Madras High Court
V.Xavier vs The Secretary To Government on 29 November, 2021
W.P.No.25270 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.25270 of 2021
1. V.Xavier
2. B.Gokulakannan
3. T.Rajaram Mohan Rai
4. M.Gnanavel .. Petitioners
Vs
1.The Secretary to Government,
Government of Tamil Nadu,
Home Courts (CTS),
Fort St. George,
Chennai – 600 009.
2.The Registrar General,
High Court of Madras,
Chennai – 600 104.
3.The Chief Judicial Magistrate,
Villupuram District,
Villupuram. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
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W.P.No.25270 of 2021
praying for a writ of mandamus directing the respondents to
regularize/permanent the services of the petitioners in the post of
Night Watchman with the second and third respondents immediately.
For the Petitioners : Mr.R.Ramesh
For the Respondents : Mr.P.Muthukumar
State Government Pleader
for respondent No.1
: Mr.V.Vijay Shankar
Standing Counsel
for respondent Nos.2 and 3
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
The writ petition has been filed seeking a direction for
regularisation of the services of the petitioners on the post of Night
Watchman.
2. The facts stated in the writ petition show that the
petitioners were called for interview vide a letter dated 10.02.2020
for their appointment on the post of Night Watchman on temporary
basis. After attending the interview, the petitioners were given
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W.P.No.25270 of 2021
appointment on the post of Night Watchman on temporary basis for
a period of six months in the month of March, 2020. The tenure of
the petitioners was thereafter extended from time to time and, in
the meanwhile, an advertisement was issued in the month of April,
2021 to fill up all the posts on regular basis. The petitioners, apart
from others, applied for the post and, accordingly, were called for
selection. The petitioners submit that their tenure is going to expire
on 30.11.2021. Thus, the writ petition has been filed to seek
regularisation of their services or to accommodate them on any
other alternative post available in the department.
3. It is submitted that the petitioners have already worked for
more than two years by now and there is a legitimate expectation
from the respondents to continue the petitioners on the said post or
on any other vacant post available with the respondents or other
department. The prayer is to restrain the respondents from
discontinuing the services of the petitioners as they were not
appointed through back door, but only after interview pursuant to
the names sent by the employment exchange.
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W.P.No.25270 of 2021
4. Learned counsel for the petitioners has cited two judgments
of this court to support his argument. The first judgment is in the
case of Judicial Temporary Employees Welfare Association v.
The State of Tamil Nadu [W.P.No.9710 of 2009, decided on
10.6.2009]. The other judgment is in the case of M.Selvaraaj v.
The State of Tamil Nadu [Review Application No.3 of 2010,
decided on 28.2.2011]. It is submitted that appropriate direction
for continuance of temporary employees was given in paragraph 21
in the case of Judicial Temporary Employees Welfare
Association (supra). The prayer is to issue a similar direction in
the present case also.
5. The writ petition has been contested by the respondent
Nos.2 and 3. It is stated that the petitioners were given
appointment on temporary basis after calling their names from the
employment exchange. It was given initially for a period of six
months, followed by extension for the reason that the process of
selection was started in the month of April, 2021 and was not
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W.P.No.25270 of 2021
completed before the expiry of the term of the appointment of the
petitioners. It is further stated that now the process of selection
has been completed and the respondents are expected to issue
appointment orders to the selected candidates within a period two
weeks from today.
6. In view of the above, the prayer made by the respondent
Nos.2 and 3 is not to issue any direction in favour of the petitioners
for their continuance in service. The petitioners are only temporary
appointees and, thus, have to make room for selected candidates.
It is more so when the petitioners had also applied for their regular
selection. Thus, subject to the result of the selection, appropriate
directions may be given. However, it may be made clear that if the
petitioners are not selected, then they would have no right to
continue in service.
7. We have considered the rival submissions and perused the
records.
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W.P.No.25270 of 2021
8. The facts on record show that the petitioners were
appointed on the post of Night Watchman on temporary basis for a
period of six months in the month of March, 2020. The period of
temporary appointment was extended from time to time and as per
the last order in favour of the petitioners, their tenure is going to
expire on 30.11.2021.
9. Learned counsel for the respondent Nos.2 and 3 stated that
the process of selection was initiated in the month of April, 2021
and has been completed and the orders of appointment are likely
to be issued within a period of two weeks. That being the position,
the direction of the nature sought by the petitioners for
regularisation or continuance cannot be given on the post of Night
Watchman, unless selected. They have to otherwise make room for
the regular selected candidates.
10. It may be true that the petitioners were not appointed
through back door, but being temporary employees, they cannot
seek a direction for continuance even if they are not selected on
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W.P.No.25270 of 2021
regular basis. Since their names were recommended by the
employment exchange, in case of non selection of the petitioners, a
direction can be given to the employment exchange to maintain
their names in the same seniority so that in case of requirement of
temporary employees in any other department, their names may be
recommended suitably.
11. A reference to the judgment in the case of Judicial
Temporary Employees Welfare Association (supra) has been
given. We have gone through the judgment and find that in
paragraph 21 certain directions have been given. The legal position
in regard to the rights of temporary employees has been
crystallized by the Supreme Court judgment in the case of State of
Karnataka v. Umadevi (3), (2006) 4 SCC 1. In view of the
judgment of the Apex Court, the direction for continuance of the
services of the temporary employees cannot be given as the
process of regular selection has already been completed, though we
would protect the rights of the petitioners to the extent it is
permissible. The directions in the case of Judicial Temporary
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W.P.No.25270 of 2021
Employees Welfare Association (supra) were on its own facts
which are not similar to the facts of this case. In the instance case,
the petitioners have not even worked for two years and there are a
series of judgments of the Apex Court that deprecate the practice of
continuance of the temporary employees for indefinite period and
direction for regularisation.
12. In view of the above, we are not inclined to direct the
respondents to continue the services of the petitioners if they are
not selected in the regular selection process.
13. In the result, the writ petition is disposed of with the
following directions:
(i) If the petitioners are selected in the regular mode,
they would be given regular appointment; and
(ii) If the petitioners are not selected pursuant to the
selection process undertaken by the respondents,
their names would be referred to the employment
exchange to maintain it on the same seniority
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W.P.No.25270 of 2021
position so that if any requisition is sent by any other
department, the names of the petitioners may be
recommended appropriately for their employment.
There will be no order as to costs. Consequently,
W.M.P.Nos.26647, 26651 and 26654 of 2021 are closed.
(M.N.B., ACJ) (P.D.A., J.)
29.11.2021
Index : No
bbr
To:
1.The Secretary to Government,
Government of Tamil Nadu,
Home Courts (CTS),
Fort St. George,
Chennai – 600 009.
2.The Registrar General,
High Court of Madras,
Chennai – 600 104.
3.The Chief Judicial Magistrate,
Villupuram District,
Villupuram.
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W.P.No.25270 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
bbr
W.P.No.25270 of 2021
29.11.2021
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