Madras High Court
S.Sivakumar vs The Principal Secretary To ... on 3 February, 2021
W.P.Nos.14782 and 19961 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.14782 and 19961 of 2020
and
W.M.P.Nos18366, 18367, 24641 & 24642 of 2020
W.P.No.14782 of 2020
1. S.Sivakumar
2. S.Suresh
3. S.Gnanasekarapandiyan
4. B.Venkatesh
5. S.P.Senthilraja
6. M.Senthilkumar
7. S.Sriram Karthi
8. P.Saravanan
9. B.Sridar
10. D.Sampathkumar
11. M.Venketasan
12. V.Hydhar Ali
13. E.Tamil Selvan
14. M.Parasanth
15. N.Natarajan
16. K.Balamurugan
17. D.Thangaprakasam ... Petitioners
-vs-
1. The Principal Secretary to Government,
Home (Tr) VII Department,
Secretariat, Chennai-9.
2. The Transport Commissioner,
Chepauk, Chennai-5. ... Respondents
1/16
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
W.P.No.19961 of 2020
1. K.Karthikeyan
2. P.Sivakumar
3. R.Thiravidamani
4. N.Muthuraja
5. K.Saravanan
6. S.Abdul Wahid
7. P.Dinesh
8. L.Kaliswaran
9. K.Saravanan
10. G.Muthu Kumaran ... Petitioners
-vs-
1. The Principal Secretary to Government,
Home (Tr) VII Department,
Secretariat, Chennai-9.
2. The Transport Commissioner,
Chepauk, Chennai-5. ... Respondents
Common Prayer: Petitions filed under Article 226 of Constitution of India to
issue a Writ of Mandamus, directing the respondents to regularise the services
of the petitioners in the light of the proposals forwarded by the 2nd respondent
in its Letter No.08075/R2/2014 dated 20.05.2014 and Letter
R.No.37816/54/2017 dated 18.12.2017 with all attendant benefits.
For Petitioners : Mr.V.Vijayashankar
For Respondents : Mr.J.Pothiraj
Spl. Govt. Pleader
*****
COMMON ORDER
The petitioners have come forward with these writ petitions, seeking a
direction to the respondents to regularise the services of the petitioners in the
light of the proposals forwarded by the 2nd respondent in its Letter
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
No.08075/R2/2014 dated 20.05.2014 and Letter R.No.37816/54/2017 dated
18.12.2017 with all attendant benefits.
2. The issue involved in these petitions is one and the same and they are
taken up together for disposal by this common order. For the sake of brevity,
the facts are taken up from W.P.No.14782 of 2020, which read as follows:
i) The petitioners joined various Regional Transport Offices (RTOs) in the
State as Programmer / System Analysts, after acquiring qualifications either in
B.E.Computer Science / BCA or B.Sc. Computer Science and the process of
computerisation was undertaken through agency. Initially, one M/s.Maruti
Computer Agency was entrusted to supply manpower and the petitioners were
engaged through the said agency in the year 2005 and since then, they have
been working continuously;
ii) The 2nd respondent, taking note of the continuous workload in the
Transport Department, sent a proposal dated 20.05.2014 to the 1st respondent
for absorption of the petitioners on a regular basis as done in the other
Departments, such as CTO Offices, Municipal Administration Department, etc.
Though the said proposal was received at the Office of the 1st respondent,
there was no steps taken to regularize the services of the petitioners on a
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
regular scale of pay, on account of which, the 2nd respondent once again sent
yet another proposal dated 18.12.2017 for sanction of regular full time posts of
System Analyst Programmer and DEO;
iii) It is submitted that even though certain queries were raised by the
1st respondent on 12.01.2018, which were also suitably replied by the 2nd
respondent vide letter dated 01.02.2018, there was no progress thereafter in
respect of regularization of the services of the petitioners and the 1st
respondent has been sitting over the proposal for the past two years;
iv) It is further submitted that the contract assigned to M/s.Maruti
Computers was re-assigned to another Contractor, namely, New Life Placement
and the contract awarded to them came to an end in the year 2019 itself and
the petitioners, despite having worked for more than 10 to 15 years and having
sent numerous representations, have not been regularized and therefore, they
are before this Court with the aforesaid directions;
v) The petitioners have been made to work on contract basis for more
than 10 to 15 years and the act of the respondents in not regularizing the
services of the petitioners, more particularly in the Transport Department, is
against the settled proposition of the Hon'ble Supreme Court and the
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
petitioners, after having acquired sufficient qualification in the field, have
been working on contract basis with the fond hope of getting their services
regularized and the 1st respondent may be directed to act on the proposal as
expeditiously as possible.
