Madras High Court
K.Chandrasekaran vs The State Of Tamil Nadu on 1 December, 2022
WP No.23865 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01-12-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.23865 of 2019
And
WMP Nos.23708, 23710 and 35170 of 2019
1.K.Chandrasekaran
2.C.Devanbu
3.S.John Enoch Sundar
4.N.Lakshmanan .. Petitioners
vs.
1.The State of Tamil Nadu,
Represented by its Chief Secretary to Government,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The State of Tamil Nadu,
Represented by its Principal Secretary to Government,
Personnel and Administrative Reforms Department,
Secretariat,
Fort St. George,
Chennai-600 009.
1/20
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3.The Commissioner,
Hindu Religious and Charitable Endowment,
Uthamar Gandhi Salai,
Nungambakkam,
Chennai-600 034.
4.The Director of School Education,
DPI Campus,
College Road,
Chennai-600 006.
5.The District Collector,
Chennai District,
Kamarajar Salai,
Thiruvallur.
6.The District Collector,
Thiruvallur District,
Thiruvallur.
7.The District Collector,
Kancheepuram District,
Kancheepuram.
8.The District Collector,
Madurai District,
Madurai. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned letter issued by the second respondent in
2/20
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Letter No.4457/P/2019-1 dated 29.04.2019 and to quash the same and
consequently directing the respondents to pass orders for granting
appointment in the post of Junior Assistant (Group IV Service) or B.T.
Assistant from the date of appointment on par with other similarly placed
persons given benefit as per G.O.Ms.No.246, Personnel and Administrative
Reforms Department, dated 29.08.2003 on notional basis with consequential
benefits as per the direction issued in WP No.24771 of 2006 etc., cases dated
20.08.2009.
For Petitioners : Mr.G.Sankaran
For Respondents-1, and 5 to 8 : Mr.R.P.Murugan Raja,
Government Advocate.
For Respondent-2 : Mr.K.Suresh,
Government Advocate.
For Respondent-3 : Mr.M.Bindran,
Additional Government Pleader
(HR&CE).
For Respondent-4 : Ms.S.Mythreye Chandru,
Special Government Pleader.
ORDER
The order of rejection rejecting the claim of the writ petitioners
to appoint them in the post of Junior Assistant or B.T. Assistant from their
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WP No.23865 of 2019
initial date of temporary appointment on par with other similarly placed
persons given as per G.O.Ms.No.246, Personnel and Administrative Reforms
Department, dated 29.08.2003 on notional basis was rejected.
2. The petitioners were initially appointed in the Census
Department on temporary basis. Since it was a project related engagement by
the Government on temporary basis, the petitioners were ousted from service.
3. Pursuant to the orders of the Hon'ble Supreme Court of India,
the Government absorbed these temporary employees in a phased manner and
the retrenched employees were reconsidered for fresh appointment in the
available vacancies in the cadre of Record Clerk in various Departments
without reference to their qualifications.
4. The absorption of the petitioners pursuant to the orders of the
Hon'ble Supreme Court of India was made. However, they were not recruited
through the Rules in force. The initial engagement of the petitioners were
temporary and for conducting Census and subsequently after the completion
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of the project, they were ousted from service. Thus the very appointment of
the writ petitioners in the sanctioned post of Record Clerk itself was a
concession extended and the writ petitioners were appointed on regular basis
in the year 2006 and thereafter, they are continuing as regular employees in
the various Departments.
5. The learned counsel for the petitioners mainly contended that
the similarly placed persons conferred with the benefit of retrospective
appointment in the post of Junior Assistant from the date of their initial
appointment in the Census Department.
6. The Government also issued orders in G.O.Ms.No.246,
Personnel and Administrative Reforms Department, dated 29.08.2003. In this
regard, the petitioners submitted their representation and the said
representation of the writ petitioners was not considered and thereafter, the
petitioners filed WP No.32239 of 2018. In that writ petition, this Court
directed the Authorities to consider the representation of the petitioners and
the said representation was not considered in the right perspective and the
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impugned order of rejection was issued.
7. The learned counsel for the petitioners reiterated that the
petitioners cannot be discriminated, since similar benefit was extended to
other similarly placed persons. Thus the respondents have violated under
Articles 14 and 16 of the Constitution of India. Hence, the cases of these writ
petitioners are to be considered on par with the other similarly placed
incumbents.
8. The learned Special Government Pleader, appearing on behalf
of the fourth respondent, objected the said contentions raised on behalf of the
petitioners by stating that the petitioners were initially engaged as temporary
employees in the Census Department, which is a project related work. On
completion of the project work, they were ousted from service and they went
up to the Supreme Court and based on sympathetic grounds, the Authorities
have considered their cases for absorption. Accordingly, all the petitioners
were absorbed in the sanctioned post in the year 2006 and therefore, they are
regularly serving in the Census Department as regular employees. While-so,
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after lapse of several years, these petitioners have approached the Department
for retrospective promotion from the date of their initial appointments in the
Census Department. The earlier cases relied on by the petitioners were also
considered by the Government in G.O.Ms.No.246, Personnel and
Administrative Reforms Department, dated 29.08.2003 and the order passed
in WP No.24771 of 2006 dated 20.08.2009 were considered by the
Government. Accordingly, the claim of the writ petitioners was rejected.
