Madras High Court
P. Azhagesan vs 6 The Agriculture Chemist on 7 June, 2022
WP No.119 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 07.06.2022
CORAM:
THE HON'BLE MR. JUSTICE S.M.SUBRAMANIAM
WP No.119 of 2014
and
M.P.No.1 of 2014
1. P. AZHAGESAN
2. A.SIVAPATHY .. PETITIONERS
Vs
1 THE STATE OF TAMIL NADU,
SECRETARY TO GOVERNMENT,
AGRICULTURE DEPARTMENT,
FORT ST. GEORGE, CHENNAI-9.
2 THE DIRECTOR OF AGRICULTURE
CHEPAUK, CHENNAI-5.
3 THE COMMISSIONER OF AGRICULTURE,
OFFICE OF THE AGRICULTURE COMMISSIONER,
CHEPAUK, CHENNAI-5.
4 THE ADDITIONAL DIRECTOR OF AGRICULTURE,
SEMMANDALAM, CUDDALORE-607 001.
5 THE JOINT DIRECTOR OF AGRICULTURE,
SEMMANDALAM, CUDDALORE-607 001
6 THE AGRICULTURE CHEMIST,
BIO-FERTILIZER PRODUCTION UNIT,
CUDDALORE- 607 001. ..
RESPONDENTS
PRAYER: This Writ Petition is filed under Article 226 of the
Constitution of India, praying for issuance of Writ of Certiorarified
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Mandamus, calling for entire records connected with the proceedings of
the 1st respondent in G.O. (3D) No.141 dated 22.8.2013 and quash the
same consequently direct the respondents to regularize the service of the
petitioners on par with the co-employees whose services were regularized
by the order of the respondents dated 15.6.2013 in G.O.(2D) No.85 with
all attendant and consequential benefits.
For Petitioners : Mr.G.Balamanikandan
For Respondents : Mr.M.Bindran,
Additional Government Pleader.
ORDER
The Government Order issued in G.O.(3d). No.141, Agriculture
Department dated 22.08.2013, declining the request of the writ petitioner,
is challenged in the present writ petition.
2. The writ petitioner was engaged as Daily Wages employee in the
Agriculture Department. The grievances of the petitioner is that he was
continuously working as Daily Wages employee for several years and the
services of the similarly placed Daily Wages employees were regularised
by the department. While so, the case of the petitioner alone was not
considered during the relevant point of time. Some of the persons filed
cases before High Court in the year of 2004 and obtained an order and
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WP No.119 of 2014
got the benefit of regularization. In those cases also, the department
regularized their services. However, the case of the writ petitioner was
not considered, despite the fact that the petitioner is also a similarly
placed person.
3. The learned counsel for the petitioner mainly contended that
Court have also issued directions to regularize the services of such Daily
Wages employees and based on the judgments, the Government also
implemented the same. Thus, such benefit granted need not be denied to
the petitioner, in view of the fact that he was also engaged as Daily
Wages employee and was working for about 23years.
4. In this context, the learned counsel for the petitioner referred to
the judgment of the learned Single Judge of this Court dated 28.07.2021,
passed in WP No.5040 of 2015, wherein a direction was issued to
consider the case of the petitioner therein for regularisation.
5. The learned Additional Government Pleader appearing on behalf
of the respondents objected the said contention by stating that the
impugned order was issued by the Government in G.O.(3d). No.141,
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Agriculture Department dated 22.08.2013, considering the earlier
Government Orders and based on the judgement of the Hon'ble Supreme
Court of India. The Government issued orders in G.O.(Ms.) No.22,
Personnel and Administrative Reforms Department dated 28.02.2006, to
regularize the services of the Daily Wages employees on completion of
their ten years of service. However, subsequently, the said Government
Order was withdrawn and another Government Order was issued in
G.O.(Ms.) No.74, Personnel and Administrative Reforms Department
dated 27.06.2013, imposing certain restrictions and conditions for
regularization. The said decision was taken by the Government in view
of the principles laid down by the Hon'ble Supreme Court. Thus, the
Government has now granted regularization strictly in accordance with
the rules and based on the conditions stipulated in the Government
Orders and not otherwise.
6. Considering the arguments, this Court is of the opinion that
regularization or permanent absorption ought to be granted only in
accordance with the rules in force. Equal opportunity in public
employment is a constitutional mandate. All appointments are to be
made strictly in accordance with the rules and under the constitutional
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WP No.119 of 2014
schemes. In the event of allowing such irregular appointments, the rights
of the eligible candidates, who are all aspiring to secure public
employment through open competitive process is infringed. In such
cases, equity is not only violated but deviated. That exactly is the reason
why the constitutional Courts have emphasised that the appointments are
to be made only through constitutional schemes and by affording equal
opportunity to the candidates who are all longing to secure public
employment. Lakh and Lakh youth of our great nation are longing and
struggling hard to secure public employment. In the event of back door
entry, their valuable rights are infringed and deprived. Therefore, the
persons who are appointed through back door, must be allowed to go
through the door, which they entered.
