The Government Of Tamil Nadu, v. K.M.Gunasekaran,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.10.2017
CORAM:
THE HONOURABLE MR. JUSTICE HULUVADI G. RAMESH and THE HONOURABLE MR. JUSTICE RMT. TEEKA RAMAN Writ Appeal No. 1463 of 2016 --- 1.
The Government of Tamil Nadu represented by its Secretary Education, Science and Technology (H.S.II) Department Fort St. George Madras - 600 009
2. The Director of School Education College Road Madras - 600 006 3.
The Chief Educational Officer Kancheepuram District Kancheepuram 4.
The Chief Educational Officer Thiruvannamalai District Thiruvannamalai 5.
The Chief Educational Officer Vellore District Vellore
6. The Chief Educational Officer Dharmapuri District Dharmapuri
7. The Chief Educational Officer Cuddalore District Cuddalore 8.
The Chief Educational Officer Thiruvallur District Thiruvallur
9.
The Chief Educational Officer Villupuram District Villupuram
10. The Chief Educational Officer Nagapattinam District Nagapattinam
11. The Chief Educational Officer Tirupur District Tirupur
12. The Chief Educational Officer Thanjavur District Thanjavur
13. The Chief Educational Officer Pudukottai District Pudukottai
14. The Chief Educational Officer Trichy District Trichy
15. The Chief Educational Officer Madurai District Madurai
16. The Chief Educational Officer Sivagangai District Sivagangai
17. The Chief Educational Officer Theni District Theni
18. The Chief Educational Officer Tirunelveli District Tirunelveli
19. The Chief Educational Officer Kanyakumari District Kanyakumari .. Appellants/Petitioner/ Respondents
Versus
1. K.M. Gunasekaran
2. K. Parimalambigai
3. C. Suresh Indirakumar
4. C. Vimalabai
5. A. Jebamalar
6. M. Mani
7. A. Tensingh Ponraj
8. S. Selvakumari
9. U. Seeni Pandi
10. S. Annammal
11. G. Arumugam
12. A. Selvakumaran
13. A. Kannan
14. A. Natarajan
15. I. John Mariyaraj
16. P. Rajan
17. P. Ramesh
18. S. Sreedharan
19. P. Arunagiri
20. K. Ramar
21. M. Mohan
22. M. Palani
23. G. Ramadass
24. T. Sekar
25. K. Santhoshkumari .. Respondents/Respondents/ Petitioners Appeal filed under Clause 15 of Letters Patent against the Order dated 09.10.2015 passed in Review Application No. 276 of 2014 in WP No. 18183 of 2013.
Rev.Application No.276/2014: Review Petition filed under order XLVII Rule 1 read with section 114 of CPC to review the order dated 04.07.2013 passed in WP.No.18183 of 2013 and to set aside the same.
WP.No.18183 of 2013:Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus, directing the respondents to send the petitioners for short term training course of the concerned District Institute of Educational Training (DIET) with in a stipulated time may be fixed by this Honourable Court and regularize the services of the petitioners as full time vocational instructors in terms of G.O. (Ms) No.834 Education Department dt 23.9.1994 and G.O. (Ms) No.358 School Education Department dt 18.8.1997 with effect from initial date of appointment besides pay all the arrears within a short date that may be fixed by this Honourable Court with all consequential service benefits such as due placement in the seniority on the basis of length of service and all other
allowances attached to the posts.
For Appellants : Mr. K. Venkataramani Additional Advocate General assisted by Mr. R. Prathap Kumar Additional Government Pleader For Respondents :
Mr. L. Chandrakumar for Mr. M. Saravana Kumar for RR1 to 20 & RR22 to 24
JUDGMENT
(Judgment of the Court was delivered by Huluvadi G. Ramesh, J.) This intra-court appeal is directed against the Order dated 09.10.2015 passed by the learned single Judge of this Court refusing to review the Order dated 04.07.2013 passed in WP No. 18183 of 2013.
2.
The respondents 1 to 25 herein have filed WP No. 18183 of 2013 seeking for issuing a Writ of Mandamus directing the respondents/appellants herein to send them for short term training course to the concerned District Institute of Educational Training (DIET) within a time to be fixed by this Court and consequently to regularise their service as Full Time Vocational Instructors in terms of G.O. Ms. No.834, Education Department dated 23.09.1994 and G.O. Ms. No.358, School Education Department dated 18.08.1997 from the date of their initial appointment with all consequential service and monetary benefits including seniority on the basis of the length of service put in by them.
3.
