Madras High Court
S.Thiyagarajan vs The State Of Tamil Nadu on 3 March, 2021
W.P.Nos.16410, 16416, 24744 & 16421 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
W.P.Nos.16410, 16416, 24744 & 16421 of 2019
W.P.No.16410 of 2019:
S.Thiyagarajan ... Petitioner
Vs.
1. The State of Tamil Nadu,
rep. by the Secretary to Government,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer (Buildings),
Chennai Region,
Public Works Department,
Chepauk, Chennai 600 005.
3. The Assistant Executive Engineer,
Public Works Department,
Adyar Sub Division,
Adyar, Chennai 600 028. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Certiorarified Mandamus, calling for the records in
Letter No.S 4(1)/51189/2015, dated 13.04.2016, on the file of the 2 nd
Respondent, and quash the same as illegal, incompetent and without
jurisdiction and further direct the Respondents to regularize the service of the
Petitioner as per the order passed in W.A.No.493 of 2016, dated 25.04.2016
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
confirmed by the Honourable Apex Court and as per the Government Order
in G.O.(2D) No.29, PWD Department, dated 09.02.2016 and in view of
G.O.(3D) No.40, Public Works (C2) Department, dated 25.09.2018 with all
monetary and service benefits.
W.P.No.16416 of 2019:
Jansirani ... Petitioner
vs.
1. The State of Tamil Nadu,
rep. by the Secretary to Government,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer (Buildings),
Chennai Region,
Public Works Department,
Chepauk, Chennai 600 005.
3. The Assistant Executive Engineer,
Public Works Department,
Adyar Sub Division,
Adyar, Chennai 600 028. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Certiorarified Mandamus, calling for the records in
Letter No.S 4(1)/51189/2015, dated 13.04.2016, on the file of the 2 nd
Respondent, and quash the same as illegal, incompetent and without
jurisdiction and further direct the Respondents to regularize the service of the
Petitioner as per the order passed in W.A.No.493/16, dated 25.04.2016
confirmed by the Honourable Apex Court and as per the Government Order
in G.O.(2D) No.29, PWD Department, dated 09.02.2016 and in view of
G.O.(3D) No.40, Public Works (C2) Department, dated 25.09.2018 with all
monetary and service benefits.
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
W.P.No.24744 of 2019:
1. G.Kumar
2. A.Moorthy
3. T.Kumar
4. T.Gobal
5. C.Kasi
6. K.Yangamma
7. B.Muthaiya
8. P.Suresh
9. G.Harikrishnan ... Petitioners
vs.
1. The State of Tamil Nadu,
rep. by the Principal Secretary to Government,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer (Buildings),
Chennai Region,
Public Works Department,
Chepauk, Chennai 600 005.
3. The Executive Engineer,
Chennai Corporation,
South Division,
Chepauk, Chennai 600 005.
4. The Assistant Executive Engineer,
Public Works Department,
Adyar Sub Division,
Adyar, Chennai 600 028. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Certiorarified Mandamus, calling for the records in
Letter No.26422/C2/2016-2, dated 09.02.2017, on the file of the 1st
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
Respondent and further direct the Respondents to regularize the services of
the Petitioners as per the order passed in W.A.No.493 of 2016, dated
25.04.2016 confirmed by the Honourable Apex Court and as per the
Government Order in G.O.(2D) No.29, PWD Department, dated 09.02.2016
and in view of G.O.(3D) No.40, Public Works (C2) Department, dated
25.09.2018 with all monetary and service benefits.
W.P.No.16421 of 2019:
1. V.Kumar
2. D.Rajendran
3. A.Senthilnathan
4. S.Vijaya Prabhu
5. Vinoth
6. C.Sekar
7. V.Prithviraj
8. P.Krishnamoorthy
9. P.V.Raghu
10. S.Parthiban ... Petitioners
vs.
1. The State of Tamil Nadu,
rep. by the Secretary to Government,
Public Works Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer (Buildings),
Chennai Region,
Public Works Department,
Chepauk, Chennai 600 005.
