Madras High Court
S.Govindarasu vs The State Of Tamil Nadu on 29 June, 2022
W.P.No.33001 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.06.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.33001 of 2014
&
M.P.Nos.1 & 2 of 2014
1.S.Govindarasu
2.S.Dhivya
3.D.Srinivasan
4.G.Prabakaran ...Petitioners
..Vs..
1.The State of Tamil Nadu,
Rep by its Secretary to Government,
School Education Department,
Secretariat, Fort St.George,
Chennai - 600 009.
2.The Director of School Education,
DPI Campus, College Road,
Chennai - 600 006.
... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned proceedings issued by first
respondent in Letter No.38449/C.C.1(3)/2013-4 dated 01.10.2014 and
to quash the same and consequently directing the respondents to
regularize the services of the petitioners with regular time scale of pay
1/12
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W.P.No.33001 of 2014
in the post of Vocational instructor based on the length of service
rendered by them as it was done in all similarly placed persons as per
G.O.Ms.No.35, School Education Department dated 09.02.2007 with all
consequential and other attendant benefits.
[Prayer amended vide Order dated 08.04.2022 made in
M.P.No.1/2015 in W.P.No.33001/2014]
For Petitioner : Mr.S.Nedunchezhiyan
For Respondent : Mr.M.Bindran
Additional Government Pleader
ORDER
The order impugned dated 01.10.2014 rejecting the claim of the
writ petitioners for regularization and permanent absorption in the
sanctioned post of Vocational Instructor is under challenge in the
present Writ petition.
2. The writ petitioners were appointed as part time vocational
instructors in Government Schools through Parent Teacher Association
(herein after referred to as 'PTA') on consolidated pay. The grievance
of the writ petitioners is that they are continuing as part time
vocational instructors for several years and therefore they are entitled
to be regularized in the sanctioned post in the regular time scale of
pay.
3. The petitioners submitted their representations to grant the
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W.P.No.33001 of 2014
benefit of regularization based on the Government Order issued in
G.O.Ms.No.35, School Education Department, dated 09.02.2007. The
said Government Order issued in G.O.Ms.No.35 dated 09.02.2007 was
issued for the purpose of filling up of the sanctioned post from
amongst the eligible temporary part time vocational instructors on
priority basis. However, such appointment on permanent basis in a
sanctioned post based on the said Government Order cannot be
granted as a matter of right. The Government Order unambiguously
stipulates that the person who is fully qualified, must be given priority
for appointment.
4. The validity of the said Government Order at this length of
time is questionable, in view of the principles settled by the
Constitution Bench of the Hon'ble Supreme Court of India in the case
of State of Karnataka Vs. Uma Devi reported in 2004 (4) SCC 1
which became the law on the subject of regularization and permanent
absorption. The Government Orders issued years back cannot be
implemented. Any decisions which are running counter to the
principles laid down by the Hon'ble Constitution Bench of India cannot
be followed at this length of time and in the event of any such
consideration, the Courts are violating the principles settled by the
Constitution Bench and by the subsequent judgments of the Apex
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W.P.No.33001 of 2014
Court.
5. Once the Constitution Bench has settled the principles
regarding the regularization and permanent absorption, any
Government Order running counter to the principles, cannot be
implemented and based on such Government Orders, benefits cannot
be conferred by the Courts. The said position also has been
unambiguously stipulated by the Constitution Bench of Hon'ble
Supreme Court of India in Paragraph 54 of the Judgment. In Paragraph
53 of the Judgment, the Hon'ble Supreme Court of India has given one
time measure for the purpose of regularizing the services for the
purpose of clearing the proposals, which all were pending before the
Government for regularization. Such one time measure granted cannot
be continued for an indefinite period. In Paragraph 54 of the said
judgment, the Hon'ble Supreme Court in unambiguous terms held that
'It is also clarified 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 all the judgments and Government Orders
running counter to the principles laid down by the Constitution Bench
of the Hon'ble Supreme Court of India stands denuded of their status
as precedents and the said Government Orders or the judgments by
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W.P.No.33001 of 2014
the High Courts or even by two Judges' Bench of the Hon'ble Supreme
Court of India cannot be followed. Those judgments are to be read in
the context of the particular facts and circumstances of the case.
6. However, the principles settled by the Constitution Bench is to
be followed as precedent. In the matter of following the precedents
again another Constitution Bench of the Hon'ble Supreme Court of
India in the case of National Insurance Company Limited Vs.
Pranay Sethi and others reported in 2017 (6) SCC 680 held that
the hierarchy in this aspect is to be maintained by all Courts
scrupulously.
7. Thus, any judgment running counter to the principles settled
by the Constitution Bench of the Hon'ble Supreme Court cannot be
followed as precedent for the purpose of considering the relief. All such
judgments are to be confined only with reference to the facts of that
particular case and cannot be followed as precedent. The Government
has passed several such orders granting the benefit of regularization
or permanent absorption on various circumstances for many years by
granting relaxation of Rules, such relaxation of Rules cannot be now
granted in a routine manner, even by the Government. The
appointments made in an irregular or illegal manner cannot be
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W.P.No.33001 of 2014
regularized by granting relaxation or otherwise.
