M.Suresh vs The Principal Secretary And ...
2021 Latest Caselaw 15078 Mad

                                                                           W.P.No.5040 of 2015


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 28.07.2021

                                                       CORAM

                                   THE HONOURABLE MR. JUSTICE M.GOVINDARAJ

                                               W.P.Nos.5040 of 2015
                                                        &
                                              M.P.Nos.1 and 2 of 2015

                     M.Suresh                                              ....Petitioner


                                                           Vs.

                     1.The Principal Secretary and Commissioner
                     of Agriculture Development
                     Government of Tamilnadu
                     Agricultural Department
                     Fort St.George, Chennai-600 009

                     2.The Commissioner cum Director of Agricultural
                     Chepauk, Chennai-600 005

                     3.The joint Director of Agriculture
                     Kancheepuram

                     4.The Assistant Director of Agriculture
                     Pullampadi
                     Trichy District                                    ... Respondents




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                                                                                      W.P.No.5040 of 2015


                     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 the records of the 1st respondent in connection with the impugned
                     impugned letter No.2570/Ve.Ni 4(1)/2014-6 dated 13.10.2014 and quash
                     the same and consequently direct the respondents to absorb the petitioner in
                     the regular vacancy sanctioned as per G.O.(P) 243 Agriculture (VNi4)
                     Department dated 10.12.2013 in regular time scale of pay on relaxing the
                     relevant rules for appointment as done in similar cases in various
                     departments.

                               For Petitioner            : Ms.T.Aananthi

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

                                                            -----

                                                         ORDER

The petitioner was appointed as a casual labourer on daily wage

basis on 28.12.1998 under the respondent. He was attending all types of

works. However, he was not regularized in service. The Government has

issued orders to regularize the services of numerous casual labourers

employed by Government department. As per the various Government

orders those who have completed 10 years of service were directed to be

regularized and finally by G.O.Ms.No.74, P& AR Department dated

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27.06.2013 has issued certain restriction with regard to age, appointment

through Employment office, part time working etc., Since the petitioner was

not sponsored by Employment Exchange his case was not considered.

Therefore, he approached this Court in W.P.No.31348 of 2013. wherein by

order dated 21.11.2013, this Court directed the respondent to consider the

case of the petitioner for regularization in the light of the Government

Orders directed the respondent to pass appropriate orders within a period of

twelve weeks. The 1st respondent by Government Letter

No.2570/AA4(1)/2014-6 dated 13.10.2014 rejected the request of the

petitioner in view of G.O.Ms.74 P & AR Department, dated 27.06.2013.

Aggrieved over the same, the petitioner is before this Court.

2. Heard the submission of both the sides.

3. From the perusal of the materials, it is seen that in identical

circumstances, several casual labourers working in very same Agricultural

Department have approached this Court by way of W.P.No.23147 and

23148 of 2004. This Court has given a direction to regularize those casual

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labourers by its order dated 26.02.2010. Government preferred an appeal

vide W.A.No.2617 and 2105 of 2010 and the same was dismissed on

08.06.2011. Again, an SLP was preferred against the Division Bench order

in SLP No.9110 and 9111 of 2013 which were also dismissed on

29.04.2013. Thereafter, the casual labourers were regularized vide G.O.2(D)

No.85, Agricultural Department dated 15.06.2013. Like wise in the case of

one Anbazhagan, the Government relaxed the conditions imposed in

G.O.Ms.No.74 P& AR Department dated 27.06.2013 and implemented the

order of the Court by regularizing him in G.O.Ms.No.205 Town

Development Department dated 18.12.2014. In yet another case, in

G.O.Ms.No.71, Rural Development Department dated 12.02.2014, the

conditions specified in G.O.Ms.No.74 were relaxed apart from giving age

relaxation and non sponsoring through Employment Exchange. Thus, in

quite a number of cases, the Government has relaxed the rules and

regularized the employee from the date of completion of 10 years. In the

instant case, the petitioner has also completed more than 10 years of service.

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4. Government has taken a consistent stand before this Court that the

order of regularization is contrary to the judgment of the Hon'ble Supreme

Court in State of Karnataka vs Uma Devi and Ors , AIR 2006 SC 1806 as

well as Civil Appeal Nos.2730 and 2731 of 2014 in the case of Secretary to

Government, School Education Department, Chennai.

5. But it is to be noted that the judgment of the Hon'ble Supreme

Court in Uma Devi's case has been distinguished in the case of Sheo

Narain Nagar Vs. The State of Uttar Pradesh in Civil Appeal No.18510 of

2017 dated 13.11.2017, wherein it has been observed as under:

“8..... 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

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employment, but a new device has been adopted for making

appointment on payment of paltry system on

contract/adhoc basis or otherwise. This kind of action is not

permissible, when we consider the pith and substance of

true spirit in Uma Devi (supra).

