Madras High Court
C.K.Jeyaraj vs The Secretary To Government on 13 April, 2022
W.P.(MD) No.20571 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.04.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Orders Reserved On Orders Pronounced On
05.04.2022 13.04.2022
W.P.(MD) No.20571 of 2019
and
W.M.P.(MD) No.17213 of 2019
C.K.Jeyaraj .. Petitioner
-vs-
1. The Secretary to Government,
Rural Development Department,
Secretariat, Fort St. George, Chennai-9.
2. The District Collector,
Kanyakumari District, Nagarcoil.
3. The Commissioner,
Melpuram Panchayat Union,
Kanyakumari District.
4. The President,
Vanniyur Village Panchayat,
Vanniyur Panchayat, Malaiyadi Post,
Kanyakumari District. .. Respondents
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W.P.(MD) No.20571 of 2019
Prayer:- Petition under Article 226 of the Constitution of India praying for
issuance of Writ of Certiorarified Mandamus to call for the records
connected with the impugned order passed by the 2nd respondent in his
proceedings Se.Mu.No.Va3/Va.Pa.39/2015 dated 26.08.2019 and quash the
same and consequently direct the 2nd respondent to regularize the service of
the petitioner in terms of G.O.Ms.No.151 Social Welfare (Ma) Nutritious
Meals Praogramme (Sa Na 4) Department dated 16.10.2008 complied in
G.O.Ms.No.218 Health and Family Welfare (AB2) Department dated
28.7.2015 and in the light of the judgment of this Court in W.P.Nos.41207
to 41210 of 2005 dated 25.11.2009.
For Petitioner : Mr.S.Govindan
For RR1 & 2 : Mr.N.Satheesh Kumar,
Additional Government Pleader
For RR3 & 4 : No appearance
******
ORDER
The order impugned dated 26.08.2019 rejecting the claim of the writ
petitioner for grant of regularisation and permanent absorption is under
challenge in the present writ petition.
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W.P.(MD) No.20571 of 2019
2. The petitioner states that he was appointed as Plumber on daily
wages basis by the President, Vanniyur Panchayat, as per the resolution of
the Panchayat, vide Resolution No.127 of 1997. His work involves
operation of water pumps, overhead tanks, volves, etc. The petitioner joined
duty on 21.08.1997 under the control of the 4th respondent/village
panchayat. The petitioner states that he is continuing his service for the past
above 23 years and discharging his duties to the satisfaction of his
superiors. The petitioner states that he is differently abled and therefore, as
per G.O.Ms.No.151, dated 16.10.2008 the time scale of pay and the benefit
of regularisation are to be granted.
3. The learned counsel for the petitioner mainly contended that
similarly placed differently abled persons were considered based on
G.O.Ms.No.151, dated 16.10.2008 for grant of regularisation and therefore,
the case of the writ petitioner is also to be considered for regularisation and
permanent absorption in the time scale of pay.
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W.P.(MD) No.20571 of 2019
4. The learned counsel for the writ petitioner drew the attention of
this Court with reference to the order passed by this Court in W.P.No.10437
of 2002 dated 02.08.2002 and the judgment in W.A.No.2413 of 2003 dated
17.02.2004 and the subsequent orders passed by the learned Single Judges
of this Court in W.P.Nos.41207 to 41210 of 2005 dated 25.11.2009,
W.P.Nos.40558 to 40561 of 2005 dated 26.11.2009 and the judgment of the
Hon'ble Division Bench in W.A.(MD) No.147 of 2013 dated 22.01.2013.
5. The learned Additional Government Pleader mainly contended that
there is no full time post of Overhead Tank Operators sanctioned in village
panchayats. In no village panchayat, such full time post has been created or
sanctioned. Further, the writ petitioner was appointed as part time
Overhead Tank Operator in a non-sanctioned post. The petitioner was not
appointed through the District Employment Exchange or in accordance with
the recruitment rules in force. Thus, the appointment of the writ petitioner
was irregular and further, the President of the village panchayat appointed
the petitioner on part time basis.