3. The Assistant Executive Engineer,
Public Works Department (Electrical Division)
Saidapet Sub Division,
Chepauk, Chennai 600 005. ... Respondents
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
(R3 amended vide order dated 03.03.2021 in W.M.P.No.24200 of 2019 in
W.P.No.16421 of 2019)
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a writ of Mandamus, directing the Respondents to regularize
the service of the Petitioners as per the order passed in W.A.No.493/16, dated
25.04.2016 confirmed by the Honourable Apex Court and as per the
Government Order in G.O.(2D) No.29, PWD Department, dated 09.02.2016
and in view of G.O.(3D) No.40, Public Works (C2) Department, dated
25.09.2018, with all monetary and service benefits.
*****
For Petitioner(s) in all W.Ps. : Mr.M.Muruganantham
For Respondents in all W.Ps. : Mr.J.Pothiraj,
Special Government Pleader
COMMON ORDER
As the issue involved in all these Writ Petitions is one and the same,
cases are taken up for disposal by a common order.
2. Petitioners have come up with the above Writ Petitions seeking
regularization of their service as per the order dated 25.04.2016 passed in
W.A.No.493 of 2016, confirmed by the Honourable Apex Court and as per
the Government Order in G.O.(2D) No.29, PWD Department, dated
09.02.2016 and in view of G.O.(3D) No.40, Public Works (C2) Department,
dated 25.09.2018, with all monetary and service benefits.
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
3. Learned Special Government Pleader appearing for the
Respondents pointed out that, G.O.(Ms) No.22, Personnel and Administrative
Reforms (F) Department, dated 28.02.2006, has been superseded by
G.O.(Ms) No.74, Personnel and Administrative Reforms (F) Department,
dated 27.06.2013. According to him, Petitioners are not entitled to claim any
relief in the light of G.O.(Ms) No.74, Personnel and Administrative Reforms
(F) Department, dated 27.06.2013, as they have not completed ten years of
daily wages service as on 01.01.2006 and that, they are part-time and casual
employees on need basis. He also pointed out that, the Petitioners have not
been recruited through Employment Exchange, not in Tamil Nadu Basic
Service, but in Tamil Nadu Engineering Subordinate Service.
4. It is further submitted by the learned Special Government
Pleader that, G.O.(2D) No.29, dated 09.02.2016 of Public Works (C2)
Department has been passed in compliance of the order dated 20.06.2012
passed by this Court in W.P.No.37024 of 2006 and the services of the
incumbents therein were regularized and hence, the said Government Order
may not be applicable to the facts of this case.
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
5. Citing reference to the judgment of the Hon'ble Supreme Court in
the case of State of Karnataka vs. V.Umadevi, reported in AIR 2006 SC
1806, learned Special Government Pleader submitted that, it has been clearly
held therein that, there is no fundamental right for those who have been
employed on daily wages or temporarily on contractual basis, to claim that,
they have a right to be absorbed in services. It has been further held that, the
right to be treated equally with the other employees employed on daily wage
basis, cannot be extended to a claim for equal treatment with those who were
regularly employed, as that would be treating unequals as equals. The prime
intendment of the decision was that, the employment process should be by
fair means and not by back door entry.
6. Heard the learned counsel on either side and perused the material
documents available on record.
7. Petitioners herein have tabulated the number of days they have
worked and the same is not disputed by the Respondents. Admittedly,
Petitioners herein have not been paid monthly wages and they have been paid
only daily wages on need basis.
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
8. When the matter was taken up for hearing on an earlier occasion,
this Court directed the Respondents herein to file particulars tabulating the
number of days worked by the Petitioners and the wages payable to them.
However, Respondents have not furnished such particulars, so far.
