Madras High Court
R.Gnana Prakasam vs The Secretary To Government on 9 March, 2021
W.A.(MD)Nos.383 to 406 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)Nos.383 to 406 of 2020
and
C.M.P.(MD)Nos.2704, 2709, 2710, 2712 to 2717,
2719 to 2722, 2724, 2725, 2727 to 2731,
2733, 2734, 2736 & 2738 of 2020
W.A.(MD)No.383 of 2020:
R.Gnana Prakasam : Appellant
Vs.
1.The Secretary to Government,
Government of Tamil Nadu,
Home, Prohibition and Excise (VI) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Managing Director,
Tamil Nadu State Marketing Corporation Ltd (TASMAC),
4th Floor, CMDA Towers – II,
Gandhi Irwin Bridge Road,
Egmore, Chennai – 600 008.
3.The Senior Regional Manager,
Tamil Nadu State Marketing Corporation Ltd (TASMAC),
Anna Nagar,
Madurai – 625 020.
1/13
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W.A.(MD)Nos.383 to 406 of 2020
4.The General Manager,
Tamil Nadu State Ex Service Men's Corporation Ltd (TEXCO),
No.2, West Monda Street,
Srinagar Colony, Saidapet,
Chennai. : Respondents
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent as against the
order dated 14.02.2020 made in W.P.(MD)No.929 of 2020.
For Appellants : Mr.S.Malaikani
For Respondents : Mrs.J.Padmavathi Devi,
Special Government Pleader for R.1
Mr.H.Arumugam,
Standing Counsel for R.2 & R.3
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
As all these appeals arise out of a common judgment, involving common
and similar facts, they are taken up together and are accordingly disposed of by
way of this common judgment.
2. Agreements were entered into between the respondents 2 & 3 on the one
hand and the fourth respondent on the other hand. The fourth respondent is a
Corporation catering to the needs of the Ex-Service Men. Whenever request is
made on behalf of the respondents 2 & 3, the fourth respondent will furnish the
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W.A.(MD)Nos.383 to 406 of 2020
members, being the Ex-Service Men, enrolled with it. This is followed by an
agreement between the respondents 1 & 2 on the one hand and the fourth
respondent on the other hand. The payment would be made to the fourth
respondent, which, in turn, will go the employee concerned. The following are the
relevant clauses in such agreements:
“9.All claim bills raised by TEXCO, on wages shall be paid by the
SRM, TASMAC, Madurai – 20 within 7 days of receipt so that the wages are
paid to the above personnel within 7 days from the END OF WAGE PERIOD,
following the period of performance of duty based on the authorised
attendance of the contracted personnel.
10.TEXCO shall be responsible for making wages as may become
applicable to the contracted personnel provided to them as per the Tamil
Nadu State Marketing Corporation Ltd., Chennai letter No.M1/4990/2017
dated 27 Jun 2019.
...
14.This agreement shall be terminated by either of the parties
concerned by giving one months notice in writing or by payment of one
month contractual dues in lieu or non payment of bills to TEXCO within 15
days of its due.”
3. Thus, from the above, the fourth respondent is required to send the
requisite number of persons, as sought for by the respondents 2 & 3. The
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W.A.(MD)Nos.383 to 406 of 2020
agreement can also be terminated as aforesaid. No disciplinary proceedings can be
initiated by the respondents 2 & 3 against the persons sponsored by the fourth
respondent. In the event of the completion of the term of the agreement or
termination, such persons will once again be sent for other employment by the
fourth respondent. This is the scheme involved between those who enrolled with
the fourth respondent and the said respondent.
4. On the request made by the respondents 2 & 3, number of persons were
sent to work on a daily wage basis in the TASMAC shops. The contract was
renewed from time to time. They have been working for a few years.
5. A policy decision was made by the first respondent to reduce the number
of shops and roughly about 1000 shops were closed. In pursuant to the orders
passed by the Hon'ble Apex Court, the shops located in the Highways were closed.
Thereafter, the aforesaid order was modified giving the discretion and to work out
the modalities to the respective States. This also led to reduction of many shops, as
it involves relocation. Resultantly, there are more than 2000 shops, which are yet
to be relocated.
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W.A.(MD)Nos.383 to 406 of 2020
6. In the meanwhile, the Government passed an order in G.O.Ms.No.44,
Home, Prohibition and Excise (VI) Department, dated 12.07.2018, to fill up 500
vacancies of Junior Assistants in the TASMAC shops by redeployment of surplus
shop personnel working in various shops, by relaxing the educational and age
qualifications. Accordingly, they were put through a special test. Suffice it is to
state that various persons were directly recruited upon being sponsored by the
employment exchange. Therefore, there exists a master-servant relationship,
though working on a contractual basis and 500 of those vacancies have been filled
up.
