W.P.No.42426 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
W.P.No.42426 of 2016
and
W.M.P.No.36307 of 2016
1.K.Lakshmanan
2.K.Srinivasan
3.K.Sambath
4.D.Soundarrajan
5.S.Saravanan
6.M.Sundaramoorthy
7.S.Sambath
8.M.Rajendran
9.V.Karikalan
10.V.Baskaran
11.D.Sudhakar
12.C.Yesurathinam ... Petitioners
Vs.
1.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
School Education Department,
Secretariat,
Chennai – 9.
2.The Director of School Education,
DPI Campus, College Road,
Chennai – 6.
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W.P.No.42426 of 2016
3.The Chief Educational Officer,
Vellore District,
Vellore.
4.The District Educational Officer,
Thiruppathur,
Vellore District. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the records
connected in Letter No.2148/Nee.Va3(2)/2014-5, School Education
Department, dated 17.02.2016, passed by the 1st Respondent and quash the
same and direct the Respondents to regularise the service of the petitioners
either from the date of initial appointment or from the date of actual vacancy
arose or from the date of proposal as given to others in G.O.Ms.No.123,
School Education (R1) Department, dated 17.08.2011 and extend the
benefits of the said Government Order to the petitioners also.
For Petitioner : Mr.K.Arumugam
For Respondents : Mr.K.H.Ravikumar
Government Advocate
ORDER
The rejection of the claim of the writ petitioners for retrospective regularisation from the date of regular appointment as part time employees, is under challenge in the present writ petition. Page 2 of 8 https://www.mhc.tn.gov.in/judis W.P.No.42426 of 2016
2.The writ petitioners were appointed as part time Sweepers in various Government High Schools on daily wages basis. The petitioners were not appointed in accordance with the recruitment rules in force. Thus, the initial appointment of the petitioners became irregular, and thus, the writ petitioners were not considered for grant of regularisation and permanent absorption. Subsequently, the Government issued orders to regularise the services of the daily wages employees. Accordingly, the case of the writ petitioners were considered and their services were regularised with effect from the year 2002 onwards. The grievances of the writ petitioners are that their part time services also have to be taken into consideration for grant of regularisation and accordingly, retrospective regularisation in the sanctioned posts is to be accorded to them. Representation in this regard was not considered and thereafter, they have filed a writ petition in W.P.No.823 of 2014 and this Court directed the authorities to consider the representation and pass orders. Pursuant to the directions issued by this Court, the Government issued the impugned order in proceedings, dated 17.02.2016, rejecting the claim of the writ petitioners on the ground that they were initially appointed as part time employees and the appointments Page 3 of 8 https://www.mhc.tn.gov.in/judis W.P.No.42426 of 2016 were not made in accordance with the recruitment rules in force.
3.This Court is of the considered opinion that the writ petitioners were not appointed in accordance with the recruitment rules in force. Thus, the initial appointments of the writ petitioners were irregular. The benefit of regularisation and permanent absorption was granted to them by way of concession and therefore, the concession extended cannot be violated for the purpose of granting retrospective regularisation from the initial date of appointment as part time employees.
4.Regularisation and permanent absorption cannot be claimed as a matter of right. It is to be granted in accordance with the rules in force. Equal opportunities in public employment is a constitutional mandate. Thus, the authorities have to recruit the persons by following the procedures as contemplated, by providing equal opportunities to all the eligible candidates, who are all aspiring to secure public employment through open competitive process. Backdoor appointments cannot be a ground to claim regularisation, so also the retrospective regularisation. Page 4 of 8 https://www.mhc.tn.gov.in/judis W.P.No.42426 of 2016
5.In the present case, the benefit of regularisation was granted by way of concession by the Government. Accordingly, the services of the writ petitioners were regularised from the year 2002 onwards. The regularisation of part time employees and the issues connected therewith were considered by the Hon'ble Supreme Court in the case of Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others [2014 (4) SCC 769]. The Hon'ble Supreme Court, in unequivocal terms, held that the High Courts, in exercising power under Article 226 of the Constitution, will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or Page 5 of 8 https://www.mhc.tn.gov.in/judis W.P.No.42426 of 2016 appointment of ineligible candidates cannot be regularised.
6.In view of the principles laid down by the Apex Court of India, irregular or illegal appointments cannot be regularised in violation of the recruitment rules in force. In the present case, the benefit of regularisation had already been granted to the writ petitioners even before the judgment of the Constitution Bench of the Hon'ble Supreme Court of India in the case of Secretary, State of Karnataka and others v. Umadevi and others [2006 (4) SCC Pg.1] and therefore, the petitioners are not entitled for any further concession for grant of retrospective regularisation. Thus, this Court do not find any infirmity in respect of the reasons furnished in rejection of the claim of the writ petitioners, which is otherwise candid and in compliance of the principles settled.
7.Therefore, this writ petition is devoid of merits and stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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1.The Principal Secretary to Government, State of Tamil Nadu, School Education Department, Secretariat, Chennai – 9.
2.The Director of School Education, DPI Campus, College Road, Chennai – 6.
3.The Chief Educational Officer, Vellore District, Vellore.
4.The District Educational Officer, Thirupathur, Vellore District.
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