Madras High Court
A.Thirumurugan vs The Executive Engineer on 21 June, 2022
WP No.12637 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21-06-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.12637 of 2014
1.A.Thirumurugan
2.P.Nedumaran
3.S.Muruganandam
4.R.Geetha
5.V.Muthulakshmi
6.M.R.Shanmugam
7.V.Inbaraj
8.S.Purushothaman
9.S.Sheik Jahangir Hussain
10.M.Vijayaragavan
11.S.Sudhakar
12.S.Rajmohan
13.P.Sumathi
14.Y.Shahul Hameed
15.G.Anand
16.M.Ashok Kumar
17.P.Anbazhagan
18.A.Tennis Raja
19.S.Satishkumar .. Petitioners
vs.
1/56
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1.The Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam.
2.The Assistant Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam.
3.The Assistant Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Mandamus, directing the first
respondent to implement the order passed by the Inspector of Labour,
Thiruvarur in Pro.No.7167/2011 dated 11.02.2014.
For Petitioners : Ms.G.P.Arivuchudar for
M/s.Law Square.
For Respondents : Mr.S.Ravindran,
Senior Advocate for
M/s.S.Mekhala.
2/56
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WP No.12637 of 2014
ORDER
The lis on hand is filed to direct the first respondent to
implement the award passed by the Inspector of Labour, Thiruvarur in
Na.Ka.No.7167/2011 dated 11.02.2014 thereby conferring permanent status
to the petitioners.
2. All the writ petitioners are working in the operation and
maintenance of Combined Water Supply Schemes to Kollidam and other
habitations under the Control of the Tamil Nadu Water Supply and Drainage
Board (hereinafter referred to as 'TWAD' Board) as Electricians and
Maintenance Assistant, ranging from 2006 to 2009.
3. The writ petitioners state that they have completed 480 days
of continuous service in a period of 24 calendar months, and therefore, they
are entitled to get permanent status, as per Section 3(1) of the Tamil Nadu
Industrial Establishment (Conferment of Permanent Status to Workmen)
Act, 1981. The writ petitioners had approached the competent authorities to
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regularize their services from the date of completion of 480 days of
continuous service. In spite of several representations both oral and writing,
the respondents have failed to look into the same. Consequently, the writ
petitioners filed an application before the Inspector of Labour, Thiruvarur,
for a direction to regularize their services from the date of completion of 480
days of continuous service in a period of 24 calendar months. The Inspector
of Labour considering the claim of the writ petitioners, passed an order
granting permanent status with reference to the Conferment of Permanent
Status Act. Even after passing of the order of the competent authority, the
respondents have not taken any action to implement the award. Several
representations were sent. However, the efforts of the writ petitioners went
in vain. Therefore, the writ petitioners were constrained to move the present
writ petition seeking a writ of Mandamus.
4. The learned counsel for the writ petitioners reiterated that the
writ petitioners were employed as Electrician and Maintenance Assistants
and they have completed 480 days of service. Therefore, they are entitled for
the benefit of the provisions of the Conferment of Permanent Status Act. As
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per the order passed by the Inspector of Labour, the respondents ought to
have regularized the services of the writ petitioners in the sanctioned post
and in regular time scale of pay.
5. The learned counsel for the writ petitioners made a
submission that in similar circumstances, the case of other employees were
considered by the Madurai Bench of this Court in W.A.(MD).Nos.567 &
568 of 2018. The appeal filed by the TWAD Board was dismissed and the
benefit of the order of the Inspector of Labour was granted in respect of
other set of employees. Thus, the benefit of order of the Division Bench is to
be extended to the writ petitioners in this writ petition also.
6. The learned counsel appearing on behalf of the respondents/
TWAD Board disputed the contention by stating that several other
judgments were also passed, rejecting the claim of the employees for grant of
permanent status and therefore, the writ petition is liable to be dismissed. By
way of a counter, the learned counsel for the respondents reiterated that in
respect of the orders passed under the provisions of the Permanent Status
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Act, the benefit was granted to other similarly placed persons in other
judgments also and therefore, the present writ petition is to be allowed by
issuing a direction to the respondents to implement the orders of the
Inspector of Labour conferring the permanent status. In view of the counter
submissions, this Court has to consider the following issues:
(i) Whether the Tamil Nadu Industrial Establishment
(Conferment of Permanent Status to Workmen), 1981 would be applicable
to the employees of the TWAD Board, which is a State Government
Organization for the purpose of granting the benefit of permanent absorption
and regularization?
(ii) Whether the legal principles laid down by the Constitution
Bench of the Hon'ble Supreme Court of India in the case of State of
Karnataka vs. Uma Devi, 2006 (4) SCC 1, are followed in the earlier cases,
regarding appointments, regularization and permanent absorption.
(iii) Whether the Service Regulations, 1972 framed by virtue of
powers under Section 73 of the Tamil Nadu Water Supply and Drainage
Board, 1970, will prevail over the general law, namely the Conferment of
Permanent Status Act, as the Tamil Nadu Water Supplies and Drainage
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Board is a special law, as far as the TWAD Board is concerned.
7. Admittedly, the TWAD Board is the Government of Tamil
Nadu Organization. The Board was constituted by virtue of the Tamil Nadu
Water Supply and Drainage Board, Act, 1970, which received the assent of
the President on 24.03.1971 and published in the Tamil Nadu Government
Gazette on 25.03.1971.
8. Section 2(i) of the Act defines Board. “Board” means the
Tamil Nadu Water Supply and Drainage Board, constituted under Section 4.
The constitution of the Board is provided under Section 4 of the Act.
