Madras High Court
R.Sankar vs The State Of Tamil Nadu on 2 March, 2022
W.P.No.4241 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.4241 of 2022
and
W.M.P.Nos.4384 & 4385 of 2022
1.R.Sankar
2.E.Harikrishnan
3.D.Prasad
4.D.Kannan
5.K.Rajaram
6.M.Jaiganesh
7.S.Jayalakshmi
8.K.Ramesh
9.V.Babu
10.S.J.Lawrance
11.A.Ashok
12.M.Dhanasekarn ... Petitioners
vs.
1/12
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W.P.No.4241 of 2022
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Environment and Forest Department,
Fort St.George, Chennai.
2.The Principal Chief Conservator of Forest,
Head of the Department,
Panagal Building,
Saidapet, Chennai – 15.
3.The Additional Principal Chief Conservator
of Forest/Director,
Arignar Anna Zoological Park,
Vandalur, Chennai – 48.
4.The Wild Life Warden,
Wildlife Division,
Chennai – 600 022. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records relating to the orders in directing (1) Government Letter
No.11207/FR.5/2017-2 dated 21.08.2017 of the 1st respondent (2)
C.No.E1/5514/2019 dated 31.08.2020 of the 3rd respondent and (3)
Na.Ka.No.Pa.2/3244/2021 dated 29.11.2021 of the 4th respondent quash the
same and consequential direction to the respondents to regularize the services
of the petitioners with effect from dated of their appointment with all
consequential service and monetary benefits.
2/12
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W.P.No.4241 of 2022
For Petitioners : Mr.T.Dharani
For RR1 to 4 : Mr.T.Arunkumar
Additional Government Pleader
ORDER
This writ petition has been filed seeking to issue a Writ of
Certiorarified Mandamus, quashing (1) Government Letter
No.11207/FR.5/2017-2 dated 21.08.2017 of the 1st respondent; (2)
C.No.E1/5514/2019 dated 31.08.2020 of the 3rd respondent; and (3)
Na.Ka.No.Pa.2/3244/2021 dated 29.11.2021 of the 4th respondent,
consequently, direct the respondents to regularize the services of the
petitioners with effect from dated of their appointment with all consequential
service and monetary benefits.
2. The case of the petitioner in brief:
The petitioners were appointed as Temporary Mazdoors on daily wages
from 17.03.2005 to 01.09.2009 in Guindy Children Park and they have been
continuing to work as such till date. But their service has not been
regularised till date. The Wildlife Warden, Guindy Children's Park, 4th
respondent herein, submitted a proposal dated 12.07.2016 to the second
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W.P.No.4241 of 2022
respondent, through the third respondent, requesting permission to appoint
the petitioners as permanent Mazdoors, who possessed prescribed
educational qualification. The above said proposal duly recommended by the
third respondent was sent on 26.07.2016 to the second respondent. But the
proposals were negatived by the first respondent vide letter dated 21.08.2017.
Thereafter, the petitioners made representation to the third respondent to
include their name in the state wide seniority list of Social Forestry Workers.
But, it was rejected vide order dated 31.08.2020. Further, the 4th respondent
had also submitted a report dated 29.11.2021 to the third respondent that
inview of the rejection of proposal by the first respondent dated 21.08.2017,
no action can be taken at Wildlife Warden's level on the claim of Temporary
Mazdoors and that the Government alone are empowered to take a policy
decision in the matter. Hence, this writ petition has been filed.
3. The learned counsel appearing for the petitioner submitted that the
petitioners are fully qualified for being absorbed in the Tamil Nadu basic
services, as per the proposal and they are serving on daily wages for meager
amount from 17.03.2005 onwards and hence, the respondents may be
directed to bring the petitioners into the regular establishment.
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W.P.No.4241 of 2022
4. The learned Additional Government Pleader submitted that they
were appointed as temporary Mazdoor, and as per G.O.Ms.No.74 dated
27.06.2013, the petitioners are not entitled for regularization of service, since
they are not appointed in the regular vacancies. Therefore, the claim of the
petitioner is liable to be dismissed.
5. Heard the counsels appearing for either side and I have perused the
materials on record.
6. Admittedly, the petitioners were appointed as temporary Mazdoor on
daily wages and also they are not appointed in the sanctioned post. In the
similar issues, this court has passed order in W.P.No.18013 of 2021 dated
18.10.2021, following the decision of the Hon'ble Supreme Court in the case
of Secretary to Government, School Education Department, Chennai vs.
R.Govindaswamy and others [(2014) 4 SCC 769]. The relevant portion is
extracted hereunder.
