Madras High Court
Mr.P.Madasamy vs The Managing Director on 28 October, 2021
W.P(MD)Nos.16801 to 16811 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 28.10.2021
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P(MD)Nos.16801 to 16811 of 2021
and
W.M.P(MD)Nos.13685, 13687,13689, 13690, 13693, 13686, 13691, 13688,
13692, 13695 & 13698 of 2021 of 2021
1.Mr.P.Madasamy ... Petitioner in W.P(MD)No.16801
2.U.Sapparathan ... Petitioner in W.P(MD)No.16802
3.Mr.P.Ganesan ... Petitioner in W.P(MD)No.16803
4.Mr.B.Nagarajan ... Petitioner in W.P(MD)No.16804
5.Mr.A.Natrajan ... Petitioner in W.P(MD)No.16805
6.Mr.P.Mookan ... Petitioner in W.P(MD)No.16806
7.Mr.V.Velayutham ... Petitioner in W.P(MD)No.16807
8.Mr.K.Ramakrishnan ... Petitioner in W.P(MD)No.16808
9.Mr.V.Gurusamy ... Petitioner in W.P(MD)No.16809
10.Mr.K.Thavamani ... Petitioner in W.P(MD)No.16810
11.Mr.K.Arumugam ... Petitioner in W.P(MD)No.16811
Vs.
(IN All W.Ps)
1.The Managing Director,
Canara Bank,
Canara Bank Buildings,
No.112, J.C.Road,
https://www.mhc.tn.gov.in/judis
P.B.No.6648,
1/12
W.P(MD)Nos.16801 to 16811 of 2021
Bangalore – 560 002.
2.The Secretary,
Canara Bank (Employee's) Pension Fund,
H.O. Annexe, Naveen Complex,
No.14, M.G. Road,
Bangalore – 560 001.
3.The Manager,
Canara Bank (Employee's) Pension Fund,
H.O.Annexe, Naveen Complex,
No.14, M.G. Road,
Bangalore – 560 001.
4.The General Manager,
Canara Bank,
Circle Office,
Madurai.
5.The Assistant General Manager,
Canara Bank,
Circle Office,
East Veli Street,
Madurai – 1. ... Respondents
Prayer in W.P.(MD)Nos.16801 to 16807 & 16809 to 16811of 2021: Writ
Petitions filed under Article 226 of the Constitution of India, praying this
Court to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the Impugned Order in Ref. MDUC HRM 61580, 70466, 70520,
70215, 67085, 66306, 68402, 66087, 70359, 70463 2021 dated 06.05.2021
respectively on the file of the Respondent No.5 and quash the same as illegal
and consequently for a direction, directing the Respondent No.1 & 2 to count
the earlier services rendered by the Petitioners on daily wages i.e. from the date
of initial appointment in the post of Peon along with the regular service for the
purpose of calculation of the pensionary benefits and to provide all other
consequential benefits within the time stipulated by this Court and pass such
further or other orders as this Court.
Prayer in W.P.(MD).No.16808 of 2021: Writ Petition filed under Article 226
of the Constitution of India, praying this Court to issue a Writ of Certiorarified
Mandamus, to call for the records pertaining to the Impugned Order in the
Impugned Order in Ref.HRW/CBEPF/SS/64269/467/10/2020-21 dated
https://www.mhc.tn.gov.in/judis
29.03.2021 on the file of the Respondent No.3 and quash the same as illegal
W.P(MD)Nos.16801 to 16811 of 2021
and consequently for a direction, directing the Respondent No.1 & 2 to count
the earlier services rendered by the Petitioner on daily wages i.e. from the date
of initial appointment in the post of Peon along with the regular service for the
purpose of calculation of the pensionary benefits and to provide all other
consequential benefits within the time stipulated by this Court and pass such
further or other orders as this Court.
(In all W.Ps)
For Petitioners : Mr.T.Lajapathi Roy
For Respondents : Mr.N.Dilip Kumar,
Standing Counsel.
COMMON ORDER
Since the issue involved in these writ petitions is one and the same, a
common order is being passed in these writ petitions.
2. The writ petitioners were appointed as peon on daily wages, in the
leave vacancy that has arisen in the respondent bank. The appointment was
made on the basis of seniority of registration in the employment exchange. The
petitioners were appointed between the years 1983 and 1999. Later, the writ
petitioners were observed in the permanent vacancy and their services were
regularized by the respondent bank. The petitioners retired from service
between the years 2018 and 2020. Thereafter, the petitioners made individual
representations to the respondent bank to count the earlier service rendered by
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.16801 to 16811 of 2021
them as daily wages, along with regular service rendered, for calculating the
pensionary benefits. The respondent bank has passed the impugned order,
rejecting the request made by the petitioners. Challenging the same, the
petitioners have filed the present writ petitions.
