S. Chandra vs State of Tamil Nadu

K. Chandru, J.—Heard both sides.

This writ petition arose out of O.A. No. 5054 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this Court and was renumbered as W.P. No. 37247 of 2006.

The petitioner, who was a Female Escort Warden working in the Sub Jail and Borstal School at Pudukkottai, filed OA No. 5054 of 1998, seeking to challenge the order, dated 26.1.1998 passed by the third respondent the Superintendent of Prisons, Pudukkottai.

By the impugned order, the petitioner was informed that the petitioner''s request for regularizing her service, was rejected by the State Government vide G.O.(1D)897, Home (Prison 2) Department, dated 19.12.1997. The said G.O. was communicated by the I.G. of Prisons vide letter, dated 26.12.1997. In the said letter, it was stated that the petitioner''s appointment was purely temporary and there were as many as 177 Female Escort Wardens available in the department whose demand for regularization were also under consideration. The petitioner did not have the educational qualifications and also had crossed the age limit for holding the post. Once the case of the petitioner was considered, this will also give rise to simultaneous demands from the other Female Escort Wardens. Therefore, the petitioner''s claim for regularizing her service from the date of her initial appointment cannot be considered.

The petitioner earlier filed OA No. 1899 of 1997 before the Tribunal, seeking for a direction to regularize her service from the date of her initial appointment, i.e. 24.1.1978. The Tribunal by its final order, dated 30.10.1997, disposed of the OA and directed the respondents to consider the claim of the petitioner for appointment to the post of Escort Female Warden on regular basis and to sanction all monetary benefits. This claim was negatived by the impugned order for the reasons already set out.

Though the petitioner claimed that one person by name Tmt. Selvarathinam, Female Escort Warden, moved the Tribunal with OA Nos. 3600 of 1992 and 720 of 1995 and got the Government Order in G.O.Ms. No. 1514, Home (Prison II) Department, dated 10.10.1995 and the said person was appointed as a Second Grade Warder, she was appointed as Grade I Warder with effect from 12.2.97. The said order of the Tribunal came to be issued not based on any legal consideration, but by Ipsi dixit of the Tribunal. However, in the case of the petitioner, the G.O. issued by the Government, i.e. G.O.(1D) No. 897, Home (Prison II) Department, dated 19.12.1997, it was ordered as follows:

The applicant does not possess the required educational qualification and age. The question of regularisation of temporary services of all the Female Escort Warders including the applicant is under consideration of the Government. If the services of the applicant alone is regularised now, it will create problems in fixing the seniority of the other Female Escort Warder as and when such regularisation are done in Public interest to single out one person alone for regularisation. The Government after careful consideration have decided that there is no justification to accept the request of the applicant and direct that the claim of the applicant be rejected.

During the pendency of the case before the Tribunal, the petitioner did not have the benefit of any interim order. But, the counsel for the petitioner had filed an additional typed set, dated 29.9.2009, in which he had enclosed a letter, dated 11.9.2003 sent by the second respondent office and an another order, dated 13.2.2004 issued by the DIG, Trichy Region, showing that he had forwarded the application of the petitioner along with another Female Escort Warden Malleeswari for considering their representations. The petitioner had also further sent a representation asking for an appointment as Female Warden Grade II.

During the course of the hearing, it was brought to the notice of the court that the petitioner had filed an another writ petition being W.P. No. 33519 of 2005 before this Court for an identical relief. But, however, it is now brought to the notice of the court that the said writ petition was disposed of by this Court on 20.10.2005. The petitioner''s counsel was not able to state the nature of the order passed in that writ petition. He was also not able to state as to what was the relief claimed. In any event, this Court is not inclined to grant the relief prayed for by the petitioner.

The learned Counsel for the petitioner placed reliance upon the judgment of this Court in V. Lingam v. State of Tamil Nadu and Ors. reported in 2009 W L.R. 43, wherein a direction was given in favour of one watchman to regularize his service with all monetary benefits. The entire case therein proceeded on peculiar facts of that case and nothing turns upon that case which will help the case of the petitioner herein.

The learned Counsel further placed reliance upon the judgment of the Supreme Court in U.P. State Electricity Board v. Pooran Chandra Pandey and Ors. reported in 2007 (7) Supreme 374. In that judgment, the judgment of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, was distinguished. It was stated that the judgment of Uma Devi''s case will not apply in a case where regularization has been sought on a right based on Article 14 of the Constitution.

The learned Counsel further placed reliance upon the judgment of the Supreme Court in State of H.P. and Ors. v. Gehar Singh reported in 2008 (2) SCC(L&S) 463, wherein in paragraph 18, the Supreme Court had observed as follows:

The aforesaid case made out by the State of Himachal Pradesh before the High Court was a clear departure from the directions given in Mool Raj Upadhyaya case. The respondents had only claimed the benefit of the Betterment Scheme which was placed before this Court in Mool Raj Upadhyaya case and had prayed for work-charged status from 1.1.2000, before the tribunal whereas the change in policy was brought about on 6.5.2000. It is on that basis that the Tribunal directed that the respondents be given work-charged status with effect from 1.1.2000.

Therefore, this case cannot be the authority for the case projected by the petitioner. In that case, there was a scheme framed by the State and as the scheme framed by the State was rendered before Uma Devi''s case, the case was distinguished.

The learned Counsel further relied on the judgment of the Punjab and Haryana High Court in Hassan Mohd and Ors. v. State of Haryana and Ors. reported in 2004 (2) LLN 1163. In that case, it was directed that it is for the State to formulate a rational policy meeting standards of fairness and it should be left to the executive to decide what was fair. After holding so, a direction was issued to the State to frame a policy to consider regularization of the employees who were working for more than five years.

In the present case, the Tribunal earlier directed the respondents only to consider the case of the petitioner and that has been done by the State. It was also stated that the petitioner did not have the educational qualifications for holding any higher post. In any event, in the reply affidavit, it was stated that the Government is considering framing of policy and therefore, there is no question of giving further direction to the respondents in this regard as set out in the last decision cited by the petitioner.

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