Madras High Court

M.Kamalanathan vs The Secretary To Government on 27 July, 2021

                                                                             W.P.No.33454 of 2015


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 27.07.2021

                                                       CORAM

                                  THE HONOURABLE MR. JUSTICE M.GOVINDARAJ

                                              W.P.No.33454 of 2015
                                                       &
                                              M.P.Nos.2 & 3 of 2015

                     1. M.Kamalanathan

                     2.K.Ramesh Kumar

                     3.S.Ashok Kumar

                     4.K.Elumalai

                     5.M.Pichandi                                          ... Petitioners


                                                         Vs.
                     1.The Secretary to Government
                     Education Department
                     St.Fort George, Chennai-9

                     2.The Commissioner/Director
                     Director of Technical Education
                     Chennai-25

                     3.The Principal
                     Thanthai Periyar Government Institute of Technology
                     Vellore-6320002


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                     4.The District Employment Officer
                     District Employment Office
                     Vellore District, Vellore                                      ... Respondents


                     PRAYER: The Writ Petition has been filed under Article 226 of the
                     Constitution of India praying to issue a Writ of Certiorarified mandamus
                     calling for records from the 3rd respondent in impugned notification dated
                     02.09.2015 and quash the same and direct the 1st and 2nd respondents to
                     regularize the service of the petitioners in their respective existing vacancy.

                                      For Petitioner          : Ms.R.T.Sundari

                                      For Respondents        : Mr.C.Selvaraj Govt. Advocate
                                                           -----

                                                        ORDER

The petitioners were employed as casual labourers from the year

1999 onwards. The 1st petitioner was sponsored through employment

exchange on 11.01.1999 on daily wage basis as sweeper. The 2nd petitioner

was appointed on 01.01.2001 as cleaner and then he was appointed as lab

assistant and now working as an office assistant on daily wage basis. The 3 rd

petitioner was appointed on 16.10.2002 as a cleaner in ECE department now

working as office assistant in the 3rd respondent college. The 4th petitioner

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was initially appointed on compassionate ground in the PWD department

and absorbed by the 3rd respondent college as gardener. The 5th petitioner

was appointed in the PWD department subsequently absorbed in the 3rd

respondent college as gardener. Thus all these petitioners were appointed as

daily wages either in 3rd respondent college or absorbed from PWD. They

have put more than 10 years of service and expecting regularization.

However, the 3rd respondent without regularizing their services issued a

notification calling for application for the post of Skilled Assistant, Skilled

Assistant trade, ITI special Mechanic. Infact, one of the petitioner is holding

ITI trade certificate also. By virtue of long experience they are entitled to

hold the post. Without regularizing them the notification issued for filling

up of appointment is bad and therefore the petitioners have challenged the

notification as well as sought for regularization of their services

consequentially.

2. Learned Government Advocate appearing for the respondents

would submit that as per G.O.Ms.No.74, P & AR Department dated

27.06.2013, Government has issued regulation for regularizing the services.

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As per which, those who have completed 10 years of service as on

01.01.2006 alone can be regularized and those who have not completed 10

years of service as on 01.01.2006 are not entitled to regularization. Relying

on the judgment of State of Karnataka & Ors. Vs. Umadevi & Ors, 2006 4

SCC 1, he would submit that regularization cannot be granted to the

petitioners.

3. I have considered the rival submissions.

4. It is an admitted fact that the petitioners are selected and appointed

by the 3rd respondent for carrying out works for more than 10 years. Infact

the 1st petitioner was sponsored through employment exchange and

appointed on daily wage basis. Two petitioners were appointed by PWD and

absorbed by 3rd respondent college. Even though they were appointed as

cleaners and sweepers, they got absorbed in higher posts as Lab Assistant,

Office Assistant and Gardener. The conduct of the 3rd respondent in

retaining their services for more than a decade shows that the services of the

petitioners were indispensable. Further for filling up these posts, all that the

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3rd respondent has to do was to get candidates from the employment

exchange. There is no specific educational qualification for appointment to

the post of Cleaners and Sweepers or Office Assistant. Therefore, retention

of the petitioners on temporary basis for long number of years of service

without resorting to regular appointment amounts to exploitation of the

workers. In a similar circumstance, this Court in W.P.No.32811 of 2004

dated 10.11.2004, directed regularization of the casual labourers and the

said judgment is followed in various judgments of this Court wherein the

casual labourers who were engaged to work continuously are directed to be

regularized.

5. The respondents cannot take shelter under the judgment of the

Hon'ble Supreme Court in Umadevi's case. Infact the Hon'ble Supreme

Court in Sheo Narain Nagar & Ors vs. State of Uttar Pradesh & Ors, 2018

13 SCC 432, has distinguished the back door appointments and employment

process by fair means. In para 8 of the judgment the Hon'ble Supreme Court

has observed as under:

“ 8. When we consider the prevailing scenario,

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it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per Rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14, 16 read with

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Article 34(1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, MANU/SC/0237/1982 : AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/ad hoc basis or otherwise. This kind of action is not permissible, when we

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consider the pith and substance of true spirit in Uma Devi (supra).”

6. In the instant case also 1st petitioner was sponsored by the

employment exchange and one of the petitioner was appointed on

compassionate ground and absorbed in service. The other petitioners were

also engaged on daily wage basis and were discharging their duties

continuously. Their appointment may either be regular or irregular and by

no means was illegal. The 3rd respondent has engaged utilized the services

of the petitioners for their requirement continuously over a period of 10

years. Therefore, the benefit G.O.Ms.No.22 P & AR Department dated

28.02.2006 as well as the other Government Orders, where the Government