Madras High Court
Union Of India vs The Registrar on 7 January, 2021
W.P.Nos.22977 and 22978 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM :
THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
W.P.Nos.22977 & 22978 of 2018
and
W.M.P.Nos.26885 & 26886 of 2018
1.Union of India,
Represented by Union Territory of Puducherry,
By its Secretary to Government for
Department of Personnel & Administrative Reforms,
Chief Secretariat, Puducherry.
2.Secretary,
Animal Husbandry and Animal Welfare Department,
Secretariat, Puducherry.
3.The Director,
Animal Husbandry and Animal Welfare Department,
Puducherry. ... Petitioners
in both writ petitions
Vs.
1.The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai.
2.K.Subramanian
3.K.Kadhiravan
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1/14
W.P.Nos.22977 and 22978 of 2018
4.G.Chandrasekaran
5.J.Chezhian
6.G.Rajasekar
7.S.Vijayalakshmi
8.S.Kalaiselvi
9.T.Srinivasan
10.N.Rejith ... Respondents
in W.P.No.22977 of 2018
1.The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai.
2.P.Sabapathy ... Respondents
in W.P.No.22978 of 2018
Prayer in W.P.No.22977 of 2018: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Certiorari calling for the
records of the 1st respondent Tribunal dated 21.02.2017 in O.A.No.1132 of
2012 and to quash the same.
Prayer in W.P.No.22978 of 2018: Writ Petition filed under Article 226 of
the Constitution of India for issuance of a Writ of Certiorari calling for the
records of the 1st respondent Tribunal dated 21.02.2017 in O.A.No.1319 of
2012 and to quash the same.
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W.P.Nos.22977 and 22978 of 2018
For Petitioners : Mr.R.Syed Mustafa
Special Government Pleader (Puducherry)
in both writ petitions
For R2 to R10 : Mr.C.Samivel
in W.P.No.22977 of 2018
For R2 : Mr.C.Samivel
in W.P.No.22978 of 2018
COMMON ORDER
(Order of the Court was made by M. SATHYANARAYANAN, J.)
(Through Video Conferencing)
Both these writ petitions are taken up together and are disposed of
by this common order, as the issue to be decided and adjudicated is one and
the same.
2.The private respondents in W.P.No.22977 of 2018 filed
O.A.No.1132 of 2012 against the petitioners/official respondents, praying for
appropriate direction for regularisation of their services as Attendants from
01.01.2003, and consequently, grant attendant monetary benefits and
promotion, for which they are legally entitled to, in accordance with law.
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W.P.Nos.22977 and 22978 of 2018
3.Similarly, the private respondents in W.P.No.22978 of 2018 had
filed O.A.No.1319 of 2012 for the similar relief.
4.It is the case of the private respondents that they were working as
Daily Rated Sanitary Assistants in the Animal Husbandry and Animal
Welfare Department of Government of Puducherry for more than 10 years
and were discharging their regular duties as Attendants - Group-D Post in the
Department. Originally, they along with other Daily Rated employees of
Puducherry Animal Husbandry and Animal Welfare Daily Rated Employees
Association, had filed a case before the 1st respondent Tribunal in
O.A.No.173 of 2010 and it came to be disposed of on 17.03.2010 with
certain directions. According to the private respondents/original applicants,
on account of the filing of the case, the writ petitioners/official respondents
developed vengeance against them, and as such, they have not regularised
their services. It is also brought to the knowledge of the Tribunal by the
private respondents/original applicants that O.A.No.173 of 2010 was filed by
24 Daily Rated Sanitary Attendants and one Lift Operator of the Animal
Husbandry and Animal Welfare Department, praying for quashing of the
records relating to the recruitment through open market, appeared in the form
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W.P.Nos.22977 and 22978 of 2018
of advertisement in the News daily, dated 27.11.2019, and it came to be
disposed of on 17.03.2010, by directing the official respondents therein to
consider their claim for the regularisation in the post of Attendants, by taking
into account their continuous service in the said Department and their
participation in the selection process. Despite such direction, the services of
the private respondents/original applicants have not been regularised.