9. Nature of work of the Petitioners is perennial. The fact that, they
have been regularly employed requires consideration that, there should be a
regular post. Admittedly, there are vacancies which have not been filled up
for years together. Even assuming for the sake of argument that, the
contention of the Respondents has to be accepted that, G.O.(Ms) No.22,
Personnel and Administrative Reforms (F) Department, dated 28.02.2006,
has been superseded by G.O.(Ms) No.74, Personnel and Administrative
Reforms (F) Department, dated 27.06.2013, Petitioners herein should not
have been engaged at all in all vacancies. The fact that, the Petitioners have
been made to work continuously for years together even after the issuance of
G.O.(Ms) No.74, shows that, there is need for regular employment and it is
clear that, the Respondents have given a go-by to the old Government Order,
i.e. G.O.(Ms) No.22, dated 28.02.2006. That being the case, employees who
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
have been on the rolls ever since the date of entry, as per the statement made
by the Respondents before this Court, will have to be regularized in service.
10. The applicability of Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981 (in short, 'the
1981 Act) to Establishments and to the facts of this case, is not addressed in
this Writ Petition. Even assuming for the sake of argument that, the 1981 Act
is not applicable to the case on hand, this Court would like to draw inference
that, the intention of the Government while legislating the Act was to ensure
that, the employees are regularized on completion of 480 days in a period of
24 calender months, and that, the 1981 Act, received the assent of the
President of India on 05.08.1981 and it came into effect from 01.01.1982,
and it has a deeming provision. Except the extension of the provisions of the
Act to Central Government Establishments viz. Southern Railways and Khadi
Gramodyog, there appears to be no Notification extending the benefits of the
Act to any other Industrial Establishment.
11. Umadevi's case (supra) may not be applicable to the facts and
circumstances of this case, as, pursuant to the said decision, Petitioners herein
should not have been appointed and continued in service. When the
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
Respondents have given a go-by to the said decision every time, principles of
the said decision cannot come handy. Respondents have watered down the
principles laid down in Umadevi's case (supra) and they cannot shed
crocodile tears after a decade. In the light of the decision rendered by this
Court in the case of S.Thangappan vs. Government of Tamil Nadu,
reported in 1986 T.N.L.J. 153, action needs to be taken against persons, who
appointed the employees, and the Petitioners herein cannot be made as
scapegoats.
12. In the case on hand, there is no back door employment of the
Petitioners, so as to disentitle them from the benefit of regularization.
Moreso, documents produced by the Petitioners have not been disputed or
denied. Hence, this Court does not find any impediment in directing
regularization of the services of the Petitioners. Accordingly, Respondents
are directed to regularize the services of the Petitioners herein from the
date of their entry into service. However, all the service benefits need to
be calculated and payment due to the Petitioners shall be made with
effect from 01.04.2021. It is made clear that, the Petitioners will not be
entitled to any other backwages or monetary benefits, except that, wages need
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
to be re-fixed notionally/retrospectively. Petitioners are entitled to
permanent status, continuous and continuity of service, which shall be
counted for pension and gratuity.
In fine, these Writ Petitions are allowed with the above direction.
No costs. Consequently, connected W.M.P.Nos.16078 & 24394 of 2019;
W.M.P.Nos.16075, 16079, 24396 and 16085 of 2019 and
W.M.P.Nos.24454, 15866, 36786 & 23261 of 2020 are closed.
03.03.2021
Index : Yes/No
Speaking Order : Yes/No
(aeb)
Note to Registry: Issue copy of this order on or before 17.05.2021.
To:
1. The Principal Secretary to Government,
State of Tamil Nadu, Public Works Department,
Secretariat, Chennai 600 009.
2. The Chief Engineer (Buildings), Chennai Region,
Public Works Department, Chepauk, Chennai 600 005.
3. The Executive Engineer, Chennai Corporation,
South Division, Chepauk, Chennai 600 005.
4. The Assistant Executive Engineer, Public Works Department,
Adyar Sub Division, Adyar, Chennai 600 028.
5. The Assistant Executive Engineer,
Public Works Department (Electrical Division)
Saidapet Sub Division, Chepauk, Chennai 600 005.
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W.P.Nos.16410, 16416, 24744 & 16421 of 2019
S.VAIDYANATHAN,J.
(aeb)
Common order in
W.P.Nos.16410, 16416,
24744 & 16421 of 2019
03.03.2021
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