8. Regularisation or permanent absorption cannot be granted in
violation of the recruitment rules in force. Equal opportunity in public
employment is the Constitutional mandate. Lakhs and Lakhs youth of
our great Nation are longing to secure public employment through
open competitive process and they are working hard for the purpose of
succeeding in the competitive process. While so, back door
appointments or illegal or irregular appointments, if regularised,
undoubtedly, the fundamental rights of those candidates, who all are
aspiring to secure public employment through open competitive
process are infringed. The equality clause enunciated under the
Constitution must be implemented in its real spirit. Thus, the back door
appointments are to be stopped forthwith in order to ensure that equal
opportunity in public employment is provided to all the eligible
candidates through open competitive process by implementing the rule
of reservation.
9. The principles of justice requires that the Constitutional
principles and mandates are preserved in the interest of the society at
large. Misplaced sympathy or leniency, if leads to unconstitutionality,
then the Courts would be slow in showing such sympathy or leniency.
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W.P.No.33001 of 2014
Therefore, the leniency may be permissible only in certain exceptional
cases, in the event of no unconstitutionality or non violation of any
Statutes and Rules. Thus, there cannot be any misplaced sympathy in
the matter of upholding the Constitutional mandates, Philosophy and
Ethos.
10. If at all, the benefit of regularisation and permanent
absorption are granted to irregular and illegal appointments in a
routine manner, no doubt, the fundamental rights of all the eligible
persons, who all are waiting for securing public employment are
violated. Courts are bound to consider the plea of those poor people
from rural and semi-urban areas of our great Nation, who all are
preparing meticulously to face the competitive process with a fond of
hope that their merits will be recognised by the State in one way or
other for the purpose of securing public employment. What would be
the answer for those poor people from villages and semi-urban areas,
who all are mostly non exposed to these illegalities and irregularities
and corrupt activities in Government employments. Thus, the
Constitutional Courts are bound to protect the interest of those
meritorious candidates, who all are not before the Courts. The
principles of justice requires that all these aspects are to be borne in
mind.
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W.P.No.33001 of 2014
11. All appointments are to be made strictly in accordance with
the recruitment Rules in force. Thus, the back door appointments, at
no circumstances be regularized and the persons who were appointed
through back door must be allowed to go out from the door through
which they have entered into public service.
12. In the present case, admittedly, the petitioners were
appointed as part time vocational instructors through PTA. PTA is a
private association which is not a part of the Government Department.
The PTA is appointing such part time vocational instructors in order to
assist the School administration in the absence of any Teachers. The
salary is being paid from the funds of the PTA, which is private fund
maintained by the Association. Therefore, admittedly, the petitioners
were not appointed by the competent appointing authority of the
Education Department. Thus, the initial appointment of the writ
petitioners are not by the Education Department but by the PTA.
Therefore, they cannot seek any appointment in the Education
Department on the ground that they are serving as a part time
vocational instructors by getting salary from the PTA.
13. Regarding the part time employment, again the Hon'ble
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W.P.No.33001 of 2014
Supreme Court following the Constitution Bench judgment, reiterated
in the case of Secretary to Government School Education
Department, Chennai Vs. R.Govindaswamy and others reported
in 2014 (4) SCC 769. The Hon'ble Supreme Court again relied on the
earlier cases decided by the Hon'ble Supreme Court of India in the
case of Union of India Vs. A.S.Pillai and others reported in (2010)
13 SCC 448 and in the case of State of Rajasthan and others Vs.
Daya Lal and others reported in (2011) 2 SCC 429. The Hon'ble
Supreme Court of India held that 'the High Courts, in exercising power
under Article 226 of the Constitution will not issue directions for
regularization, absorption or permanent continuance, unless the
employees claiming regularization had been appointed in pursuance of
a regular recruitment in accordance with relevant rules in an open
competitive process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be scrupulously followed
and Courts should not issue a direction for regularization of services of
an employee which would be violative of the constitutional scheme.
While something that is irregular for want of compliance with one of
the elements in the process of selection which does not go to the root
of the process, can be regularized, back door entries, appointments
contrary to the constitutional scheme and/or appointment of ineligible
candidates cannot be regularized.'
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W.P.No.33001 of 2014
14. In the present case, the petitioners were not even appointed
by the competent authorities of the Education Department. They were
admittedly appointed by the President of the PTA and were receiving
the salary from the funds maintained by the PTA. Therefore, their
appointments are not made in accordance with the recruitment rules
as applicable to the Education Department and thus the petitioners
have not established even a semblance of legal right for the purpose of
securing regularization or permanent absorption. No doubt the PTA,
out of concern, engaged certain Teachers to impart education by
paying from their own funds. However, the Government on earlier
occasions granted preference or absorption of those teachers, such
preference cannot be continued, in view of the principles settled by the
Constitutional Bench of the Hon'ble Supreme Court of India which was
reiterated through the subsequent judgments more specifically in the
case R.Govindaswamy cited supra.
15. In view of the legal principles settled by the Hon'ble
Supreme Court of India in the cases cited above, the relief of
regularization or permanent absorption cannot be granted and the writ
petitioners are not entitled for regularization or permanent absorption
in the Education Department. However, there is no impediment for the
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W.P.No.33001 of 2014
PTA to continue the employment of the petitioners at their instance.
16. With these observations the Writ petition stands dismissed.
No costs. Connected miscellaneous petitions stand closed.
29.06.2022
mrm
Index: Yes/No
Internet: Yes/No
Speaking Order
To
1.Secretary to Government,
State of Tamil Nadu,
School Education Department,
Secretariat, Fort St.George,
Chennai - 600 009.
2.The Director of School Education,
DPI Campus, College Road,
Chennai - 600 006.
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W.P.No.33001 of 2014
S.M.SUBRAMANIAM., J
mrm
W.P.No.33001 of 2014
29.06.2022
https://www.mhc.tn.gov.in/judis