9. Section 34 of the Act denotes the Board's fund. Sub-clause(4)
states that “All moneys and receipts specified in the foregoing provisions
and forming part of the fund of the Board shall be deposited into the public
accounts of the Government under such detailed head of accounts as may be
prescribed (or) in the Reserve Bank of India constituted under the Reserve
Bank of India Act,1934 (Central Act II of 1934), or the State Bank of India
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constituted under the State Bank of India Act, 1955 (Central Act 23 of
1955). It is relevant to consider Section 58 of the Act, which deals with the
powers of the Government to issue orders and directions to the Board of
local authorities. Under the said provision, the Government may issue to the
Board or to the local authority concerned, such orders and directions as in
their opinion are necessary or expedient for carrying out the purposes of this
Act and the Board or such local authority, as the case may be, shall give
effect to all such orders and directions.
10. A perusal of the entire service regulations of the year 1972
reveals that the Government Department Service Rules are mostly adopted
with necessary modifications and more specifically, regulation (9) prescribes
the mode of recruitment, which reads as under:-
“9. Mode of Recruitment.- The Board shall
notify all vacancies for posts to be filled up by
direct recruitment to the local employment
Exchange as provided for in the Employment
Exchanges (Compulsory Notification of Vacancies)
Act 1959 (Central Act No. 31 of 1959) and the rules
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made thereunder. If the local Employment exchange
is unable to sponsor the required number of
qualified and eligible candidates and gives a
certificate to that effect, the Board shall advertise
the remaining vacancies in at least one English
daily newspaper and one Tamil Daily newspaper
having wide circulation in the area. The selection of
candidates shall be made from among the
candidates sponsored by the Employment Exchange
and or who responded to the advertisement as the
case may be. The selection shall be made by a
Selection Committee to be constituted by the Board
consisting of the Chairman, the Managing Director
and one more member to be nominated by the
Board. (B.P.Ms.No. 401, dated 28.9.76). The
Chairman shall be the Chairman of the Selection
Committee so constituted shall function for one
year from the date of its constitution. The Board
may direct the Selection Committee to make the
selection on the results of a written examination or
interview or of both as it considers suitable. The
lists of candidates selected and arranged in the
order of preference for a Class I Service shall be
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submitted to the Board for approval. All
appointments by direct recruitment shall be made
only from the list thus approved by the Board. In
case the Board disagrees with the recommendations
of the Selection Committee, the Board shall cause
the matter to be referred back to the Selection
Committee for reconsideration in the light of the
views expressed by the Board. The Selection
Committee’s recommendations shall be final for
posts in Class II and Class III and appointments by
direct recruitment to the classes made with
reference to the recommendations of the Selection
Committee be reported to the Board for
information.
(2) Selection for appointment by direct
recruitment to Class IV shall be made by the
appointing authority by inviting applications
through the Employment Exchange.
(3) The selection of candidates for
appointment for work-charged and nominal muster
roll establishment shall be made by the appointing
authorities by inviting applications through the
Employment Exchange.
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(4) For promotion to posts of executive
engineers and Superintending Engineers of the
Tamil Nadu water Supply and Drainage Board, the
Chief Engineer of the Board shall prepare a list of
all eligible candidates arranged in the order of
seniority for consideration having regard to their
efficiency-cum-seniority showing in the list their
names, present designation, present pay, age,
qualifications and experience and forward the same
to the Managing Director with their confidential
reports. The Managing Director after scrutinising
the lists and the confidential reports 44 will select
and appoint the candidates in respect of the post of
Executive Engineers. In respect of Superintending
Engineers, the Managing Director will made his
recommendations to the Board for selection, and
based on the selection by the Board he will issue
appointment orders. (B.P.Ms.No. 320, dated 1-
.9.98). The appointment of Chief Engineer of the
Board will be made subject to the approval of the
Government.
(5) No appeal shall lie against the decision of
the Selection Committee in regard to direct
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recruitment. All appeal shall however, lie to the
Board for appointments made by promotion on the
basis of the recommendations of the Selection
Committee and the Board shall dispose of such
appeals on merits and its decision shall be final.
With regard to appointment by promotion approved
by the Board, a revision shall lie to Government.
(6) In respect of promotions to technical posts
below the rank of Assistant Executive Engineers
and promotions to non-technical posts in Board’s
Secretariat and Chief Engineer’s office and other
subordinate offices of Chief Engineer, the
appointing authority is competent to make the
promotions.
(7) Notwithstanding anything contained in
the above Regulation, the Board may in any
particular case or class of cases adopt a special
procedure as more appropriate than the one
prescribed in any of the said Regulations.”
11. Thus, it is made clear that the service regulations are in
force and such regulations are approved by the Government by virtue of the
powers conferred under the Tamil Nadu Water Supply and Drainage Board,
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1970. When the Act is in force, and by virtue of the said statute, service
regulations are framed, then, all the selections, recruitments and
regularizations as well as the permanent absorptions are to be strictly made
in accordance with law with the statute and the provisions of the service
regulations of the TWAD Board. This apart, the Act as well as the Service
Regulations, 1972 will prevail over the general law. For the purpose of
TWAD Board, the Tamil Nadu Water Supply and Drainage Board, 1970 as
well as the service regulations of the year 1972 would be the special law and
therefore, the Conferment of Permanent Status Act is to be construed as a
general law. Under these circumstances, the Special Act and Special
Regulations would prevail over the Conferment of Permanent Status for the
purpose of considering the case for grant of regularization and permanent
absorption in Board's services.
12. In view of the fact that the special law will prevail over the
general law and further, the TWAD Board Act and the service regulations
constituted by virtue of the powers conferred under Section 73 of the Tamil
Nadu Water Supply and Drainage Board Act, the provisions of the
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Conferment of Permanent Status Act would not be applicable for grant of
regularization and permanent absorption, with reference to the employees of
the TWAD Board. Accordingly, the provisions of the Tamil Nadu Industrial
Establishment [Conferment of Permanent Status] Act, 1981 is not applicable
to the employees of the TWAD Board for granting the benefit of
regularization and permanent absorption. Accordingly, issues 1 and 3 are
answered.
