W.P.No.6023 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Writ Petition No.6023 of 2016
P.Gopal ...Petitioner
-Vs-
1. The District Collector,
Erode District, Erode.
2. The District Revenue Officer,
Erode District, Erode. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, directing the
respondents to regularize the petitioner's service in the post of Computer
Operator, Collectorate, Erode.
For Petitioner : Mr.C.Prakasam
For Respondents : Mr.J.Mohamed Sathik
Government Advocate
ORDER
The relief sought for in the writ petition is to direct the respondents to regularize the services of the writ petitioner in the post of Computer Operator in Collectorate, Erode.
https://www.mhc.tn.gov.in/judis 1/10 W.P.No.6023 of 2016
2. The petitioner was appointed as Typist-cum-Computer Operator on 20.02.2006 on consolidated pay salary. Learned counsel for the petitioner made a submission that the petitioner was allowed to continue as a temporary employee on consolidated pay for several years and therefore, he is entitled to be regularized in the sanctioned post in the time scale of pay. It is contended that the initial appointment of Computer Operator was made pursuant to orders passed by the Government of Tamil Nadu in G.O.(2D)No.4, Highways and Minor Ports (HV1) Department, dated 06.02.2015. Thus, the petitioner was appointed based on the Government decision and thus the services are to be regularized. The persons appointed in similar circumstances, on consolidated pay salary, were considered and the benefit of regularization was granted. Thus the same benefit is to be extended to the writ petitioner also.
3. Learned Government Advocate appearing on behalf of the respondents objected the said contentions by stating that the writ petitioner was appointed temporarily on consolidated pay salary and the consolidated pay salary was enhanced periodically. However, the writ https://www.mhc.tn.gov.in/judis 2/10 W.P.No.6023 of 2016 petitioner was appointed in a project and therefore, he cannot seek any regularization. That apart, the post was created from 01.01.2015 and it was renewed every year. All these posts of Computer Operator were created temporarily for the purpose of completion of certain projects and scheme and therefore, the benefit of regularization cannot be considered. That part, the initial appointment of the writ petitioner was not made in accordance with recruitment rules in force. Thus, the petitioner cannot seek regularization.
4. Learned Government Advocate relied on the judgment of the Hon'ble Supreme Court of India, recently rendered in the case of State of Gujarat and others vs.R.J..Pathan and others reported in (2022) 5 SCC
394. The relevant paragraphs are Paragraphs 2.1, 6, 13 and 16, which read as follows:
“2.1. The learned Single Judge vide order dated 25-11-2011 dismissed the said writ petition by observing that the appointment of the original writ petitioners was only for eleven months on a fixed salary, which has been continued from time to time, and the unit in which they were appointed temporarily was a "Project Implementation Unit” only for the purpose of rehabilitation pursuant to the https://www.mhc.tn.gov.in/judis 3/10 W.P.No.6023 of 2016 earthquake for the "Post-Earthquake Redevelopment Programme" and they were not regularly appointed on any permanent sanctioned posts in any establishment of the Government where the writ petitioners have any lien.
...
6. At the outset, it is required to be noted that the respondents herein – origina writ petitioners were, as such, appointed in a temporary project, which was created only for the purpose of rehabilitation pursuant to the earthquake for "Post- Earthquake Redevelopment Programme". All of them were initially appointed for a period of eleven months on a fixed salary, which came to be continued from time to time till the requirement in a particular project/unit – "Project Implementation Unit". However, as the said unit was required to be closed which, as such, was a temporary unit, instead of putting an end to the services of the respondents, the State Government thought it fit to transfer and place them with the Indian Red Cross Society. At this stage, the respondents approached the High Court and challenged their placement with the Indian Red Cross Society.
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13. Now, so far as the reliance placed upon the https://www.mhc.tn.gov.in/judis 4/10 W.P.No.6023 of 2016 decision of this Court in Umadevi (3) 4 and the subsequent decision of this Court in Narendra Kumar Tiwari5, relied upon by the learned counsel appearing on behalf of the respondents is concerned, none of the aforesaid decisions shall be applicable to the facts of the case on hand. The purpose and intent of the decision in Umadevi (3)4 was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (3)4 may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme.
