D.Kamaraj v. The Union Of India
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Date : 12/06/2024
CORAM
THE HON'BLE MS. JUSTICE R.N.MANJULA
1. D.Kamaraj,
2. S.Jayakumar,
3. B.Karpagam,
4. K.Dhanamani,
5. V.Narayanan Alies Narayanan,
6. N.Ramanathan, ... Petitioners Vs
1. The Union of India, Rep by its Secretary to Government, Environment, Forest and Climate Change Department, Indira Paryavaran Bhawan, Jor Bag,New Delhi..
2. The Union of India, Rep by its Secretary to Government, Department of Pension and Pensioners Welfare, Lok Nayak Bhavan Khan Market,New Delhi..
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3. The State of Tamilnadu, Rep by its Additional Chief Secretary to Government, Environment, Forest and Climate Change Department, Fort. St. George, Chennai, Tamilnadu State.
4. The Principal Chief Conserve, Tor of Forest and Head of Forests, Velachery Main Road, Guindy, Chennai, Tamilnadu State 600 032..
... Respondents PRAYER :-Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondents to regularize our service by relaxing the rules as Plot Watcher from the date of initial appointment on the basis of the similar and Junior persons seniority in the light of the order made in G.O.(2D) No.91 Environment, Climate Change and Forest (FR.2(ii)) Department, dated 30.06.2022, G.O.(2D) No.126 and 127, Environment, Climate Change and Forest (FR.2(ii)) Department, 03.06.2023 and in the light of Hon'ble Supreme Court Judgment delivered in C.A.No.6798 of 2019 dated 02.09.2019 and order in W.P.No.19023 of 2021 dated 09.09.2021 confer all consequential pensionary benefits by way of considering their joint representation to the respondents within a time frame fixed by this Court.
For Petitioners : M/s. I.Kannapatel, For Respondents : Mr.M.Lingadurai for R3 and R4 Addl. Government Pleader 2/10
ORDER
By consent the writ petition itself is taken up for final disposal.
2. Heard Mr.I.Kannapatel, learned counsel for the petitioners, Mr.K.Govindarajan Central Government Standing counsel for R1 and R2 and the learned Special Government Pleader for the respondents.
3. The petitioners have filed this writ petition for a mandamus directing the respondents to regularize their services by relaxing the Rules as Plot Watcher from the date of initial appointment on the basis of the seniority in the light of the order made in G.O.(2D) No.91 Environment, Climate Change and Forest (FR.2(ii)) Department, dated 30.06.2022, G.O.(2D) No.126 and 127, Environment, Climate Change and Forest (FR.2(ii)) Department, 03.06.2023 and in the light of Hon'ble Supreme Court Judgment delivered in C.A.No.6798 of 2019 dated 02.09.2019 and order in W.P.No.19023 of 2021 dated 09.09.2021 and confer all consequential pensionary benefits by way of considering their joint representations.
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4. The petitioners, who were appointed as Plot Watchers as per the following table showing their date of appointments: Sl.No.
Name SWS No.
Date from which working D.Kaaraj 01.01.1991 S.Jayakumar 03.04.1986 B.Karpagam 01.04.1988 K.Dhanamani 01.02.1991 V.Narayanan @ Narayanan kutty 01.05.1991 N.Ramanathan 01.01.1991 G.O.Ms.No.64 Environment and Forest Department dated 08.03.1999, has been issued to regularize the services of plot watchers. It is their case that they are among the persons, who were regularised as per the aforesaid G.O. However, they were not regularised and hence, they are before this Court.
5. When similarly placed persons have filed writ petitions in WP(MD) No.19023/2021 seeking similar relief, for whom, this Court has issued the following directions to consider their representations: "3. At the time of appointment of the petitioners, there were no discriminations for the persons like the petitioners to be promoted 4/10
as Forest Watchers. It was sufficient that if they have able to read and write in the vernacular language. However, this was altered by a Government Order in G.O.Ms.No.332, Environment and Forest Department dated 22.12.1994. The aforesaid Government Order was superseded by G.O.Ms.No.64, Environment and Forest Department dated 08.03.1999 and the position which stood prior to issue G.O.Ms.No.332, Environment and Forest Department dated 22.12.1994 was reverted. It is in this background, the petitioners services were regularized as Plot Watchers in the year 2009 with the issuance of Government Order in G.O.Ms.No.95, Environment and Forest Department dated 07.08.2009.
4. In this writ petition, the petitioners are seeking for a Mandamus, to direct the respondents to regularize their services from the date of initial appointment as Plot Watchers on the basis of daily wages for the purpose of getting pension in the light of the decision of the Hon'ble Supreme Court in Prem Singh Vs State of Uttar Pradesh and others, passed in C.A.No.6798 of 2019 dated 02.09.2019.