According to the writ petitioners/respondents 1 to 25 herein, they were employed as Part Time Vocational Instructors in the Government or Aided Schools throughout the State on various dates having been appointed by the respective Parents Teachers Association of the concerned School. It is the case of the writ petitioners/ respondents 1 to 25 herein that they are in possession of requisite qualification for being appointed as Full Time Vocational Instructors, however, their services have not been regularised inspite of their repeated demands. In such circumstances, they have filed WP No. 18183 of 2013 before this Court for the relief aforesaid. In the writ petition, the writ petitioners/respondents 1 to 25 herein placed strong reliance on a letter dated 11.04.2011 of the Director of School Education, whereby he recommended that 52 persons, whose names were annexed therein, including some of the writ petitioners, can be sent for training through DIET so as to enable them to get their services regularised. However, the writ petitioners were not sent for
training on the basis of the letter dated 11.04.2011. Therefore, in the light of the said letter dated 11.04.2011, the writ petitioners/respondents 1 to 25 herein have the aforesaid writ petition.
4.
By order dated 04.07.2013, the learned single Judge noted that out of the 52 persons, who were recommended by the Director of School Education in the letter dated 11.04.2011, to be sent for training, two persons have approached this Court by filing WP Nos. 6821 and 6822 of 2011 seeking to implement the recommendation made by the Director of School Education in his letter dated 11.04.2011 by sending them for training through DIET. Those writ petitions were allowed by this Court on 31.03.2011 by issuing a direction to the respondents therein to depute the two writ petitioners in WP Nos. 6821 and 6822 of 2011 for training, as prayed for. The order dated 31.03.2011 passed in WP Nos. 6821 and 6822 of 2011 were also subsequently confirmed by the Division Bench of this Court in WA Nos. 158 and 159 of 2012 on 07.02.2012 filed by the department. Therefore, following the earlier order passed by this Court, the learned single Judge allowed WP No. 18183 of 2013 filed by the writ petitioners/respondents 1 to 25 herein on 04.07.2013. 5.
Thereafter, complaining non-compliance of the order dated 04.07.2013 passed in WP No. 18183 of 2013, the writ petitioners/respondents 1 to 25 have filed contempt petition No. 683 of 2015. On notice, the appellants herein have filed Review Application No. 276 of 2014 seeking to review the order dated 04.07.2013 in WP No. 18183 of 2013. The learned single Judge refused to review the order dated 04.07.2013 and dismissed the Review Application No. 276 of 2014 on 09.10.2015. It is this order dated 09.10.2015 passed in Review Application No. 276 of 2014, which is challenged in this writ appeal. 6.
The learned Additional Advocate General appearing for the appellants would vehemently contend that the writ petitioners/respondents 1 to 13 herein were employed as Vocational Instructors in a non-sanctioned post besides they are less qualified. It is further submitted that the appellants are not possessing the requisite qualification as prescribed by the Government in G.O. (Ms) No.6, School Education Department dated 04.01.2000 at the time of their initial appointment. The learned Additional Advocate General appearing for the appellants would further contend that the learned single Judge failed to consider the fact that the writ petitioners/respondents 1 to 25 herein cannot seek for regularisation as a matter of right and it is subject to fulfilment of qualification and availability of vacancy in a sanctioned post.
When the writ petitioners/respondents 1 to 25 did not possess the requisite qualification, they cannot be regularised in service and it will be contrary to G.O. Ms. No.35, School Education Department dated
09.02.2007. It is further contended that even though the learned single Judge, in the order dated 07.07.2013 in WP No. 18183 of 2013 directed the second appellant herein to pass orders on the proposal dated 11.04.2011 in the light of the orders passed by the Government in force, even before the said order, the first respondent passed an order in Government Letter No. 467/VE/2011-6, School Education Department dated 06.11.2012 rejecting the proposal dated 11.04.2011. While so, without challenging the order of rejection, the writ petitioners/respondents 1 to 25 have filed the writ petition and the same was entertained by the learned single Judge. The aforesaid facts have been brought to the notice of the learned single Judge by filing a Review Application No. 276 of 2014 in WP No.
18183 of 2013 but the same was dismissed by the learned single Judge by placing reliance on G.O. Ms. No.35, School Education Department dated 09.02.2007, which is not applicable to the case of the writ petitioners. The learned Additional Advocate General would therefore contend that the order dated 09.10.2015 made in Review Application No. 276 of 2014 is liable to be set aside by allowing this appeal.
7.
Per contra, the learned counsel appearing for the writ petitioners/ respondents 1 to 25 herein would contend that the learned single Judge had rendered a specific finding that the writ petitioners joined the service before 20.09.1996 and therefore, they are entitled to be regularised as per G.O. Ms. No.35, School Education Department dated 09.02.2007. Even otherwise, the writ petitioners only sought for deputing them for training which is one of the conditions precedent for getting their services regularised. The learned single Judge, in the order dated 09.10.2015 passed in Review Application No. 276 of 2014, had also tabulated the date of joining of the writ petitioners/respondents 1 to 25 and it would indicate that the most of the petitioners have joined duty as Part Time Vocational Instructors between 1991 and 2004.
