Order dated : 07.09.2022
Writ Petition No.33674 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition No.33674 of 2017
and
W.M.P.No.37269 of 2017
1.K.G.Suresh
S/o.Gopalan
2.G.Madavan
S/o.Gurumanan
3.M.Manoharan
S/o.Mundan
4.J.Maadhan
S/o.Johi Gounda
5.L.Ningaraj
S/o.Lingaiya
6.S.Mohamed Iqpal
S/o.Shahul Hameed
7.B.Rajaiyan
S/o.Basuvan ... Petitioners
Vs.
1.The Secretary to Government of Tamil Nadu,
Municipal Administration and Water Supply
Department,
Fort St.George, Chennai - 600 009.
https://www.mhc.tn.gov.in/judis
1/12
Order dated : 07.09.2022
Writ Petition No.33674 of 2017
2.The Director of Town Panchayat,
Kuralagam Buildings,
Chennai - 600 108.
3.The Executive Officer,
Deversolai Town Panchayat,
Nilgiris District. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the respondents to bring the
petitioners under regular time scale from the date of 10 posts of pump operators
sanctioned by the second respondent on 10.07.2000 in Na.Ka.No.13626-
1/2000/A3 dated 10.07.2000 with all consequential service and monetary
benefits.
For Petitioners : Mr.P.I.Thirumoorthy
For Respondents : Mr.B.Vijay
Additional Government Pleader [R1 & R2]
No appearance [R3]
*****
ORDER
A writ of mandamus has been filed to direct the respondents to bring the petitioners under regular time scale from the date of 10 posts of pump operators sanctioned by the second respondent on 10.07.2000 in Na.Ka.No.13626- 1/2000/A3 dated 10.07.2000 with all consequential service and monetary benefits.
https://www.mhc.tn.gov.in/judis 2/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017
2. The petitioners were engaged as daily wage water supply assistant in the third respondent Town Panchayat.
3. Learned counsel appearing on behalf of the petitioners made a submission that the petitioners are engaged continuously as daily wage employees till date and therefore, they are entitled to be regularised in the sanctioned post in the time scale of pay. The Government issued orders in G.O.Ms.No.198, Municipal Administration and Water Supply Department, dated 26.10.1998 and G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999, granting the benefit of regularisation in respect of daily wage employees employed in various Town Panchayats. The petitioners state that 10 regular posts of pump operators to water supply section has been sanctioned by the Government on 10.07.2000 and the third respondent submitted a proposal in favour of the petitioners for regularising their services in the sanctioned post in the time scale of pay. Thus, the services of the petitioners have to be regularised in the sanctioned post.
4. Learned counsel appearing on behalf of the petitioners is of an opinion https://www.mhc.tn.gov.in/judis 3/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 that the cases of similarly placed employees were considered by the Government and their services were regularised and thus, the petitioners are also entitled to the benefit of regularisation.
5. Learned Additional Government Pleader appearing on behalf of the respondents 1 and 2 raised an objection by stating that the petitioners were not appointed in accordance with the recruitment rules in force. They were engaged by the Executive Officer of the Town Panchayat as daily wage employees and even, no appointment order has been issued to the petitioners. Thus, they are not entitled for regularization and permanent absorption in view of the judgment of the Supreme Court of India. It is contended that the policy of the State of Tamil Nadu was changed on account of technological advancement in water supply equipments, which necessitated to avail the options of outsourcing certain activities in water supply management or involving SHGs on contractual basis primarily for providing livelihood opportunities to vulnerable segments and increase the stakeholder's participation. Therefore, the Town Panchayats were advised to engage any manpower for limited hours in a day to manage the water supply by means of contractual arrangements as daily wage employees. Accordingly, the third respondent has engaged the petitioner on daily wage basis https://www.mhc.tn.gov.in/judis 4/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 and on contractual arrangement. The petitioners have not issued with an order of appointment in any sanctioned post and therefore, they are not eligible for regularization.
6. With reference to the Government orders relied on by the petitioners, learned Additional Government Pleader submitted that subsequent to the judgment of the Supreme Court of India in the case of Secretary, State of Karnataka Vs. Uma devi [ 2006 4 SCC 1], the Government changed its policy and accordingly, proposals, if at all submitted, will not be considered in violation of the principles settled by the Supreme Court of India. Despite the fact that instructions were granted to the competent authorities not to submit any such proposal for irregular and illegal appointment, in the present case, the third respondent submitted a proposal. However, the said proposal was not considered in view of the judgment of the Supreme Court of India [supra].
7. In the present case, the petitioners were appointed in a sanctioned post. Even an order of appointment was not issued to the petitioners, they were orally engaged by the Executive Officer of the Town Panchayat to work as Water Supply Assistant on temporary basis. The job of water supply assistant is a part- https://www.mhc.tn.gov.in/judis 5/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 time job. However, the said factum was disputed by learned counsel for the petitioners by stating that the services of the petitioners are engaged full time by the third respondent. Beyond all these disputed factors, an order of appointment was not issued to the petitioners and therefore, they were not recruited through the procedures as contemplated under the rules. In view of the fact that the initial appointment of the petitioners was not in accordance with the rules, the benefit of regularization or permanent absorption cannot be granted.