9. Coming to the facts of the instant case, there was a

direction issued way back in the year 1999, to consider the

regularization of the appellants. However, regularization

was not done. The respondents chose to give minimum of

the pay scale, which was available to the regular

employees, way back in the year 2000 and by passing an

order, the appellants were also conferred temporary status

in the year 2006, with retrospective effect on 2.10.2002. As

the respondents have themselves chosen to confer a

temporary status to the employees, as such there was

requirement at work and posts were also available at the

particular point of time when order was passed. Thus, the

submission raised by learned counsel for the respondent

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that posts were not available, is belied by their own action.

Obviously, the order was passed considering the long period

of services rendered by the appellants, which were taken on

exploitative terms.

10. The High Court dismissed the writ application

relying on the decision in Uma Devi (supra). But the

appellants were employed basically in the year 1993; they

had rendered service for three years, when they were

offered the service on contract basis; it was not the case of

back door entry; and there were no Rules in place for

offering such kind of appointment. Thus, the appointment

could not be said to be illegal and in contravention of Rules,

as there were no such Rules available at the relevant point

of time, when their temporary status was conferred w.e.f.

2.10.2002. The appellants were required to be appointed on

regular basis as a one-time measure, as laid down in

paragraph 53 of Uma Devi (supra). Since the appellants had

completed 10 years of service and temporary status had

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been given by the respondents with retrospective effect in

the 2.10.2002, we direct that the services of the appellants

be regularized from the said date i.e. 2.10.2002,

consequential benefits and the arrears of pay also to be

paid to the appellants within a period of three months from

today.”

6. Therefore, it is very clear that the judgment of UmaDevi can be

applied only in cases where illegal appointments are made denying the

opportunity of the people who are waiting before the Employment

Exchange. Such back door appointments shall be considered as illegal

cannot be regularized at any cost. But, when Government has adopted the

procedure of engaging casual labourers indiscriminately and has taken a

policy decision to regularize them on completion of 10 years of service, they

cannot turn around and state such engagements are illegal. Non sponsoring

through Employment Exchange may be an irregular method, the

Government in an unavoidable circumstances have engaged casual

labourers for getting their work done. Those casual labourers have

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continued for more than ten years. It is also relevant to state that those last

grade servants does not require any educational qualification to do those

menial works. In such circumstances, selection or engagement of casual

labourers may not undergo regular selection method of getting sponsor from

Employment Exchange or adherence to rules. Once a decision is taken to

regularize the casual labourers it shall be uniformly applied.

7. In the instant case, it is noted that by way of several Government

Orders, the restriction imposed in G.O.Ms.No.274 dated 27.06.2013 as well

as the rules with regard to age, educational qualification and reference

through Employment Exchange were relaxed and their service were

regularized. When a particular treatment was given to a person in the very

same department, it shall be extended to the similarly placed persons of the

very same department. The respondent department cannot take different

stands with regard to its own employees. Once a decision is taken in

implementing the orders of regularization, it shall be extended to all the

people who are similarly placed. Therefore, if it is not extended inspite of

the direction given by the Court it amounts to discrimination. Such

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discriminatory treatment is violative of principles of natural justice, doctrine

of equality and it will amount to arbitrary exercise of power.

8. In such a view, this Court is of the considered opinion that the

judgment of the Hon'ble Supreme Court in Sheo Narain Nagar's case, will

squarely apply to this case. Following the judgment of the Hon'ble Supreme

Court in the above judgment as well as the orders passed in S.L.P.No.9110

and 9111 of 2013 dated 29.04.2013 against the very same respondents, this

Court is inclined to grant relief as prayed for. The respondents are directed

to pass orders regularizing the petitioner in the light of the above

Government Orders within a period of three months from the date of receipt

of a copy of this order.

Writ petition is order with the above directions. No costs.

Consequently, connected miscellaneous petitions are closed.

28.07.2021

Internet:Yes Index:Yes/No

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To

1.The Principal Secretary and Commissioner of Agriculture Development Government of Tamilnadu Agricultural Department Fort St.George, Chennai-600 009

2.The Commissioner cum Director of Agricultural Chepauk, Chennai-600 005

3.The joint Director of Agriculture Kancheepuram

4.The Seed Testing Officer Seed Testing Laboratory Panji Pettai Kancheepuram District

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M. GOVINDARAJ, J.

kpr

W.P.Nos.5040 of 2015 & M.P.Nos.1 and 2 of 2015

28.07.2021

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