12(a). It is contended by the learned counsel for the
respondents/TWAD Board that the Standing Orders are applicable to the
TWAD Board. In fact, the Standing Orders are not adopted and all along the
TWAD Board is following the provisions of the Tamil Nadu Water Supply
and Drainage Board, 1970 and the Service Regulations, 1972 constituted in
order to exercise the powers conferred under Section 73 of the TWAD Board
Act. At no point of time, the Tamil Nadu Industrial Establishment
[Conferment of Permanet Status] is made available to the employees of the
TWAD Board. In this regard, the Board also informed the Joint
Commissioner of Labour, Chennai and addressed the Government Scheme
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seeking exemption from implementing the Standing Orders in TWAD
Board. Therefore, application of Standing Orders would not arise at all in
this case, as it was never made applicable to the employees of the TWAD
Board.
13. In respect of Issue No.2, this Court is bound to consider
what is the binding law and whether the petitioners are entitled for the
benefit of regularization and permanent absorption, pursuant to the orders
passed by the Inspector of Labour under the Conferment of Permanent
Status Act.
14. The admitted fact is that the petitioners have completed 480
days of continuous service in a period of 24 calendar months. Therefore, the
writ petitioners have approached the Inspector of Labour, and the Inspector
of Labour also verified the fact regarding the length of services and
accordingly, granted the benefit of permanent status under the Conferment
of Permanent Status Act.
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15. The legal principles as well as the ratio decidendi laid down
by the Constitution Bench of the Hon'ble Supreme Court of India in Uma
Devi case had not been considered either by the Inspector of Labour or in
the judgment cited by the learned counsel for the writ petitioner. In view of
the fact that the applicability of the Conferment of Permanent Status Act to
the TWAD Board employees as well as the legal principles settled by the
Constitution Bench of the Hon'ble Supreme Court of India are not
considered, this Court is bound to follow the binding precedent of the
Constitution Bench of the Hon'ble Supreme Court of India, as the same
became the law of the Land under Article 141 of the Constitution of India.
16. The learned counsel for the writ petitioner brought to the
notice of this Court regarding various orders passed by this Court, granting
the benefit of orders passed by the Inspector of Labour, for grant of
conferment of permanent status and regularization of the services of the
temporary employees, and made a request to follow the same and
accordingly, allow the writ petition by issuing a direction to grant of
permanent absorption and regularization to the writ petitioners.
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17. This Court is of the view that the Constitution Bench
Judgment of the Apex Court is the binding law, and more specifically, in
paragraph No.54 of the Uma Devi case, the Constitution Bench in
unequivocal terms held that “those decisions which run counter to the
principle settled in this decision, or in which directions running counter to
what we have held herein, will stand denuded of their status as precedents”.
18. The doctrine of binding precedent is of utmost importance
in the administration of our judicial system. It promotes certainty and
consistency in judicial decisions. Judicial consistency promotes confidence in
the system. In this prescriptive, this Court is bound to consider the legal
principles settled by the Constitution Bench of the Hon'ble Supreme Court of
India regarding the doctrine of binding precedent in the case of NATIONAL
INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND
OTHERS [(2017) 6 SCC 680]. The Constitution Bench again reiterated
that the principles laid down by the Constitution Bench of the Apex Court
would be binding precedent and it became the law of the Land and is to be
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followed scrupulously, even in cases, where two Judges Bench of the
Supreme Court are running counter to the Judgment of the Constitution
Bench. Therefore, the Judgment of the Constitution Bench, in the present
context, would be relevant for the purpose of considering the case of the writ
petitioners herein. In the National Insurance Company case cited supra, the
Constitution Bench in unequivocal terms held that a decision or judgment
can be per incuriam any provision in a statue, rule or regulation, which is not
brought to the notice of this Court.
19. In the present case, the provision of the Tamil Nadu Water
Supply and Drainage Board Act, 1970 as well as the TWAD Board Service
Regulations Act, 1972 were not brought to the notice of this Court in respect
of the earlier orders passed by this Court, which are all cited by the writ
petitioners. In none of the said judgments, the provisions of the TWAD
Board Act as well as the Service Regulations, 1972 and the binding law laid
down by the Constitution Bench of the Hon'ble Supreme Court of India were
considered. Thus, this Court is bound to follow the Judgment of the
Constitution Bench of India in the matter of grant of regularization and
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permanent absorption.
20. As far as the Constitution Bench Judgment is concerned, the
legal principles are settled. In paragraph No.5 of the Judgment, the Supreme
Court had also on occasions issued directions which could not be said to be
consistent with the constitutional scheme of public employment. Such
directions are issued presumably on the basis of equitable considerations or
individualization of justice. The question that arises is, equity to whom?
Equity for the handful of people who have approached the Court with a
claim, or equity for the teeming millions of this Country, who are seeking
employment and a fair opportunity for competing for employment? When
one side of the coin is considered, the other side of the coin has also to be
considered and the way open to any Court of law or justice, is to adhere to
the law as laid down by the Constitution and not to make directions, which
at times, even if do not run counter to the constitutional scheme, certainly
tend to water down the constitutional requirements. It is this conflict that is
reflected in these cases referred to the Constitution Bench.
