on date of that G.O., and not to the persons, who have already attained superannuation and it has given retrospective effect from 01.01.2006

7. As far as Thiraviyam Pillai is concerned, having retired on 29.02.2012, his request for regularisation got rejected on 21.08.2014. He had not challenged the rejection order immediately, but waited for more than 9 years and preferred writ petition only in the year 2023. The latches had not been properly explained and therefore, even on that score, the writ petition ought to have been dismissed. However, the learned Single Judge erroneously stated that the petitioner has already forgone his claim for monetary benefits for the intervening period ie., from the date of impugned order till the date of filing of the writ petition and therefore, latches will not stand in the way of allowing the writ petition.

8. That apart, the learned Single Judge had stated that the Government Order in G.O.Ms.No.74, dated 27.06.2013 cannot be put against the retired employee and the benefit of G.O.(Ms)No.73, Agriculture Department, dated 23.02.1999 should be applied in case of Thiraviyam Pillai as directed by this Court in W.P.(MD)No.7155 of 2011 dated 24.03.2011.

9. According to the learned Additional Advocate General, the reference to the earlier orders passed by the Tribunal and the learned Single Judge in the writ petitions, will have no application in the case of the writ petitioner herein in view of the prohibitory order passed by the Hon'ble Supreme Court in the case of State of Tamil Nadu through Secretary to Government, Commercial Taxes and Registration Department and another vs. A.Singamuthu reported in [(2017) 4 SCC 113], which reads as follows:

                  “17. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondent''s service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full- time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.

                  18. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs. 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.

                  19. It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees.As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside.

10. The learned counsel appearing for the respondent /writ petitioner in the appeal, submitted that neither G.O.Ms.No.74 nor the judgement of the Hon'ble Supreme Court will stand in the way of regularising the services of the respondent herein in view of the fact that he has already been fortified by the order of the tribunal as well as order of this court, which has directed the appellants to consider the services put by the respondent for regularization as per G.O.(Ms).No.73, dated 23.02.1999. Failure of the appellants to comply with the order of the learned Single Judge of this Court in W.P.(MD)No.7155 of 2011 cannot be put against the respondent herein.

11.The Hon'ble Supreme Court in Singamuthu's case, dealt with the case of part time employees giving retrospective effect to G.O.Ms.No.22, dated 28.02.2006. The dictum laid in the said judgment will not apply to the specific and special facts and circumstances of the case in hand.

12. Heard the learned counsel on either side and perused the materials placed on record.

13. This Court after giving due consideration to the rival submissions finds that the respondent, who joined on daily wage basis in the year 1982, had put 30 years of service and retired on 29.02.2012. In the year 1992, the respondent sought for regularization of his service along with three others, which has been positively considered by the Tribunal with a direction to the respondents to regularize their services. Even before the Tribunal passes orders on 19.04.2022 in T.A.No.482 of 1991, 4 of 1993, two of the applicants, namely, Battar Saman and Jambulingam were regularised from 18.04.1988. Therefore, similar proceedings is expected in case of Thiraviyam Pillai also. However, that did not happen for years together.

14. Meanwhile, the Government has passed G.O.Ms.No.73, Agriculture Department, dated 23.02.1999, wherein the persons, who had put forth 5 years of continuous service on daily wage basis, were regularised. In these circumstances, the writ petition filed by Thiraviyam Pillai was considered and the same was allowed on 24.03.2011 with the direction to the respondent to consider the representation and pass orders within 2 months from the date of receipt of a copy of this order regarding regularization of his service. Unfortunately, even thereafter, his service was not regularised and he retired on 29.02.2012 and thereafter, the department has thought fit to consider his representation and the direction of this court issued in W.P.(MD)No.7155 of 2011 only to reject his representation citing G.O.Ms.No.74 dated 27.06.2013.

15. As we have already pointed out, the case of Thiraviyam Pillai is different from the regular case, where G.O.No.74, would be applied. His service of 30 years as Watchmen ought to have been regularised long back, since he was appointed through Employment Exchange and by conducting interview. His appointment is not a back door entry. At that point in time, when he filed application before the Tribunal in the year 1992 and the writ petition before the High Court in the year 2011, the Government orders were in his favour.

16. In fact, two of similarly placed persons were regularised even when the application before Tribunal was pending. While so, for no reason, the services of the respondent was not regularised. Hence, the learned Single Judge has rightly considered the prayer in the writ petition and allowed the writ petition.

17. Though there is nothing to interfere in the order of the learned Single Judge in the writ petition, we make it clear that the service of Thiraviyam Pillai to be regularised from 01.01.2006 as Watchman taking into consideration the subsequent restrictions imposed in G.O.Ms.No.74, dated 27.06.2023 and he has to be paid all his retirement and pensionary benefits taking into consideration 50% of the past services from 1982 to 2006 and full service from 2006 to 2012. 18.Accordingly, the appellants are directed to pay the benefits as indicated above to the respondent forthwith. Arrears of pension with 6% interest shall be paid within a period of three months from the date of receipt of a copy of this order. We make it clear that the petitioner will not be entitled for any backwages. 19.With this observations, this Writ Appeal stands disposed of. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.