Madras High Court

D.Rani vs The District Collector on 30 September, 2021

Writ Appeal No.2477 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 30.09.2021

CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN

Writ Appeal No.2477 of 2021
D.Rani ... Appellant

vs.

1. The District Collector,
Thiruvannamalai District,
Thiruvannamalai.

2. The District Elementary Educational Officer,
Thiruvannamalai District,
Thiruvannamalai.

3. The Assistant Elementary Educational Officer,
Kalasapakkam,
Thiruvannamalai District.

4. The Commissioner for Panchayat Union,
Office of the Panchayat Union,
Kalasapakkam,
Thiruvannamalai District.

5. The Head Master,
Panchayat Union Middle School,
Pattiyendal Village,
Kalasapakkam Taluk,
Thiruvannamalai District. ... Respondents

Page No.1 of 14

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Writ Appeal No.2477 of 2021

Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 29.03.2019 passed by this Court in W.P.No.27707 of 2018.

For Appellant : Mr.G.Ilamurugu

For Respondents : Mr.K.V.Sajeev Kumar,
Government Advocate

JUDGMENT

(Judgment of the Court delivered by S.VAIDYANATHAN,J.)

Aggrieved by the order dated 29.03.2019 passed by the learned Single

Judge in W.P.No.27707 of 2019, the Writ Petitioner has come up with the

present Writ Appeal.

2. According to the Appellant/Writ Petitioner, she was appointed

as a Sweeper by the Village Educational Committee in the 5th Respondent

School with effect from 10.12.2010 and is continuously working in the

School in the said post. It is stated by the Appellant/Writ Petitioner that, her

appointment order has been forwarded by the 3rd Respondent to the 4th

Respondent vide communication dated 21.11.2011, for suitable orders

ratifying her appointment and to disburse salary.

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3. Learned counsel for the Appellant/Writ Petitioner contended

that, the learned Single Judge failed to consider that, the post of Sweeper

comes within the category of basic employment and there is no necessity to

call for Applications from the public, as the Village Educational Committee

is competent to make appointments in respect of basic employees. He

pointed out that, the Appellant/Writ Petitioner has rendered service in the 5 th

Respondent School for more than eight years without any break and by virtue

of her long service, her services in the 5th Respondent School may be

regularized. Learned counsel drew the attention of this Court to

G.O.Ms.No.47, School Education Department, dated 02.03.2012, relevant

portion of which, reads as under:

“Whereby 5000 sweepers and allied non-teaching staff were sought to be recruited in the Schools for a considerable period, had made a representation to consider them for regularization of their services. When the appointments under G.O.Ms.No.47 was sought to be made, the Government in certain cases had rejected the claim of these ad hoc appointees stating that, they were not properly appointed and that, the caste reservation and age criteria were not taken into consideration at the time of ad hoc appointments, etc.”

4. According to the learned counsel for the Appellant, when cases

of similarly placed persons were considered by the Government and the

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benefit of regularization had already been extended, similar benefit may also

be extended to the Appellant/Writ Petitioner.

5. In reply, learned Government Advocate appearing for the

Respondents submitted that, pursuant to the said Government order, the

Government had already appointed 1495 Watchman and 2213 Sweepers on

23.11.2012 and the remaining 506 vacancies of Night Watchman and 786

Sweepers are yet to be filled up and that, the vacancies will be filled up after

getting appropriate orders from the Government.

6. The learned Single Judge observed that, regularization or

permanent absorption cannot be granted in violation of the Recruitment

Rules in force and that, all appointments are to be made strictly in accordance

with the procedures as contemplated in the Rules. In respect of irregular and

illegal appointments, the benefit of regularization or permanent absorption

cannot be given in view of the legal principles settled by the Constitutional

Bench of the Apex Court in the case of State of Karnataka vs. Umadevi

reported in 2006 (4) SCC 1.