10. Thereafter, the Government also filed appeals before the
Honourable Supreme Court in the case of Secretary to Government,
SchoolEducation Department, Chennai vs. R.Govindaswamy and
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W.P.No.4241 of 2022
others [(2014) 4 SCC 769] wherein in Paragraph No.7, the Apex
Court has observed as follows:
“7. This Court in State of Rajasthan & Ors. vs. Daya
Lal & Ors., AIR 2011 SC 1193, has considered the
scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid
down well-settled principles relating to
regularisation and parity in pay relevant in the
context of the issues involved therein. The same are
as under:
“8(i) The High Courts, in exercising power under
Article 226 of the Constitution will not issue
directions for regularisation, absorption or
permanent continuance, unless the employees
claiming regularisation 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 regularisation 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 regularised,
back door entries, appointments contrary to the
constitutional scheme and/or appointment of
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W.P.No.4241 of 2022
ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or
adhoc or daily-wage employee, under cover of some
interim orders of the court, would not confer upon
him any right to be absorbed into service, as such
service would be “litigious employment”. Even
temporary, ad hoc or daily-wage service for a long
number of years, let alone service for one or two
years, will not entitle such employee to claim
regularisation, if he is not working against a
sanctioned post. Sympathy and sentiment cannot be
grounds for passing any order of regularisation in
the absence of a legal right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a scheme
providing that persons who had put in a specified
number of years of service and continuing in
employment as on the cut-off date), it is not possible
to others who were appointed subsequent to the cut-
off date, to claim or contend that the scheme should
be applied to them by extending the cut-off date or
seek a direction for framing of fresh schemes
providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek
regularisation as they are not working against any
sanctioned posts. There cannot be a direction for
absorption, regularisation or permanent
continuance of part-time temporary employees.
(v) Part-time temporary employees in government-
run institutions cannot claim parity in salary with
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W.P.No.4241 of 2022
regular employees of the Government on the
principle of equal pay for equal work. Nor can
employees in private employment, even if serving full
time, seek parity in salary with government
employees. The right to claim a particular salary
against the State must arise under a contract or
under a statute.” (Emphasis added)
11. Subsequent to the aforesaid orders passed by the Honourable
Supreme Court, the writ petitions seeking the relief sought for under
G.O.Ms.No.22, dated 28.02.2006 were came to be dismissed by this
Court.
12. On coming to the case on hand, though the petitioner, in her
affidavit, has stated that the post in which she was fully eligible by
passing the required educational qualification. Further, in G.O.(Ms)
No.74, dated 27.06.2013, in Clause (2)(g) it is clearly stated that the
services of daily wage employees appointed after 01.01.1998 were
also regularized invoking the Government Order read above and in
Clause (6)(vi) it is clearly stated that the part-time and causal
employees are not entitled to the concession referred to at para (ii)
above. On reading of said Government Order, it is seen that the
petitioner has not satisfied the eligibility criteria to regularize her
service based on G.O.(Ms) No.22, dated 28.02.2006.
13. As held by the Honourable Apex Court in R.Govindaswamy's case
(supra) mere continuation of service by a temporary or daily wage
employee, on the strength of some interim orders of the court, would
not confer upon him any right to be absorbed into service, as such
service would be “litigious employment”. Even temporary, ad hoc or
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W.P.No.4241 of 2022
daily-wage service for a long number of years, let alone service for
one or two years, will not entitle such employee to claim
regularisation, if he is not working against a sanctioned post.
Sympathy and sentiment cannot be grounds for passing any order of
regularisation in the absence of a legal right. That apart, the
Government has also in the revised Government Order has
categorically held that part time and casual emploees are not entitled
to regularisation of service.
14. Though the learned counsel for the petitioner placed reliance upon
the order of this Court dated 22.02.2017 in W.P.(MD) No.5935 of
2013 in support of his contentions, in view of the above observations
of the Honourable Supreme Court, the said decision is not applicable
to the facts of the present case. That apart, the Judgment dated
27.03.2018 in W.A.(MD) No.93 of 2018, relied on by the learned
counsel for the petitioner in support of his contentions, is also not
applicable to the facts of the present case and also distinguishable on
facts for the reason that in the said decision, the respondent / writ
petitioner was a full time employee, whereas in the present case the
petitioner was a part time employee. Therefore, the petitioner is not
eligible for regularisation of service in view of G.O.(Ms) No.74, dated
27.06.2013 and in the light of the decision of the Honourable Apex
Court in the case of R.Govindaswamy (supra).
15. Therefore, in view of the above well settled position by the
Honourable Apex Court, this Court does not find any prima facie case
to grant the relief as prayed for by the petitioner and hence, she is not
entitled to succeed in her case and the writ petition is, therefore, liable
to be dismissed.
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W.P.No.4241 of 2022
16. In fine, the writ petition fails and it is dismissed. No costs.
7. In the case on hand, the petitioners were appointed as daily wages.
Keeping in mind the ratio laid down in the above cited decisions, this Court
is of the view that the present writ petition is liable to be dismissed.
7. Accordingly, this writ petition is dismissed. No costs.
Consequently, connected writ miscellaneous petitions are closed.
02.03.2022
Index : Yes / No
Internet : Yes / No
mst
To
1.The Secretary,
Environment and Forest Department,
Fort St.George, Chennai.
2.The Principal Chief Conservator,
Head of the Forest Department,
Panagal Building, Saidapet, Chennai – 15.
3.The Additional Principal Chief Conservator of Forest,
Arignar Anna Zoological Park,
Vandalur, Chennai – 48.
https://www.mhc.tn.gov.in/judis
W.P.No.4241 of 2022
4.The Wild Life Warden,
Wildlife Division,
Chennai – 600 022.
https://www.mhc.tn.gov.in/judis
W.P.No.4241 of 2022
D.KRISHNAKUMAR. J
mst
W.P.No.4241 of 2022
02.03.2022
https://www.mhc.tn.gov.in/judis