The learned counsel for the writ petitioners/respondents 1 to 25 also placed reliance on the Judgment dated 26.04.2017 passed by the Division Bench of this Court in WA (MD) No. 1233 of 2013 wherein the very same issue was dealt with by the Division Bench and concluded that the respondents therein are entitled to be deputed to the training through DIET so as to enable them to get their service regularised. Even though it was contended that the respondents therein filed the writ petition belatedly, a specific finding was rendered that such delay cannot be taken into account to deprive their right.
When similar orders were passed by this Court in favour of identically placed persons like the writ petitioners/respondents 1 to 25 herein, the benefit of such order has to be equally extended to the writ petitioners/respondents herein and they cannot be denied it for any reason.
appeal.
8.
We have heard the counsel for both sides and perused the materials placed on record. It is the vehement contention of the appellants that the writ petitioners do not possess the requisite qualification for being considered for regularisation of their service. It is noticed from the order passed by the Government in G.O. Ms. No.358, School Education Department dated 18.08.1997 that the Government has directed to impart a short term training for those who do not possess the requisite qualification or those who are not qualified and thereafter to regularise them. On the basis of the aforesaid order passed by the Government, large number of unqualified Vocational Instructors were sent for training and thereafter they were regularised in service. When an order was passed by the Government conferring certain concession to similarly placed persons, it has to be extended to all those who are entitled to such concession.
9.
The learned Additional Advocate General would next contend that the writ petitioners were initially appointed on various dates from 1991 to 2004 and they have approached this Court belatedly and therefore on the ground of delay and laches, the learned single Judge ought to have dismissed the writ petition. We are not inclined to accept such submission of the learned Additional Advocate General appearing for the appellants. In fact, the very same submission was made on behalf of the appellants herein before the Division Bench of this Court and it was rejected by Judgment dated 26.04.2017 passed in WA (MD) No. 1233 of 2013 holding that even though there was delay in approaching this Court, such delay cannot be given much significance to deprive the valuable right of the respondents therein.
The relevant portion of the Judgment is extracted below:- "5. Heard Mr. S. Sampathkumar, learned Special Government Pleader (Education) for the petitioners and Mr. V. Bharathidasan, learned counsel taking notice on behalf of the respondents. In our opinion, of course, the Court should extend the benefit to the persons who are vigilant and approach the Court on time, for such reliefs. But the fact remains that a large number of Vocational Instructors were appointed and when the question of regularisation came up for consideration before the Government earlier, the Government, as a one time measure, regularised all those who possessed the minimum educational qualification.
that those persons should undergo a short term training. This Government Order is applicable to all those who are working as Vocational Instructors without qualification. In all fairness, when a list was forwarded for training, the respondents' name should have also been sponsored. But, for some reason or the other, the names of the respondents have not been sponsored for training. But the delay cannot be given that much importance, thereby affecting the right of the respondents. So long as the Government Order grants certain benefits to unqualified Vocational Instructors, we find no infirmity in the order passed by the learned single Judge applying the said Government Order after rejecting the stand of the Government that the respondents had not approached the Court on an earlier point of time. Hence, we find no merit to entertain these appeals. Accordingly, the writ appeals are dismissed. No costs. Connected Miscellaneous Petitions are closed.
6.
The Special Leave Petitions filed by the Government as against the said Judgment in S.L.P. (Civil) Nos. 11338 and 11339 of 2014 has been dismissed on 01.08.2014.
Subsequently, the Government Order has been passed in G.O. (2D) No. 50, School Education Department dated 27.08.2014, implementing the Judgment.
7.
Thus, we find that the Division Bench of this Court in the earlier case, has dealt with the same issue and we are in entire agreement with the reasons assigned by the Division Bench of this Court in the said judgment and therefore, there are no merits in this appeal and following the earlier judgments, this Writ Appeal has to be necessarily dismissed.
Accordingly, this writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed."
10. In the aforesaid Judgment passed by the Division Bench of this Court, reference was also made to S.L.P. (Civil) Nos. 11338 and 11339 of 2014 filed by the appellants herein as against similar order passed by this Court and it was dismissed on 01.08.2014. Subsequently, the Government also passed an order in G.O. (2D) No. 50, School Education Department dated 27.08.2014, implementing the Judgment of the Honourable Apex Court. While so, we see no reason to take a different view and to allow the instant Writ Appeal filed by the appellants.
11. In the light of the above, we confirm the Order dated 09.10.2015 passed in Review Application No. 276 of 2014 in WP No. 18183 of 2013. The Writ Appeal is dismissed. However, there shall be no order as to costs. Consequently, CMP No. 18261 of 2016 is closed.
Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar +1 cc to the Govt Pleader sr 77187 +2 ccs to Mr.M.Saravanakumar Advocate sr 76971 WA No. 1463 of 2016 ssd(co) aa09/01/2018