Madras High Court
P.M.Anbarasi vs The Secretary To Government on 6 June, 2022
Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.06.2022
Coram
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition Nos.1719 to 1723 of 2014
and M.P.No. 1 of 2014 [ in all cases]
P.M.Anbarasi
D/o.A. Mayakrishnan .. Petitioner in W.P.No.1719/2014
T.T.Sekar
S/o.Thaiyan .. Petitioner in W.P.No.1720/2014
S.Senthil Kumar
S/o.Sachithanantham .. Petitioner in W.P.No.1721/2014
K.Devadoss
S/o.Kannuswamy .. Petitioner in W.P.No.1722/2014
Mr.Parthiban
S/o.Raju .. Petitioner in W.P.No.1723/2014
Vs.
1. The Secretary to Government,
Public Works Department,
Fort St. George,
Secretariat, Chennai.
1/9
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
2. The Engineer in Chief,
Public Works Department,
Chepauk, Chennai.
3. The Chief Engineer,
Public Works Department (W.R.O),
Trichy. .. Respondents in all W.Ps.
COMMON PRAYER: Writ Petitions 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 proceedings of the 1st respondent vide in
his proceedings No.16325/C2/2012-11 dated 21.11.2013 and quash the
same and consequently direct the 1st respondent herein to regular the service
the petitioner with effect from his date of joining duty as Nominal Muster
Roll employee and pay all the back wages and interest.
For Petitioners : Mr.M.Rajkumar
[in all W.Ps.] for Mr.T.Muruganantham
For Respondents : Mr. S.Prabhakaran
[in all W.Ps.] Government Advocate
*****
COMMON ORDER
The order impugned dated 21.11.2013 declining the claim of the writ
petitioners for grant of regularization and permanent absorption is under
challenge in the present writ petitions.
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
2. The petitioners were engaged as Nominal Muster Roll (NMR) in
the Public Works Department. The petitioners state that they were served
about 2612 days, 3580 days, 3006 days, 1930 days and 2482 days
respectively as NMR till 31.12.2011. In view of the fact that the petitioners
have served for longer period, they were eligible for regularization. It is
contended that name of the writ petitioners were recommended however, the
benefit of regularization was not granted. The writ petitioners have filed
W.P.Nos.11370, 11369, 11371, 11372 of 2012 and W.P.No.10083 of 2012
and this Court passed orders on 24.04.2012 and 17.04.2012 respectively
directing the first respondent therein to consider the representation
submitted by the writ petitioners and pass orders on merits within a period
of three months. Pursuant to the said orders, the respondents have issued the
impugned order rejecting the claim of the writ petitioners for regularization.
Thus, the writ petitioners are constrained to move the present writ petitions.
3. The learned counsel for the petitioners mainly contended that the
petitioners have served for more than 10 years and therefore they were
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
entitled to regularization in the sanctioned post.
4. The practice of grant of regularization was prevailing prior to the
judgment of the Constitution Bench of Hon'ble Supreme Court of India in
the case of Secretary, State of Karnataka Vs. Uma devi [ 2006 4 SCC 1] .
During the relevant point of time, the Government also issued
G.O.Ms.No.202, Public Works (C2), dated 01.08.2012 to regularize the
service of the temporary employees, who have been completed 10 years of
service. However, after the principles are settled by the Constitution Bench
of the Hon'ble Supreme Court of India, the Courts are not empowered to
issue any such direction to regularize the service of the writ petitioners in
violation of the recruitment rules in force.
5. Regularization and permanent absorption are to be granted strictly
in accordance with the Rules in force. Equal opportunity in public
employment is the constitutional mandate. All appointments are to be made
by providing equal opportunity to the eligible candidates, who all are
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
aspiring to secure public employment through open competition process.
The persons, who all are appointed through back door must be sent out from
the door through which they entered into service. This being the
authoritative pronouncement of the Hon'ble Supreme Court of India, the
High Courts cannot issue a direction to regularize the service in violation of
the recruitment rules and in violation of the principles settled by the Hon'ble
Supreme Court of India in the matter of regularization and permanent
absorption.
6. Even the Constitution Bench in paragraph 54 in Uma Devi's case
(cited supra) in unequivocal terms held that any judgment delivered
subsequent to Uma Devi's case (cited supra) countering the principles are
denuded to be the precedent and the Courts need not follow those judgments
decided based on certain peculiar facts and circumstances. Thus, certain
judgments granting regularization rendered after Uma Devi's case based on
certain particular facts and circumstances cannot be followed as precedent
by the High Courts.
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
7. As far as the present case is concerned, admittedly the petitioners
were engaged as NMR with breakup service. The Hon'ble Supreme Court of
India in the case of Secretary to Government School Education
Department, Chennai vs. R.Govindaswamy and others reported in [2014
[4] SCC 769[, relying on the earlier judgment of the High Court rendered in
State of Rajasthan & Ors. Vs.Daya Lal reported in [2011 (2) SCC 429[,
wherein, principles are settled as “High Courts in exercising power under
Article 226 of the Constitution of India will not issue direction for
regularization, permanent absorption or 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 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
volatile 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
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
entries, appointments contrary to the constitutional scheme and/or
appointment of ineligible candidates cannot be regularized.
8. Mere continuation of service by a temporary or adhoc or daily-
wage employee under a cover of some interim orders of the Courts would
not confer upon any right for absorption. The scope of regularization and
permanent absorption are now settled by the Constitutional Courts across
the country based on the judgment of the Constitution Bench in Uma Devi's
case (cited supra). Thus, any subsequent judgment running contrary to the
principles laid down by the Constitution Bench denuded to loose its status
as precedent and the same cannot be followed and those judgments are
constrained to its facts and circumstances alone.
9. This Court is of the considered opinion that the petitioners
admittedly were engaged as NMR for different spells and their services
were discontinued from the year 2011 onwards and now they were not
serving as NMR for past about 10 years. This being the factum established,
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Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
the benefit of regularization or permanent absorption cannot be granted and
the order impugned is inconsonance with the principles settled.
Accordingly, this writ petitions stand dismissed. No costs. Connected
miscellaneous petitions are closed.
06.06.2022
Index: Yes
mp
To
1. The Secretary to Government,
Public Works Department,
Fort St. George,
Secretariat, Chennai.
2. The Engineer in Chief,
Public Works Department,
Chepauk, Chennai.
3. The Chief Engineer,
Public Works Department (W.R.O),
Trichy.
https://www.mhc.tn.gov.in/judis
Order dated : 06.06.2022
Writ Petition Nos.1719 to 1723 of 2014
S.M.SUBRAMANIAM, J
mp
Writ Petition Nos.1719 to 1723 of 2014
06.06.2022
https://www.mhc.tn.gov.in/judis
