Madras High Court
R.Ashok Kumar vs The Government Of Tamil Nadu on 6 June, 2022
WP No.1560 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06-06-2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.1560 of 2014
R.Ashok Kumar .. Petitioner
vs.
1.The Government of Tamil Nadu,
Represented by its Principal Secretary to Government,
Rural Development and Panchayat Raj Department,
Fort St. George,
Chennai – 600 009.
2.The Director of Rural Development and Panchayat Raj,
Panagal Building,
Saidapet,
Chennai – 600 015.
3.The District Collector (PD Section),
Tiruvannamalai District,
Tiruvannamalai. .. Respondents
Writ Petition is filed under Article 226 of the Constitution of India,
praying for the issuance of a Writ of Certiorarified Mandamus, calling for
the records pertaining to G.O.Ms.No.130, Rural Development and
1/10
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WP No.1560 of 2014
Panchayat Raj (E5) Department, dated 19.07.2007 of the first respondent
and the consequential order passed by the third respondent vide proceedings
bearing Na.Ka.No.12030/2009/Pa E1-1 dated 25.05.2011 and quash the
same in so far it relates to regularisation of the service of the petitioner in
the cadre of Night Watchman after completion of 10 years of service in the
cadre of Night Watchman and further direct the respondents to regularise
the service of the petitioner in the cadre of Night Watchman from the date
of his initial appointment viz., 20.03.1990 with all consequential benefits.
For Petitioner : Mr.K.S.Viswanathan
For Respondents-1 to 3 : Mr.S.Prabhakaran,
Government Advocate.
ORDER
The writ on hand has been instituted questioning the validity of the
order passed by the first respondent-Government in G.O.Ms.No.130, Rural
Development and Panchayat Raj (E5) Department, dated 19.07.2007 and the
consequential order passed by the third respondent implementing
G.O.Ms.No.130 in proceedings dated 25.05.2011, are under challenge in the
present writ petition.
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WP No.1560 of 2014
2. The writ petitioner was initially appointed as Part Time Panchayat
Clerk on 28.06.1989. Subsequently on 19.03.1990, the petitioner was
appointed as Night Watchman in Tiruvannamalai Panchayat Union and
joined the service on 20.03.1990 on consolidated pay. Admittedly, the writ
petitioner was not appointed through District Employment Exchange. Thus,
his services were sought to be terminated on 17.06.1992.
3. The petitioner filed O.A.No.8056 of 1992 before the Tamil Nadu
Administrative Tribunal and obtained interim orders and accordingly
continued in service. The said Original Application was allowed on
24.08.1999. Thereafter, the writ petitioner was appointed as Office Assistant
in Tiruvannamalai Panchayat Union on 01.08.2006.
4. The learned counsel for the petitioner mainly contended that the
similarly placed persons like the petitioner who were not appointed through
the District Employment Exchange had approached the Tamil Nadu
Administrative Tribunal and obtained orders were granted the benefit of
retrospective regularisation from the date of their initial appointment.
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WP No.1560 of 2014
However, the case of the writ petitioner was not considered on par with
those similarly placed persons. The case of the writ petitioner was
independently considered subsequently and the Government issued the
impugned G.O.Ms.No.130, Rural Development and Panchayat Raj (E5)
Department, dated 19.07.2007 and the benefit of regularisation was granted
with effect from the date of passing of the Government Order on
19.07.2007. Therefore, the petitioner lost the benefit of his services from the
year 1990.
5. The learned counsel for the petitioner further contended that when
similarly placed persons were granted with the benefit of retrospective
regularisation, the same benefit cannot be denied to the writ petitioner as it
resulted in discrimination. When the petitioner was admittedly appointed as
Part Time employee and thereafter on consolidated pay and subsequently
absorbed in the regular establishment, the benefit of regularisation is to be
extended from the date of appointment on par with the other similarly
placed persons.
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WP No.1560 of 2014
6. The learned Government Advocate appearing on behalf of the
respondents objected the said contention of the learned counsel for the
petitioner relying on the counter-affidavit filed by the respondents.
Accordingly, the respondents distinguished the case of Mr.K.Mayilvaganan
with that of the case of the writ petitioner. It is contended that the case of
Mr.K.Mayilvaganan is not identical and it is different. Further the judgment
in both the cases are also not identical. In the case of the writ petitioner, this
Court in its judgment dated 24.08.1999 passed in WP No.8056 of 1992
quashed the order of termination dated 17.06.1992 on the ground that the
order was passed without issuing prior notice to the writ petitioner and
giving liberty to the Commissioner, Panchayat Union, Tiruvannamalai to
proceed afresh in the matter as per law. Though the petitioner is liable for
removal as per the above judgment, the Government have shown mercy on
him and allowed him to continue in service by regularising his services from
the date on which he completed 10 years as was done in G.O.Ms.No.267,
Rural Development (E7) Department, dated 22.12.1999, in respect of 218
numbers of employees similar to the case of the writ petitioner.
