State Of Tamil Nadu And Others vs P.Periyasamy And Others

Paresh Upadhyay, J

Challenge in this appeal is made to the order dated 06.12.2006 recorded on W.P.No.34761 of 2005. This appeal is by the respondents in the writ petition – State Authorities.

Mr.R.Raman Lal, learned Additional Advocate General for the appellants has vehemently submitted that, the relief granted by learned single Judge was against the policy of the State, without there being any challenge to the Government Order relevant for that purpose and it would lead to financial burden. Learned Additional Advocate General for the appellants has also, extensively taken this Court through different Government Orders, so also the orders of this Court, including Government letter dated 20.11.2008, those referred in the order of learned single Judge so also the order of the Division Bench of this Court dated 21.06.2018 recorded on Review Application No.168 of 2018 in W.A. No.1391 of 2014. It is submitted that, the grant of relief to the writ petitioners was against the policy of the State and whether the consequential benefits from retrospective regularisation, including arrears of pay should have been granted or not was well within the discretion of the State and this Court ought not to have exercised that discretion. It is submitted that this appeal be entertained.

Having heard learned Additional Advocate General for the State and having considered the material on record this Court finds as under:-

3.1 The order under challenge is dated 06.12.2006. The matter is being examined as fresh writ appeal by this Court today. We find that, after these many years, that too when one of the writ petitioners is indicated to have died, it would not be just and proper to interfere in the order of learned single Judge. This appeal therefore needs to be dismissed firstly on that count.

3.2 Having noted above, we further find that, even on merits, no interference is required in the order of learned single Judge.

3.3 So far the reliance on the decision of the Division Bench of this Court dated 21.06.2018 recorded on Review Application No.168 of 2018 in W.A. No.1391 of 2014 is concerned, we find that, the sustainability of the order passed by learned single Judge in the year 2006 can not be tested on the basis of some view expressed by the Division Bench after about a decade.

3.4 We further find that, while allowing the writ petition, learned single Judge has also taken into consideration the fact that, persons similarly situated to the writ petitioners were already granted relief and the same relief was directed to be extended to these writ petitioners on regularisation of their service from the date of initial appointment.

3.5 Though learned Additional Advocate General has submitted that, whether arrears should be paid to the writ petitioners or not was within the discretion of the State, we find that, without questioning the powers of the State to exercise discretion in one way or another, when this Court exercised discretionary powers under Article 226 of the Constitution of India has found that, refusal to exercise discretion by the State, in the facts of the case, was arbitrary and discriminatory, that error can not be said to be an error apparent on face of record, which may call for any interference under Clause 15 of Letters Patent. The appeal therefore needs to be dismissed on that count also.

3.6 There is one more factor against the State. This appeal was initially filed in the year 2008 with less satisfactory explanation for delay. The Division Bench of this Court therefore dismissed the writ appeal at S.R. stage. Since the delay was not condoned, it was challenged before the Supreme Court and the Honourable Supreme Court, as back as on 13.09.2010 allowed the S.L.P. recording that the delay ought to have been condoned in the matter and the appeal is required to be heard on merits. It is that order of the Supreme Court on 13.09.2010, which is never attempted to be implemented by the State by getting the appeal, which was filed in the year 2008, circulated. It is at this stage, this appeal is heard by this Court and we find that, on merits, so also the time which has elapsed by this time, any interference in the order of learned single Judge, which we even otherwise found to be just and proper, would only result in miscarriage of justice and therefore the same need not be done.

For the above reasons, the writ appeal is dismissed. No costs. Connected miscellaneous petition would not survive.