3. The respondents have filed a counter affidavit, wherein, it has been,
inter alia stated as under:
i) These writ petitions are not maintainable at the first instance, as the
Writ Petitioners are not direct employees of the 2nd respondent and they have
not been recruited either through employment exchange or TNPSC and their
works are purely contract in nature and the petitioners themselves admitted
that they were engaged through a manpower called M/s.Maruti Computers
Agency from the year 2005 and worked upto 31.12.2018;
ii) In the counter, it is stated that the proposal sent by the Transport
Commissioner to the Government on 20.05.2014, was rejected by the
Government on 14.08.2015, stating that if the request of the petitioners is
considered, it will lead to similar such requests from various Departments in
future, causing financial burden to Government;
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
iii) Even though the Government have remitted the salary of these
petitioners to the Contracting Agency, M/s.Maruthi Computers Pvt. Ltd., monies
were not paid to the petitioners, which resulted in registration of an FIR against
the said Agency. Moreover, there were several malpractices found in the
execution of works, as the petitioners were colluded with the private Internet
centres and caused misappropriation to the Government revenue. Since the
Central Government project of Vahan Sarathi is found to be more user-friendly,
there is absolutely no necessity for the Transport Department to regularize the
services of the petitioners in the light of proposal sent to the Government and
the manpower agencies were also directed to withdraw its employees;
iv) In the counter affidavit, it is also stated that the 2nd respondent
Department was fully computerized and it is web based, the question of
absorption on permanent basis does not arise, as the petitioners worked purely
under contract basis and therefore, the 2nd respondent has not infringed their
livelihood. Thus, it is prayed that the Writ Petitions are liable to be dismissed.
4. The petitioners have filed a re-joinder to the counter affidavit,
reiterating the averments made in the affidavit, except stating that though
they were disengaged from the services of RTO offices, still they have been
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
continuing to work in RTO Offices unofficially across the State and when several
other Departments, such as Education, PWD, Commercial Taxes, High Court of
Madras, have appointed System Analysts / Programmers on a regular basis, the
act of the Government in singling out the petitioners is highly violative of
Article 14 and 16 of the Constitution of India. The petitioners also denied the
allegations of malpractices levelled by the respondents in the counter affidavit.
5. Mr.V.Vijayashankar, learned counsel for the petitioners submitted that
the petitioners were appointed as System Analysts in various Transport
Departments in the State through Contractors and though their contractors
were changed, they have been working continuously. There was a proposal sent
by the Transport Department as early as in 2014 to regularize the services of
these petitioners / similarly placed persons and subsequently, another proposal
was forwarded in the year 2017 and both the proposals did not yield any results
in favour of the petitioners, inspite of the fact that a detailed reply was sent by
the 2nd respondent for the queries raised by the 1st respondent. He further
submitted that these petitioners have been working for more than 15 years
without getting the benefit of regular employment in the Transport Department
and they are always having a sense of fear of removal from employment at any
time. Unless their services are regularized and they are absorbed into regular
services, the services put in by them for all these years would become
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
meaningless and therefore, they are at the mercy of this Court to seek for the
aforesaid direction.
6. Per contra, Mr.J.Pothiraj, learned Special Government Pleader
contended that the Government had already instructed the 2nd respondent to
withdraw the employees engaged by them to work on contract basis, in view of
the fact that there is no need to absorb them on a regular time scale of pay,
more particularly, after introduction of Vahan Sarathi project by the Central
Government. He further contended that the temporarily engaged workers
caused huge revenue loss to the Government in connivance with private
Internet centres and therefore, the Government did not consider their case /
proposal sent in the year 2017 for absorption. Moreover, the contract awarded
to M/s.New Life Placements Pvt. Ltd., for supply of manpower came to an end
as early as on 31.12.2018 and from that date onwards, there was no relationship
between the Writ Petitioners and the 2nd respondent Department. Hence, it
was strenuously argued that the Writ Petitions are to be dismissed in limine.
7. Heard the learned counsel on either side and perused the material
documents available on records.
