Madras High Court

B.Parimala vs The Secretary To Government on 11 January, 2022

W.P.No.34479 of 2014

IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.1.2022
CORAM
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR

W.P.No.34479 of 2014
and W.M.P.Nos.30069 and 30070 of 2021

B.Parimala ... Petitioner

Vs.

1. The Secretary to Government,
School Education Department,
Secretariat, Chennai – 9.

2. The Director of School Education,
College Road, Chennai – 6.

3. The District Educational Officer,
Tirupattur Education District,
Tirupattur, Vellore District. ... Respondents

Prayer:- The Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Mandamus, directing the respondents to
regularise the petitioner in service as Sweeper as per G.O.Ms.No.68 dated
18.04.2013 with all attendant service benefits and continuity of service and
to pay all the arrears within a time frame that may be fixed by this Court.

For Petitioner : Mr.J.Saravana Vel
For Respondent : Mr.V.Nanmaran, A.G.P. (Edn.)
*****
ORDER

According to the petitioner, the petitioner was appointed as

Part Time Sweeper on 1.6.1998 in the Government Higher Secondary School,

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W.P.No.34479 of 2014

Ambalur through District Employment Office. She has been continuously

working in the said School as Part Time Sweeper and she completed more

than 11 years of service as a Part Time Sweeper in Education department.

The Government has considered the names of the Part Time Sweeper for

regularisation of their service taking into account of the service rendered by

them in the department. Pending the aforesaid proposal, the petitioner was

temporarily appointed as Village Assistant in the Revenue department and

therefore, she was relieved from the Government Higher Secondary School,

Ambalur to join as Village Assistant in the Revenue department.

Thereafter, the said regularization proposal submitted by the Education

department was approved by the Government and passed G.O.Ms.No.68

dated 18.4.2013 by the School Education dept. The petitioner came to

know that service of the similarly placed employees were regularised.

However, the petitioner's name was shown as ''dead person'' in the said

order. The petitioner made representation to the respondents to include

her name as per G.O.Ms.No.68, School Education department, dated

18.4.2013 in the said order and the same is still pending with the

respondents. Hence, the petitioner has filed the present writ petition

before this Court.

2. According to the learned counsel appearing for the petitioner,

the petitioner has rendered more than 11 years of service in the

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W.P.No.34479 of 2014

Government Higher Secondary School, Ambalur under the Education

department. The service rendered by the petitioner in the education

department has to be taken into account along with the service rendered by

the petitioner in the revenue department for the purpose of pensionary

benefits. Now, the petitioner is working in the revenue department as

Village Assistant. In the Annexure of the aforesaid Government order, the

petitioner's name was shown at Sl.No.82 with a remark that she died in the

year 2004 and as such, the service rendered by the petitioner would not

be taken into account along with the service rendered in the revenue

department for pensionary benefits. Therefore, the petitioner made

representation to the School education department for regularization of her

service as per G.O.Ms.No.68 dated 18.4.2013. The Government has to

consider her request and issue appropriate orders for regularization of the

petitioner's service as per G.O.Ms.No.68 dated 18.4.2013.

3. The learned Additional Government Pleader (Education)

appearing for the respondents would submit that the petitioner was

relieved from service to join as Village Assistant in the revenue department

and therefore, the request of the petitioner cannot be considered.

4. Heard the rival submissions made by the parties and perused

the materials available on record.

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W.P.No.34479 of 2014

5. According to the counsel appearing for the petitioner, the

Government has considered the proposal for regularization of service of the

petitioner and passed G.O.Ms.No.68 dated 18.4.2013. It is also contended by

the counsel appearing for the petitioner that the remark made by the

respondents is due to mistake. Therefore, the aforesaid mistake has to be

rectified by the first respondent. The petitioner already joined as Village

Assistant in the revenue department and still working in the revenue

department. At this stage, the grievance of the petitioner is that the

relevant period of service rendered by the petitioner has to be taken into

account and the petitioner is entitled for counting of service rendered by

the petitioner in the School education department, Ambalur for pensionary

benefits.

6. At the outset, the prayer made in the writ petition for

Mandamus, directing the respondents to regularise the petitioner in service

as Sweeper as per G.O.Ms.No.68 dated 18.04.2013 with all attendant service

benefits and continuity of service and to pay all the arrears within a time

frame that may be fixed by this Court. The petitioner was relieved from

service in the education department to join as Village Assistant in the

revenue department. Thereafter, the Government passed G.O.Ms.No.68

School education department on 18.4.2013 i.e. after the petitioner joined

in the revenue department as Village Assistant in the year 2012.

