Madras High Court
A.Ganesan vs The State Of Tamil Nadu on 30 September, 2021
W.P.Nos.21038, 21040 & 21041 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.Nos.21038, 21040 & 21041 of 2021
(Through Video Conferencing)
1.A.Ganesan ... Petitioner
in W.P.No.21038 of 2021
2.A.Arumugam ... Petitioner
in W.P.No.21040 of 2021
3.M.Bakkiyam ... Petitioner
in W.P.No.21041 of 2021
Vs
1.The State of Tamil Nadu,
Represented by the Secretary to Government,
Education Department,
Fort St. George, Chennai – 9.
2.The Director of School Education,
College Road, Chennai – 09.
3.The Chief Educational Officer,
Virudhunagar District.
4.The District Educational Officer,
Virudhunagar District. ... Respondents in all W.Ps
W.P.Nos.21038, 21040 & 21041 of 2021
Prayer in W.P.No.21038 of 2021: Writ Petition filed under Article 226
of the Constitution of India to issue a Writ of Mandamus directing the
respondents to grant monetary benefits to the petitioner with effect from
07.08.2001, the date of petitioner's regularization of service as per
G.O.Ms.No.68, School Education (R1) Department dated 18.04.2013 and
to pay consequential arrears of pay.
Prayer in W.P.No.21040 of 2021: Writ Petition filed under Article 226
of the Constitution of India to issue a Writ of Mandamus directing the
respondents to grant monetary benefits to the petitioner with effect from
16.09.2011, the date of petitioner's regularization of service as per
G.O.Ms.No.68, School Education (R1) Department dated 18.04.2013 and
to pay consequential arrears of pay.
Prayer in W.P.No.21041 of 2021: Writ Petition filed under Article 226
of the Constitution of India to issue a Writ of Mandamus directing the
respondents to grant monetary benefits to the petitioner with effect from
19.11.2010, the date of petitioner's regularization of service as per
G.O.Ms.No.68, School Education (R1) Department dated 18.04.2013 and
to pay consequential arrears of pay.
For Petitioners : Ms.Dakshayani Reddy
(In all W.Ps) for Ms.S.Esairani Narasimman
For Respondents : Mr.L.S.M.Hasan Fizal
(In all W.Ps) Government Advocate
COMMON ORDER
Mr.L.S.M.Hasan Fizal, learned Government Advocate takes notice
on behalf of the respondents.
W.P.Nos.21038, 21040 & 21041 of 2021
2. Appearing on behalf of the petitioners, the learned counsel
submits that the services of petitioners were to be regularized in terms of
the Government Order in G.O.Ms.No.68, School Education (R1)
Department dated 18.04.2013.
3. The learned counsel for the petitioners further submits that the
petitioners herein are at Sl.Nos.86, 87 & 88 in Annexure in the above
Government Order. However, the respondents have not been
implemented the aforesaid Government Order in the case of the
petitioners.
4. The learned counsel for the petitioners has also enclosed a copy
of the order dated 12.06.2013 in Na.Ka.No.1103/A1/2013 in the case of
one Gunalan who was at Sl.No.70 in Annexure of the aforesaid
Government Order. The said Gunalan is also a similarly placed person
like the petitioners. It is submitted that though the Government has also
issued the aforesaid Government Order it has not been implemented in
the case of the petitioners and therefore the present writ petition has been
filed by the petitioners. The learned counsel for the petitioners submits
W.P.Nos.21038, 21040 & 21041 of 2021
that the petitioners have also given their representations to the
respondents in the year 2015, 2017, 2019 and 2021 which has not evoked
any positive response from the respondents.
5. Appearing on behalf of the respondents, the learned
Government Advocate submits that there was an embargo on the
respondents for implementing the content of G.O.Ms.No.68, School
Education (R1) Department dated 18.04.2013 in the light of the decision
of the Hon'ble Supreme Court in Secretary to Government, School
Education Department, Chennai Vs Thiru R.Govindswamy and
others, (2014) 4 SCC 769. The learned Government Advocate for the
respondents has drawn attention to Paragraphs 7 & 8 of the aforesaid
order which reads as under:-
“ 7. 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:
W.P.Nos.21038, 21040 & 21041 of 2021
“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
regularisation of services of an employee which
would be violative of the constitutional scheme.
While something that is 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
W.P.Nos.21038, 21040 & 21041 of 2021
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)
8. The present appeals are squarely covered by
clauses (ii), (iv) and (v) of the aforesaid judgment.
Therefore, the appeals are allowed. However, in light of
the facts and circumstances of the case as Shri P.P. Rao,
learned senior counsel has submitted that the appellant
has already implemented the impugned judgments and
does not want to disturb the services of the respondents,
the services of the respondents which stood regularised
should not be affected.”
W.P.Nos.21038, 21040 & 21041 of 2021
6. The learned Government Advocate for the respondents further
submits that the counsel for the State Government had already submitted
that the decision to absorb such persons had been taken and had already
been implemented and does not want any disturbance. He submits that
since the services of petitioners were not regularized earlier, the
petitioners cannot claim benefit of G.O.Ms.No.68, School Education
(R1) Department dated 18.04.2013.
7. Heard the learned counsel for the petitioner and the learned
Government Advocate for the respondents. I have perused the relevant
Government Order.
8. If the petitioners have been working as Sanitary
Workers/Sweepers from 1991 to 2001 and their names were included in
G.O.Ms.No.68, School Education (R1) Department dated 18.04.2013,
their claims have been considered by the respondents.
W.P.Nos.21038, 21040 & 21041 of 2021
9. The above Government Order makes it clear that the decision
was taken by the Government to absorb the petitioners into service in the
regular time scale of pay.
10. Considering the above, this Writ Petition is disposed by
directing the respondents to implement G.O.Ms.No.68, School Education
(R1) Department dated 18.04.2013 within a period of twelve weeks from
the date of receipt of a copy of this order. Before passing such orders,
the respondents may however verify whether the petitioners were indeed
covered by the aforesaid Government Order.
11. In case the petitioners are entitled to be absorbed, the
respondents are also directed to pay the arrears of salary, if any, to the
petitioners they have been paid, had they been absorbed then and there in
terms of G.O.Ms.No.68, School Education (R1) Department dated
18.04.2013.
W.P.Nos.21038, 21040 & 21041 of 2021
12. These Writ Petition are disposed of with the above
observations. No costs.
30.09.2021
Index: Yes/ No
Internet: Yes/No
Speaking/Non-speaking Order
arb
To
1.The Secretary,
Government of Tamil Nadu,
Education Department,
Fort St. George, Chennai – 9.
2.The Director of School Education,
College Road, Chennai – 09.
3.The Chief Educational Officer,
Virudhunagar District.
4.The District Educational Officer,
Virudhunagar District.
W.P.Nos.21038, 21040 & 21041 of 2021
C.SARAVANAN,J.
arb
W.P.Nos.21038, 21040 & 21041 of 2021
30.09.2021