7. Having found that more than 3000 shops are not running, both in
pursuant to the policy decision of the Government and also due to the orders
passed by the Hon'ble Apex Court leading to redeployment, a decision was made
to terminate the agreements by complying with the terms contained thereunder, as
aforesaid. Accordingly, all the appellants herein were terminated. They filed writ
petitions before the learned Single Judge seeking the following reliefs:
“For the reasons stated in the accompanying affidavit, it is prayed that
this Honourable Court may be pleased to issue a writ, order or direction or
any other writ in the nature of a Writ of Mandamus, directing the
respondents to regularize the service of the petitioner as junior assistant in
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W.A.(MD)Nos.383 to 406 of 2020
the 2nd respondent corporation from the date of initial appointment till
retirement in the light of G.O.Ms.No.44 dated 12.07.2018 issued by the 1 st
respondent and consequently to pay all other monetary benefits on par with
the other employees of the 2nd respondent corporation and pass such further
or other orders as this Honourable Court may deem fit and proper in the
circumstances of the case and thus render justice.”
8. The writ petitions filed were dismissed, after taking note of the terms
contained in the agreements entered into between the respondents 2 & 3 as against
the fourth respondent. Challenging the aforesaid orders passed, the present appeals
have been filed.
9. When some of the connected appeals filed, came before a Division Bench
of this Court, on an earlier occasion, in W.A.(MD)Nos.365 of 2020, etc., batch, by
order dated 09.03.2020, the appeals filed were dismissed. The following
paragraphs from the said judgment are extracted hereunder for better appreciation:
“3.The appellants relying upon said the Government Order, stated that
the same benefit should also be extended to the appellants, even though they
are employed on contract basis. It is not in dispute that no privity of contract
between the appellants and M/s.TASMAC. This Court do not agree that there
is employer and employee relationship between appellants and
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W.A.(MD)Nos.383 to 406 of 2020
M/s.TASMAC. The engagement of the appellants in M/s.TASMAC is purely on
contract basis, based on the contract of service entered into between
M/s.TASMAC and the fourth respondent. The appellants cannot compare
themselves on par with the employees of M/s.TASMAC, who were engaged
and recruited by M/s.TASMAC.
4.The learned Additional Advocate General relied upon the judgment
of Division Bench of this Court in W.A.(MD)Nos.569, 570 and 685 of 2010,
in the case of The State of Tamil Nadu and two others vs M.Jeyaraj and
another, wherein, the Division Bench has ruled that there is no rule of law
that a temporary appointee has a right to continue till a regularly selected
candidate is available. The Division Bench considered the scope of
employment of Ex-Service Men as Drivers through TEXCO based on the
agreement entered into between District Collector and TEXCO for a limited
period. It is held that the persons engaged or appointed on contract basis
have no right to the post. The Government order to recruit drivers through
Employment Exchange was upheld even though the Government has earlier
passed Government Order to recruit 182 TEXCO drivers on contract basis.
5.The learned Additional Advocate General has relied upon yet
another judgment of Division Bench of this Court in the case of Kovail
Mandala Ex-Service and Family Welfare Association and another vs
Union of India and others, reported in (2013) 8 MLJ 548. Before the
Division Bench, the request of the Ex-service men, who were deployed by
TEXCO on requisition from BSNL, was considered. After finding that the
deployment of ex-service men was only on need basis and that the
engagement of ex-service men was pursuant to a notification inviting
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W.A.(MD)Nos.383 to 406 of 2020
tenderer from various labour contractors, the Division Bench has held that
the decision of BSNL, rejecting the representation of the ex-service men for
regularisation, was legal and proper.
6.The learned Single Judge, after considering the fact that the
appellants are not employees of M/s.TASMAC, held that they cannot claim
regularisation, as if they are direct employees of M/s.TASMAC. After
following the principles of law reiterated in several judgments of Honourable
Supreme Court, the learned Single Judge has rightly dismissed the Writ
Petitions filed by the appellants. Having regard to the admitted facts and
circumstances of the present case, we cannot show any indulgence to the
appellants, who are not employees of the M/s.TASMAC.
7.The submission of the learned Counsel for the appellants that
appellants should be treated on par with other temporarily employees of
M/s.TASMAC in terms of G.O.Ms.No.44, cannot be accepted, as there is no
question of discrimination and the writ petitioners were not engaged by
M/s.TASMAC, but by TEXCO, pursuant to the agreement between
M/s.TASMAC and TEXCO. Hence, there is no merit in the appeals. The
learned Counsel for the appellants stated that they may be given liberty to
approach the respondents for extending their service till they attaining the
age of superannuation. It is open to them to approach the respondents for
such relief.”