3. The learned counsel for the petitioners submitted that the respondent
bank has passed the rejection order without counting the services of the
petitioners rendered as daily wage workers in the respondent bank for more
than ten years. He further submitted that the said period has to be taken in to
account for calculating the pensionery benefits. Without considering the said
fact, the respondent bank has rejected the claim of the petitioners. Therefore,
the rejection orders were to be set aside.
4. The respondent bank has filed a detailed common counter-affidavit
rejecting the contentions raised by the petitioners. According to the respondent
bank, the petitioners were appointed only in leave vacancy i.e. whenever
regular employees were on leave. The employment of the petitioners was not
continuous. It is the usual practice followed in banks to employ peons on daily
wages whenever regular employees go on leave. As and when regular vacancies
arise, employees working on daily wages were considered for absorption, along
with fresh candidates. The writ petitioners were appointed only on ad hoc basis.
https://www.mhc.tn.gov.in/judis
Therefore, their claim for regularisation, counting the period from the date of
W.P(MD)Nos.16801 to 16811 of 2021
their initial appointment cannot be considered.
5. The learned counsel for the respondents has also relied upon Chapter
IV of the Canara Bank (Employees’) Pension Regulations, 1995. Chapter IV,
Rule 14 reads as follows:-
14. Qualifying service:-
“Subject to the other conditions contained in
these regulations, an employee who has rendered a
minimum of ten years of service in the bank on the
date of his retirement or the date on which he is
deemed to have retired shall qualify for pension”.
6. Heard the learned counsel for the petitioners on either side and perused
the materials available on record.
7. The short point for consideration in these writ petitions is whether the
writ petitioners are entitled for regularisation from the date of initial
appointment or ad hoc employment in the leave vacancy and count the same
period for the purpose of pensionary benefits.
8. The writ petitioners were initially engaged only as temporary daily
wage employees on ad hoc basis, whenever regular employees were on leave.
https://www.mhc.tn.gov.in/judis
The writ petitioners’ services were regularized between the years 1992 and
W.P(MD)Nos.16801 to 16811 of 2021
1993 by the respondent bank. It is pertinent to note that the writ petitioners
have not challenged the appointment order, seeking regularization with effect
from the date of their initial appointment. These writ petitioners retired from
service between the years 2018 and 2020 on attaining the age of
superannuation. These writ petitions have been filed praying for regularization
of service from the date of initial appointment for the purpose of pensionary
benefits.
9. The learned counsel for the petitioners has relied upon several
judgments in support of his contentions. The learned counsel relied upon
judgment of the Hon'ble Supreme Court in 2014(4) SCC 769 (Secretary vs.
Govindasami) paras 8 and 9.
This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193,
has considered the scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid down well-settled principles
relating to regularisation and parity in pay relevant in the context of the issues
involved therein. The same are as under:
“8 (i) The High Courts, in exercising power under Article
226 of the Constitution will not issue directions for regularisation,
absorption or permanent continuance, unless the employees
claiming regularisation had been appointed in pursuance of a
regular recruitment in accordance with relevant rules in an open
competitive process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be scrupulously
followed and Courts should not issue a direction for
https://www.mhc.tn.gov.in/judis regularisation of services of an employee which would be
violative of the constitutional scheme. While something that is
W.P(MD)Nos.16801 to 16811 of 2021
irregular for want of compliance with one of the elements in the
process of selection which does not go to the root of the process,
can be regularised, back door entries, appointments contrary to
the constitutional scheme and/or appointment of ineligible
candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or
daily-wage employee, under cover of some interim orders of the
court, would not confer upon him any right to be absorbed into
service, as such service would be “litigious employment”. Even
temporary, ad hoc or daily-wage service for a long number of
years, let alone service for one or two years, will not entitle such
employee to claim regularisation, if he is not working against a
sanctioned post. Sympathy and sentiment cannot be grounds for
passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a
cut-off date (that is a scheme providing that persons who had put
in a specified number of years of service and continuing in
employment as on the cut-off date), it is not possible to others
who were appointed subsequent to the cut-off date, to claim or
contend that the scheme should be applied to them by extending
the cut-off date or seek a direction for framing of fresh schemes
providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as
they are not working against any sanctioned posts. There cannot
be a direction for absorption, regularisation or permanent
continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions
cannot claim parity in salary with regular employees of the
Government on the principle of equal pay for equal work. Nor
can employees in private employment, even if serving full time,
seek parity in salary with government employees. The right to
claim a particular salary against the State must arise under a
contract or under a statute.” (Emphasis added)
10. The learned counsel has also placed reliance on the judgment in 2006
(11) SCC 464:
12. The statement of law has also been
https://www.mhc.tn.gov.in/judis
summarized in Halsbury's Laws of England, Para
W.P(MD)Nos.16801 to 16811 of 2021
911 , pg. 395 as follows :
. " In determining whether there has been such delay as to
amount to laches, the chief points to be considered are :
(i) acquiescence on the claimant's part;
and
(ii) any change of position that has occurred on the
defendant's part.