5.It is the specific case of the private respondents/original
applicants that they have completed the required services as Sanitary
Assistants for the purpose of getting regularised, and further points out that
this Court, in W.P.No.17165 of 2010, has also passed an order stating among
other things that the one-time exercise should consider all daily
wage/adhoc/those employees who had put in 10 years of continuous service
without availing the protection of any interim orders of Courts or Tribunals,
and that apart, the Hon'ble Minister of Animal Husbandry and Animal
Welfare Department has also made an announcement on the Floor of the
Assembly for the regularisation of 34 Daily Rated Sanitary Assistants. It is
also brought to the knowledge of the Tribunal that the Government has
issued G.O.Ms.No.40 dated 20.05.1989 as well as a policy of regularisation
in Government Memo dated 20.12.1988, and in the light of the same, prays
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W.P.Nos.22977 and 22978 of 2018
for appropriate orders for regularisation of the services.
6.The official respondents filed their reply statement opposing the
claim and took a stand that, in terms of the order, dated 17.03.2010, passed in
O.A.No.173 of 2010, the private respondents were allowed to participate in
the interview in pursuance to the notification, dated 27.11.2009. Despite the
fact that they have not fulfilled the age criteria, after obtaining one time age
relaxation from the Administrator/Lieutenant Governor of Union Territory of
Puducherry, they were allowed to participate. It is further pointed out that,
as per the Recruitment Rules, the method of selection is cent percent by
direct recruitment, and therefore, the existing vacancies could not be filled
up by regularisation or absorption of Daily Rated (full time) Casual
Labourers, apart from denying the specific averment that, in the interview,
deliberately low marks have been awarded.
7.Mr.R.Syed Mustafa, learned Special Government Pleader
(Puducherry), appearing for the petitioners, would submit that the Tribunal
had taken up both the original applications in O.A.Nos.1319 of 2012 and
1132 of 2012 filed by the private respondents in these writ petitions and
passed the following order and it is relevant to extract the same :
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W.P.Nos.22977 and 22978 of 2018
“Learned counsel for the respondents informed that
13 adhoc promotions of Group D were pending before the
Lieutenant Governor and if it is cleared, then the services of
the applicants as daily rated Sanitary Assistants could be
regularised against consequential vacancies and the applicants
would be promoted as Attendant. Under the above mentioned
circumstances, the respondents are directed to regularize the
services of the applicants as Sanitary Assistant and promote
them to the post of Attendant as per the 2010 select list
published once the proposal of promotion of 13 persons from
Group D fructifies. With the above direction the OAs are
allowed. As we are passing order in OAs itself, MA 658/2015
for interim injunction stands closed. No costs.”
8.The primordial submission made by the learned Special
Government Pleader appearing for the petitioners is that the regularisation in
the post of Sanitary Assistants ought not to have been given for the reason
that no such post existed in the Department, and that apart, the Recruitment
Rules to the post of Attendant (re-designated as Veterinary Attendant) did
not provide for absorption from the post of Part Time Sanitary
Assistant/Daily Rated Sanitary Assistant/Daily Rated Lift Operator.
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W.P.Nos.22977 and 22978 of 2018
9.Therefore, aggrieved by the said direction given in the common
impugned order, the present writ petitions have been filed, which were
entertained.
10.Pending these writ petitions, the Department of Animal
Husbandry and Animal Welfare Department of Government of Puducherry,
vide order dated 29.10.2020, has ordered regularisation of services of
Veterinary Attendants on the recommendations of Departmental Promotion
Committee and the date of regular appointment is indicated in Column-3 of
the said order. A memo, dated 18.11.2020, has been filed by the learned
Special Government Pleader to that effect and the same is taken on file.
11.It is the submission of the learned Special Government Pleader
that, in the light of the said development, nothing remains for further
adjudication in these writ petitions for the reason that the prayer sought for
by the private respondents has been granted.
12.Per contra, Mr.C.Samivel, learned counsel appearing for the
private respondents would submit that they are entitled for regularisation
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W.P.Nos.22977 and 22978 of 2018
from the year 2003, and in all fairness, while regularising the services, the
date of regular appointment should have been fixed as in the year 2003, and
prays for appropriate orders.
13.This Court has paid its best attention to the rival submissions
and also perused the materials placed before it.
14.It is well settled position of law that regularisation of services in
respect of the part time/adhoc employees is not a matter of right and it is
relevant to refer to the decision reported in 2017 (3) Scale Pg.365 [Secretary
to Govt. Commercial Taxes and Registration Department, Secretariat and
another v. A.Singamuthu], wherein, the Hon'ble Supreme Court has referred
to the judgment reported in State of Rajasthan and Others v. Daya Lal and
Others [(2011) 2 SCC 429], wherein, while considering the issue relating to
the regularisation of irregular or part-time appointments, has laid down the
proposition that the part-time employees are not entitled to seek
regularisation as they do not work against any sanctioned post and that the
part-time employees in Government-run institutions can in no case claim
parity in salary with regular employees of the Government on the principle of
equal pay for equal work.