8. Admittedly, the petitioners were employed as Programmers / System
Analysts on contract basis in various Regional Transport Offices and they have
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
rendered more than 10 to 15 years of services on temporary basis, expecting
that the Government, on one day or the other, will regularize their services on
a regular basis. This reminds me of the story of a parrot, in other words called
as "ilavu katha kili" and the story goes thus,
"There was once a parrot which sat on a tree and watched
its blossoms turn into shining green fruits. The parrot waited and
waited for them to ripen to take its first bite from the fruits.
Alas, the fruits never turned yellow or red, but dried into brown
crisp pods, finally bursting and revealing inside – white inedible
cotton."
The expectation of the petitioners for absorption on regular scale by the
Government can be compared to that of the Parrot and in that story, at least
the fruits turned into brown, but in the case on hand, there was no change in
the day to-day life of the petitioners and their hope of permanency has not
ripened so far.
9. It is brought to the notice of this Court that several Departments /
Organizations, including this Court absorbed contract employees on a full time
basis, realizing the fact that their services are indispensable. When such
benefits have been extended to the similarly placed persons, it is not known as
to why the Government is so reluctant to absorb not only these petitioners, but
also the employees (including Class-IV) working in various Departments
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
10. The contention of the respondents that after introduction of Vahan
Sarathi portal, there is no requirement for these petitioners in RTOs, is
unacceptable, on the reasoning that a look at the Portal in the website through
Google unfolds the fact that it is only a server, storing various data of vehicles,
furnishing information regarding the application status, etc. and a server
without data or programme is illogical and certainly, there needs a person for
data entry and also for decoding of programmes and the Government, instead of
hiring persons through agency, can absorb them permanently on a time scale of
pay, since there exists continuous and inexorable work in the Transport
Department.
11. The next contention put forth by the respondents is that there were
several malpractices committed by the petitioners in collusion with the Private
Internet Centres. However, the respondents have not adduced any piece of
evidence in the pleadings to that effect and therefore, this Court cannot go into
that aspect right now. Moreover, it cannot be generally said that because of the
Data Entry Operators / Programmers / System Analysts, employed on temporary
basis, there were many malpractices taken place. Even permanent employees
are trapped now-a-days for the receipt of bribe and confined into judicial
custody, as corruption and bribery has become a part of our system in Tamil
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
Nadu ever since 1967. Mere averments in the counter affidavit regarding
malpractices will not suffice, unless such allegations are substantiated by
material evidence.
12. In this case, it was not the case of the respondents that these
petitioners were not hired at all as Programmers / System Analysts and those
posts are in vogue for more than a decade. It is specifically averred by the
petitioners in Paragraph No.5 of the Reply Affidavit that the Government is
going to engage some other persons in the present place for the purpose of
feeding data in the system, as intention to install Vahan Sarathi portal will not
serve its purpose without any data or programming. It is further averred that
ever after discontinuation of outsourcing employees, these petitioners are on
the job continuously and their services are still utilized.
13. It is pertinent to state here that the appointment of these petitioners
is not by way of any illegal mode and in other words, it can be said that their
appointment can be construed, at the most, as irregular. The Government has
engaged them, of course not directly, but through contractors, for the purpose
of getting works done and it is highly unfair on the part of the Government to
keep them on temporary basis till completion of their work and to oust them
from their services in one fine morning after sucking their blood for 10 to 15
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
years without granting any monetary benefits, thereby leaving them at lurch
and abetting to commit suicide. In case their services are not needed, it is not
known as to why the Government permitted them to work all along and if they
were disengaged from services before their age-barring, at least they may have
a chance to sit for competitive examinations and get placement in Government
and the Government has neither let them live nor die. The Government and its
Officials are in a better position to analyze the vacancies that arise every year
on account of retirement, death, etc., and they can very well recruit
candidates against the sanctioned posts, instead of hiring through manpower
agencies, which, instead of solving unemployment problems, aggregates it to
the maximum extent and the award of contract for hiring persons always results
in monocracy, slavery, etc. In case the Government feels that their services are
required only for a limited period, they should have been disengaged within a
short period of not less than 1 to 2 years and not after 10 to 15 years.
14. It was stated by the petitioners that there were regularizations in
other Departments, including Madras High Court. It is poignant to mention here
that though their statement with regard to regularization of services of similarly
placed persons in other Department, may be true, insofar as Class-IV employees
working in Public Works Department are concerned, they were not regularized
in service, except granting decent / fixed, wages of approximately Rs.18,000/-
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
as per the orders of this Court. Article 41 of the Constitution of India insists
upon the need for securing the right to work and the State is not justified in
giving employment through Contractors and to the extent possible, the contract
system should be abolished. For the sake of convenience, Article 41 of the
Constitution of India is extracted hereunder:
"'The State shall, within the limits of its economic
capacity and development make effective provision for securing
the right to work, to education and to public assistance in cases
of unemployment, old age, sickness and disablement and in
other cases of undeserved want."