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21. The Constitution Bench, referring the earlier orders, arrived
at a conclusion that the practice of continuing “such individualization of
justice” is to be averted. The Constitutional philosophy and ethos in the
matter of equal opportunity in public employment are to be ensured in this
context. The Supreme Court while considering the earlier orders passed by
the High Court as well as the Supreme Court, referred the matter to the
Constitution Bench, in order to regulate the illegal and irregular
appointments and to ensure that all appointments are to be made under the
Constitutional Scheme and by following the rules in-force. In Paragraph
No.6 of the judgment, the following observations are made:
“6. The power of a State as an employer is
more limited than that of a private employer
inasmuch as it is subjected to constitutional
limitations and cannot be exercised arbitrarily
(see Basu's Shorter Constitution of India). Article
309 of the Constitution gives the Government the
power to frame rules for the purpose of laying
down the conditions of service and recruitment of
persons to be appointed to public services and
posts in connection with the affairs of the Union
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or any of the States. That article contemplates the
drawing up of a procedure and rules to regulate
the recruitment and regulate the service
conditions of appointees appointed to public
posts. It is well acknowledged that because of
this, the entire process of recruitment for services
is controlled by detailed procedures which specify
the necessary qualifications, the mode of
appointment, etc. If rules have been made under
Article 309 of the Constitution, then the
Government can make appointments only in
accordance with the rules. The State is meant to
be a model employer. The Employment Exchanges
(Compulsory Notification of Vacancies) Act, 1959
was enacted to ensure equal opportunity for
employment seekers. Though this Act may not
oblige an employer to employ only those persons
who have been sponsored by employment
exchanges, it places an obligation on the
employer to notify the vacancies that may arise in
the various departments and for filling up of
those vacancies, based on a procedure. Normally,
statutory rules are framed under the authority of
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law governing employment. It is recognised that
no government order, notification or circular can
be substituted for the statutory rules framed
under the authority of law. This is because,
following any other course could be disastrous
inasmuch as it will deprive the security of tenure
and the right of equality conferred on civil
servants under the constitutional scheme. It may
even amount to negating the accepted service
jurisprudence. Therefore, when statutory rules
are framed under Article 309 of the Constitution
which are exhaustive, the only fair means to
adopt is to make appointments based on the rules
so framed.”
22. In the above paragraph, the Supreme Court reiterated that
the rules framed under the Statues are to be followed for the purpose of
selection and appointments or regularization or permanent absorption. In the
present case, the service regulations are framed pursuant to the powers
conferred on the authority under the provisions of the Tamil Nadu Water
Supply and Drainage Board Act, 1970. Therefore, such service regulations
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are to be followed for the purpose of recruitment, regularization, permanent
absorption or otherwise.
23. It is relevant to extract paragraph Nos.43 to 50 of the
Judgment. The Constitution Bench settled the legal principles and the same
are extracted hereunder:
“43. Thus, it is clear that adherence to the
rule of equality in public employment is a basic
feature of our Constitution and since the rule of
law is the core of our Constitution, a court
would certainly be disabled from passing an
order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply
with the requirements of Article 14 read with
Article 16 of the Constitution. Therefore,
consistent with the scheme for public
employment, this Court while laying down the
law, has necessarily to hold that unless the
appointment is in terms of the relevant rules and
after a proper competition among qualified
persons, the same would not confer any right on
the appointee. If it is a contractual appointment,
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the appointment comes to an end at the end of
the contract, if it were an engagement or
appointment on daily wages or casual basis, the
same would come to an end when it is
discontinued. Similarly, a temporary employee
could not claim to be made permanent on the
expiry of his term of appointment. It has also to
be clarified that merely because a temporary
employee or a casual wage worker is continued
for a time beyond the term of his appointment,
he would not be entitled to be absorbed in
regular service or made permanent, merely on
the strength of such continuance, if the original
appointment was not made by following a due
process of selection as envisaged by the relevant
rules. It is not open to the court to prevent
regular recruitment at the instance of temporary
employees whose period of employment has
come to an end or of ad hoc employees who by
the very nature of their appointment, do not
acquire any right. The High Courts acting under
Article 226 of the Constitution, should not
ordinarily issue directions for absorption,
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regularisation, or permanent continuance unless
the recruitment itself was made regularly and in
terms of the constitutional scheme. Merely
because an employee had continued under cover
of an order of the court, which we have
described as “litigious employment” in the
earlier part of the judgment, he would not be
entitled to any right to be absorbed or made
permanent in the service. In fact, in such cases,
the High Court may not be justified in issuing
interim directions, since, after all, if ultimately
the employee approaching it is found entitled to
relief, it may be possible for it to mould the
relief in such a manner that ultimately no
prejudice will be caused to him, whereas an
interim direction to continue his employment
would hold up the regular procedure for
selection or impose on the State the burden of
paying an employee who is really not required.
The courts must be careful in ensuring that they
do not interfere unduly with the economic
arrangement of its affairs by the State or its
instrumentalities or lend themselves the
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instruments to facilitate the bypassing of the
constitutional and statutory mandates.
44. The concept of “equal pay for equal
work” is different from the concept of conferring
permanency on those who have been appointed
on ad hoc basis, temporary basis, or based on
no process of selection as envisaged by the
rules. This Court has in various decisions
applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are
rested on the concept of equality enshrined in
our Constitution in the light of the directive
principles in that behalf. But the acceptance of
that principle cannot lead to a position where
the court could direct that appointments made
without following the due procedure established
by law, be deemed permanent or issue directions
to treat them as permanent. Doing so, would be
negation of the principle of equality of
opportunity. The power to make an order as is
necessary for doing complete justice in any
cause or matter pending before this Court,
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would not normally be used for giving the go-by
to the procedure established by law in the matter
of public employment. Take the situation arising
in the cases before us from the State of
Karnataka. Therein, after Dharwad decision
[(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] the
Government had issued repeated directions and
mandatory orders that no temporary or ad hoc
employment or engagement be given. Some of
the authorities and departments had ignored
those directions or defied those directions and
had continued to give employment, specifically
interdicted by the orders issued by the executive.
