Madras High Court
A.Subramanian vs The Secretary To Government on 26 July, 2022
W.P.No.32769 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.32769 of 2014
and
M.P.Nos.1 & 2 of 2015
A.Subramanian ... Petitioner
Vs.
1.The Secretary to Government
Department of Higher Education
Fort St. George,
Chennai – 9.
2.The Commissioner of Technical Education,
Directorate of Technical Education
Guindy, Chennai – 25.
3.The Principal & Warden
Govt. Polytechnic College Hostel
Nagercoil – 4. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, directing the second and third
respondents herein to regularize the petitioner services as a Clerk
(Assistant) and confer regular time scale of pay with due regards to
petitioner's seniority.
For Petitioner : Mr.R.S.Anandan
For Respondents : Mr.M.Bindra
Additional Government Pleader
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W.P.No.32769 of 2014
ORDER
The writ of Mandamus has been instituted to direct the 2nd and 3rd
respondents, to regularize the petitioner's services as a Clerk (Assistant)
and confer regular time scale of pay with due regards to petitioner's
seniority.
2. The petitioner states that he joined as a Clerk in the year 1997 in
the 3rd respondent / Government Polytechnic College Hostel. While so, he
was not permitted to continue his duties with effect from June 2014
onwards. The petitioner was paid with the consolidated pay of Rs.12,100/-
per month as on March 2014. Initially, he was engaged as consolidated
pay employee for a sum of Rs.1,000/- per month. The petitioner has sent
repeated representations to regularise his services in the sanctioned post in
the Government Polytechnic College Hostel. However, the said request was
not considered by the authorities. The 3rd respondent on 23.05.2014,
directed the writ petitioner to hand over the accounts and key to the
Deputy Warden of the Hostel. The petitioner sent a reply on 26.05.2014,
asking the authorities to take decision as per the service conditions.
However, no order has been passed by the competent authorities.
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W.P.No.32769 of 2014
3. The petitioner states that the Assistant Provident Fund
Commissioner, passed an order bringing the Government Hostel as
establishment within the meaning of the Employees Provident Fund and
Miscellaneous Provisions of the Act, 1952. In view of the fact that the
petitioner was continuously working for several years, his case is to be
considered for grant of regularisation and permanent absorption.
4. The learned counsel for the petitioner made a submission that in
the place of the writ petitioner, another consolidated employee was
appointed. Temporary employment cannot be replaced with another
temporary employee and therefore, the case of the writ petitioner is to be
considered for regular appointment.
5. The learned Additional Government Pleader objected the said
contentions by stating that the writ petitioner was not even appointed in
accordance with the Recruitment Rules in force. He was engaged as
consolidated pay employee on temporary basis and no appointment order
was issued during the relevant point of time. He was engaged as temporary
part time Accountant in the Hostel to look after the Hostel accounts and
the key was also handed over to him. Since, he was a part time Assistant,
his services were discharged on account of the fact that his services were
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W.P.No.32769 of 2014
not needed for the Hostel. The appointment of the writ petitioner was made
to look after the Hostel records and it was not a full time job. Thus, the
request of the writ petitioner for grant of regularisation was not considered.
6. It is contented that the writ petitioner was not appointed in
accordance with the Service Rules in force in the sanctioned post and
therefore, he has no right to claim the benefit of regularisation or
permanent absorption.
7. The learned counsel for the petitioner brought to the notice of this
Court that certain other temporary employees are also working in similar
manner on temporary basis. Nearly about 12 such part time employees
were engaged in the Hostel by the authorities to perform various jobs.
However, it is not made clear, whether such posts were sanctioned by the
Government or not, since, the 3rd respondent is a Government Polytechnic
College. In the event of any such sanctioned post, selection or
appointments are to be made strictly in accordance with the Recruitment
Rules in force.
8. This Court is of the considered opinion that in order to meet out
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W.P.No.32769 of 2014
certain emergency circumstances or to run the students hostel, the
authorities are engaging temporary employees on part time basis or on
some occasions on full time basis. Question arises, whether, such
appointments are made under the Constitutional scheme and under the
Recruitment Rules in force. Engagement of part time employees on
temporary basis would not confer any right to seek permanent absorption
or regularisation, as the sanctioned posts are to be filled up through
recruitment process.
9. Thus, mere engagement as part time employee would not confer
any right to seek regularisation or permanent absorption. No doubt, there
was a situation, which was prevailing long before by engaging part time
and full time employees on temporary basis without adverting to the
recruitment process. The Constitutional bench of the Hon'ble Supreme
Court of India in the case of Secretary, State of Karnataka Vs. Uma Devi
and others reported in [(2006) 4 SCC 1], settled the principles to be
followed for grant of regularisation and permanent absorption.
10. No doubt, the Constitution Bench in paragraph 53 of the
judgment had given a one time opportunity to the respective States to
regularise the services of such employees, who were otherwise appointed
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W.P.No.32769 of 2014
by following the procedures as contemplated under the rules. In other
words, regarding pending proposals during the relevant point of time,
when the judgment was delivered, the Hon'ble Supreme Court permitted
those proposals to be finalised for grant of regularisation or permanent
absorption. Such one time measure cannot be followed as permanent
measure in order to regularise illegal or irregular appointments.
11. The very principles laid down by the Constitution Bench is to
make appointments only through recruitment process as per rules in force.
The Constitution Bench in unambiguous terms ruled that irregular and
illegal appointments cannot be regularised. Thus, the one time permission
granted in paragraph 53 of the judgment cannot be followed in perpetuity.
