The Director, Backward Class Welfare Department & Anr. vs S. Jegan Mohini

(Order of the Court was made by the Hon'ble S.Srimathy J.)

Both the review applications are filed against the common judgment hence both the review applications are taken together and common order is passed.

The writ petitions were filed for issuance of Writ of Certiorarified Mandamus, to quash the impugned orders, dated 10.04.2014 and 02.09.2014 passed by the 2^nd respondent and consequently, to direct the respondents to regularize the service of the petitioners in the post of Cook with effect from 25.09.1998 on par with similarly appointed persons with all monetary benefits within the time stipulated thereunder. After considering the rival claims, the Writ Court has held that it is clear discrimination and allowed the writ petitions. The Writ Court directed to regularize the writ petitioners in the post of Cook with effect from 25.09.1998 on par with the similarly appointed persons with all consequential monetary benefits.

Aggrieved over the same, the government preferred writ appeals. In the writ appeal the Court had held that when the Government has taken a policy decision to regularize the service of the cooks in Backward Class Welfare Department, then all persons ought to have been granted regularization from the same date and the benefits ought to have been disbursed from the same date. At least, if not for the monetary benefits, their service benefits ought to have been granted. When all the persons were appointed on the same, there cannot be any discriminatory in regularization. If regularization granted on different dates and if it affects the benefits especially the pension benefits, the same would be against Article 14. Generally, as and when the permanent vacancy arises the government employee is entitled to regularization in the said vacancy and the benefits would accrue from the date of joining the said post. In the present case due to establishment of new hostel for boys, the persons in the seniority list maintained for the male cooks were granted regularization along with monetary benefits, thereby the government had created posts. But there cannot be any discrimination in granting regularization for female cooks, either the Government ought to have created new posts or constructed new hostels for girls so that female cooks would have been granted regularization on the same date along with male cooks. And such creation of new posts and construction of new hostels may not be possible or feasible due to various reasons. In such circumstances, if the writ petitioners were granted notional regularization in any other vacant posts (if not cook posts) for the service benefits alone, the same would meet the ends of justice.

Infact, the Division Bench modified the impugned orders to an extent that the writ petitioners are entitled to service benefits including pensionary benefits from 25.09.1998 and directed to carry out the notional fixation and the writ petitioners may be granted all the terminal benefits including pensionary benefits. Also, it was made clear that the writ petitioners are not entitled to salary for the said period and they are entitled to only service benefits along with pensionary benefits. Further granted interest of 6% if the amount was not paid within a period of four months and the interest would accrue only from the date of delay alone.

Against the said judgment the present review applications are preferred by the government raising various grounds.

In the meanwhile, the writ petitioner S.Jegan Mohini has preferred a contempt petition alleging disobedience of the judgment made in W.A.(MD)No.1121 of 2023 dated 05.03.2025.

After hearing the rival submissions, this Court has given its anxious consideration. The contention of the review applicants is that the respondents herein were appointed as a Female Cook Helper on 22.09.1997 on consolidated pay of Rs. 100/- pm along with certain Male Cook Helpers, namely, Mr. Arumugam, Mr. Muthuramalingam, and Mr. K. Muthiah, under proceedings No. Na.Ka.Y1/27941/97. Subsequently, vacancies arose only in the Kombukaranenthal and Maravamangalam Boys Hostels, on account of the creation of new hostels and those vacancies were filled by the male cook helpers Mr.Arumugam and Mr.Muthiah and their services were regularized from 25.09.1998 and 03.03.2000 respectively. Likewise, upon the death of Mr. Asirvatham, who was working as a cook helper in the Puduvayal Government Men's Hostel, the resultant vacancy was also filled by a male cook helper, namely, Mr.Muthuramalingam. The respondents were originally appointed as Cook Helpers on consolidated pay which is not a sanctioned post. Hence whenever vacancy arose in the boys’ hostel the male cooks were regularized and subsequently whenever vacancy arose in girls’ hostel, the female cooks were regularized. But the writ petitioners are seeking regularization in the higher post of Cook from the date of initial appointment, which cannot be granted automatically or as a matter of right and it depends upon the vacancy and seniority list. Infact the male cooks were also granted regularization on various dates i.e. Mr.Arumugam was regularized on 25.09.1998 he being the first person in the seniority list and Mr.Muthiah was regularized on 03.03.2000 he being next in the seniority list, from which it is evident that regularization was granted whenever vacancy arose and filled from the seniority list. The review applicants relied on the judgment rendered by the Hon'ble Supreme Court in Secretary, State of Karnataka v. Umadevi ((2006) 4 SCC 1] wherein it is held that regularization must be strictly vacancy-based.