15. A Hon'ble Division Bench of this Court in the case of T.Kingsly Thaya
Singh and Others vs. The Chief Engineer General, Highways & Rural Works
Department and Others [W.A.(MD)Nos.786 to 788 of 2019] decided on
17.09.2019, interfered with the order of the learned Single Judge and directed
the Government to regularize the services of the petitioners therein, by holding
as under:
"8. Be that as it may, we do not find any ground to take
a different stand between the persons who were already
granted the benefit and the appellants, as we are fully
convinced that the directions issued in the earlier writ
petitions and affirmed by the Division Bench would govern the
present cases as well. However, we find that the order and
direction issued in W.P. (MD) No. 8512 of 2014 dated
10.07.2015 in the case of V. Meenakshi Sundaram and others v.
Secretary to Government, Highways Department and another
would be a reasonable order as it takes care of the interest of
the appellant employees as well as that of the respondent
Government. This decision has been confirmed in W.A. (MD)
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
No. 913 of 2015 dated 21.02.2017. The relevant portion of the
judgment reads as follows:
"5. The learned Single Judge by order dated
10.07.2015, has allowed the Writ Petition, directing
the appellants to regularize the services of the
respondents from the date of the respondents
approaching this Court in the earlier Writ Petition and
affect monetary benefits with effect from 01.06.2015.
In the said order, the learned Single Judge has also
observed that the respondents are not entitled to
backwages and that the period that the period of
service during which they were actually working,
which are mentioned in the counter and the said
period alone shall be taken into account for the
purpose of pensionary benefits and that period or any
other period will not be taken into account for
gratuity and other benefits. Aggrieved over the same,
the present Writ Appeal has been filed."
9. Thus, following the above, these Writ Appeals are
allowed and the respondents are directed to regularize the
services of the appellants from the date on which they
approached this Court by filing the writ petitions i.e., from
01.02.2010. However, the appellants are not entitled to
backwages and the period of service, which they were actually
worked alone shall be taken into account for the purpose of
pensionary benefits and that period and any other period will
not be taken for gratuity and other benefits. No costs."
16. In this case, a proposal (positive recommendation) was sent by the
2nd respondent for absorption of the services of the petitioners and the
respondents have not produced any iota of evidence to prove the malpractices
committed by the petitioners. Therefore, this Court is of the view that the
petitioners are entitled to the relief sought for in these writ petitions.
17. Accordingly, these Writ Petitions are allowed and a direction is issued
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
to the 1st respondent / Government to consider the case of the petitioners
positively, by taking note of the proposal sent by the 2nd respondent in the year
2017 so that the petitioners shall eke out their livelihood peacefully. The 1st
respondent is further directed to take a decision and pass order for
regularization of the services of the petitioners within a period of two months
from the date of receipt of a copy of this order, without causing further
hardship to these petitioners.
18. Last but not the least, the Government shall also regularize the
services of the Contract Labourers on par with these petitioners, who have been
working in Public Works Department and also those, who have been deputed by
PWD to Madras High Court and Madurai Bench of Madras High Court both Civil
and Electrical, other Departments, etc., for more than 10 years and consider to
bring them on regular employment under Class-IV, as their condition is worse
than the petitioners herein and their future is more bleak. The Government
must ensure that there is no economic death due to unemployment and a sword
of Damocles, viz., disengagement cannot be allowed to be hung on these
petitioners / similarly placed persons. Where a work is perennial in nature, the
employees should be engaged directly. In view of that, when the Contractor is
changing and the work is also perennial in nature in this case, it
S.VAIDYANATHAN, J.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.14782 and 19961 of 2020
ar
can be inferred that the contract itself is sham and nominal. No costs.
Consequently, connected miscellaneous petitions are closed.
03.02.2021
Index: Yes/no
Speaking order: Yes/No
ar
Note: Issue order copy on 24.02.2021
To:
1. The Principal Secretary to Government,
Home (Tr) VII Department,
Secretariat, Chennai-9.
2. The Transport Commissioner,
Chepauk, Chennai-5.
W.P.Nos.14782 and 19961 of 2020
https://www.mhc.tn.gov.in/judis/