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W.P.Nos.22977 and 22978 of 2018
15.Similarly, the fixation of cut-off date for regularisation also
falls within the exclusive scope of the Appointing Authority, and it is
relevant to cite the decision reported in 2013 (6) CTC 593 [S.Dhanasekaran
& 24 others v. Government of Tamil Nadu and others]. Legality of fixing
the date of regularisation of services came up for consideration in the light of
the relevant Government Orders passed by the Government of Tamil Nadu.
The Full Bench of this Court has taken note of the judgment of the Hon'ble
Apex Court reported in 2006 (6) SCC 558 [K.Madalaimuthu and another v.
State of T.N. and others] and it is relevant to extract Para No.24 of the said
judgment :
“24.On a consideration on the submissions made on
behalf of the respective parties and the decisions cited on their
behalf, the consistent view appears to be the one canvassed on
behalf of the appellants. The decisions cited by Mr. Rao have
been rendered in the context of Rule 10(a)(i)(1) and the other
relevant rules, which are also applicable to the facts of the
instant case. Apart from the above, the law is well established
that initial appointment to a post without recourse to the rules
of recruitment is not an appointment to a service as
contemplated under Rule 2(1) of the General Rules,
notwithstanding the fact that such appointee is called upon to
perform duties of a post borne on the cadre of such service. In
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W.P.Nos.22977 and 22978 of 2018
fact, Rule 39(c) of the General Rules indicates that a person
temporarily promoted in terms of Rule 39(a) is required to be
replaced as soon as possible by a member of the service who is
entitled to the promotion under the rules. It stands to reason
that a person, who is appointed temporarily to discharge the
functions in a particular post without recourse to the
recruitment rules, cannot be said to be in service till such time
his appointment is regularized. It, therefore, follows that it is
only from the date on which his services are regularized that
such appointee can count his seniority in the cadre.”
The Full Bench held that the regularisation takes effect from the date of the
Government Order, i.e. 23.02.2006, and not from the date on which the
petitioners therein had completed three years of service from the date of their
initial entry.
16.The writ petitioners/official respondents had shown
benevolence in the form of order of regularisation, dated 29.10.2020, in
favour of the private respondents.
17.It is also well settled position of law that this Court cannot pass
any positive order of regularisation unless the persons regularly placed have
been accorded with the said benevolence/benefit.
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W.P.Nos.22977 and 22978 of 2018
18.In the light of the well settled legal position enunciated supra,
coupled with the fact that the order of regularisation, dated 29.10.2020, has
been passed by the petitioners 2 and 3, no further orders are required in these
writ petitions. It is also to be noted at this juncture that, even in the
impugned common order, which is the subject matter of challenge in these
writ petitions, there is no positive direction to regularise the services of the
private respondents from the year 2003. As already pointed out with regard
to the fixation of cut-off date, it falls within the exclusive domain of the
concerned Appointing Authority, and this Court, in exercise of its powers of
judicial review, cannot alter the fixation of the cut-off date.
In the result, these writ petitions stand disposed of with the above
observations. No costs. Consequently, connected miscellaneous petitions
are closed.
(M.S.N., J.) (A.A.N., J.)
07.01.2021
mkn
Internet : Yes
Index : No
Speaking order
To
https://www.mhc.tn.gov.in/judis/
W.P.Nos.22977 and 22978 of 2018
1.The Registrar,
Central Administrative Tribunal,
Madras Bench,
Chennai.
2.The Secretary to Government for
Department of Personnel & Administrative Reforms,
Union Territory of Puducherry,
Chief Secretariat, Puducherry.
3.The Secretary,
Animal Husbandry and Animal Welfare Department,
Secretariat, Puducherry.
4.The Director,
Animal Husbandry and Animal Welfare Department,
Puducherry.
https://www.mhc.tn.gov.in/judis/ M. SATHYANARAYANAN, J.
W.P.Nos.22977 and 22978 of 2018
and
A.A.NAKKIRAN, J.
mkn
W.P.Nos.22977 & 22978 of 2018
07.01.2021
https://www.mhc.tn.gov.in/judis/