9. In the context of the above submission, it is relevant to extract
paragraphs 17 and 20 of the counter-affidavit filed by the second respondent-
Government, which read as under:-
“17. With regard to averments made in
paragraph-15 of the affidavit, it is submitted in
pursuance to the order's of this Hon'ble Court,
dated 06.12.2018 in WP No.32239 of 2018, the
representation of the petitioner, dated 10.09.2018
have been examined in detail in accordance with
law. The request o the petitioners to absorb them
as Junior Assistant/B.T. Assistant from the date of
their initial appointment on par with other
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similarly placed persons, who were given the
benefit as per G.O.Ms.No.246, Personnel and
Administrative Reforms (P) Department, dated
29.08.2003 and as per the orders of this Hon'ble
Court passed in WP No.24771 of 2006, dated
20.08.2009, was rejected in Government Letter
No.4457/P/2019-1, dated 29.04.2019, since an
employment opportunity has already been given to
them, as Records Clerk/Office Assistant and that
posts are coming under Group IV post, which are
not coming under purview of Tamil Nadu Public
Service Commission, as per the scheme formulated
in the G.O.Ms.No.209, Personnel and
Administrative Reforms (P) Department, dated
20.11.2001 and hence their request could not be
complied with.”
20. With regard to the averments made in
ground (b) of paragraph-16 of the affidavit, it is
submitted that this Hon'ble Court in its order dated
20.08.2009 in the WP No.24771 of 2006 etc.,
among other things had observed as follows:-
“20. xxxx xxx xxx xxx xxx xxx
These petitioners were ousted after their short
tenure in the Census Department. They were
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ousted from service in the year 1991 and for a
period of nearly 19 years, they have not taken any
steps to apply to those posts when applications had
been called for by the expert bodies, viz., Tamil
Nadu Public Service Commission etc., and when
number of individuals with better qualification are
in the queue, without undergoing the process of
selection, basing on their short tenure in the
Census Department, the petitioners cannot be
absorbed in the posts which are coming under the
purview of the Tamil Nadu Public Service
Commission. Besides, as far as the posts coming
under the Tamil Nadu Public Service Commission
are concerned, even after selection, candidates are
accommodated under these lists viz., main list,
reserve list and waiting list and only the main list
candidates are given appointment orders and as
far as the incumbents of the other two lists are
concerned, depending upon so many factors, they
may or may not get appointment orders. When
such is the position, basing on the concession
given and sympathy shown to the petitioners who
are Retrenched Employees of the Census
Department, they cannot take a stand that they
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should be accommodated in these posts without
undergoing the process of selection. As such, I do
not find any infirmity in the impugned circular and
also sub-paragraph No.3 of main paragraph No.4
of G.O.Ms.No.209, Personnel and Administrative
Reforms (P) Department, dated 23.11.2001.”
10. This Court is of the considered opinion that the petitioners
were engaged in the Census Department to carry out the census work for a
particular period. On completion of the work, the petitioners were ousted
from service. Subsequently they were appointed in the Regular post in the
year 2006. Thus now after this length of time, they cannot claim retrospective
appointment or regularisation from the date of their initial appointment in the
Census Department.
11. Apart from the dis-entitlement of the writ petitioners to claim
regularisation or appointment with retrospective effect, there is enormous
delay in approaching the Authorities by the writ petitioners. They secured
regular employment in the year 2006 and they have approached the
Authorities after 10 years and filed the present writ petition after 13 years and
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more-so, they were ousted from service in the year 1992 and 1994.
12. Considering the facts and circumstances, the claim of the
writ petitioners are to be rejected even on the ground of laches. In respect of
the delay and laches, the Hon'ble Supreme Court of India considered the
issues and held that there are implicit limitations of time within which the
remedies can be enforced.
13. It is relevant to consider the following judgments of the Apex
Court:-
In the case of Chairman / Managing Director, Uttar Pradesh
Power Corporation Limited and Others vs. Ramgopal [(2020) SCC
Online SC 101], wherein the Three Judges Bench of the Hon'ble Supreme
Court of India held as follows:
“Whilst it is true that limitation does not
strictly apply to proceedings under Articles 32 or
226 of the Constitution of India, nevertheless, such
rights cannot be enforced after an unreasonable
lapse of time. Consideration of unexplained delays
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and inordinate laches would always be relevant in
writ actions, and writ courts naturally ought to be
reluctant in exercising their discretionary
jurisdiction to protect those who have slept over
wrongs and allowed illegalities to fester. Fence-
sitters cannot be allowed to barge into courts and
cry for their rights at their convenience, and
vigilant citizens ought not to be treated alike with
mere opportunists. On multiple occasions, it has
been restated that there are implicit limitations of
time within which writ remedies can be
enforced.”
