Madras High Court

V.Sahadevan vs The State Of Tamil Nadu on 21 March, 2022

                                                                      W.P(MD).No.4907 of 2022

                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 21.03.2022
                                                    CORAM:

                             THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                           W.P(MD).No.4907 of 2022


                     V.Sahadevan                                            ... Petitioner

                                                               Vs.

                     1.The State of Tamil Nadu,
                       Rep by its Secretary to Government,
                       School Education Department,
                       St. George Fort,
                       Chennai.

                     2.The Director of School Education (Elementary School)
                       D.P.I. Campus,
                       College Road,
                       Chennai-600 006.

                     3.The Chief Educational Officer,
                       Kanyakumari District,
                       Nagercoil-629 001.

                     4.The District Elementary Educational Officer,
                       Kanyakumari District,
                       Nagercoil.

                     5.The District Educational Officer,
                       Kuzhithurai Educational District,

                                                           1


https://www.mhc.tn.gov.in/judis
                                                                             W.P(MD).No.4907 of 2022

                        Marthandam,
                        Kanyakumari District.                                .      ... Respondents

                     PRAYER: Writ Petition under Article 226 of the Constitution of India, to
                     issue a Writ of Mandamus, directing the respondents 1 to 5 herein to
                     regularise the service of the petitioner as 'Full Time Sanitary
                     Worker'(Sweeper) on completion of 10 years of part time services from
                     01.04.1981 and to pay time scale of pay and other monetary benefits
                     payable from 01.04.1991 along with arrears within the stipulated time as
                     fixed by this Court.
                                        For Petitioners : Mr.S.Bharathy Kannan
                                        For Respondents : Mr.G.V.Vairam Santhosh
                                                         Additional Government Pleader

                                                           ORDER

The relief sought for in the present writ petition is to direct the

respondents 1 to 5 to regularize the service of the petitioner as Full Time

Sanitary Worker (Sweeper) on completion of 10 years of part time

services from 01.04.1981.

2.The petitioner was appointed as part time Sweeper in

Government H.M Primary School, Edaicode, on 01.04.1981 by the

https://www.mhc.tn.gov.in/judis W.P(MD).No.4907 of 2022

Headmaster of the school. It is contended that the appointment of the

petitioner was approved by the Deputy Inspector of School, Kuzhithurai,

Kanyakumari District, in proceedings dated 08.04.1981.

3.The learned counsel for the petitioner mainly contended that the

services of similarly placed part time employees were regularised and the

Government also issued G.O.Ms.No.22, Personnel and Administrative

Reforms(P) of Department, dated 28.02.2006, granting the benefit of

regularization in respect of the employees who have completed 10 years

of service.

4.No doubt, the Government issued G.O.Ms.No.22, dated

28.02.2006. The said Government Order was withdrawn by the

Government and thereafter, nature of order was issued stating that

regularization is to be granted only with reference to the appointments

made in accordance with the rules in force. Admittedly, the petitioner

was appointed as part time employee on daily wages. The Deputy

Inspector of School also approved the appointment as part time employee

https://www.mhc.tn.gov.in/judis W.P(MD).No.4907 of 2022

and services are nor regularised. Regularization or permanent absorption

cannot be granted in violation of the recruitment rules in force. All

appointments are to be made strictly in accordance with the rules and the

Hon'ble Supreme Court has reiterated that irregular and illegal

appointments cannot be regularized, which is in violation of the

constitutional scheme.

5.As far as the School Education Department of the Tamil Nadu is

concerned, the issue relating to the part time employees was decided by

the Hon'ble Supreme Court in the case of Secretary to Government,

School Education Department, Chennai-vs-Thiru R. Govindaswamy &

Ors., reported in 2014(4) SCC 769 and in para 8 of the judgment which

reads as under:

“8.This Court in State of Rajasthan v. Daya Lal [State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 :

(2011) 1 SCC (L&S) 340 : 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

https://www.mhc.tn.gov.in/judis W.P(MD).No.4907 of 2022

regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

“(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 ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee,

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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

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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 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.”

In the subsequent case of the State of Tamil Nadu and another Vs.

A.Singamuthu, reported in (2017 (4) SCC 113), also the High Court has

reiterated the principles laid down by the Constitutional Bench of the

Hon'ble Supreme Court.

6.In view of the fact that the writ petitioner was appointed as part

time employee on daily wages and she cannot claim any right in

https://www.mhc.tn.gov.in/judis W.P(MD).No.4907 of 2022

regularization or permanent absorption, which is in violation of the

service rules in force. Thus, the relief as such sought for cannot be

considered. Accordingly, writ petition is dismissed. No costs.

21.03.2022 Index:Yes/No Internet:Yes/No Ns To

1.The Secretary to Government, School Education Department, St. George Fort, Chennai.