Some of the appointing officers have even been
punished for their defiance. It would not be just
or proper to pass an order in exercise of
jurisdiction under Article 226 or 32 of the
Constitution or in exercise of power under
Article 142 of the Constitution permitting those
persons engaged, to be absorbed or to be made
permanent, based on their appointments or
engagements. Complete justice would be justice
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according to law and though it would be open to
this Court to mould the relief, this Court would
not grant a relief which would amount to
perpetuating an illegality.
45. While directing that appointments,
temporary or casual, be regularised or made
permanent, the courts are swayed by the fact
that the person concerned has worked for some
time and in some cases for a considerable length
of time. It is not as if the person who accepts an
engagement either temporary or casual in
nature, is not aware of the nature of his
employment. He accepts the employment with
open eyes. It may be true that he is not in a
position to bargain—not at arm's length—since
he might have been searching for some
employment so as to eke out his livelihood and
accepts whatever he gets. But on that ground
alone, it would not be appropriate to jettison the
constitutional scheme of appointment and to
take the view that a person who has temporarily
or casually got employed should be directed to
be continued permanently. By doing so, it will be
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creating another mode of public appointment
which is not permissible. If the court were to
void a contractual employment of this nature on
the ground that the parties were not having
equal bargaining power, that too would not
enable the court to grant any relief to that
employee. A total embargo on such casual or
temporary employment is not possible, given the
exigencies of administration and if imposed,
would only mean that some people who at least
get employment temporarily, contractually or
casually, would not be getting even that
employment when securing of such employment
brings at least some succour to them. After all,
innumerable citizens of our vast country are in
search of employment and one is not compelled
to accept a casual or temporary employment if
one is not inclined to go in for such an
employment. It is in that context that one has to
proceed on the basis that the employment was
accepted fully knowing the nature of it and the
consequences flowing from it. In other words,
even while accepting the employment, the person
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concerned knows the nature of his employment.
It is not an appointment to a post in the real
sense of the term. The claim acquired by him in
the post in which he is temporarily employed or
the interest in that post cannot be considered to
be of such a magnitude as to enable the giving
up of the procedure established, for making
regular appointments to available posts in the
services of the State. The argument that since
one has been working for some time in the post,
it will not be just to discontinue him, even
though he was aware of the nature of the
employment when he first took it up, is not one
that would enable the jettisoning of the
procedure established by law for public
employment and would have to fail when tested
on the touchstone of constitutionality and
equality of opportunity enshrined in Article 14
of the Constitution.
46. Learned Senior Counsel for some of
the respondents argued that on the basis of the
doctrine of legitimate expectation, the
employees, especially of the Commercial Taxes
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Department, should be directed to be
regularised since the decisions in
Dharwad[(1990) 2 SCC 396 : 1990 SCC (L&S)
274 : (1990) 12 ATC 902 : (1990) 1 SCR 544]
,Piara Singh [(1992) 4 SCC 118 : 1992 SCC
(L&S) 825 : (1992) 21 ATC 403 : (1992) 3 SCR
826] , Jacob [Jacob M. Puthuparambil v.Kerala
Water Authority, (1991) 1 SCC 28 : 1991 SCC
(L&S) 25 : (1991) 15 ATC 697] and Gujarat
Agricultural University [Gujarat Agricultural
University v. Rathod Labhu Bechar, (2001) 3
SCC 574 : 2001 SCC (L&S) 613] and the like,
have given rise to an expectation in them that
their services would also be regularised. The
doctrine can be invoked if the decisions of the
administrative authority affect the person by
depriving him of some benefit or advantage
which either (i) he had in the past been
permitted by the decision-maker to enjoy and
which he can legitimately expect to be permitted
to continue to do until there have been
communicated to him some rational grounds for
withdrawing it on which he has been given an
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opportunity to comment; or (ii) he has received
assurance from the decision-maker that they will
not be withdrawn without giving him first an
opportunity of advancing reasons for
contending that they should not be withdrawn.
[See Lord Diplock in Council for Civil Services
Union v. Minister of Civil Service [1985 AC 374
: (1984) 3 All ER 935 : (1984) 3 WLR 1174
(HL)] , National Buildings Construction Corpn.
v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC
(L&S) 1770] and Chanchal Goyal (Dr.) v. State
of Rajasthan [(2003) 3 SCC 485 : 2003 SCC
(L&S) 322] .] There is no case that any
assurance was given by the Government or the
department concerned while making the
appointment on daily wages that the status
conferred on him will not be withdrawn until
some rational reason comes into existence for
withdrawing it. The very engagement was
against the constitutional scheme. Though, the
Commissioner of the Commercial Taxes
Department sought to get the appointments
made permanent, there is no case that at the
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time of appointment any promise was held out.
No such promise could also have been held out
in view of the circulars and directives issued by
the Government after Dharwad decision [(1990)
2 SCC 396 : 1990 SCC (L&S) 274 : (1990) 12
ATC 902 : (1990) 1 SCR 544] . Though, there is
a case that the State had made regularisations
in the past of similarly situated employees, the
fact remains that such regularisations were done
only pursuant to judicial directions, either of the
Administrative Tribunal or of the High Court
and in some cases by this Court. Moreover, the
invocation of the doctrine of legitimate
expectation cannot enable the employees to
claim that they must be made permanent or they
must be regularised in the service though they
had not been selected in terms of the rules for
appointment. The fact that in certain cases the
court had directed regularisation of the
employees involved in those cases cannot be
made use of to found a claim based on
legitimate expectation. The argument if accepted
would also run counter to the constitutional
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mandate. The argument in that behalf has
therefore to be rejected.