7. As far as the judgments of the High Court issued in previous
occasion are concerned, the Constitution Bench of the Hon'ble Supreme
Court of India in unequivocal terms held in para No.53 of the judgment in
the State of Karnataka Vs. Uma Devi, reported in 2006 (4) SCC 1, that
in respect to pending proposals, the same may be finalized as one time
measure, but at para No.54, the Constitution Bench has held that
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"It is also clarified that those decisions which run
counter to the principle settled in this decision [Uma Devi's
case], or in which directions running counter to what we
have held herein, will stand denuded of their status as
precedents."
8. When the Constitution Bench held that any decision running
counter to the principles laid down by the Constitution would stand
denude of their status as precedents, all subsequent judgments of the
Hon'ble Two Judges Bench must be confined with reference to the facts
of those cases and that cannot be applied as a precedents in subsequent
cases in the matter of regularisation and permanent absorption.
9. When the Constitution Bench has clearly indicated that any
judgment running counter to the principles laid down in Uma Devi's case
will stand denude, all subsequent judgments by the other Courts are to
be considered with reference to the facts, as the principles are settled by
the Constitution Bench.
10. In the case of State of Rajasthan & others Vs. Daya Lal &
others, reported in 2011 (2) SCC 429, the Hon'ble Supreme Court held
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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 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."
The said case was relied on by the Supreme Court again in the case of
Secretary to Government, School Education Department, Chennai Vs.
Thiru R.Govindasamy and Others, reported in 2014 (4) SCC 769.
11. No doubt there are judgments both by the High Court and by
the Hon'ble Supreme Court granting the benefit of regularization with
reference to the facts and circumstances and in respect to the principles
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laid down in the Constitution Bench judgment, binding precedent and
that is to be followed in all cases and the exceptional cases cannot be
relied as a precedent for the purpose of granting the relief of
regularization. In the event of granting the benefit of regularization, all
such judgments which are running counter to the Constitution Bench will
stand denuded of their status as precedents, as held by the Constitution
Bench at paragraph No.54 of the Uma Devi's case.
12. In the case of National Insurance Company Ltd. Vs. Pranay
Sethi, reported in 2017 (16) SCC 680, the another Constitution Bench
held that the Constitution Bench judgments are the binding precedents as
far as the other Courts are concerned and such judgments will prevail
over all other judgments even in respect of the judgments of the two
judges bench of the Hon'ble Supreme Court of India. The principles
regarding the precedents of judgments are settled by the Constitution
Bench in the case cited supra.
13. In the present writ petition, admittedly, the writ petitioner was
engaged as Daily Wages employee on temporary basis. His initial
appointment was not made in accordance with the service rules in force.
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Therefore, granting of regularization in violation of the services rules
would not arise at all. As stated above, High Court cannot issue any such
direction to regularize the services in violation of the rules in force.
14. The Government is also following the judgments of the Hon'ble
Constitution Bench in respect of granting of regularization and permanent
absorption and relevant orders are also passed by authorities competent
to scrupulously follow the principles. All appointments now are to be
made only through open competitive process and by following the rules.
15. This being the procedures now being adopted by the
Government, Courts are not expected to issue direction to regularize the
services of the employees who were otherwise not appointed in
accordance with the service rules in force. Such a direction would run
counter to the principles settled by the Constitution Bench and further
lead to an unconstitutionality, as such irregular and illegal appointments
are directly in violation of Articles 14 and 16 of the Constitution of India.
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16. In view of the facts and circumstances, this Court do not find
any infirmity or perversity in respect to the order passed by the
respondents. Accordingly, the Writ Petition is dismissed. No Costs.
Consequently, the connected Miscellaneous Petition is closed.
07.06.2022
Speaking/Non-speaking order
Index: Yes/No
Internet: Yes
ars
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WP No.119 of 2014
To
1 THE SECRETARY TO GOVERNMENT,
STATE OF TAMIL NADU,
AGRICULTURE DEPARTMENT,
FORT ST. GEORGE, CHENNAI-9.
2 THE DIRECTOR OF AGRICULTURE
CHEPAUK, CHENNAI-5.
3 THE COMMISSIONER OF AGRICULTURE,
OFFICE OF THE AGRICULTURE COMMISSIONER,
CHEPAUK, CHENNAI-5.
4 THE ADDITIONAL DIRECTOR OF AGRICULTURE,
SEMMANDALAM, CUDDALORE-607 001.
5 THE JOINT DIRECTOR OF AGRICULTURE,
SEMMANDALAM, CUDDALORE-607 001
6 THE AGIRCULTURE CHEMIST,
BIO-FERTILIZER PRODUCTION UNIT,
CUDDALORE- 607 001.
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WP No.119 of 2014
S.M.SUBRAMANIAM, J.,
ars
WP No.119 of 2014
07.06.2022
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