Madras High Court
S.Devamani vs The Executive Engineer on 22 June, 2022
W.P.No.12586 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.06.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.12586 of 2014 &
M.P.No.1 of 2014
1.S.Devamani
2.K.Jawahar
3.A.Sudakar
4.S.Gnanaraj
5.R.Rajasekaran
6.T.Saravanan
7.J.Mathivanan
8.K.Baskar
C/o.PHCM Gandhi,
General Secretary,
Tamil Nadu Kudineer Vadigal Varia
Thozhilalar Sammelanam (AITUC)
Manithaneyakoodam,
17, Sindhu Garden, Gandhi Nagar,
Vellore - 632 006.
...Petitioners
..Vs..
1.The Executive Engineer,
Tamil Nadu Water Supply and
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Drainage Board,
Maintenance Division,
Maraimalai Nagar,
Kancheepuram District.
2.The Assistant Executive Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Maintenance Sub Division,
Chitlapakkam,
Kancheepuram District.
3.The Assistant Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Maintenance Sub Division,
Chitlapakkam,
Kancheepuram District.
... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus, directing the first respondent to
implement the order passed by the Inspector of Labour,
Kancheepuram in Pro.No.E/2205/2011 dated 20.02.2014 within the
time frame as may be fixed by this Court.
For Petitioner : Mr.G.P.Arivuchudar
for M/s.Law Square
For Respondents : Mr.S.Ravindran, Senior Advocate
Ms.S.Mekhala
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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.5619/2010 dated 11.10.2012 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 Vedaranyam 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 2003 to 2008.
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 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
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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 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.
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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. It is also submitted that the claim of certain
other similarly placed workmen were considered by the Board and they
were regularized. However, the learned Senior counsel objected the
said contention by stating that those employees who got the benefit of
regularization are not similar to the petitioner as they were appointed
in a different category and the petitioners were engaged as contract
labourer and thus the said Government Order passed is not applicable
with reference to the facts and circumstances of the present case.
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
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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 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
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Drainage Board, 1970, will prevail over the general law, namely the
Conferment of Permanent Status Act, as the Tamil Nadu Water
Supplies and Drainage 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
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constituted under the Reserve Bank of India Act,1934 (Central Act II of
1934), or the State Bank of India 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 made thereunder. If the local Employment exchange
is unable to sponsor the required number of qualified and
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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 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
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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.
(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
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approval of the Government.
(5) No appeal shall lie against the decision of the Selection
Committee in regard to direct 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, 1970. When the Act is in force, and by virtue of the
said statute, service regulations are framed, then, all the selections,
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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 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
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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 Permanent 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 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.
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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.
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
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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.
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
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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 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,
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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 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
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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.
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
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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 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
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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 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 are to be followed for the purpose
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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,
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
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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,
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
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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 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, 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
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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 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
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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 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 concerned knows the nature of
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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 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
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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 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
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appointments made permanent, there is no case that at
the 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 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,
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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 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
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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
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 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
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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 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
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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 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
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granted one time permission to clear the pending files regarding grant
of 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 certain emergency or exigency. Thus, the
casual laborers were not appointed by following the recruitment rules
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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 Constitutional Courts.
Even in respect of causal laborers, the process of selection must be
conducted for grant of regularization or permanent absorption, and
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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 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
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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 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
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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”.
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
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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 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
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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
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
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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 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.
69.7 Withdrawal of benefits secured on the
basis of a caste claim which has been found to
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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;”
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
appointments were not in accordance with recruitment rules in force,
more specifically, the Service Regulations of the year 1972. This being
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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 under the general law, running counter to the service
regulations of the TWAD Board cannot be implemented at all. But such
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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 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
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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 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.
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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. No costs. Consequently, connected
miscellaneous petition is closed.
22.06.2022
mrm
Index: Yes/No
Internet: Yes/No
Speaking Order/Non Speaking Order
To
1.The Executive Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Maintenance Division,
Maraimalai Nagar,
Kancheepuram District.
2.The Assistant Executive Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Maintenance Sub Division,
Chitlapakkam,
Kancheepuram District.
3.The Assistant Engineer,
Tamil Nadu Water Supply and
Drainage Board,
Maintenance Sub Division,
Chitlapakkam,
Kancheepuram District.
S.M.SUBRAMANIAM., J
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mrm
W.P.No.12586 of 2014
22.06.2022
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