The general principle is regularization ought to be granted based on vacancy and from seniority list. But when it gives raise to discrimination and disparity then the persons affected ought to granted regularization on par with others. In the present case the male cooks were granted regularization since vacancy was available that too by creating the vacant posts by construction of boys’ hostel. But the female cooks were not granted regularization since the government has not constructed any girls hostel during that time. Infact the government had created vacancy to the male cooks by constructing hostel, which cannot be held against the female cooks. Further it is seen the male cooks were granted regularization prior to Contributory Pension Scheme (in short CPS), hence they were entitled to pension, but the female cooks were granted regularization after CPS scheme thereby depriving pension to them, hence there is clear discrimination and disparity. In order to curb the discrimination and disparity, the female cooks are entitled to notional regularization atleast for the service benefits. Therefore, the vacancy concept would not arise in the present case.

However, it is seen this Court had directed the government to grant regularization from the date of initial appointment but even the similarly placed male cooks were not granted regularization from their initial appointment. Therefore, this Court in inclined to consider the said issue of “date of regularization”.

Hence, now the question arises from which date onwards the female cooks can be granted regularization. It is seen that the female cooks / respondents were granted regularization in the year 2007 based on the vacancy and seniority list. Now the disparity arises since the female cooks were regularized after 01.04.2003, they are not entitled to pension. But the male cooks were regularized before 01.04.2003 and they are entitled to pension. In order to resolve the disparity, then the date of regularization ought to be prior to 01.04.2003. Even though the general principle is regularization ought to be granted based on vacancy, but when it gives raise to disparity, then notional regularization ought to be granted so that the disparity can be curbed. Therefore, the date of notional regularization ought to be prior to 01.04.2003 and the same may be on 01.03.2003.

The next contention of the review applicant is that all cooks are not forming a single class but there are two distinct classes i.e. male cooks and female cooks. Article 14 prohibits discrimination, but it is equally settled that un-equals cannot be treated as equals. The writ petitioners (female cooks) and the similarly placed persons (male cooks) stand on different footing due to class distinction and separate vacancy positions. This Court is of the considered opinion that the male cooks and female cooks were appointed from the class of “cook assistant” and they form a single class under the head of “cook assistant” entitled to regularization. Hence, there cannot be discrimination while regularizing their services. Therefore, the plea of two different class is erroneous and the same is rejected.

The next contention of the review applicant is that by granting notional regularization from 1998, the respondents have been brought under the Old Pension Scheme, though their actual regularization took place only in 2007 and 2010, i.e., after the introduction of the Contributory Pension Scheme (01.04.2003) which has created unintended retrospective liability on the State. In Government of Tamil Nadu v. A. Singamuthu (2017) 4 SCC 113), it was held that retrospective conferment of pensionary rights absent sanctioned posts would impose an impermissible burden. This Court is of the considered opinion in order to curb the above disparity this Court had granted notional regularization and the date is also fixed as 01.03.2003 instead of 25.09.1998. Moreover, this Court has not granted salary for the said period but has granted only notional fixation of service benefits and to pay pensionary benefits, therefore the plea of financial burden may not be correct, since the government’s interest is also protected.

For the reasons stated supra, this Court is modifying the writ appeal judgment to the extent that the writ petitioners are entitled to service benefits including pensionary benefits from 01.03.2003 onwards instead of 25.09.1998. The said notional fixation shall be carried out and the writ petitioners shall be granted all the terminal benefits including pensionary benefits. However, it is made clear that the writ petitioners are not entitled to salary for the said period and they are entitled to only service benefits. The pensionary benefits shall be paid within a period of eight weeks from the date of receipt of a copy of this judgment. As far as interest of 6% is concerned, in the writ appeal order this Court directed to pay within a period of four months and interest would carry from the date of delay and the date of delay is 06.07.2025, hence the review applicants shall pay interest at 6% from 06.07.2025 onwards till the date of disbursement.

With the above said observations, the review applications are partly allowed. The contempt petition is closed. The review applicants are directed to comply with this order within a period of eight weeks from the date of receipt of a copy of this order. If not complied with, the writ petitioners are at liberty to reopen the contempt petition. No costs. Consequently, connected miscellaneous petitions are closed.