7. In view of the said decision, the learned Single Judge held that,

the Writ Petitioner is not entitled for regularization or permanent absorption

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and in the event of any recruitment Notification, the Writ Petitioner is at

liberty to participate in the process of selection, if she is otherwise eligible

and qualified in accordance with law, for the purpose of securing permanent

appointment. However, the learned Single Judge directed to pay the salary

due to the Writ Petitioner. Further, the learned Single Judge directed the

Writ Petitioner to submit a representation to the Respondents and in the event

of submitting any such representation, directed the Respondents to consider

the same and pass orders only with reference to the salary arrears to be paid

to the Writ Petitioner.

8. Heard the learned counsel on either side and perused the

material documents available on record.

9. In the case on hand, though the Appellant/Writ Petitioner has put

in eight years of service as a Sweeper in the 5 th Respondent School without

any break, and is continuing to work in the said post till date, she cannot, as a

matter of right, claim regularization of service. Admittedly, the 3rd

Respondent herein has forwarded a communication dated 21.11.2011 to the

4th Respondent for suitable orders ratifying the Writ Petitioner's appointment

and to disburse salary.

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10. With reference to G.O.Ms.No.47, dated 02.03.2012, it is

represented by the learned Government Advocate that, out of 5000 vacancies

for the post of Watchman and allied Non-teaching staff, 1495 Watchman and

2213 Sweepers were appointed on 23.11.2012 and the remaining 506

vacancies of Watchman and 786 Sweepers are yet to be filled up and that, the

vacancies will be filled up after getting appropriate orders from the

Government. But, there is no iota of evidence as to whether the said

candidates were appointed by the Government by following due process of

law and without any violation of Rules. In case, those candidates have been

appointed contrary to the Rules, there cannot be equality and legality.

11. In a decision rendered by this Court in W.P.Nos.14782 and

19961 of 2020, dated 03.02.2021, this Court has held that, appointments

made therein are not illegal, but only irregular, and hence, directed

regularization of service of the employees.

12. There may be cases where, for want of hands, even if there are

no sanctioned posts, persons will be appointed. Unless otherwise, the Tamil

Nadu Industrial Establishments (Conferment of Permanent Status to

Workmen) Act, 1981, is made applicable, seeking permanency or

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regularization is not permissible. In the case on hand, it is not the case that,

the Appellant/Writ Petitioner had approached the Authority seeking

regularization, but, she has knocked at the doors of this Court for

regularization.

13. As regards competency of the Writ Petitioner's Appointing

Authority, the learned Single Judge has held that, the Writ Petitioner was not

appointed by the competent Authority by following the selection process as

contemplated in the Recruitment Rules in force. Thus, according to the

learned Single Judge, the initial appointment of the Writ Petitioner was

irregular and not in consonance with the Recruitment Rules in force.

14. The learned Single Judge has rightly observed that, back door

entry of candidates is not permissible and that, there should be equal

treatment from the Government and the Government, being the model

employer, cannot discriminate the citizens. It was further held by the learned

Single Judge that, candidates, who entered through back door entry in public

post, are repeatedly filing Writ Petitions in order to secure regularization

through Courts, after few years. Though, the Courts grant some relief to

persons who are in stress and strain on account of long period of service, the

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same cannot be cited as precedent. The contention of the Appellant that, in

similar circumstances, candidates have been appointed, cannot be a ground to

order regularization to persons employed on temporary basis.

15. It is very unfortunate that, the Government has given a go-by to

Uma Devi's case (supra) and made more number of appointments, thereby

flouting the orders of this Court, which is nothing but deliberate and wilful

disobedience of the order of this Court by the Government Officials. Whether

the Government has followed the Rules in the appointment of 1495

watchman and 2213 sweepers, is not gone into this Appeal, as it is not the

subject matter of the Writ Petition. However, this Court makes it clear that,

Officials who are responsible for appointments by means of back door entry,

are to be proceeded with disciplinary action, in the light of the decision

rendered by this Court in the case of S.Thangappan vs. The Government

of Tamil Nadu, reported in 1986 TLNJ 153. Relevant portion of the said

decision is extracted hereunder:

“ ...