It was intended to clear the proposals, which was pending during the
relevant point of time and more so, even in such cases, the authorities
competent are bound to verify, whether it is illegal or irregular
appointments. It is not as if the Hon'ble Supreme Court of India directed
the authorities to regularise illegal appointments. No such approval was
granted by the Constitution Bench as the principles are well settled by the
Constitution Bench of the Apex Court of India.
12. There are subsequent judgments, following the principles laid
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W.P.No.32769 of 2014
down in the Uma Devi's case (cited supra). No doubt, the relief of
regularisation and permanent absorption was granted even by two Judges
Bench of the Hon'ble Supreme Court in certain cases after the Uma Devi's
case (cited supra). However, those relief were granted by considering the
particular facts and circumstances of those cases. Those judgments
rendered subsequent to the Uma Devi's case by the High Court and
Hon'ble Supreme Court have denuded to loose its status as precedent.
Those judgments cannot be followed as precedent as paragraph 54 of the
Constitution Bench judgment clarifies that the judgments and the
Government orders running counter to the principles laid down by the
Constitution Bench have denuded to loose its status as precedent. Thus,
the Government orders and the subsequent judgments, granting benefits of
regularisation or permanent absorption by the High Court or by the
Supreme Court on certain facts cannot be followed as precedent and thus,
the judgements produced in this regard cannot be relied upon for the
purpose of grant of regularisation or permanent absorption.
13. Pertinently, with reference to the part time temporary
appointments, the Hon'ble Supreme Court of India in the case of Secretary
to Government, School Education Department Vs. Thiru
R.Govindaswamy and Others reported in [(2014) 4 SCC 769], considered
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W.P.No.32769 of 2014
the scope of issuing direction by the High Court for grant of regularisation.
The Hon'ble Supreme Court of India considered the principles laid down in
the case of State of Rajasthan Vs. Daya Lal reported in [(2011) 2 SCC
429] and in the case of Union of India Vs. A.S.Pillai reported in [(2014)
13 SCC 448]. The Hon'ble Supreme Court of India in clear terms ruled as
follows:
“8. This Court in State of Rajasthan v. Daya Lal has considered
the scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid down well-
settled principles relating to regularisation and parity in pay
relevant in the context of the issues involved therein. The same
are as under: (SCC p. 435, para 12)
(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
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W.P.No.32769 of 2014
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
atemporary 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
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W.P.No.32769 of 2014
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 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 supplied)”
14. In the present case, the petitioner states that he was continuously
engaged as part time Assistant for several years and he was discharged
from services without even passing any order of termination. It is an
admitted fact that no appointment order was issued nor any order of
termination was issued.
15. The petitioner accepting the terms and conditions of the
employment, served in the Hostel and therefore, he cannot turn around and
seek the benefits of regularisation or permanent absorption in violation of
the Recruitment Rules.
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W.P.No.32769 of 2014
16. The respondents state that the petitioner was engaged as part
time Assistant to maintain the students Hostel records and he has not
handed over the key on his discharge from service and in this regard, the
respondents filed a Criminal complaint before the jurisdictional Police
Station. The fact regarding the discharge of the writ petitioner was
disputed by the petitioner, stating that no order of termination or discharge
was issued. Therefore, he has not handed over the key. However, these
facts may not be relevant and deserves no further consideration.
17. At the outset, the writ petitioner was not appointed in
accordance with the Recruitment Rules in force in a sanctioned post. If at
all the posts are sanctioned by the Government, then the respondents are
bound to appoint persons in accordance with the Recruitment Rules in
force by affording equal opportunity to all the eligible candidates, who all
are aspiring to secure public employment through open competitive
process. Rule of reservation is to be followed under the Constitutional
scheme of appointments. Equal opportunity in public employment is the
mandate. Thus, in the event of undertaking the process of selection,
appointments for sanctioned posts, the procedures are to be scrupulously
followed.
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W.P.No.32769 of 2014
18. In the present, case no process of selection was undertaken
during the relevant point of time nor any appointment order was issued to
the writ petitioner. He was allowed to continue as part time Assistant to
maintain the Hostel records. However, the petitioner was not allowed to
work after June 2014 onwards. This being the factum established, this
Court is of the considered opinion that benefit of regularisation or
permanent absorption cannot be granted by this Court by exercising power
of judicial review under Article 226 of the Constitution of India. The
Hon'ble Supreme Court of India in unequivocal terms held that the High
Court in exercising powers of Article 226 of the Constitution of India, will
not issue direction on regularisation or permanent absorption, unless the
employees claiming regularisation had been determined in pursuance of
the regular recruitment in the relevant rules through open competitive
process, even in case of sanctioned post. In view of the fact that the
essential principles for regular appointment has not been complied in the
appointment of the writ petitioner as part time Assistant, the relief as such
sought for cannot be granted.
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W.P.No.32769 of 2014
19. Accordingly, the Writ Petition stands dismissed. No costs.
Consequently, connected Miscellaneous Petitions are closed.
26.07.2022
Jeni
Index : Yes
Speaking order : Yes
To
1.The Secretary to Government
Department of Higher Education
Fort St. George,
Chennai – 9.
2.The Commissioner of Technical Education,
Directorate of Technical Education
Guindy, Chennai – 25.
3.The Principal & Warden
Govt. Polytechnic College Hostel
Nagercoil – 4.
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W.P.No.32769 of 2014
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.32769 of 2014
26.07.2022
https://www.mhc.tn.gov.in/judis