10. Mr.S.Malaikani, learned Counsel appearing for the appellants submitted
that even as per the Government Order passed in G.O.Ms.No.44, Home,
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W.A.(MD)Nos.383 to 406 of 2020
Prohibition and Excise (VI) Department, dated 12.07.2018, there are other existing
vacancies. The appellants have been working for quite number of years. There is
not much of a difference between those, who have been absorbed and the
appellants, as they were doing the same job. They have also registered themselves
before the employment exchange. Thus, the concession extended to 500 of the
temporary employees will have to be extended to the appellants.
11. Mr.H.Arumugam, learned Standing Counsel appearing for the
respondents 2 & 3 submitted that the issue involved is already covered by the
orders passed by the Division Bench in W.A.(MD)Nos.365 of 2020. There is no
vested right available to the appellants. There was no privity of contract between
the appellants and the respondents 2 & 3. At the time of sponsoring the names, the
respondents 2 & 3 did not even know the persons. What has been sought for is the
number of hands required and not the individual persons. They were not taken in
pursuant to the seniority in the employment exchange. There was no master-
servant relationship. The salary itself was paid to the fourth respondent. The
agreement was duly terminated. In any case, the period of agreement itself is over.
The appellants are not working under them, as of now. They can very well find an
employment with any other third party, based upon the need.
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W.A.(MD)Nos.383 to 406 of 2020
12. The learned Standing Counsel further submitted that more than 3000
shops are not running as of now, both due to the policy decision and while giving
effect to the orders of the Hon'ble Apex Court. Thus, there are surplus employees,
who are yet to be given adequate employment, in view of the aforesaid situation.
The Government Order passed in G.O.Ms.No.44, Home, Prohibition and Excise
(VI) Department, dated 12.07.2018, refers to only one of the circumstances.
Therefore, these appeals will have to be dismissed.
13. We have paid our anxious consideration to the rival submissions and
also to the materials placed on record.
14. As rightly submitted by the learned Standing Counsel appearing for the
respondents 2 & 3, there is no master-servant relationship involved. It is not as if
these appellants were sponsored through the employment exchange, as sought for
by the respondents 2 & 3. They have been sent in pursuant to the agreement
between the respondents 2 & 3 and the fourth respondent. It is not as if they
cannot get employment elsewhere. The fourth respondent is the agency which
facilitates such employment to those, who enrolled with it. Therefore, the
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W.A.(MD)Nos.383 to 406 of 2020
appellants cannot seek it as a matter of right for treating them on par with those
500 persons, who were given concession by way of a one time measure. Those 500
persons were working directly under the respondents 2 & 3 and therefore,
disciplinary action can be taken against them, as well. Classification involving
Article 14 of the Constitution of India has got its own flexibility. A rigid or strict
classification can never be made. The parties are covered by the terms of the
agreement. It is nobody's case that the agreement has been terminated wrongly.
15. When the respondents 2 & 3 are already having excess and surplus
employees to be taken care of, the appellants cannot seek a writ of mandamus to
treat them on par with those 500 persons. It is not in dispute that number of shops
have been closed. About 1000 shops have been closed by way of a policy decision.
Secondly, there are 2400 shops (approximately), which are involved in the process
of relocation. It is as if all these 2400 shops are going to be relocated. That is
practically impossible. Therefore, it is very clear that there are abundant excess
employees available for the same work, which was done by the appellants.
16. The Division Bench of this Court, as referred supra, has already
considered all these aspects. We do not wish to reiterate the settled position of law
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W.A.(MD)Nos.383 to 406 of 2020
with respect to a contractual employee vis-a-vis a Government undertaking.
Similar is the position with those, who got back door entries, seeking
regularization. There are no substantive posts available. The appellants were
working on a daily wage basis. Thus, looking from any perspective, we are not in a
position to find fault with the reasoning adopted by the learned Single Judge,
followed by the conclusion arrived at. We are also in respectful agreement with the
order of the Division Bench referred supra. In any case, the appellants can seek
employment through the fourth respondent in any other undertaking / agency.
17. Thus, all these writ appeals stand dismissed. There shall be no order as
to costs. Consequently, all the connected miscellaneous petitions are closed.
Index : Yes / No [M.M.S.,J.] [S.A.I.,J.]
Internet : Yes 09.03.2021
gk
To
The Secretary to Government,
State of Tamil Nadu,
Home, Prohibition and Excise (VI) Department,
Secretariat, Fort St.George,
Chennai – 600 009.
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W.A.(MD)Nos.383 to 406 of 2020
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
gk
W.A.(MD)Nos.383 to 406 of 2020
09.03.2021
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