Madras High Court
S.Shakila vs The Registrar General on 10 January, 2022
W.P.No.7789 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.7789 of 2021
and W.M.P.No.8318 of 2021
S.Shakila .. Petitioner
vs
1. The Registrar General,
High Court, Chennai 600 104.
2. The Principal Secretary to Government,
Home (Courts) Department,
Fort St. George, Chennai 600 009.
3. The Principal District Judge,
Coimbatore District, Coimbatore. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus calling for the records
relating to the impugned order of the third respondent in
A.No.40/2021 dated ..02.2021 and quash the same and direct the
respondents to reinstate the Petitioner in service and accommodate
her in a regular post in accordance with the orders passed by this
___________
Page 1 of 11
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
Court in W.P.Nos.9710 & 10189 of 2009 dated 10.06.2009,
W.P.Nos.30329 to 30340 of 2017 dated 27.11.2017 and
W.P.No.14287 of 2018 dated 7.12.2018 and grant her all
consequential benefits.
For the Petitioner : Mr.P.Rajendran
For the Respondents : Mr.C.T.Mohan
for RR 1 and 3
: Mr.P.Muthukumar
State G.P. for R-2
*****
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
By this writ petition, a challenge is made to the order of
termination dated 10.02.2021. The staff members appointed as typists
on temporary basis under Rule 16(a)(i) of the Tamil Nadu Judicial
Ministerial Service Rules, were ousted from service for want of vacancy
with effect from 15.02.2021.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
2. The learned counsel appearing for the petitioner submits that
in the earlier litigation preferred by the petitioner, the case discussed
by this Court threshold was for issuance of direction for consideration
of the candidature of the petitioner for regularisation. It is in the light
of the fact that a representation was given by the petitioner to seek
regularisation of her service having completed more than seven years
of service after temporary appointment. The Division Bench of this
court had considered the nature of appointment and relevant other
aspects before giving the direction for consideration of the
representation for regularisation of service. But ignoring the aforesaid
and to nullify the effect of the said judgment, the order of termination
has been issued. It is ignoring the fact that the petitioner was
otherwise required for the post of typist and her name was sponsored
by the employment exchange, and thus her services could not have
been terminated in the manner it has been done by the respondents.
It is more so when the vacant post of the typist exists. The prayer is
accordingly to set aside the order of termination with a direction to the
respondents to reinstate the petitioner in service.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
3. The writ petition has been opposed by the learned counsel
appearing for the High Court. It is submitted that no vacant post of
typist exists on which the petitioner can continue. It is looking into the
fact that after the process of regular selection for the post in question,
the candidates equivalent to the post were selected for appointment.
They were given appointment and as a consequence of which, the
petitioner was required to make a room for the regular selected
candidates. It is more so when the petitioner did not even participate
in the regular selection and thereby, if the prayer made in this writ
petition is granted, it is nothing but endorsing a candidate who has not
even participated in the regular selection and making the process of
recruitment to be of no significance. The consequence of interference
in the order of termination would be nothing but to even compromise
the merit of other candidates at the cost of administration because the
petitioner did not even participate in the regular selection. In view of
the above, the prayer made is to dismiss the writ petition.
4. Insofar as the earlier litigation is concerned, no doubt the
Division Bench had given a direction for consideration of the
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
representation for regularisation, but in ignorance of the judgment of
the Apex Court in the case of Secretary, State of Karnataka vs.
Umadevi, reported in (2006) 4 SCC 1. Para 53 of the said judgment
was usefully referred to indicate that the candidate cannot seek
regularisation if appointed subsequent to the judgment dated
10.04.2006. In the said judgment, a direction for regularisation was
given only as a one time arrangement otherwise the appointments
were to be made in accordance with Rules. In the instant case, if
there was a failure on the part of the respondents to fill up the post as
per Rules, it cannot justify even regularisation going de hors the
judgment of the Apex Court in the case of Umadevi (supra). Thus,
even the direction or the prayer of the petitioner to seek regularisation
has been contested, the prayer is accordingly to dismiss the writ
petition.
5. We have considered the rival submissions and perused the
records.
6. The challenge to the order of termination has been made
relying on the earlier judgment of a Division Bench of this Court in the
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
petitioner's own case. It was a writ petition preferred to seek a
direction for consideration of the representation of the petitioner for
appointment on regular basis. It is no doubt true that the Division
Bench in the said case had discussed the facts pertaining to the
appointment and other relevant factors regarding continuance of the
petitioner and others on the post of typist. Referring to the judgment
in the case of S.Padmanabhan vs. The Judicial Temporary
Typists' Association, made in W.P.Nos.894 to 898, 1810 to 5176 of
2000, dated 28.09.2000, the direction for consideration of the
representation of the petitioner was given.