14. In the case of P.S. Sadasivaswamy vs. State of Tamil
Nadu [(1975) 1 SCC 152], wherein the Supreme Court held as follows:
“2. … One cannot sleep over the matter and
come to the Court questioning that relaxation. In
effect he wants to unscramble a scrambled egg. It
is not that there is any period of limitation for the
Courts to exercise their powers under Article 226
nor is it that there can never be a case where the
Courts cannot interfere in a matter after the
passage of a certain length of time. But it would be
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a sound and wise exercise of discretion for the
Courts to refuse to exercise their extraordinary
powers under Article 226 in the case of persons
who do not approach it expeditiously for relief and
who stand by and allow things to happen and then
approach the Court to put forward stale claims
and try to unsettle settled matters……”
15. In the case of SS Balu vs. State of Kerala [(2009) 2 SCC
479], wherein the Supreme Court observed as under:
“17. It is also well-settled principle of law
that “delay defeats equity”. …It is now a trite law
that where the writ petitioner approaches the High
Court after a long delay, reliefs prayed for may be
denied to them on the ground of delay and laches
irrespective of the fact that they are similarly
situated to the other candidates who obtain the
benefit of the judgment.”
16. In the case of Vijay Kumar Kaul vs. Union of India
[(2012) 7 SCC 610], wherein the Supreme Court held as follows:
“27. …It becomes an obligation to take into
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consideration the balance of justice or injustice in
entertaining the petition or declining it on the
ground of delay and laches. It is a matter of great
significance that at one point of time equity that
existed in favour of one melts into total
insignificance and paves the path of extinction
with the passage of time.”
It is also pertinent to mention that neither
has it been pleaded nor is it apparent from the
material on record that the Respondent was
unable to approach the court-of-law in time on
account of any social or financial disability. Had
such been the case, he ought to have availed free
legal aid and should have ventilated his
grievances in a timely manner.”
17. In the case of State of Uttar Pradesh and Others vs.
Arvind Kumar Srivastava and Others [(2015) 1 SCC 347], wherein the
Hon'ble Supreme Court of India held as follows:
“(2) However, this principle is subject to
well recognized exceptions in the form of laches
and delays as well as acquiescence. Those persons
who did not challenge the wrongful action in their
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cases and acquiesced into the same and woke up
after long delay only because of the reason that
their counterparts who had approached the Court
earlier in time succeeded in their efforts, then such
employees cannot claim that the benefit of the
judgment rendered in the case of similarly situated
persons be extended to them. They would be
treated as fence-sitters and laches and delays,
and/or the acquiescence, would be a valid ground
to dismiss their claim.”
18. In the case of RushibhaiJagdishbhai Pathak vs.
Bhavnagar Municipal Corporation [2022 SCC Online SC 641], wherein
the Supreme Court held as follows:
“The courts have expressed the view that the
law of limitation rests on the foundations of
greater public interest for three reasons
(a) that long dormant claims have more of
cruelty than justice in them
(b) that a Defendant might have lost the
evidence to disapprove a stale claim
(c) that persons with good causes of action
should pursue them with reasonable diligence
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The normal Rule is that when a particular
set of employees is given relief by the court, all
other identically situated persons need to be
treated alike by extending that benefit. However,
this principle is subject to well-recognised
exceptions in the form of laches and delays as well
as acquiescence.
“Those persons who did not challenge the
wrongful action in their cases and acquiesced into
the same and woke up after long delay only
because of the reason that their counterparts who
had approached the court earlier in time
succeeded in their efforts, then such employees
cannot claim that the benefit of the judgment
rendered in the case of similarly situated persons
be extended to them. They would be treated as
fence-sitters and laches and delays, and/or the
acquiescence, would be a valid ground to dismiss
their claim””
19. The petitioners are almost on the verge of their retirement.
Now at this length of time, they are claiming retrospective appointment/
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regularisation for which they are not entitled. More-so, the petitioners were
not served in the Census Department after their retrenchment and till their
regular appointment in the year 2006.
20. This being the factum established, the petitioners are not
entitled for the relief as such sought for in the present writ petition.
21. Accordingly, the writ petition stands dismissed. However,
there shall be no order as to costs. Consequently, the connected
miscellaneous petitions are also dismissed.
01-12-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
1.The Chief Secretary to Government,
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WP No.23865 of 2019
State of Tamil Nadu,
Secretariat,
Fort St. George,
Chennai-600 009.
2.The Principal Secretary to Government,
State of Tamil Nadu,
Personnel and Administrative Reforms Department,
Secretariat,
Fort St. George,
Chennai-600 009.
3.The Commissioner,
Hindu Religious and Charitable Endowment,
Uthamar Gandhi Salai,
Nungambakkam,
Chennai-600 034.
4.The Director of School Education,
DPI Campus,
College Road,
Chennai-600 006.
5.The District Collector,
Chennai District,
Kamarajar Salai,
Thiruvallur.
6.The District Collector,
Thiruvallur District,
Thiruvallur.
7.The District Collector,
Kancheepuram District,
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WP No.23865 of 2019
Kancheepuram.
8.The District Collector,
Madurai District,
Madurai.
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S.M.SUBRAMANIAM, J.
Svn
WP 23865 of 2019
01-12-2022
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