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W.P.No.34479 of 2014

7. This Court while dealing with an identical issue, following the

judgment of the Hon'ble Supreme Court and this Court, has held as under:

“6. The issue has already been decided by the

Hon'ble Apex Court in the decision in Secretary to

Government, School Education Department, Chennai

v. Govindaswamy and Others [(2014) 4 SCC 769],

wherein the Hon'ble Apex Court has held as follows:

“6.In State of Karnataka & Ors. v. Umadevi & Ors., AIR 2006 SC 1806, this Court held as under:

“48.There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.”

7. In Union of India & Ors. v. A.S. Pillai & Ors., (2010) 13 SCC 448, this Court dealt with the issue of regularisation of part-time employees and the court refused the relief on the ground that part- timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.

8. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to https://www.mhc.tn.gov.in/judis

W.P.No.34479 of 2014

regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

“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 daily-wage 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 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 cut-off 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

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W.P.No.34479 of 2014

the Government on the principle of equal 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.”

7. Following the decision of the Hon'ble Supreme Court in Govindaswamy case (cited supra), this Court also had an occasion to deal with a similar matter in the case of Saraswathy v. State of Tamil Nadu [W.P.No.5529 of 2015 dated 18.12.2019] wherein this Court held as follows:

“5. In the case of Secretary to Government, School Education Department, Chennai, v. R. Govindaswamy and Others, reported in (2014) 4 SCC 769, the Hon'ble Apex Court has allowed the appeal filed by the Government.

6. In yet another decision rendered by the Hon'ble Apex Court in Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another v. A. Singamuthu , reported in CDJ 2017 SCC 239, it has been held in paragraph Nos.16, 17 and 18 are extracted hereunder:

“16. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O.Ms.No.22 dated 28.02.2006 and directed the appellants to grant regularization of respondent's service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O.Ms.No.22, dated 28.02.2006, the services of employees working in various government departments on full time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularized and not part time Masalchis like the respondent herein. In G.O.Ms.No.84, dated 18.06.2012, the Government made it clear that G.O.Ms.No.22, dated 28.02.2006 is applicable only to full time daily wagers and not to part time daily wagers. Respondent was temporarily appointed part time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part time Masalchi, cannot compare himself to full time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularization of services of any part time employee on completion of ten years of his service as envisaged under the G.O.Ms.No.22, dated 28.02.2006.

17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22, dated 28.02.2006 to the respondent that too https://www.mhc.tn.gov.in/judis

W.P.No.34479 of 2014

retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned Senior Counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs.10,85,113/-(approximately) towards back wages apart from pension which will have a huge impact on the State exchequer. That apart, the learned Senior Counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.

18. It is pertinent to note that even the regularization of services of part time employees vide G.O.(Rt.) No.505 Finance (AA-

2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A.

2) Department dated 26.03.2010 was effected by extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No.22 P & AR Department, dated 28.02.2006 is applicable only to full time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside”.

7.In the light of the decision cited supra, there is no merit in the writ petition. Hence, the writ petition is liable to be dismissed and accordingly it is dismissed. No order as to costs in this writ petition.”

8. Admittedly, in the case on hand, the petitioner is working as Part Time Sweeper on daily wage basis in a non- sanctioned post and following the subsequent modified Government Orders, the respondents have rejected the claim of the petitioner for https://www.mhc.tn.gov.in/judis

W.P.No.34479 of 2014

regularization. In view of the settled legal position as laid down in the decisions cited supra, this Court does not find any merit in the writ petition.

Therefore, the petitioner being a Part time employee cannot have any legal

right to seek for continuity of service. However, considering the fact that

the name of the petitioner was shown as ''died person'' in the order passed

by the Government regularising the similarly placed persons, to that extent,

this Court is inclined to direct the first respondent to consider the request

of the petitioner.

8. In view of the above, this Court is inclined to pass the

following order:

(i) The petitioner shall make fresh representation to the first

respondent within a period of two weeks from the date of receipt of copy of

this order.

(ii) On such representation being made, the first respondent is