Madras High Court
Mrs.A.Sakilabanu vs The State Of Tamil Nadu on 8 April, 2022
W.P.(MD)Nos.8922 to 8924 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:08.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P(MD)Nos.8922 to 8924 of 2019
Mrs.A.Sakilabanu ... Petitioner in W.P(MD)No.8922/19
Mrs.E.M.Vetrikumari ... Petitioner in W.P(MD)No.8923/19
Mrs.T.Durga Parameshwari ... Petitioner in W.P(MD)No.8924/19
Vs.
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
Public Works Department,
Fort St.George,
Chennai-600 009.
2.The Engineer in Chief(General)
Public Works Department,
Chepauk,
Chennai-600 005.
3.The Chief Engineer,
Public Works Department,
Building Construction and Mainternance
Chepauk,
Chennai-600 005.
1/12
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W.P.(MD)Nos.8922 to 8924 of 2019
4.The Superintending Engineer,
Public Works Department,
Building Construction and Mainternance,
Trichy,
Trichy District-620 001.
5.The Executive Engineer,
Public Works Department,
Building Construction and Maintenance,
Thanjavur,
Thanjavur District-613 001. ... Respondents in all W.Ps
COMMON PRAYER: Writ Petitions under Article 226 of the
Constitution of India, to issue a Writ of Mandamus, directing the
respondents 1 to 5 to regularize the service of the petitioner w.e.f her date
of appointment and to grant all monetary benefits in service within the
time frame stipulated by this Court.
For Petitioners : Mr.S.Bharathy Kannan
For Respondents : Mr.D.Sadiq Raja
Additional Government Pleader
COMMON ORDER
The relief sought for in these writ petitions is to direct the
respondents 1 to 5 to regularize the service of the petitioners from the
date of appointment and all attendant benefits.
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W.P.(MD)Nos.8922 to 8924 of 2019
2.The petitioners were engaged as daily wage employee(NMR) in
Public Works Department, during the year 1994. The petitioners are
continuously working as NMR in the Public Works Department. In view
of the fact that the petitioners have completed 10 years of daily wage
employment, made a representation to the authorities to grant benefit of
regularization and permanent absorption. In view of the fact that the
authorities have not considered the claim, the petitioners are constrained
to move the present writ petition.
3.The learned counsel for the petitioners made a submission that
the service of the similarly placed NMR employees were also regularized
in the Public Works Department and in this regard, the Government has
also passed an order. Therefore, on the same line, the benefit of
regularization is to be extended to the writ petitioner.
4.The learned Additional Government Pleader made a submission
that the principles, in this regard, are settled by the Hon'ble Supreme
Court and the High Court and now, the daily wage employees are not
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W.P.(MD)Nos.8922 to 8924 of 2019
regularized in a routine manner. If at all their initial appointments were
made in accordance with the rules, then only, the Government is
extending the benefit of regularization strictly in accordance with the
rules and the Government Orders in the subject. Therefore, the
petitioners are not entitled for the benefit of regularization.
5.The regularization and permanent absorption are to be granted in
accordance with the rules in force. The persons, who were not appointed
in accordance with the rules, cannot seek regularization, as their initial
appointments are considered as back door entry. The temporary
employment without following the recruitment rules cannot end with an
order of regularization, as such the procedure would affect the principles
of equal opportunity enunciated under the constitution of India.
6.The principles are elaborately considered by the Hon'ble
Supreme Court of India in the case of the Secretary, State of Karnataka-
vs-Uma Devi, reported in 2006 (4) SCC 1 and the subsequent
judgments of the Hon'ble Apex Court clarified with irregular
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W.P.(MD)Nos.8922 to 8924 of 2019
appointment cannot be regularized.
7.This Court also considered similar cases for grant of
regularization and permanent absorption, in the case of S.Shanmugam-
vs-Additional Chief Secretary, Rural Development & Panchayatraj,
Fort St.George, Chief Secretariat, Chennai-600 009 and others,
reported in 2019(1)LLN 743(Mad.). The relevant paragraphs are
extracted hereunder:
“8.In respect of the judgment of the Apex Court as well as
this Court, the respondents are time and again committing
certain irregularities and illegalities by appointing persons
through some other modes in violation of the directions issued
by the Constitutional Bench of the Supreme Court of India. Such
an attitude of the Officers of the Government has to be severely
viewed and the Government has to take appropriate action
against the Officials who are committing such illegalities and
irregularities in violation of the constitution by providing full
time appointment in public employment in contravention to the
Recruitment Rules. In the case of Secretary to Government
School Education Department, Chennai vs. R.Govindaswamy
and others reported in 2014 [4] SCC 769, the Supreme Court
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W.P.(MD)Nos.8922 to 8924 of 2019
held that:-
“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 dailywage 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
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W.P.(MD)Nos.8922 to 8924 of 2019
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 cutoff 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
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W.P.(MD)Nos.8922 to 8924 of 2019
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)
9. 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.
