Madras High Court
The Secretary To Government vs R. Mallika on 14 December, 2021
W.A.No.1313 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 14.12.2021
CORAM:
THE HON'BLE MR. JUSTICE M.DURAISWAMY
AND
THE HON'BLE MR. JUSTICE J. SATHYA NARAYANA PRASAD
W.A.No.1313 of 2014 and
M.P. No.1 of 2014
1. The Secretary to Government,
School Education Department,
Fort St. George, Chennai – 600 009.
2. The Director of Public Libraries,
Anna Salai,
Chennai – 600 002.
3. The District Library Officer,
Erode District,
Erode. ... Appellant
v.
R. Mallika ... Respondent
Writ Appeal filed under Clause 15 of the Letters Patent, to set
aside the order in W.P.No.16338 of 2013, dated 19.06.2013 and thereby
allow the Writ Appeal.
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For Appellant : Mr. Mr. S.Silambannan,
Addl. Advocate General
Assisted by Mythrrye Chandru
For Respondents : Notice Served
JUDGMENT
(Judgment was delivered by M. DURAISWAMY, J.)
Challenging the order passed in W.P.No.16338 of 2013, the
Government has filed the above Writ Appeal.
2. The respondent filed the Writ Petition to issue a Writ of
Mandamus, directing the appellants-respondents to regularize the
services from the date of completion of 10 years of service from the date
of initial appointment on 01.04.1998 with all monetary and other
consequential service benefits including the arrears of pay in the revised
scale.
3. The respondent, who was working as a part-time or casual
employee, has sought for the relief of regularization of service granted
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to the employees working on daily wages by bringing them into regular
establishment on completion of 10 years of service.
4. When the Writ Appeal is taken up for hearing, it has been
informed that a subsequent Government Order has been passed in
G.O.Ms.No.74, Personnel and Administrative Department, dated
27.06.2013, by which, the Government has decided not to disturb those
cases, where orders have already been passed by the competent authority
in pursuant to the Government Order passed in G.O.Ms.No.22,
P & AR(F) Department, dated 28.02.2006 as well as the orders issued in
pursuant to the court direction “where the verdict reached finality”.
5.1 Mr. S.Silambannan, learned Additional Advocate General
appearing for the appellants submitted that the order passed by the
Hon'ble Supreme Court in Civil Appeal Nos. 2730-2731 of 2014
[Secretary to Government, School Education Department, Chennai v.
Thiru R.Gondiaswamy and others] will have to be made applicable to
this case were orders have been implemented. Further, the learned
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W.A.No.1313 of 2014
learned Additional Advocate General submitted that G.O.Ms.No.22,
P & AR(F) Department, dated 28.02.2006 is also not applicable to the
case of the respondent. Further, the Hon'ble Supreme Court in AIR
2011 SC 1193 [State of Rajasthan and others v. Daya Lal and
others] has held as follows :-
“.......... 8(i) 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 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
entries, appointments contrary to the constitutional scheme
and/or appointment of ineligible candidates cannot be
regularized.
(ii) Mere continuation of service by an temporary or ad
hoc or daily-wage employee, under cover of some interim
orders of the court, would not confer upon him any right to be
absorbed into service, as such service would be `litigious
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employment'. Even temporary, ad hoc or daily- wage service
for a long number of years, let alone service for one or two
years, will not entitle such employee to claim regularization, if
he is not working against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any order of
regularization in the absence of a legal right.
(iii) Even where a scheme is formulated for
regularization with a cut off date (that is a scheme providing
that persons who had put in a specified number of years of
service and continuing in employment as on the cut off date), it
is not possible to others who were appointed subsequent to the
cut off date, to claim or contend that the scheme should be
applied to them by extending the cut off date or seek a direction
for framing of fresh schemes providing for successive cut off
dates.
(iv) Part-time employees are not entitled to seek
regularization as they are not working against any sanctioned
posts. There cannot be a direction for absorption,
regularization or permanent continuance of part time
temporary employees.
(v) Part time temporary employees in government run
institutions cannot claim parity in salary with regular
employees of the government on the principle of equal pay for
equal work. Nor can employees in private employment, even if
serving full time, seek parity in salary with government
employees. The right to claim a particular salary against the
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State must arise under a contract or under a statute. (Emphasis
added) ..........”
5.2. Further, the learned Additional Advocate General in support
of his contention relied upon a Judgment of the Apex Court, made in
Civil Appeal Nos.5689-5690 of 2021 [Union of India and others v.
Ilmo Devi and another], dated 07.10.2021, wherein the Apex Court
held as follows:-
“ ........ 8.4 The observations made in paragraph 9 are on
surmises and conjunctures. Even the observations made that
they have worked continuously and for the whole day are also
without any basis and for which there is no supporting
evidence. In any case, the fact remains that the respondents
served as part-time employees and were contingent paid staff.
As observed above, there are no sanctioned posts in the Post
Office in which the respondents were working, therefore, the
directions issued by the High Court in the impugned judgment
and order are not permissible in the judicial review under
Article 226 of the Constitution. The High Court cannot, in
exercise of the power under Article 226, issue a Mandamus to
direct the Department to sanction and 17 create the posts. The
High Court, in exercise of the powers under Article 226 of the
Constitution, also cannot direct the Government and/or the
Department to formulate a particular regularization policy.
Framing of any scheme is no function of the Court and is the
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W.A.No.1313 of 2014
sole prerogative of the Government. Even the creation and/or
sanction of the posts is also the sole prerogative of the
Government and the High Court, in exercise of the power under
Article 226 of the Constitution, cannot issue Mandamus and/or
direct to create and sanction the posts.