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WP No.1560 of 2014
7. On the other hand, the Tamil Nadu Administrative Tribunal in its
judgment dated 08.11.1991 in R.A.No.111 of 1991 in O.A.No.700 of 1991
was pleased to direct the respondents to allow Mr.K.Mayilvaganan to
continue in service as it was done in the case of Mr.K.Pari, who was also
appointed without consulting the Employment Exchange and promoted as
Jeep Driver. Therefore, the Government in G.O.(2D) No.46, Rural
Development and Panchayat Raj (E5) Department, dated 27.07.2010,
ordered to regularise the services of Mr.K.Mayilvaganan from the date of
his initial appointment by following the orders issued in G.O.Ms.No.106,
Rural Development Department, dated 15.05.1992, according to which the
services of Mr.K.Pari were regularised with effect from the date of his first
appointment. Therefore, the case of Mr.K.Mayilvaganan was considered
pursuant to the orders passed by the Tamil Nadu Administrative Tribunal
and the petitioner cannot claim any right on par with the said
Mr.K.Mayilvaganan.
8. It is contended that the services of Mr.K.Pari was regularised as per
the G.O.Ms.No.106, Rural Development Department, dated 15.05.1992.
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WP No.1560 of 2014
Thereafter, the Government have taken a policy decision that the services of
218 employees appointed similar to the petitioner are to be regularised from
the date on which they completed 10 years and issued necessary orders in
G.O.Ms.No.267, Rural Development (E7) Department, dated 22.12.1999.
On the same analogy, the Government issued orders to regularise the
services of the writ petitioner from the date on which he completed 10 years
of service.
9. Regularisation or permanent absorption can never be claimed as a
matter of an absolute right. All appointments are to be made strictly in
accordance with the Recruitment Rules in force. Irregular or illegal
appointments cannot be regularised. Equal opportunity in public
employment is the constitutional mandate. All eligible candidates who all
are aspiring to secure public employment must be provided with an
opportunity to participate in the process of selection through Open
Competitive Process. Thus, the Supreme Court laid down the principles that
regularisation or permanent absorption cannot be granted in respect of
irregular or illegal appointments.
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WP No.1560 of 2014
10. In the present case, the appointment of the writ petitioner
admittedly was irregular and not in accordance with the Recruitment Rules
in force. Thus, the benefit of regularisation already granted to the writ
petitioner itself was a concession extended. No doubt, the Courts have
granted the relief of regularisation on some occasions. Some years back
such benefit of regularisation granted through Court orders cannot be now
extended after several years for the purpose of granting retrospective
regularisation. In other words, certain orders passed by the Tamil Nadu
Administrative Tribunals for several years back, cannot be cited as a
precedent for the purpose of granting retrospective regularisation now after
many years. Regularisation as of now is to be considered strictly in
accordance with the Rules and by following the principles settled by the
Constitution Bench of the Hon'ble Supreme Court in the case of State of
Karnataka vs. Uma Devi [2006 (4) SCC 1]. The Courts have repeatedly
held that the irregularity or illegality in appointments cannot be cured and
more-so, in the present case, the benefit of regularisation has already been
granted by the Government. The Government also substantiated by stating
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WP No.1560 of 2014
that the policy decision was taken during the relevant point of time to grant
regularisation from the date of completion of 10 years of temporary
services. Thus, the concession granted to the writ petitioner cannot be
extended any further and further, the writ petition itself has been filed after
a lapse of 7 years from the date of passing of the impugned orders of
regularisation by the first respondent in G.O.Ms.No.130, dated 19.07.2007
as the consequential order is nothing but the implementation of the
Government Order passed in G.O.Ms.No.130. Even the consequential order
was passed in the year 2011, but the writ petition has been filed in the year
2014.
11. For all these reasons, this Court is not inclined to consider the
relief as such sought for by the petitioner and accordingly, the writ petition
stands dismissed. However, there shall be no order as to costs.
06-06-2022
Index : Yes/No.
Internet : Yes/No.
Speaking Order/Non-Speaking Order.
Svn
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WP No.1560 of 2014
S.M.SUBRAMANIAM, J.
Svn
To
1.The Principal Secretary to Government,
Government of Tamil Nadu,
Rural Development and Panchayat Raj Department,
Fort St. George,
Chennai – 600 009.
2.The Director of Rural Development and Panchayat Raj,
Panagal Building,
Saidapet,
Chennai – 600 015.
3.The District Collector (PD Section),
Tiruvannamalai District,
Tiruvannamalai.
WP 1560 of 2014
06-06-2022
https://www.mhc.tn.gov.in/judis