10.With the aforesaid observations, the appeals stand
disposed of accordingly. No order as to costs."
9.Though the Honourable Supreme Court, in the case
cited supra, had issued the above direction in clear terms, the
respondents are issuing
some orders in violation of Articles 14 and 16 of the Constitution
of India by appointing few persons of their choice and depriving
the entire Society. Thus, in violation of the principles laid down
by the Supreme Court and by the Constitutional Bench and in
the case of R.Govindasamy [cited supra], action to be initiated
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W.P.(MD)Nos.8922 to 8924 of 2019
against the erring officials. Equal opportunity in employment is
the right of the citizen and any violation will affect the rights
conferred to the citizens in the Constitution of India. Thus, the
action of the authorities in providing public employment through
back door entry to be identified and serious action have to be
taken against all such officials, who passed such orders of
regularisation of appointments.
10. In this regard, once again the Supreme Court in the
case of State of Tamil Nadu through Secretary to Government,
Commercial Taxes and Registration Department, Secretariat
and Another Vs. A.Singamuthu reported in 2017 [4] SCC 113
has held that the Courts are repeatedly directing the States to
follow the constitutional scheme for appointing candidates in
public post. The Government, time and again, is violating the
legal dictums and favouring some individuals, attempting to get
public employment through back door entry. The State must be a
model employer and the State is bound to follow the
constitutional principles. The State cannot discriminate the
citizens and the State is the authority to follow Articles 14 and
16 in respect of all citizens scrupulously. If the State itself is
discriminating the citizens and encouraging the back door
appointment to public post, this Court is unable to imagine the
plight of the meritorious citizens of this Country, who are
longing for public employment. Few miscreant officials have to
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W.P.(MD)Nos.8922 to 8924 of 2019
be put on task and strict action against those officials are to be
undertaken.
11.Thus, this Court is of the firm and clear opinion that all
the citizens should get equal treatment from the Government and
the Government, being the model employer, cannot discriminate
the citizens. In this regard, the mere continuation of services on
temporary/casual/daily wages cannot confer any right and in
order to appoint any candidate in the permanent basis in the
public post, the scheme recognized by the constitution has to be
strictly adhered to and the violation of the same to be viewed
seriously. Repeatedly, the Constitutional Courts are flooded with
these kind of writ petitions and the candidates, who entered
through back door entry in public post, are repeatedly filing writ
petition in order to secure regularisation through Courts after
few years. The Courts are also unable to solve this, in view of
the continuous irregularities and illegalities committed in this
regard. Since, at the time of weighing the principles of equity,
the Courts have to grant some relief to the persons who are in
stress and strain on account of long period of services. Though
such cases are considered on few occasions, those cases can
never be cited as precedent nor the Government to follow such
cases as principle. In such view of the matter, no further
consideration can be shown in this writ petition.
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W.P.(MD)Nos.8922 to 8924 of 2019
12.In view of the fact that the writ petitioner was
appointed as daily wage employee with breaks in service is not
entitled for the relief as such sought for in the present writ
petition. The writ petitioner has to participate in the selection
process for the purpose of securing the public employment
through the open competitive process.”
8.This being the principles, the present writ petitions aredevoid of
merits and stand dismissed. However, there shall be no order as to costs.
08.04.2022
Index:Yes/No
Internet:Yes/No
Ns
To
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
Public Works Department,
Fort St.George,
Chennai-600 009.
2.The Engineer in Chief(General)
Public Works Department,
Chepauk,
Chennai-600 005.
https://www.mhc.tn.gov.in/judis
W.P.(MD)Nos.8922 to 8924 of 2019
S.M.SUBRAMANIAM,J.
Ns
3.The Chief Engineer,
Public Works Department,
Building Construction and Mainternance
Chepauk,
Chennai-600 005.
4.The Superintending Engineer,
Public Works Department,
Building Construction and Mainternance,
Trichy,
Trichy District-620 001.
5.The Executive Engineer,
Public Works Department,
Building Construction and Maintenance,
Thanjavur,
Thanjavur District-613 001.
W.P(MD)Nos.8922 to 8924 of 2019
08.04.2022
https://www.mhc.tn.gov.in/judis