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W.P.(MD) No.20571 of 2019
6. Mere statement that the petitioner was performing the duties for
full time cannot be accepted, as there is no sanctioned post of full time
Overhead Tank Operators in village panchayat. The District Collector
being the Inspector of Panchayats has not granted any approval for any such
appointment. Therefore, the petitioner's services cannot be regularised in
view of the judgment of the Hon'ble Constitution Bench of the Supreme
Court of India in the case of Secretary, State of Karnataka vs. Umadevi
reported in (2006) 4 SCC 1. Even as per the Government Order issued in
G.O.Ms.No.74, dated 27.06.2013, the petitioner ought to have been
appointed in a sanctioned post as full time employee. The Government
Order issued in G.O.Ms.No.22, dated 28.02.2006 was also not applicable to
the petitioner, as he was a part time temporary employee and further, the
said Government Order issued in G.O.Ms.No.22 had been withdrawn by the
Government. Thus, the claim of the petitioner for regularisation cannot be
granted.
7. This Court is of the considered opinion that all earlier judgments of
the High Court and Supreme Court were considered by the Hon'ble
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W.P.(MD) No.20571 of 2019
Constitution Bench of the Supreme Court of India in the case of Umadevi
(supra). Now irregular and illegal appointments cannot be regularised and
the one time measure permitted by the Constitution Bench in para 53 also
cannot be extended perpetually. Only if proposals were pending during the
relevant point of time when the Constitution Bench delivered judgment,
those proposals are allowed to be disposed of. However, such one time
measure cannot continue for an indefinite period. In para 54, the
Constitution Bench in unambiguous terms held that all judgments running
counter to the principles laid down in Umadevi's case are denuded to
remain as precedent and therefore, such judgments or orders cannot be
considered for the purpose of grant of regularisation or permanent
absorption.
8. In the present case, the post of Panchayat Secretary is the only
sanctioned post in the village panchayat. There is no full time post of
Overhead Tank Operator sanctioned to any of the village panchayat in
Kanyakumari District/in any of the Districts and there is no Government
rule or provision to regularise the services of part time village panchayat
employees. The petitioner is only a part time Overhead Tank Operator in
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W.P.(MD) No.20571 of 2019
village panchayat and therefore, his services could not be regularised is the
defence set out in the counter filed by the respondents. It is further
contended that as per Section 101(3) of the Tamil Nadu Panchayat Act,
1994, the Inspector of Panchayats is the competent authority for creating
new post in the village panchayat and mere passing of resolution in village
panchayat will not confer any right to the petitioner. All village panchayat
employees including Water Supply Attenders are part time workers except
the sanctioned post of Panchayat Secretary and for the part time work, they
are eligible to get the consolidated pay fixed by the Government from time
to time. The learned Additional Government Pleader brought to the notice
of this Court that the claim of other similarly placed persons was also
rejected by the Courts following the judgment of the Constitution Bench of
the Supreme Court in Umadevi (supra).
9. In view of the facts and circumstances, it is evident that the
petitioner was appointed as part time Overhead Tank Operator on daily
wage basis and there is no sanctioned post. Even as per the Government
Order, the petitioner was not appointed in accordance with the recruitment
rules or through the District Employment Exchange. Thus, the claim of the
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W.P.(MD) No.20571 of 2019
writ petitioner for regularisation and permanent absorption cannot be
considered. The petitioner is eligible to draw the consolidated pay as fixed
by the Government periodically and the benefit of regularisation cannot be
granted.
10. With the above observations, this writ petition stands dismissed.
However, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
13.04.2022
Internet: Yes/No
Index: Yes/No
abr
To
1. The Secretary to Government,
Rural Development Department,
Secretariat, Fort St. George, Chennai-9.
2. The District Collector,
Kanyakumari District, Nagarcoil.
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W.P.(MD) No.20571 of 2019
S.M.SUBRAMANIAM, J.
(abr)
Pre-delivery Order made in
W.P.(MD) No.20571 of 2019
13.04.2022
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