W.P.No.34346 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.34346 of 2016
P.Rajan @ Krishnakumar ... Petitioner
Vs.
1.The Secretary to Government,
Rural Development and
Panchayat Raj Department,
Fort St.George,
Chennai – 600 009.
2.The Director of Rural Development
and Panchayatraj,
Panagal Buildings,
Chennai – 15.
3.The District Collector,
Erode District,
Erode.
4.The Block Development Officer (Village Panchayat)
Bhavanisagar Panchayat Union,
Bhavanisagar,
Erode District. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
of the third respondent in Na.Ka.No.16152/2016/PaA4 dated 01/09/2016
and quash the same and consequently direct the respondents 2 & 3 to
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W.P.No.34346 of 2016
consider and appoint the petitioner to the post of Night Watchman or
Office Assistant in terms of G.O.Ms.No.55 Rural Development and
Panchayat Department dated 15.06.2006.
For Petitioner : Mr.S.Kamadevan
For R1 to R3 : Mr.S.Rajesh
Government Advocate
For R4 : Mr.R.V.Babu
ORDER
The order of rejection, rejecting the claim of the writ petitioner for regularisation and permanent absorption in the post of Office Assistant is under challenge in the present writ petition.
2. The petitioner states that he joined as Fitter Assistant in the 4th respondent / Bhavanisagar Panchayat Union on 01.01.1990 and worked up to 30.04.2004 on daily wage basis. The petitioner was directed to work in several Panchayats along with the Fitter appointed to attend the repairs. The petitioner is attending the repair works as per the instructions of the 4th respondent/Block Development Officer and receiving daily wages.
3. The learned counsel for the petitioner made a submission that the Government issued G.O.Ms.No.55, Rural Development and Panchayat Department dated 15.06.2006 to regularize the services of the daily wage employees on completion of 10 years of service. https://www.mhc.tn.gov.in/judis Page 2 of 12 W.P.No.34346 of 2016
4. It is contended that the District Collector sent proposal to the Head of the Department in the year 2013 based on the Government order issued in G.O.Ms.No.55, Rural Development and Panchayat Department dated 15.06.2006. The said proposal was pending, while so, the impugned order has been passed, rejecting the claim of the writ petitioner on the ground that he was not continuously working without break for 10 years and therefore, the petitioner is eligible for permanent absorption as per the Government orders issued in G.O.Ms.No.55, Rural Development and Panchayat Department dated 15.06.2006.
5. The learned counsel for the petitioner reiterated that the proposal, which is pending is to be considered.
6. The respondents have stated that the petitioner had not served 10 years continuously without any break in service. His total period of service was only 5 years and he has broken period of service. That apart, there is no authenticated details or Service Records, which is made available. Therefore, the order of rejection is in accordance with the policy of the Government and thus, the writ petition is to be rejected. https://www.mhc.tn.gov.in/judis Page 3 of 12 W.P.No.34346 of 2016
7. The petitioner was not appointed in accordance with the recruitment rules in force. The petitioner has not even submitted the copy of the appointment order. He has furnished the employment certificates issued by the Commissioner, Panchayat Union. Even as per the petitioner, he was employed as daily wage employee and he was doing repair works at various Panchayats as per the instructions of the 4th respondent. Thus, the petitioner was not appointed in a sanctioned post by following the recruitment rules in force.
8. Earlier, the petitioner filed a writ petition in W.P.No.5293 of 2009, questioning the rejection order dated 17.07.2008 and to direct the respondents to appoint the petitioner as Night watchman / Office Assistant in terms of G.O.Ms.No.55, Rural Development and Panchayat Raj Department dated 15.06.2005. The said writ petition was disposed of by this Court on 14.08.2009, directing the respondents to consider the case of the writ petitioner based on the said Government order issued in G.O.Ms.No.55, Rural Development and Panchayat Raj Department dated 15.06.2005. Pursuant to the said direction, the impugned order was passed. https://www.mhc.tn.gov.in/judis Page 4 of 12 W.P.No.34346 of 2016
9. 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 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.
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 the eligible persons, who all are waiting to secure public employment are violated. Courts are bound to consider the plea of those poor people from rural and semi-urban areas of https://www.mhc.tn.gov.in/judis Page 5 of 12 W.P.No.34346 of 2016 our great Nation, who all are preparing meritoriously to face the competitive process with a fond of hope that their merits 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 issues in the case of Secretary, State of Karnataka Vs. Uma Devi and others reported in (2006) 4 SCC 1. 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 https://www.mhc.tn.gov.in/judis Page 6 of 12 W.P.No.34346 of 2016 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 unambiguously stipulated by the Constitution Bench of Hon'ble Supreme Court of India in Paragraph 54 of the Judgment cited supra. In Paragraph 53 of the Judgment, the Hon'ble 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 Hon'ble 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. https://www.mhc.tn.gov.in/judis Page 7 of 12 W.P.No.34346 of 2016
13. However, the principles settled by the Constitution Bench is to be followed as precedent. In the matter of following the precedents, again another 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 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.
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15. Regarding the part time employment, again the Hon'ble Supreme Court following the Constitution Bench judgment, reiterated in the case of Secretary to Government School Education Department, Chennai Vs. R.Govindaswamy and others reported in 2014 (4) SCC 769. The Hon'ble Supreme Court again relied on the earlier cases decided by the Hon'ble Supreme Court of India in the case of Union of India Vs. A.S.Pillai and others reported in (2010) 13 SCC 448 and in the case of State of Rajasthan and others Vs. Daya Lal and others reported in (2011) 2 SCC 429. The Hon'ble Supreme Court of India held that 'the High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization 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 regularization 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 regularized, back door https://www.mhc.tn.gov.in/judis Page 9 of 12 W.P.No.34346 of 2016 entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.'
16. As far as the Government orders and the judgments running counter to the principles settled by the Constitution Bench of the Hon'ble Supreme Court of India in Uma Devi's Case (cited supra), the said orders of the Government or the Courts cannot be followed as precedent. All those Government orders running counter to the judgments have denuded to loose its status as precedent and the same cannot be the basis for granting the relief of regularization and permanent absorption. Thus, the reliance placed on by the petitioner regarding the Government order deserves no further consideration and the principles settled by the Constitution Bench is to be followed scrupulously by all the authorities as it became the Law of the Land. The Government also issued orders subsequently, directing the authorities not to regularize the services of the temporary daily rated employees or consolidated pay employees. All the proposals if at all necessary to be placed before the Government for consideration.
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17. This being the subsequent decision taken by the Government for the purpose of grant of relaxation and permanent absorption, there is no infirmity as such in respect of the order impugned passed by the third respondent.
18. Thus, the writ petition is devoid of merits and stands dismissed. No costs.
23.09.2022 kak Index : Yes Speaking order : Yes To
1.The Secretary to Government, Rural Development and Panchayat Raj Department, Fort St.George, Chennai – 600 009.
2.The Director of Rural Development and Panchayatraj, Panagal Buildings, Chennai – 15.
3.The District Collector, Erode District, Erode.
4.The Block Development Officer (Village Panchayat) Bhavanisagar Panchayat Union, Bhavanisagar, Erode District.
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kak W.P.No.34346 of 2016 23.09.2022 https://www.mhc.tn.gov.in/judis Page 12 of 12