47. When a person enters a temporary
employment or gets engagement as a contractual
or casual worker and the engagement is not
based on a proper selection as recognised by the
relevant rules or procedure, he is aware of the
consequences of the appointment being
temporary, casual or contractual in nature. Such
a person cannot invoke the theory of legitimate
expectation for being confirmed in the post when
an appointment to the post could be made only
by following a proper procedure for selection
and in cases concerned, in consultation with the
Public Service Commission. Therefore, the
theory of legitimate expectation cannot be
successfully advanced by temporary, contractual
or casual employees. It cannot also be held that
the State has held out any promise while
engaging these persons either to continue them
where they are or to make them permanent. The
State cannot constitutionally make such a
promise. It is also obvious that the theory cannot
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be invoked to seek a positive relief of being
made permanent in the post.
48. It was then contended that the rights
of the employees thus appointed, under Articles
14 and 16 of the Constitution, are violated. It is
stated that the State has treated the employees
unfairly by employing them on less than
minimum wages and extracting work from them
for a pretty long period in comparison with
those directly recruited who are getting more
wages or salaries for doing similar work. The
employees before us were engaged on daily
wages in the department concerned on a wage
that was made known to them. There is no case
that the wage agreed upon was not being paid.
Those who are working on daily wages formed a
class by themselves, they cannot claim that they
are discriminated as against those who have
been regularly recruited on the basis of the
relevant rules. No right can be founded on an
employment on daily wages to claim that such
employee should be treated on a par with a
regularly recruited candidate, and made
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permanent in employment, even assuming that
the principle could be invoked for claiming
equal wages for equal work. 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. The arguments based on
Articles 14 and 16 of the Constitution are
therefore overruled.
49. It is contended that the State action in
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not regularising the employees was not fair
within the framework of the rule of law. The rule
of law compels the State to make appointments
as envisaged by the Constitution and in the
manner we have indicated earlier. In most of
these cases, no doubt, the employees had worked
for some length of time but this has also been
brought about by the pendency of proceedings
in tribunals and courts initiated at the instance
of the employees. Moreover, accepting an
argument of this nature would mean that the
State would be permitted to perpetuate an
illegality in the matter of public employment and
that would be a negation of the constitutional
scheme adopted by us, the people of India. It is
therefore not possible to accept the argument
that there must be a direction to make
permanent all the persons employed on daily
wages. When the court is approached for relief
by way of a writ, the court has necessarily to ask
itself whether the person before it had any legal
right to be enforced. Considered in the light of
the very clear constitutional scheme, it cannot be
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said that the employees have been able to
establish a legal right to be made permanent
even though they have never been appointed in
terms of the relevant rules or in adherence of
Articles 14 and 16 of the Constitution.
50. It is argued that in a country like India
where there is so much poverty and
unemployment and there is no equality of
bargaining power, the action of the State in not
making the employees permanent, would be
violative of Article 21 of the Constitution. But
the very argument indicates that there are so
many waiting for employment and an equal
opportunity for competing for employment and it
is in that context that the Constitution as one of
its basic features, has included Articles 14, 16
and 309 so as to ensure that public employment
is given only in a fair and equitable manner by
giving all those who are qualified, an
opportunity to seek employment. In the guise of
upholding rights under Article 21 of the
Constitution, a set of persons cannot be
preferred over a vast majority of people waiting
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for an opportunity to compete for State
employment. The acceptance of the argument on
behalf of the respondents would really negate
the rights of the others conferred by Article 21
of the Constitution, assuming that we are in a
position to hold that the right to employment is
also a right coming within the purview of Article
21 of the Constitution. The argument that Article
23 of the Constitution is breached because the
employment on daily wages amounts to forced
labour, cannot be accepted. After all, the
employees accepted the employment at their own
volition and with eyes open as to the nature of
their employment. The Governments also revised
the minimum wages payable from time to time in
the light of all relevant circumstances. It also
appears to us that importing of these theories to
defeat the basic requirement of public
employment would defeat the constitutional
scheme and the constitutional goal of equality.”
24. Undoubtedly, in paragraph No.53, the Supreme Court has
granted one time permission to clear the pending files regarding grant of
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regularization. However, in paragraph No.54, the Supreme Court in clear
terms held that “ those decisions which run counter to the principle settled in
this decision, or in which directions running counter to what we have held
herein, will stand denuded of their status as precedents.” Therefore, in the
matter of confirmation of service of the permanent absorption, the
Constitution Bench Judgment is the binding law and any other judgment of
any Court running counter to the legal principles settled by the Constitution
Bench stands denuded of their status as precedents.
25. This being the authoritative pronouncement of the
Constitution Bench, and applying the ratio decidenti laid down by other
Constitution Bench in the National Insurance Company of India, this Court
is bound to follow the Constitution Bench judgment in the matter of
permanent absorption or regularization or appointments. Thus, all other
judgments produced by the learned counsel for the writ petitioner are of no
avail to consider the case of the writ petitioner for grant of permanent
absorption or to issue a direction to implement the orders of Inspector of
Labour granting the permanent status.
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26. The Inspector of Labour has not considered any of these
legal principles settled by the Constitution Bench of the Supreme Court of
India. Contrarily, mechanical approach has been adopted by the Inspector of
Labour and the relief of permanent status is granted by merely verifying the
length of services rendered by these casual laborers. In other words, he
simply verified certain records to find out whether the casual laborers have
served 480 days are not. If so, then pass an order for grant of permanent
status. This being the routine and mechanical orders passed by these
Inspector of Labours, this Court has to consider the legal principles,
implications and adverse consequences as well as the violation of the
Constitutional principles.
27. To elaborate the adverse consequences in respect of these
routine orders of the Inspector of Labours, for instance, large number of
such casual laborers are engaged by various Government Organizations,
undertakings, Boards and Government Company. The casual laborers were
engaged on daily wage basis in order to complete projects or to meet out
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certain emergency or exigency. Thus, the casual laborers were not appointed
by following the recruitment rules in force. The engagement of these contract
laborers on daily wage basis are made on the basis of mere identification. At
the outset, all such engagements are made at the choice of the authorities
and they are appointed even through certain corrupt practices, favoritism or
nepotism. Thus, all these engagements of casual laborers, on need basis, are
either illegal or irregular appointment.