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16. From the impugned order1 passed by the Division Bench of the High Court it appears that the High Court has observed herein above that in the peculiar facts and circumstances of the case, it is directed that the order of absorption and regularisation and if necessary, by creating supernumerary posts, will not be treated as a precedent in other cases. Even such a direction could not have been passed by the Division Bench of https://www.mhc.tn.gov.in/judis 5/10 W.P.No.6023 of 2016 the High Court as there were no peculiar facts and circumstances which warranted the above observation. No such order of absorption and/or regularisation even if required for creating supernumerary posts and not to treat the same as precedent could have been passed by the High Court in exercise of powers under Article 226 of the Constitution of India.”
5. Regularization or permanent absorption cannot be granted in violation of the Recruitment Rules in force. Irregular and illegal appointments cannot be regularised. Equal opportunities in public employment is the constitutional mandate. All eligible candidates who all are aspiring to secure public employment must be provided an opportunity to participate in the process of selection and thus, the Authorities Competent cannot regularise the services of the temporary, irregular or illegal appointments in violation of the Recruitment Rules in force. Only if the appointments in sanctioned posts are made in accordance with the rules, then alone the benefit of regularisation can be granted but not otherwise.
https://www.mhc.tn.gov.in/judis 6/10 W.P.No.6023 of 2016
6. The principles regarding the grant of regularisation or permanent absorption are settled by the Constitutional Bench of the Hon'ble Supreme Court of India in the Case of State of Karnataka Vs. UmaDevi and Others reported in (2006)4SCC 1. The Apex Court has reiterated that back door appointments can never be regularised. In the present case, though it is not a back door appointment, it was made for completion of a project through Employment Exchange. However, the Recruitment Rules as applicable has not been followed. That apart, the post itself is not a sanctioned post and it was a temporarily created post and the same was renewed by the Government on yearly basis. Thus, the employment itself is temporary and the petitioner was appointed on consolidated pay salary. Beyond all these, the petitioner while accepting the offer of appointment, agreed with the terms and conditions stipulated in the order of appointment. Appointment order stipulates that he is appointed on temporary basis on consolidated pay salary. On expiry of the post on completion of one year, the post was renewed and also the temporary employee was allowed to continue on same terms and conditions. Thus, the petitioner was all along serving accepting the terms and conditions stipulated and thus, he cannot turn around and seek regularization in a sanctioned post in the time scale of pay. https://www.mhc.tn.gov.in/judis 7/10 W.P.No.6023 of 2016
7. If at all, the petitioner wants to secure permanent employment, he has to participate in the open competitive process along with all other eligible candidates whenever such notifications are issued for selection and appointment. The equality clause enunciated under the constitution at no circumstance be violated by the Competent Authorities and in the event of regularising such temporary appointments, the scope for regular appointment will be minimized and in such circumstances, the fundamental right of eligible citizen is also infringed. Thus, the terms and conditions of the appointments are to be scrupulously followed and the eligible candidates, who all are aspiring to secure public employment have to participate in the process of selection along with all other candidates and get appointment on merits in accordance with law and also through rules of reservation as contemplated.
8. However, this Court has not expressed any opinion regarding the continuance of the petitioner as a temporary employee on need basis.
9. With these observations the writ petition stands dismissed. No costs.
07.09.2022 Index:Yes Speaking order sha/gpa https://www.mhc.tn.gov.in/judis 8/10 W.P.No.6023 of 2016 To
1. The District Collector, Erode District, Erode.
2. The District Revenue Officer, Erode District, Erode.
https://www.mhc.tn.gov.in/judis 9/10 W.P.No.6023 of 2016 S.M.SUBRAMANIAM, J.
sha/gpa W.P.No.6023 of 2016 07.09.2022 https://www.mhc.tn.gov.in/judis 10/10