8. Regularization or permanent absorption cannot be claimed as an absolute right. Regularisation or permanent absorption cannot be granted in violation of the recruitment rules in force. Equal opportunity in public employment is the Constitutional mandate. Lakhs and Lakhs youth of our great Nation are longing to secure public employment through open competitive process and they are working hard for the purpose of succeeding in the competitive process. While so, back door appointments or illegal or irregular appointments, if regularised, undoubtedly, the fundamental rights of those candidates, who all are aspiring to secure public employment through open competitive process are infringed. The equality clause enunciated under the Constitution must be implemented in its real spirit. Thus, the back door https://www.mhc.tn.gov.in/judis 6/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 appointments are to be stopped forthwith in order to ensure that equal opportunity in public employment is provided to all the eligible candidates through open competitive process by implementing the rule of reservation.
9. The principles of justice requires that the Constitutional principles and mandates are preserved in the interest of the society at large. Misplaced sympathy or leniency, if leads to unconstitutionality, then the Courts would be slow in showing such sympathy or leniency. Therefore, the leniency may be permissible only in certain exceptional cases, in the event of no unconstitutionality or non-violation of any Statutes and Rules. Thus, there cannot be any misplaced sympathy in the matter of upholding the Constitutional Philosophy and Ethos.
10. If at all, the benefit of regularisation and permanent absorption are granted to irregular and illegal appointments in a routine manner, no doubt, the fundamental rights of all eligible persons, who all are waiting for securing public employment are violated. Courts are bound to consider the plea of those poor people from rural and semi-urban areas of our great Nation, who all are preparing meritoriously to face the competitive process with a fond of hope that their merits https://www.mhc.tn.gov.in/judis 7/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 will be recognised by the State in one way or other for the purpose of securing public employment. What would be the answer for those poor people from villages and semi-urban areas, who all are mostly non exposed to these illegalities and irregularities and corrupt activities in Government employment. Thus, the Constitutional Courts are bound to protect the interest of those meritorious candidates, who all are not before the Courts.
11. The principles for grant of regularisation and permanent absorption are no more res integra and the Constitutional Bench of Hon'ble Supreme Court of India settled the issue in the case of Uma Devi [supra]. Any decisions, which are running counter to the principles laid down by the Hon'ble Constitution Bench of India cannot be followed at this length of time and in the event of any such consideration, the Courts are violating the principles settled by the Constitution Bench and by the Hon'ble Apex Court in subsequent judgments.
12. Once the Constitution Bench has settled the principles regarding the regularization and permanent absorption, any Government Order running counter to the principles, cannot be implemented and based on such Government Orders, benefits cannot be conferred by the Courts. The said position also has been https://www.mhc.tn.gov.in/judis 8/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 unambiguously stipulated by the Constitution Bench of Supreme Court of India in paragraph 54 of the judgment cited supra. In paragraph 53 of the Judgment, the Supreme Court of India has given one time measure for the purpose of regularizing the services for the purpose of clearing the proposals, which all are pending before the Government for regularization. Such one time measure or benefit granted cannot be continued for an indefinite period. In paragraph 54 of the said judgment, the Hon'ble Supreme Court in unambiguous terms held that 'It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.' Therefore all the judgments and Government Orders running counter to the principles laid down by the Constitution Bench of the Supreme Court of India stands denuded of their status as precedents and the said Government Orders or the judgments by the High Courts or even by two Judges' Bench of the Hon'ble Supreme Court of India cannot be followed. Those judgments are to be read in the context of the particular facts and circumstances of the case.
13. However, the principles settled by the Constitution Bench is to be followed as precedent. In the matter of following the precedents, again another https://www.mhc.tn.gov.in/judis 9/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 Constitution Bench of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 (6) SCC 680 held that the hierarchy in this aspect is to be maintained by all Courts scrupulously.
14. Thus, any judgment running counter to the principles settled by the Constitution Bench of the Hon'ble Supreme Court cannot be followed as a precedent for the purpose of considering the relief. All such judgments are to be confined only with reference to the facts of that particular case and cannot be followed as a precedent. The Government has passed several such orders, granting the benefit of regularization or permanent absorption on various circumstances for many years by granting relaxation of Rules. Such relaxation of Rules cannot be now granted in a routine manner, even by the Government. The appointments made in an irregular or illegal manner cannot be regularized by granting regularization or otherwise.
15. In view of the fact that the petitioners were not appointed in accordance with the recruitment rules and they were engaged as daily wage https://www.mhc.tn.gov.in/judis 10/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 employees temporarily and no appointment order has been issued to the petitioners, the benefit of regularisation or permanent absorption cannot be granted to the petitioners.
Accordingly, this Writ Petition fails and stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
07.09.2022 Index : Yes Speaking order gm To
1.The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St.George, Chennai - 600 009.
2.The Director of Town Panchayat, Kuralagam Buildings, Chennai - 600 108.
S.M.SUBRAMANIAM., J gm https://www.mhc.tn.gov.in/judis 11/12 Order dated : 07.09.2022 Writ Petition No.33674 of 2017 Writ Petition No.33674 of 2017 07.09.2022 https://www.mhc.tn.gov.in/judis 12/12