Madras High Court
P.Murugesan vs Tamil Nadu Pollution Control ... on 11 October, 2022
W.A.Nos.1868 & 1869 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.10.2022
CORAM :
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice D.BHARATHA CHAKRAVARTHY
W.A.Nos.1868 and 1869 of 2022
P.Murugesan .. Appellant
in WA 1868/22
P.Pandiyarajan .. Appellant
in WA 1869/22
vs
1.Tamil Nadu Pollution Control Board
Rep. By its Chairman,
No.76, Mount Salai,
Guindy, Chennai - 600 032.
2.The Member Secretary
Tamil Nadu Pollution Control Board,
No.76, Mount Salai,
Guindy, Chennai – 600 032. .. Respondents
in both WAs
Appeals filed under Clause 15 of Letters Patent against the
order dated 07.07.2022 made in W.P.Nos.6815 & 6816 of 2014.
For Appellant : Mr.Balan Haridas
in both W.As.
For Respondents : Mrs.Vijayakumari Natarajan
in both W.As.
https://www.mhc.tn.gov.in/judis
W.A.Nos.1868 & 1869 of 2022
COMMON JUDGMENT
(Delivered by D.BHARATHA CHAKRAVARTHY.,J)
These writ appeals are directed against the Order of learned
Single Judge dated 07.07.2022 in and by which the writ petitions filed
by the writ petitioners for regularizing them from the date of initial
appointment was rejected by the learned Single Judge.
2. The learned Single Judge, after taking into consideration
the prayer and after adverting to the general law laid down by the
Hon'ble Supreme Court that appointing the employees on temporary
basis and thereafter absorbing them on permanent basis in a routine
manner would affect the fundamental rights of the other candidates
and taking into account that retrospective regularization is not
permitted by the Hon'ble Supreme Court, rejected the prayer of the
writ petitioners. Aggrieved by the same, the present appeals are
before us.
3. Heard Mr.Balan Haridass, learned counsel for the
appellants and Mrs.Vijayakumari Natarajan, learned advocate for the
respondents / Board.
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W.A.Nos.1868 & 1869 of 2022
4. Learned counsel appearing on behalf of the appellants
would submit that, in this case, the initial appointment was made
upon sponsor of names of the petitioner by the employment
exchange and not by way of back door entry. Considering the
administrative exigencies, though they were initially appointed on
daily rated / consolidated basis, the respondent / Board itself has
chosen to regularize them. But however while regularizing them, they
were artificially regularized from the date of the order of
regularization. Under these circumstances, three sets of earlier
litigations were filed by the similarly situated employees and in all
three occasions, this Court had held that having taken the decision to
regularize the service of the employees, there was no justification to
regularize them from the later date and had ordered regularization
from the date of initial appointment. As a matter of fact, the
respondent / Board went on appeal to the Division Bench and the
Division Bench has also confirmed the order and even the Special
Leave Petition filed was dismissed.
5. Therefore, the writ petitioners prayed for similar benefits.
The request was rejected by the order impugned in the writ petition
on the sole ground that the benefit is given only to the persons who
have gone to the Court. Therefore, when the writ petitioners have
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W.A.Nos.1868 & 1869 of 2022
also approached this Court, the learned Single Judge ought to have
granted them the relief in view of the relief being granted to the
similarly situated employees.
6. Per contra, learned counsel appearing on behalf of the
respondent / Board would submit that the writ petitioners cannot
claim regularization as a matter of right. In support of her contention,
reliance was placed on the decisions of the Supreme Court in the case
of State of Rajasthan and Others Vs. Daya Lal and Others reported in
(2011) 2 SCC 429 and in the case of School Education Dept., Chennai
Vs. R.Govindaswamy reported in (2014) 4 SCC 769, whereunder the
Hon'ble Supreme Court has come down against the practice of
granting retrospective regularization by the Courts under Article 226
of the Constitution of India. Learned counsel also sought to
distinguish the earlier three orders by this Court by stating that in
those cases, the regularization was granted from the date of sanction
of those posts. It is submitted that in this case, the earlier
appointment was on daily basis as there was no sanctioned post on
the date of the appointment and therefore was irregular. Therefore,
she would submit that the learned Single Judge was right in rejecting
the writ petitions and prayed that these appeals be dismissed.