If there had been any irregularity committed by the Appointing Authority, it is the Appointing Authority, who should be proceeded against. It is because of the failure of the concerned superior Authority in not taking a stern action against irregular

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appointment made by the Appointing Authorities, it results in innocent persons, who secures employment against considerable stress and odds and later on their services dispensed with as if the Appointing Authority, would at any time, arbitrarily terminate their services. The second Respondent, having found that, the third Respondent had appointed the petitioners contrary to the Rules, ought to have have taken disciplinary proceedings against the third Respondent. For errors and omissions committed by him, persons like that of the petitioners, who have secured the last grade post on permanent basis cannot be dealt with as if they could be dropped like hot cakes. Their future cannot be treated as light-heartedly. It is in this view, this Court, considering that even if the appointments had not been made through the Employment Exchange, or due to any other irregularity taking note of the difficulties to which the petitioners would be placed by throwing out of their employment arbitrarily, their Petitions are allowed; committed Authority could have exercised its powers of exempting the Rules which they do not satisfy. Such orders of exemption are not a rarity. Therefore, instead of taking action against the person who is responsible for passing orders, he had been allowed to arbitrarily and contrary to Rules terminate the services of the petitioners. ...”

16. In view of the ratio laid down by this Court, we are of the view

that, unless otherwise, Law is stringent and enforceable, it will be very

difficult to curtail illegal appointments.

17. One of us (SVNJ), in a decision rendered in the case of

S.Thiyagarajan vs. State of Tamilnadu (W.P.Nos.16410, 16416, 24744 &

16421 of 2019, dated 03.03.2021) has held that, employees working in

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Public Works Department have to be regularized, where their services have

been continuous for years together. Relevant portion of the said decision is

extracted hereunder:

"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 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.

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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 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."

18. The judgment dated 13.09.2019 passed by a Division Bench of

this Court in Writ Appeal No.1258 of 2018, batch of cases, relied on by the

learned counsel for the Appellant, may not be applicable to the facts of this

case, as, in that case, the Division Bench has considered the arbitrariness in

ignoring the case of some of the employees and considered the non-

employment of some other employees. That principle can be applied,

provided, persons who have already been appointed as regular candidates are

eligible to be considered for regularization.

19. In the case on hand, when the appointment of the Appellant/Writ

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Petitioner itself is done by the Village Educational Committee, this Court

cannot come to the conclusion that, the appointment itself is regular. Hence,

we are of the view that the order of the learned Single Judge is perfect and it

does not require any interference. In case, if there is any Notification calling

for appointment of candidates and if the Writ Petitioner fulfills the

qualification criteria, her case shall be given preference taking note of the

Roster system and relaxation of age.

20. It is made clear that, if other vacancies are not filled up, it shall

not be filled up, unless otherwise, it is in accordance with the Rules. Persons

already working in the Department shall not be disturbed and the

Government shall give preference in matters of regularization. This shall not

preclude the Officials in taking action against persons, who appointed the

Writ Petitioner herein.

21. In fine, the Writ Appeal stands dismissed with the above

directions and observations. No costs. Consequently, connected

C.M.P.No.16001 of 2021 is closed.

22. List the matter for 'reporting compliance' on 28.10.2021, as to

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what action has been taken against the Officials, who have made illegal

appointments. Particulars pertaining to the Officials, against whom

Disciplinary Proceedings have been initiated, i.e. their names and

designation, needs to be furnished.

                                                                             [S.V.N.,J.] [A.A.N.,J.]
                                                                                      30.09.2021
                    Index                 :     Yes/No
                    Speaking Order        :     Yes/No
                    (vm/aeb)

Note to Registry: Issue copy of this order on or before 07.10.2021

To:

1. The District Collector, Thiruvannamalai District, Thiruvannamalai.

2. The District Elementary Educational Officer, Thiruvannamalai District, Thiruvannamalai.

3. The Assistant Elementary Educational Officer, Kalasapakkam, Thiruvannamalai District.

4. The Commissioner for Panchayat Union, Office of the Panchayat Union, Kalasapakkam, Thiruvannamalai District.

5. The Head Master, Panchayat Union Middle School, Pattiyendal Village, Kalasapakkam Taluk, Thiruvannamalai District.

https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021

S.VAIDYANATHAN,J.

AND A.A.NAKKIRAN,J.

(aeb)

Judgment in W.A.No.2477 of 2021