28. In the event of granting permanent status for these causal
labourers, based on the orders of the Inspector of Labour under the
conferment of Permanent Status Act, then the back door route created by
these authorities would become an illegal channel of appointment and
consequently, it would amount to violation of the Constitutional mandates.
No reservations are followed. No merit assessments are made. No selection
process was conducted. Such practice would lead to corrupt activities and
the Constitutional rights of all eligible candidates, who are all aspiring to
secure public employment would remain infringed. Thus, such method of
granting conferment of permanent status can never be approved by the
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Constitutional Courts. Even in respect of causal laborers, the process of
selection must be conducted for grant of regularization or permanent
absorption, and rules in force are to be followed, so as to ensure that the
regular appointments in the sanctioned posts are made by following the rules
and by providing equal opportunity to all the eligible candidates, who are all
aspiring to secure employment.
29. The adverse consequences of this method of grant of
confirmation would be that the principles of equality in employment
enunciated in the Constitution is violated. The rule of reservations are
violated. The scheme of appointment under the recruitment rules are also
violated. Thus, the Constitutional Courts cannot approve such appointments,
regularization or permanent absorption, which would have adverse impact
on the concept of social justice as resolved by “We, the people of India” in
the preamble of the Constitution. “Individualization of justice” can never be
appreciated. Sometimes one may contend that the molding of relief is not
preferable or such molding may be considered as an excess exercise.
However, the scope of Article 226 of the Constitution of India has been
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elaborated by the Constitution Bench and the Larger Benches of the
Constitutional Courts across the Country. Thus, as a custodian of the
Constitution, the High Court has to ensure that the principles of social
justice, philosophy and ethos of the Constitution are also taken care, while
granting the relief or molding of the relief. The writ petition under Article
226 cannot be compared with the Civil suit wherein the issues alone are to
be settled with reference to the documents and evidences. Even in a writ
petition under Article 226 of the Constitution of India, the Courts are
empowered to mould the relief in order to ensure that Constitutional
mandates and perspectives are implemented and protected. This being the
spirit of the Constitution, this Court is of the considered opinion that the
principles laid down by the Constitutional Bench in “Uma Devi Case”, is not
only the guiding principles, but also binding the law under Article 141 of the
Constitution of India. Thus, any other judgment of any High Court or the
judgment of the two judges Bench of the Hon'ble Supreme Court of India
denuded of their status as precedents. All the Courts across the Country are
bound by the Constitution Bench judgment in the matter of grant of
permanent absorption, with reference to the illegal or irregular
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appointments.
30. Even recently, the Hon'ble Supreme Court of India in the
case of State of Bihar and others vs. Devendra sharma in C.A.No.7879
of 2019 delivered a judgment on 17.10.2019. In the said case, the
Government of Bihar appointed Class III or Class IV employees in large
scale without following the recruitment rules and with some bogus letters.
There are no sanctioned posts and in the absence of sanctioned posts, large
number of persons were appointed through backdoor. Such appointments
were dealt with by the Apex Court of India in the above case and the Hon'ble
Supreme Court of India reiterated again that “ if the initial entry itself is
unauthorised and that appointment is not against sanctioned vacancy,
therefore, the question of regularizing of services would never arise for
consideration”. It is further observed that “ this Court found that as many as
3750 candidates were appointed in totally unauthorised manner and were
squatting against non-existing vacancies. A situation had arisen which
required immediate action for clearing the stables and for eradicating the evil
effects of these vitiated recruitments”.
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31. While relying other judgments of the Apex Court including
the Constitution Bench of the “Uma Devi” and the other judgment in
Ashwini Kumar, the Supreme Court re-emphasized as follows:
“42) In Nidhi Kaim & Anr. v. State of
Madhya Pradesh & Ors.16, a three Judge Bench
was dealing with admission of students to MBBS
Course on the basis of illegal and unfair
admission process. The Court held as under:
“92. …Having given our thoughtful
consideration to the above submission, we are of
the considered view that conferring rights or
benefits on the appellants, who had consciously
participated in a well thought out, and
meticulously orchestrated plan, to circumvent
well laid down norms, for gaining admission to
the MBBS course, would amount to espousing
the cause of “the unfair”. It would seem like
allowing a thief to retain the stolen property. It
would seem as if the Court was not supportive of
the cause of those who had adopted and
followed rightful means. Such a course would
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cause people to question the credibility of the
justice-delivery system itself. The exercise of
jurisdiction in the manner suggested on behalf
of the appellants would surely depict the Court's
support in favour of the sacrilegious. It would
also compromise the integrity of the academic
community. We are of the view that in the name
of doing complete justice it is not possible for
this Court to support the vitiated actions of the
appellants through which they gained admission
to the MBBS course.
94. …Even in situations where a juvenile
indulges in crime, he has to face trial, and is
subjected to the postulated statutory
consequences. Law, has consequences. And the
consequences of law brook no exception. The
appellants in this case, irrespective of their age,
were conscious of the regular process of
admission. They breached the same by devious
means. They must therefore, suffer the
consequences of their actions. It is not the first
time that admissions obtained by deceitful
means would be cancelled. This Court has
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consistently annulled academic gains arising out
of wrongful admissions. Acceptance of the
prayer made by the appellants on the parameter
suggested by them would result in overlooking
the large number of judgments on the point.
Adoption of a different course, for the
appellants, would trivialise the declared legal
position. Reference in this behalf may be made
to the judgments relied upon by the learned
counsel representing Vyapam.
108. …In the facts and circumstances of
the case in hand, it would not be proper to
legitimise the admission of the appellants to the
MBBS course in exercise of the jurisdiction
vested in this Court under Article 142 of the
Constitution. We, therefore, hereby decline the
above prayer made on behalf of the appellants.”
