Madras High Court
Unknown vs The Principal Secretary To ... on 3 February, 2021
W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 28.01.2022
Pronounced on : 14.02.2022
Coram:
THE HONOURABLE MR.JUSTICE V.PARTHIBAN
W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
1.E.S.Vanumamalai
2.Ravi.K
3.M.Selva Perumal
4.S.Sivasankar
5.M.Muthusaravanan
6.Subramanian.R
7.M.Rajkumar
8.Mahesh Kumar.K
9.Nainar.R
10.P.Sankar Kumar
11.B.Anbu
12.S.Franklin
13.D.Arun Raja
14.S.Gunasekaran
15.M.Nirmal Raj
16.Jaganath.K
17.K.R.Senthil Prakash
18.G.Prasad
19.M.Narayanan
20.Kathivela.A
21.Udayabaskar.R
22.M.Padmanabhan
23.K.Venkatachalam
24.K.Bakkiyaraju
25.G.Pannerselvam
26.M.Arul
https://www.mhc.tn.gov.in/judis
1
W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
27.A.Jayaprakasam
28.M.Subramaniam
29.A.Selvam
30.R.Rajendra Prasath
31.Sakkan.M
32.R.Selvaraj
33.V.Rajalakshmi
34.N.Saravanan
35.M.Shanmugaraja
36.S.Selvanathan
37.M.Kartheesan
38.S.Narayanan
39.P.Kumar
40.N.Shanmugasundar
41.Manickavasagam.R
42.P.S.Krishnamoorthy
43.V.Senthil Kumar
44.M.Meenatchi
45.V.Mohan ... Petitioners
Vs.
1.The Principal Secretary to Government,
Home (Tr) VII Department,
Secretariat, Chennai-9.
2.The Transport Commissioner,
Chepauk, Chennai-5. ... Respondents
PRAYER : Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Mandamus, directing the respondents to
regularise the services of the petitioners in the Transport Department in
the light of the long years of service rendered by them and in the light of
the judgment of this Court in W.P.Nos.14782 and 19961 of 2020 dated
03.02.2021, with all attendant benefits.
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
For petitioners : Mr.V.Vijay Shankar
For Respondents : Mr.L.S.M.Hasan Fizal,
Addl. Govt. Pleader for RR1 to 2
ORDER
This writ petition has been filed to issue a Writ of Mandamus,
directing the respondents to regularise the services of the petitioners in
the Transport Department in the light of the long years of service
rendered by them and in the light of the judgment of this Court in
W.P.Nos.14782 and 19961 of 2020 dated 03.02.2021, with all attendant
benefits.
2. The case of the petitioners is that they have been working as
Computer Operators in various RTO Offices in Tamil Nadu whose work
is related to data entry, Backlog update, photograph of individuals,
printing and lamination of cards. All the petitioners were engaged
originally through Elcot and later through other Agencies. The
petitioners have been continuously engaged for a period of 15 to 20
years.
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
3. In the year 2014, taking note of the continuous and
increasing work load in the Transport Department, a proposal was made
on 20.05.2014, for sanctioning of posts on regular basis. The proposal
which was originally sent on 20.05.2014, did not evince any response
and the second respondent was constrained to sent another detailed
proposal dated 18.12.2017, stressing the need for System Analyst,
Programmer and DEO.
4. When the proposals are pending before the Government, in
respect of similar claims, this Court in W.P.Nos.14782 & 19961 of 2020,
dated 03.02.2021, has ordered regularization of service of the petitioners
therein, after taking note of the fact of proposals emanated for their
regularization from the authorities concerned. This Court's attention has
been drawn by the learned counsel for the petitioners to the observations
and the conclusion of the learned Judge from paragraph Nos.13 to 18,
which are extracted hereunder:
“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
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
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 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
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
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/- 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."
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
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)
No. 913 of 2015 dated 21.02.2017. The
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
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
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
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 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
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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 can be inferred that the contract itself is sham and
nominal. No costs. Consequently, connected miscellaneous
petitions are closed.”
5. This Court's attention is further drawn to another similar
recent order passed by this Court in W.P.No.7352 of 2021, dated
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W.P.No.7893 of 2021 and
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07.12.2021, wherein, this Court followed the above order passed in
W.P.Nos.14782 & 19961 of 2020 dated 03.02.2021 and allowed the
similar claim of 35 petitioners therein. As a matter of fact, this Court has
also extracted the detailed findings of the above order passed by the
learned Judge in that matter and passed orders. The observations in
paragraph Nos.12 and 13 are extracted hereunder:
“12. The above orders passed by the learned
Judge would have to be applied to the factual matrix of
the present case as well. The directions as contained
therein would also cover the present claim of these
petitioners on all forces.
13. In the above circumstances, this Writ
petition is also allowed and the first respondent is
directed to pass appropriate orders regularising the
services of the petitioners in the light of the proposals
forwarded to the Government by the second respondent.
The first respondent is directed to pass appropriate
orders in this regard within a period of eight weeks
from the date of receipt of a copy of this order. No costs.
Consequently, the connected miscellaneous petition is
closed.”
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
6. According to the learned counsel for the petitioners, since
these petitioners are identically placed like the petitioners in the above
mentioned writ petitions, they are also entitled to be granted similar relief
as granted by this Court.
7. Although a detailed counter affidavit has been filed on
behalf of the respondents, the above directions passed by this Court have
not been disputed. On the other hand, the learned Special Government
Pleader who appeared for the respondents fairly submitted that the issue
as such is directly covered by the above decisions. In fact, in the counter
affidavit, the contention of the respondents is that the petitioners are
contract employees and therefore, not entitled to be regularized.
However, this Court, in the above matters considered the very same
objection and discountenanced the same.
8. In the above circumstances, the claim of the petitioners
herein is to be held as fully covered on all fours. Therefore, this Court
has no hesitation in granting relief to the petitioners herein also as prayed
for.
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
9. Therefore, this writ petition stands allowed and the
respondents are directed to regularize the services of the petitioners in
the light of the judgment of this Court rendered in W.P.Nos.14782 &
19961 of 2020 dated 03.02.2021, followed by the recent judgment of this
Court in W.P.No.7352 of 2021 dated 07.12.2021.
10. The respondents are directed to pass appropriate orders as
indicated above, within a period of eight weeks from the date of receipt
of a copy of this order. No costs. Consequently, connected
miscellaneous petition is closed.
Index:Yes/No 14.02.2022
Internet:Yes
gsk
To
1.The Principal Secretary to Government,
Home (Tr) VII Department,
Secretariat, Chennai-9.
2.The Transport Commissioner,
Chepauk, Chennai-5.
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W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
V.PARTHIBAN,J.
gsk
Pre-delivery order in
W.P.No.7893 of 2021 and
W.M.P.No.8431 of 2021
14.02.2022
https://www.mhc.tn.gov.in/judis