5. The learned counsel for the petitioners has drawn attention to Paragraphs 35 and 36 of the aforesaid decision, which reads as under:- "35. There are some of the employees who have not been regularized in spite of having rendered the services for 30-40 or more years whereas they 5/10
have been superannuated. As they have worked in the work-charged establishment, not against any particular project, their services ought to have been regularized under the Government instructions and even as per the decision of this Court in Secretary, State of Karnataka & Ors. v. Uma Devi 2006 (4) SCC 1. This Court in the said decision has laid down that in case services have been rendered for more than ten years without the cover of the Court's order, as one time measure, the services be regularized of such employees. In the facts of the case, those employees who have worked for ten years or more should have been regularized. It would not be proper to regulate them for consideration of regularisation as others have been regularised, we direct that their services be treated as a regular one.
However, it is made clear that they shall not be entitled to claiming any dues of difference in wages had they been continued in service regularly before attaining the age of superannuation. They shall be entitled to receive the pension as if they have retired from the regular establishment and the services rendered by them right from the day they entered the work-charged establishment shall be counted as qualifying service for purpose of pension.
36. In view of reading down Rule 3(8) of the U.P. Retirement Benefits Rules, 1961, we hold that services rendered in the work-charged establishment shall be treated as qualifying service under the aforesaid rule for grant of pension. The arrears of pension shall be confined to three years only before the date of the order. Let the admissible benefits be paid accordingly within three months. Resultantly, the appeals filed by the employees are allowed and filed by the State are dismissed."
6. The Hon'ble Supreme Court there was concerned Rule 3(8) of the Uttar Pradesh Retirement Benefit Rules, 1961, which reads as under:- "Rule 3. In these rules, unless is anything repugnant in the subject or context-
(1) ........
(2) ........
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(8) "Qualifying service" means service which qualifies for pension in accordance with the provisions of Article 368 of the Civil Service Regulations. Provided that continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruption by confirmation in the same or any other post except- (i) periods of temporary or officiating service in a nonpensionable establishment.
(ii) periods of service in a work-charged establishment and (iii) periods of service in a post paid from contingencies shall also count as qualifying service. Note:- If service rendered in a non-pensionable establishment work-charged establishment or in a post paid from contingencies falls between two periods of temporary service in a pensionable establishment or between a period of temporary service and permanent service in a pensionable establishment, it will not constitute an interruption of service."
7. The learned counsel for the petitioners submits that a similar provision in G.O.Ms.No.131, Personnel and Administrative Reforms (F) Department dated 28.11.2020 has been issued. In this connection, the learned counsel for the petitioners has referred to Paragraphs 4 to 6 of the aforesaid Government Order which reads as under:- "4. In the above said "Umadevi case", among other things, the Constitution Bench of the Supreme Court of India, emphasized that if rules have been made under Article-309 of the Constitution, then the Government can make appointments only in accordance with the rules. If sanctioned posts are vacant, the State will take immediate steps for filling those posts, by a regular process of selection.
daily wages are being now employed. If sanctioned posts are vacant, the State will take immediate steps for filling those posts, by a regular process of selection. There should be no further bypassing of the Constitutional requirement, regularizing or making permanent, those not duly appointed as per the Constitutional scheme.
5. In view of the above, it is hereby reiterated that in case of posts governed by Rules, in all the Services, including Tamil Nadu Basic Service, appointment shall be made only with reference to the existing rules. While selecting candidates for appointment, the claim of the contesting candidates shall be weighed with reference to the rules, in force, as emphasized in the "Umadevi Case" [State of Karnataka Vs. Umadevi (2006)4 SCC 1].
6. All the appointing authorities should adhere to the above instructions scrupulously, failing which, it will be viewed seriously and necessary disciplinary action will be initiated as per rules, against the persons responsible for the said lapses. All Heads of Departments are directed to ensure that the above said instructions are followed, without fail."
8. If the above view of the Hon'ble Supreme Court in State of Karnataka Vs. Umadevi (2006)4 SCC 1 has been followed by the Government of Tamil Nadu in G.O.Ms.No.131, Personnel and Administrative Reforms (F) Department dated 28.11.2020, the petitioners services was to be regularized at the expiry of ten years on the date of which they were originally appointed.
9. Considering the fact that they were appointed ten years earlier, they are also entitled to pension and the other attendant benefits. Further, Government Order in G.O.Ms.No.131, Personnel and Administrative Reforms (F) Department dated 28.11.2020 is binding on the respondents. Merely because the petitioners have 8/10
attained the age of superannuation prior to the aforesaid date would not mean that the petitioners should not be given the benefit for the services rendered by them with the respondents Forest Department. Under these circumstances, this Writ Petition deserves to be allowed and is accordingly allowed. No costs. Consequently, connected Writ Miscellaneous Petition is closed."
6. Following the aforesaid decision of this Court dated 09.09.2021, since the petitioners herein are similarly placed as that of the petitioners in WP(MD) No.19023/2021, this writ petition is allowed in the above lines. No costs.
14.06.2024 RR TO
1. The Secretary to Government, Environment, Forest and Climate Change Department, Indira Paryavaran Bhawan, Jor Bag,New Delhi..
2. The Principal Chief Conserve, Tor of Forest and Head of Forests, Velachery Main Road, Guindy, Chennai, Tamilnadu State 600 032..
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R.N.MANJULA,J RR
ORDER
IN WP(MD) No.12258 of 2024 Date : 12/06/2024 10/10