43) In another three Judge Bench
judgment in Chairman and Managing Director,
Food Corporation of India & Ors. v.Jagdish
Balaram Bahira & Ors.17, the Court was
examining the consequences of false caste
certificate produced to seek appointment. The
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Court held as under: “69. For these reasons,
we hold and declare that: 69.3 The decisions of
this Court in R. Vishwanatha Pillai [R.
VishwanathaPillai v. State of Kerala, (2004) 2
SCC 105 : 2004 SCC (L&S) 350] and in
Dattatray [Union of India v. Dattatray, (2008) 4
SCC 612 :(2008) 2 SCC (L&S) 6] which were
rendered by Benches of three Judges laid down
the principle of law that where a benefit is
secured by an individual-such as an
appointment to a post or admission to an
educational institution—on the basis that the
candidate belongs to a reserved category for
which the benefit is reserved, the invalidation of
the caste or tribe claim upon verification would
result in the appointment or, as the case may be,
the admission being rendered void or non est. xx
xx xx 69.7 Withdrawal of benefits secured on the
basis of a caste claim which has been found to
be false and is invalidated is a necessary
consequence which flows from the invalidation
of the caste claim and no issue of retrospectivity
would arise;”
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44) In view of the aforesaid judgments, it
cannot be said that the appointment of the
employees in the present set of appeals were
irregular appointments. Such appointments are
illegal appointment in terms of the ratio of
Supreme Court judgment in Uma Devi. As such
appointments were made without any sanctioned
post, without any advertisement giving
opportunity to all eligible candidates to apply
and seek public employment and without any
method of recruitment. Such appointments were
backdoor entries, an act of nepotism and
favoritism and thus from any judicial standards
cannot be said to be irregular appointments but
are illegal appointments in wholly arbitrary
process. 45) In light of the above discussion, we
find that the order dated July 12, 2011 or other
similar orders passed by the High Court cannot
be sustained in law and, thus, are set aside. The
appeals filed by the State are allowed.
32. Even in the present case, these writ petitioners were
engaged as daily wage employees in non-sanctioned posts. The initial
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appointments were not in accordance with recruitment rules in force, more
specifically, the Service Regulations of the year 1972. This being the factum,
the question of grant of permanent absorption would not arise at all and the
said benefit, in view of the above principles cannot be granted.
33. In the present case, the TWAD Board which is a “State”
within the meaning of Article 12 of the Constitution of India, is a Board
created under a statute and being administered. The Board is implementing
the Water Supply and Drainage Schemes across the State of Tamil Nadu.
Thus, the TWAD Board being a “State” is governed under the Act namely
the Tamil Nadu Water Supply and Drainage Board Act, 1970 as well as the
service regulations of the year 1972. The said Act and Rules alone are to be
construed as special laws, as far as appointments, regularizations and
permanent absorptions of the employees of the Board are concerned. The
conferment of permanent status is a general law, as far as the TWAD Board
is concerned. Thus, the recruitments, regularizations or permanent
absorptions are to be made strictly in consonance with the service
regulations of the TWAD Board. Any other order passed by the authority
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under the general law, running counter to the service regulations of the
TWAD Board cannot be implemented at all. But such orders of the
competent authorities under the general law are to be construed as in
violation of the special Act and Rules, and further to be construed in
violation of the scheme of recruitment as well as grant of permanent
absorption under the TWAD Board service regulations.
34. The Inspectors of Labour are routinely and mechanically
passing orders conferring permanent status without following the legal
principles settled by the Apex Court of India. Number of such orders are
passed. However, the fact remains that the casual labourers/daily wage rated
employees who were engaged by the Government Departments or
Government Undertakings or Organizations are very much aware of their
engagements and they have no right of permanent absorption. The terms and
conditions of such services are also known to these casual labourers.
Accepting all such terms and conditions, they are working as casual
labourers/daily wage rated employees. Under these circumstances, the
Modus Operandi being adopted by these casual laborers or their
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Organizations/Unions is that to file an application before the Inspector of
Labour, get a routine order of the permanent status and file a writ petition
seeking implementation of the order of Inspector of Labour. Thereafter,
secure permanent appointment in the Government Organizations,
Undertakings and Departments. This Modus Operandi being followed by
these causal labourers for securing permanent appointment in Government
Organizations/Undertakings is in violation of the Constitution of Scheme of
appointments and recruitment rules can never be approved by the High
Court. Such a practice is going on for the purpose of securing public
appointments across the State, more specifically, in Government
Undertakings, Government Organizations and Government Departments.
The Standing Orders are not adopted by the Government Departments/
Organizations. When a separate statute is in force governing the
Organizations and Service Regulations are also framed by virtue of powers
conferred under the Act, then there is no reason whatsoever to grant such
routine orders of permanent status by the Inspector of Labour under the
general law. Under these circumstances, this Court is of the strong opinion
that such method of back door appointments/permanent absorptions must be
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stopped at once in order to enforce the principles of equal opportunity in
employment enunciated in the Constitution of India. Such a back door route
created for securing permanent absorption is undoubtedly unconstitutional.
Accordingly, Issue No.2 is answered.
35. In view of the discussions made in the afore-mentioned
paragraphs, this Court has no hesitation in arriving at a conclusion that the
relief as such sought for in the present writ petition is devoid of merits and
stands dismissed. However, there shall be no ordr as to costs.
21-06-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
To
1.The Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam.
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WP No.12637 of 2014
2.The Assistant Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam.
3.The Assistant Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
31, Public Office Road,
Velipalayam,
Nagapattinam.
S.M.SUBRAMANIAM, J.
Svn
WP 12637 of
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WP No.12637 of 2014
21-06-2022
https://www.mhc.tn.gov.in/judis