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W.A.Nos.1868 & 1869 of 2022
7. We have considered the rival submissions made on either
side and perused the material records of the case.
8. At the outset, we are unable to subscribe to the
reasonings of the learned Single Judge as the same are made
without adverting to the facts and circumstances of the case. As a
matter of fact, in this case, it is not the regularization which is prayed
in the instant case and the respondent themselves have regularized
the writ petitioners with effect from 28.10.1999. Therefore, the only
question which needs to be considered is that whether the
respondents were right in regularizing the services with effect from
28.10.1999 when the appointment was made with effect from
05.02.1997. When the writ petitioners were appointed through
employment exchange and they were in continuous service, when the
similarly situated employees have approached this Court and this
Court having ordered that their regularization should be made from
their date of respective appointment, and when the appeal filed by
the respondent /Board to the Division Bench and thereafter to the
Hon'ble Supreme Court having been dismissed, and that the
respondent / Board having implemented the orders in their case, and
in the impugned order, the only reason which is stated is that the writ
petitioners did not approach this Court, we find that in the facts and
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W.A.Nos.1868 & 1869 of 2022
circumstances of the case, the claim of the writ petitioners is justified
as the benefit has already been granted to the similarly situated
employees. This is not a case of back door entry in violation of the
recruitment rules. On the other hand, it is a case of initial constitution
of service of the respondent board when its functions started under
the various environmental legislations.
9. The Learned counsel for the respondent / Board sought to
distinguish that in the earlier cases the posts were sanctioned and the
posts were not sanctioned in the present case. However, the counter
affidavit which was filed in the writ petition did not contain such an
objection. The objections which were taken in the counter affidavit is
that the writ petitioners were not engaged continuously and they
were engaged only on need basis and the writ petitioners have
already accepted the regularization without any demur. That being
the situation, we are unable to accept the fresh stand they which is
sought to be taken before us orally for the fist time, that too, without
any materials or particulars to substantiate the stand.
10. In that view of the matter, we find that, the case of the
writ petitioners herein are similar and akin to the earlier cases which
have been cited by the writ petitioners. As a matter of fact, the
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W.A.Nos.1868 & 1869 of 2022
Division Bench of this Court in W.A.No.528 of 2016 etc., batch had
considered the very same issue and the very same distinction which
is sought to be drawn by the respondent / Board was disallowed and
the writ appeals were dismissed.
11. For the above reasons, we find that the order of learned
Single Judge is unsustainable and the following order is passed:-
(i) These writ appeals are allowed;
(ii) The order dated 07.07.2022 passed by learned Single
Judge is set aside;
(iii) W.P.Nos.6815 and 6816 of 2014 are allowed;
(iv) The writ petitioners are directed to be regularized from
the date of initial appointment. The actual difference in pay and back
wages for the said period is denied to the writ petitioners considering
the efflux of time. However for all other purposes, including pension
and retiral benefits, the writ petitioners' service will be treated as
regular service from the date of initial appointment.
(v) No costs.
(P.U., J) (D.B.C., J)
11.10.2022
Index:No
ssm/26
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W.A.Nos.1868 & 1869 of 2022
To
1.The Chairman,
Tamil Nadu Pollution Control Board
No.76, Mount Salai,
Guindy, Chennai - 600 032.
2.The Member Secretary
Tamil Nadu Pollution Control Board,
No.76, Mount Salai,
Guindy, Chennai – 600 032
https://www.mhc.tn.gov.in/judis
W.A.Nos.1868 & 1869 of 2022
PARESH UPADHYAY, J.
and
D.BHARATHA CHAKRAVARTHY, J.
ssm
W.A.Nos.1868 & 1869 of 2022
11.10.2022
https://www.mhc.tn.gov.in/judis