Acquiescence in this sense does not mean standing by while
the violation of a right is in progress, but assent after the
violation has been completed and the claimant has become
aware of it. It is unjust to give the claimant a remedy where,
by his conduct, he has done that which might fairly be
regarded as equivalent to a waiver of it; or where by his
conduct and neglect, though not waiving the remedy, he has
put the other party in a position in which it would not be
reasonable to place him if the remedy were afterwards to be
asserted. In such cases lapse of time and delay are most
material. Upon these considerations rests the doctrine of
laches. "
11. Considering the above judgments, this court is of the view that the
petitioners' request to consider for regularisation of services with effect from
https://www.mhc.tn.gov.in/judis
the date of their initial appointment in the years 1992 to 1999 has to be rejected.
W.P(MD)Nos.16801 to 16811 of 2021
The petitioners retired from service between the years 2018 and 2020. Till their
retirement, the petitioners have not raised this prayer for regularisation of
appointment from the initial period of daily wages. Therefore, these writ
petitions are liable to be dismissed on the ground of delay and laches.
12. Another judgment of this court ultimately considered in WP No.4299
of 2015 dated 03.07.2019 wherein this court has considered a similar issue of
petitioners who were initially appointed as daily wage employees and
subsequently, their employment was regularized in the sanctioned post, in a
regular scale of pay. These appointments were made by the Department and not
as per the rules, and therefore, these appointments were held to be irregular
appointments. This court further held that regularising the service for the
employees itself is a concession and that concession cannot be granted with
retrospective regularisation of service for monetary benefits including
pensionary benefits. This court ultimately negatived the prayer and dismissed
the writ petition. The relevant paragraph of the judgement is extracted
hereunder:
“4.This Court is of the considered opinion
that the initial appointment of the writ petitioner
was not in accordance with the recruitment rules in
force. He was appointed only as a daily wage
employee and subsequently converted as
https://www.mhc.tn.gov.in/judis consolidated pay employee. This being the factum,
retrospective regularization of service cannot be
W.P(MD)Nos.16801 to 16811 of 2021
granted in respect of the irregular appointments
made. The services of the writ petitioner was
subsequently regularized from the year 2012 in the
sanctioned post in the regular time scale of pay in
respect of the irregular appointments grant of
regularization itself is a concession. Thus, further
concession cannot be granted for retrospective
regularisation of the services with monetary
benefits.”
13. The petitioners have not made out a prima facie case. These writ
petitions have to be rejected on the ground of laches as well. The writ petitions
are devoid of merits and the same is liable to be dismissed.
14. Since no prima facie case has been made out, the petitioners are not
entitled to regularisation from the date of their initial appointment. The writ
petitions fail and the same are therefore dismissed. There will be no order as to
costs. Consequently connected miscellaneous petitions are closed.
28.10.2021
Index : Yes / No
Internet : Yes/ No
mnr
Note : In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.16801 to 16811 of 2021
To
1.The Managing Director,
Canara Bank,
Canara Bank Buildings,
No.112, J.C.Road,
P.B.No.6648,
Bangalore – 560 002.
2.The Secretary,
Canara Bank (Employee's) Pension Fund,
H.O. Annexe, Naveen Complex,
No.14, M.G. Road,
Bangalore – 560 001.
3.The Manager,
Canara Bank (Employee's) Pension Fund,
H.O.Annexe, Naveen Complex,
No.14, M.G. Road,
Bangalore – 560 001.
4.The General Manager,
Canara Bank,
Circle Office,
Madurai.
5.The Assistant General Manager,
Canara Bank,
Circle Office,
East Veli Street,
Madurai – 1.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.16801 to 16811 of 2021
D.KRISHNAKUMAR, J.
mnr
W.P(MD)Nos.16801 to 16811 of 2021
and
W.M.P(MD)Nos.13685, 13687,13689, 13690, 13693, 13686, 13691, 13688,
13692, 13695 & 13698 of 2021 of 2021
28.10.2021
https://www.mhc.tn.gov.in/judis