8.5 Even the regularization policy to regularize the
services of the employees working on temporary status and/or
casual labourers is a policy decision and in judicial review the
Court cannot issue Mandamus and/or issue mandatory
directions to do so. In the case of R.S. Bhonde and Ors. (supra),
it is observed and held by this Court that the status of
permanency cannot be granted when there is no post. It is
further observed that mere continuance every year of seasonal
work during the period when work was available does not
constitute a permanent status unless there exists a post and
regularization is done.
8.6 In the case of Daya Lal & Ors. (supra) in
paragraph 12, it is observed and held as under:-
“12. We may at the outset refer to the following
wellsettled principles relating to regularisation and parity in
pay, relevant in the context of these appeals:
(i) 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
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W.A.No.1313 of 2014
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 appointment of
ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a
temporary or ad hoc or daily-wage employee,
under cover of some interim orders of the court,
would not confer upon him any right to be
absorbed into service, as such service would be
“litigious employment”. Even temporary, ad hoc or
daily-wage service for a long number of years, let
alone service for one or two years, will not entitle
such employee to claim regularisation, if he is not
working against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any order
of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a scheme
providing that persons who had put in a specified
number of years of service and continuing in
employment as on the cut-off date), it is not
possible to others who were appointed subsequent
to the cut-off date, to 19 claim or contend that the
scheme should be applied to them by extending the
cut-off date or seek a direction for framing of fresh
schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to
seek regularisation as they are not working against
any sanctioned posts. There cannot be a direction
for absorption, regularisation or permanent
continuance of part-time temporary employees.
(v) Part-time temporary employees in
government-run institutions cannot claim parity in
salary with regular employees of the Government
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on the principle of equal pay for equal work. Nor
can employees in private employment, even if
serving full time, seek parity in salary with
government employees. The right to claim a
particular salary against the State must arise under
a contract or under a statute.
[See State of Karnataka v. Umadevi (3)
[(2006) 4 SCC 1], M. Raja v. CEERI Educational
Society [(2006) 12 SCC 636], S.C. Chandra v.
State of Jharkhand [(2007) 8 SCC 279],
Kurukshetra Central Coop. Bank Ltd. v. Mehar
Chand [(2007) 15 SCC 680] and Official
Liquidator v. Dayanand [(2008) 10 SCC 1.]
8.7 Thus, as per the law laid down by this Court in the
aforesaid decisions part-time employees are not entitled to seek
regularization as they are not working against any sanctioned
post and there cannot be any permanent continuance of part-
time temporary employees as held. Part-time temporary
employees in a Government run institution cannot claim parity
in salary with regular employees of the Government on the
principle of equal pay for equal work.
8.8 Applying the law laid down by this court in the
aforesaid decisions, the directions issued by the High Court in
the impugned judgment and order, more particularly, directions
in paragraphs 22 and 23 are unsustainable and beyond the
power of the judicial review of the High Court in exercise of
the power under Article 226 of the Constitution. Even
otherwise, it is required to be noted that in the present case, the
Union of India/Department subsequently came out with a
regularization policy dated 30.06.2014, which is absolutely in
consonance with the law laid down by this Court in the case of
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Umadevi (supra), which does not apply to the part-time workers
who do not work on the sanctioned post. As per the settled
preposition of law, the regularization can be only as per the
regularization policy declared by the State/Government and
nobody can claim the regularization as a matter of right dehors
the regularization policy. Therefore, in absence of any
sanctioned post and considering the fact that the respondents
were serving as a contingent paid part-time Safai Karamcharies,
even otherwise, they were not entitled for the benefit of
regularization under the regularization policy dated 30.06.2014.
8.9 Though, we are of the opinion that even the
direction contained in paragraph 23 for granting minimum basic
pay of Group ‘D’ posts from a particular date to those, who
have completed 20 years of part-time daily wage service also is
unsustainable as the part-time wagers, who are 21 working for
four to five hours a day and cannot claim the parity with other
Group ‘D’ posts. However, in view of the order passed by this
Court dated 22.07.2016 while issuing notice in the present
appeals, we are not quashing and setting aside the directions
contained in paragraph 23 in the impugned judgment and order
so far as the respondents’ employees are concerned.
9. In view of the above and for the reasons stated above,
both the appeals succeed. The impugned judgment and order
passed by the High Court and, more particularly, the directions
contained in paragraphs 22 and 23 in the impugned judgment
and order are hereby quashed and set aside. However, it is
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observed that quashing and setting aside the directions issued in
terms of paragraph 23 in the impugned judgment and order
shall not affect the case of the respondents and they shall be
entitled to the reliefs as per paragraph 23 of the impugned
judgment and order passed by the High Court.
With these observations, both the appeals are allowed and in
the facts and circumstances of the case, there shall be no order
as to costs.”
5.3 The learned Additional Advocate General submitted that in
view of the ratio laid down by the Hon'ble Supreme Court the Writ
Appeal filed by the State has to be allowed.
6. Though notice has been served on the respondent and her name
has been printed in the cause list, none appeared for her.
7. On a perusal of the Judgments relied upon by the learned
Additional Advocate General, we are satisfied that the issue involved in
the present Writ Appeal is covered by the decisions of the Hon'ble
Supreme Court. In such view of the matter, the order passed in
W.P.No.16338 of 2013 is liable to be set aside. Accordingly, the same is
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W.A.No.1313 of 2014
set aside and the Writ Appeal stands allowed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
[M.D., J.] [J.S.N.P., J.]
14.12.2021
Index : Yes/No
Internet: Yes
Rj
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W.A.No.1313 of 2014
M. DURAISWAMY, J.
and
J. SATHYA NARAYANA PRASAD ,J
Rj
W.A.No.1313 of 2014 and
M.P. No.1 of 2014
14.12.2021
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