Madras High Court
D.Manoharan vs The Government Of Tamil Nadu on 15 June, 2022
W.P.Nos.10002 to 10005 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.10002 to 10005 of 2014
1.D.Manoharan ... Petitioner
in WP.No.10002 of 2014
2.C.Ranhanathan ... Petitioner
in WP.No.10003 of 2014
3.V.Gunasekaran ... Petitioner
in WP.No.10004 of 2014
4.K.Munirathnam ... Petitioner
in WP.No.10005 of 2014
Vs.
1.The Government of Tamil Nadu,
Rep. by it Secretary,
Municipal Admn. & Water Supply Dept.,
Fort St.George, Chennai-9
2.The District of Town Panchayat,
Kuralagam Building,
Esplanade, Chennai.
3.The Assistant Director of Town Panchayat,
Vellore, Vellore District.
4.The Executive Officer,
Odugathur 1st Class Town Panchayat,
Vellore Taluk,
Vellore District. ... Respondents
in all W.Ps
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
Common Prayer: Writ Petitions filed under Article 226 of the
Constitution of India for issuance of a Writ of Certiorarified Mandamus, to
call for the records of the fourth respondent relating to his proceedings in
Na. Ka. No.125/2009 dated 11.12.2009 and quash the same and
consequently direct the respondents herein to regularise the service of the
petitioner on time scale of pay in accordance with G.O.Ms.No.198 MA &
WS Dept. dated 26.10.1998 with all attendant benefits.
For Petitioner : Mr.R.Sunil Kumar
(in all W.Ps)
For Respondents : Mrs.Anitha
Special Government Pleader
(in all W.Ps)
COMMON ORDER
The order passed by the respondent in proceedings dated
11.12.2009 appointing the writ petitioners in regular time scale of pay
based on the order issued in G.O.Ms.No.242 by the Municipal
Administration and Water Supply Department on 10.12.2009 is under
challenge in the present writ petitions.
2. The writ petitioners were initially engaged as daily wage
employees. The petitioners were working continuously as daily wage
employees. The learned counsel for the petitioners mainly contended that
the Government issued G.O.Ms.No.198, Municipal Administration and
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
Water Supply Department dated 26.10.1998 stating that the employees,
who all are serving for long years on temporary basis are eligible for
regularization in the regular time scale of pay. However, the benefits of the
said Government Order were not extended during the relevant point of
time.
3. Subsequently, the case of the writ petitioners were considered for
regular appointment and the Government passed an order in
G.O.Ms.No.242, Municipal Administration and Water Supply Department
dated 10.12.2009. Based on the said order, the service of the writ
petitioner was brought under the regular establishment by fixing the time
scale of pay. The Government Order in G.O.Ms.No.242 was issued
granting the benefit of regular time scale of pay in respect of the daily
wage employees, who all are serving more than 10 years. Thus, the case of
the writ petitioners were also considered with reference to the
G.O.Ms.No.242 dated 10.12.2009 and consequently, the petitioners were
given appointment in the regular time scale of pay in proceedings
Na.Ka.No.125/2009 dated 11.12.2009 and the said order is under
challenge in the present writ petition.
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
4. The G.O.Ms.No.198 relates to norms for constitution of post.
Several conditions were also stipulated in the said Government Order.
Therefore, it is not as if the Government has passed an order to grant the
benefit to regularization of the employees, who all are engaged on daily
wage basis. One of the conditions is that the employee should be engaged
through District Employment Exchange and in respect of the employees,
who have not registered their names in the Employment Exchange, also to
be considered only after such registration, and based on the seniority.
5. Daily wage employees who have not registered their names in the
Employment Exchange, shall be insisted to register their names in the
Employment Exchange. The minimum prescribed qualification and the
technical skills are also to be verified for such absorption. Therefore, the
G.O.Ms.No.198 contemplates several restrictions for grant of benefit for
regular time scale of pay and regularization of service. However, the fact
remains that the service of the writ petitioners was not regularized based
on G.O.Ms.No.198. The present writ petition was filed after granting the
benefit of regularization in the year 2009 based on G.O.Ms.No.242 dated
10.12.2009.
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
6. Regularization or permanent absorption cannot be granted in
violation of service rules in force. Appointments are to be made strictly in
accordance with the rules in force and through open competitive process.
The principles for grant of regularization or permanent absorption has been
settled by the Constitution Bench of the Hon'ble Supreme Court of India in
the case of Secretary, State of Karnataka Vs. Umadevi & Others reported
in 2006 (4) SCC 1. The Constitution Bench in unequivocal terms held in
paragraph 54 that any judgment running counter to the principles laid
down in that case will stand denuded of their status as precedent.
Therefore, the subsequent cases decided based on certain particular facts
and circumstances cannot be considered as precedent for the granting the
relief. The principles laid down by the Constitutional bench became the
law which is to be followed by all Courts across the country.
7. Even the Governments are not empowered to grant regularisation
or permanent absorption in violation of the principles settled by the
Constitution Bench of Apex Court of India.
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
8. In the present case the service of the petitioners were regualrised
based on G.O.Ms.No.242 dated 10.12.2009 and they were fixed with the
time scale of pay. The claim of the writ petitioners are to grant
retrospective regularisation based on G.O.Ms.No.198. The fact remains
that the case of the writ petitioners were not considered based on
G.O.Ms.No.198 as they were appointed as daily wage employees and the
respondents have also taken up the stand that G.O.Ms.No.198 dated
26.10.1998 is not applicable to the case of the writ petitioners. The
petitioners during the relevant point of time has not initiated any steps to
claim the benefits. However, only after regularisation of the service in the
year 2009 they have chosen to file the present writ petitions in the year
2014 after a lapse of 5 years from the date of grant of regularization and
fixing time scale of pay.
9. The benefit to regularization granted by the Government as one
time measure itself is a concession extended. The daily wage employees
are not entitled for such regularization as per the principles set out by the
Constitution Bench of the Supreme Court of India. Illegal and irregular
employees cannot be regularized in violation of the recruitment rules in
force. Equal opportunity in the public employment is the constitutional
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
mandate of eligible candidates, who are all aspiring to get public
employment. Employees must be provided with an opportunity to
participate in the selection and therefore, the back door appointment
cannot be a ground to seek regularization in the sanctioned post. The one
time measure to grant regularization is a concession extended to such
employees, who have served for long years. Therefore, such concessions
cannot be extended for the purpose of granting retrospective regularization.
10. In the present case, the petitioners admittedly were appointed as
daily wage employees on temporary basis and the benefits for
regularisation were granted to them through G.O.Ms.No.242 on
10.12.2009 and therefore, regularization granted by way of concession in
respect of the writ petitioners cannot be extended for the purpose of
considering their case for retrospective regularisation. Thus, there is no
infirmity in the order impugned. Accordingly, the Writ Petitions stand
dismissed. No costs.
15.06.2022
Jeni/Mrm
Index : Yes
Speaking order : Yes
S.M. SUBRAMANIAM, J.
https://www.mhc.tn.gov.in/judis
W.P.Nos.10002 to 10005 of 2014
Jeni/Mrm
To
1.The Secretary,
Government of Tamil Nadu,
Municipal Admn. & Water Supply Dept.,
Fort St.George, Chennai-9
2.The District of Town Panchayat,
Kuralagam Building,
Esplanade, Chennai.
3.The Assistant Director of Town Panchayat,
Vellore, Vellore District.
4.The Executive Officer,
Odugathur 1st Class Town Panchayat,
Vellore Taluk,
Vellore District.
W.P.Nos.10002 to 10005 of 2014
15.06.2022
https://www.mhc.tn.gov.in/judis