7. The petitioner was appointed on the post of typist on
temporary basis in the year 2011. She continued to be in service and
thereupon, preferred a writ petition to seek appointment on any
alternate post. However, while deciding the writ petition preferred by
the petitioner herself, a direction for consideration of the
representation was given mainly relying on the judgment in the case of
S.Padmanabhan (supra). The learned counsel for the High Court is
justified in saying that subsequent to the aforesaid judgment in the
case of S.Padmanabhan (supra), the Apex Court decided the issue in
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
Umadevi's case in the year 2006, but was not referred to by the
learned counsel appearing for the parties in the said case despite the
fact that the practice to make appointment on temporary basis instead
on regular basis has been deprecated in the judgment supra. The
regularisation of service of those who had completed 10 years was
given only as a one time arrangement. Para 53 of the judgment in the
case of Umadevi is reproduced hereunder for ready reference:
" 53. One aspect needs to be clarified. There may be cases
where irregular appointments (not illegal appointments) as
explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA
(supra), and B.N. NAGARAJAN (supra), and referred to in
paragraph 15 above, of duly qualified persons in duly sanctioned
vacant posts might have been made and the employees have
continued to work for ten years or more but without the
intervention of orders of courts or of tribunals. The question of
regularization of the services of such employees may have to be
considered on merits in the light of the principles settled by this
Court in the cases above referred to and in the light of this
judgment. In that context, the Union of India, the State
Governments and their instrumentalities should take steps to
regularize as a one time measure, the services of such irregularly
appointed, who have worked for ten years or more in duly
sanctioned posts but not under cover of orders of courts or of
tribunals and should further ensure that regular recruitments are
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
undertaken to fill those vacant sanctioned posts that require to be
filled up, in cases where temporary employees or daily wagers are
being now employed. The process must be set in motion within six
months from this date. We also clarify that regularization, if any
already made, but not subjudice, need not be reopened based on
this judgment, but there should be no further by-passing of the
constitutional requirement and regularizing or making permanent,
those not duly appointed as per the constitutional scheme."
8. The judgment in the case of Umadevi is very specific and
does not permit regularisation of service to those who may have
completed even 10 years of service subsequent to the judgment
aforesaid, being a one time arrangement evolved therein. The
aforesaid is only one part of the issue otherwise, the petitioner is the
one who did not even participate in the regular selection despite an
opportunity. Now that the selected candidates are available and are
given appointments. In view of the above, the petitioner is not
entitled to continue in service rather her services are rightly
terminated by the impugned order. If an interference in the order of
termination is made, it would be nothing but to give premium to the
petitioner who did not even face the regular selection despite an
opportunity. The regular selection cannot be substituted by a
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
temporary appointment and thereupon regularisation, otherwise the
direction given by the Apex court in the case of Umadevi (supra)
would remain of no impact. In the facts and circumstances of the
case, we do not find any reason to interfere in the order of
termination. It is not a case where the services of the petitioner have
been terminated by casting a stigma but a simpliciter for the reason of
non-availability of post. It is submitted by the learned counsel for the
respondents that the selected candidates by the regular process are
available and thus, the petitioner has to make room for them and
accordingly, the termination of service cannot be interfered with.
9. Further, the appointment and the age of the petitioner, if
seen, we find that the petitioner is now 50 years old in the year 2021
and thus, she must have been at the age of 40 in the year 2011 when
she was appointed. She had thus admittedly crossed the maximum
age for appointment even in the year 2011, yet was given
appointment on temporary basis de hors the Rules. Her temporary
appointment was otherwise not legal and otherwise also cannot be
sustained now after the termination of service for the reasons
indicated by the respondents.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
The writ petition is, thus, found to be devoid of merit and is
dismissed accordingly. No costs. Consequently, W.M.P.No.8318 of
2021 is closed.
(M.N.B., ACJ.) (P.D.A., J.)
10.01.2022
Index : Yes/No
sra
To:
1. The Registrar General,
High Court, Chennai 600 104.
2. The Principal Secretary to Government,
Home (Courts) Department,
Fort St. George, Chennai 600 009.
3. The Principal District Judge,
Coimbatore District, Coimbatore.
___________
https://www.mhc.tn.gov.in/judis
W.P.No.7789 of 2021
M.N.BHANDARI, ACJ.
AND
P.D.AUDIKESAVALU, J.
(sra)
W.P.No.7789 of 2021
10.01.2022
___________
https://www.mhc.tn.gov.in/judis
