V.Thirunavukarasu Vs. the Secretary to Government - Court Judgment

Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of mandamus, directing the respondents to regularise the services of the petitioner in the post of lecturer with effect from his initial date of appointment as Contract Lecturer in the Department with all monetary and other consequential service benefits.

O R D E R

1. The petitioner is working as a Lecturer in the Government College of Engineering coming under the control of the second respondent Director of Technical Education. In this writ petition, the petitioner seeks for a direction to the respondents to regularise his service in the post of Lecturer from the date of his initial appointment as contract Lecturer in the department with all monetary benefits.

2. It is the case of the petitioner that he joined as Lecturer on 22.08.1989 and subsequently promoted as Senior Lecturer. However, the petitioner was on contract basis. Hence, the petitioner and 70 other teachers moved the Government for necessary relaxation for being appointed on regular basis. The State Government after consulting the Teachers Recruitment Board issued a Government Order in G.O.Ms.No.232 Higher Education Department dated 02.05.1997. By the aforesaid GO, all the 71 teachers including the petitioner were given necessary relaxation from the upper age limit and in case of some teachers, educational qualification was also relaxed. However, in paragraph 3 of the said GO, it was clearly stated that the names of persons who are found in the Annexure and who are appointed on contract basis will be brought on regular establishment in Government service from the date of issuance of the GO viz.,02.05.1997. Pursuant to the same, the petitioner was working as a regular Lecturer. The said GO was not subject matter of challenge. Therefore, one will have to presume the petitioner was satisfied with the said GO. However, the petitioner subsequent to the regularisation has come forward with the present writ petition with the prayer set out above.

3. According to the petitioner, one M.Dhanasekaran and 10 others moved the Tribunal with O.A.No.925 of 2003 and that OA was allowed by the Tribunal on 06.08.2003. The Tribunal held that regularisation will have to take effect from the date of initial appointment and for this purpose reliance was placed on the judgment of the Supreme Court in Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra reported in AIR 1990 SC 1607. Pursuant to the order passed by the Tribunal, the State Government has issued a consequential Government Order. But as per the counter affidavit, regularisation was done without grant of benefit of any revision of pay arrears or monetary benefits.

4. By G.O.Ms.No.413 Higher Education Department, dated 18.09.2000 orders have been passed for implementing the Career Advancement Scheme, but it was held that the period of contract appointment cannot be taken into account and the service will be considered from the date of regularisation. However, it it unnecessary to go into the larger issue since the petitioner was a beneficiary of the Government Order in G.O.Ms.No.232 Higher Education Department dated 02.05.1997 which clearly stipulates that the order of regularisation will take effect only from the date of order and that order is not subject matter of challenge before any forum.

5. The learned counsel for the petitioner however placed reliance on another Government Order issued in respect of three individuals M/s.K.Muthukumarasamy, T.R.Margabandhusamy and P.Thilagavathy, wherein the State Government had implemented the order in O.A.No.5165 of 1992 dated 27.05.1997 granting regularisation from the date of entry into service with all monetary benefits.

6. In this Context, it is necessary to refer to the judgment of the Supreme Court reported in 2006 (11) SCC 709 [Col.B.J.Akkara (Retd.) vs. Government of India and others], wherein, the Supreme Court has held that merely because the State has implemented the order in one case pursuant to the compulsion of the Court's order, that by itself will not give any cause of action to other persons to move this Court unless the person set outs his own right to claim similar benefits. It is therefore necessary to extract para 26 of the judgment, which reads as follows:  A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realised, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick-and-choose' method only to exclude petitioners on account of mala fides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The administrative law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29-10-1999 (corresponding to the Defence Ministry circular dated 11-9-2001) has been upheld and that decision has attained finality will not come in the way of the State defending or enforcing its circular dated 11-9-2001.

7. In fact even in this writ petition, the petitioner heavily relies on the judgment of the Supreme in Direct Recruit Class II Engineering Officers' Assn. Case (cited supra) relied on by the Tribunal in some other OA. But the observation made by the Supreme Court was torn out of context and the Tribunal missed out the real direction issued by the Supreme Court as found in paragraph 44A which reads as follows:- 44. To sum up, we hold that:

(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. As can be seen from the above passage, unless the recruitment is done according to the Rules, counting seniority from the date of initial appointment will not arise.

8. In the light of the above, no case is made out. Accordingly, the writ petition stands dismissed. No costs.