Madras High Court
Executive Engineer vs Thangadurai on 17 October, 2022
W.P.No.15377 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.15377 of 2018
and
W.M.P.No.18273 of 2018
1. Executive Engineer,
Tamil Nadu Water Supply and Drainage Board ,
Maintenance Division,
(Now it is Reorganized as Project Division),
Krishnagiri.
2. Asst. Executive Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
(Now it is Reorganized as Project Division),
Krishnagiri.
3. Asst. Engineer,
Tamil Nadu Water Supply and Drainage Board,
Maintenance Division,
(Now it is Reorganized as Project Division),
Krishnagiri. ...Petitioners
Vs.
1. Thangadurai
2. K.Periya Thambi
3. V.Arumugam
1/61
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4. T.K. Kumar
5. N. Saravanan
6. K.Selvam
7. C.Singaravelan
8. Sugadevarajaguru
9. E. Thiruvengadam
10. S.Sundaram
11. K. Prabu
12. L.Govindaraj
13. V.Ramesh
14. Inspector of Labour,
Authorityunder (conferment
of Permanent Status to workmen) Act 1981
Krishngiri Dist. ..Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to
issue a writ of Certiorari, calling for the records relating to Na.Ka.No. Aa/ 36/
2015 dated 05.03.2018 of the 14th respondent and to order any other remedy
as this Hon'ble Court.
2/61
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For Petitioners : Mr.S.Ravindran, Senior Counsel
for Mrs.S.Mekhala
For Respondents :
For R1 to R13 : Ms.M.Kamatchi Sundhari for
M/s.Law Square
For R14 : Mr.G.Nanmaran
Special Government Pleader
ORDER
The Writ on hand is against the order passed by the Inspector of
Labours, Krishngiri.
2. The factual matrix, as narrated in this Writ Petition, in nutshell is
that the contesting respondents were engaged as Contract Labourers for the
purpose of Operation and Maintenance of Combined Water Schemes and the
contractors, who employed the labourers, are bound to execute the works
allotted by the Tamil Nadu Water Supply and Drainage Board (TWAD
Board). The contractors will change every year and the Writ Petitioners
TWAD Board settle the payments in favour of the contractors, who in turn,
pay the wages to the Labourers, who are all working under those Contractors.
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3. There is no direct employer employee relationship between the
TWAD Board and the contesting respondents, who were engaged as contract
labourers. The contractors were maintaining the Attendance Register for
these labourers and was paying salary from and out of their own funds. These
labourers are engaged in a Water Scheme to be implemented and therefore,
TWAD Board cannot confer any permanent status to these contesting
respondents.
4. The contention of the petitioners are that they defended their case
before the Inspector of Labours, who in turn, confirmed the permanent status
to these contract labourers without even considering the nature of
employment and the terms and conditions of the Board with the Contractors.
Thus, the Writ Petition is filed.
5. The case of the contesting respondents are that they are continuously
working as contract labourers. Change of contractors every year would not
change the character of their employment with the TWAD Board. They are
working continuously for 480 days in two consecutive years. Thus, the
Inspector of Labours rightly conferred permanent status with reference to the
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provisions of the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act, 1981.
6. The contesting respondents have stated that, though they are
designated as contract labourers, engaged by the contractors, appointed by
the TWAD Board, all along they are directly supervised by the TWAD Board
Authorities and the respondents - labourers were engaged continuously,
despite the fact that the TWAD Board changed the Contractors. Thus, the
change of contractors by the TWAD Board would not affect the character of
employment, which is otherwise permanent and continuance. Many Schemes
are implemented by the TWAD Board. Thus, posts are also available and the
respondents - labourers are experienced workmen and therefore, the 14th
respondent / Inspector of Labours rightly conferred permanent status.
7. Mr.S.Ravindran, the learned Senior Counsel appearing on behalf of
the Petitioners - TWAD Board contended that the mechanical approach of the
Inspector of Labour in conferring permanent status to these contract labourers
are unacceptable. The nature of engagement of these contract labourers are
admitted by them even in their petition filed before the Inspector of Labour.
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Soliciting the attention of this Court regarding the petition filed by the
contesting respondents before the Inspector of Labour, the learned Senior
Counsel reiterated that they themselves have stated that they are working
under the control of the contractors engaged by the TWAD Board and they
were receiving the monthly salary of Rs.2,700/- during the relevant point of
time. In subsequent paragraphs though they have stated that their principal
employer is TWAD Board, they have not produced any documents or proof
to establish that they were initially appointed by the Competent Authority of
the TWAD Board, in accordance with the Service Rules in force. Mere
statement that they are the permanent employees of the TWAD Board is
insufficient.
8. A workman claiming permanent status is bound to establish that he
is entitled for the same with reference to the order of appointment issued to
him. Admittedly, no such order of appointments were issued in favour of the
contesting respondents and in fact, there is no employer-employee
relationship between the Writ Petitioners – TWAD Board and the contesting
respondents. Thus, the Inspector of Labour arrived at a presumptive
conclusion that these contract labourers were directly engaged by the TWAD
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Board and they were appointed by the Competent Authorities of the TWAD
Board. Notwithstanding the fact that these contract labourers were working in
the Schemes implemented by the TWAD Board, they are engaged by the
contractors and at no point of time, the TWAD Board Authorities issued any
appointment orders. Mere supervision of the Scheme works by the TWAD
Board Authorities or providing certain instructions to the contractors or to the
Head of Labourers, in order to implement to the Schemes effectively, the said
supervision of the TWAD Board Authorities would not confer any right on
these respondents, to claim permanent status, more specifically, in the
absence of an appointment order, which is to be issued by following the
procedures contemplated under the Service Rules in force.
9. The learned Senior Counsel cited the reply given by the Writ
Petitioners Board to the Assistant Commissioner of Labour in letter, dated
07.09.2012, wherein, the Board has categorically stated that these
respondents were engaged as contract labourers and tenders were called
every year and the lowest tenderer will be allotted the work and accordingly,
the Water Schemes were maintained by the TWAD Board. These contractors,
who were appointed or engaging their labourers, are paying salary to those
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labourers. The contractors are at liberty to change the labourers or utilize
their services in some other projects in which, they are appointed.
10. Therefore, the control of these labourers are with the contractors
and it is the choice of the contractors either to engage the labourers already
having experience in a particular work or to engage some other labourers at
their choice. This being the nature of employment of the respondents –
labourers, at any point of time, they cannot say that the TWAD Board is the
Appointing Authority or they are directly employed by the TWAD Board
Authorities. Even the Insurance Policies are taken by the contractors and
there is no service records or other documents are maintained by the
Petitioners – TWAD Board.
11. The learned Senior Counsel relied on the Judgments of this Court
passed in W.P.No.4723 of 2015, dated 29.11.2019. The facts and
circumstances narrated in the said Writ Petition are akin to that of the facts
and circumstances of the present Writ Petition on hand. The learned Senior
Counsel cited various paragraphs of the said Judgment delivered by this
Court and contended that the legal issues in the matter of conferring
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permanent status has been considered by this Court in the said Judgment and
the same principle is to be followed in the present Writ Petitions also.
12. Ms.M.Kamatchi Sundhari, the learned counsel appearing on behalf
of the respondents – workmen strenuously objected the contentions raised on
behalf of the petitioners by stating that Section 3 of the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, 1981 is
unambiguous. Section 3 contemplates that “Notwithstanding anything
contained in any law for the time being in force every workmen who is in
continuous service for a period of four hundred and eighty days in a period of
twenty four calender months in an industrial establishment shall be made
permanent”.
13. Relying on the said provision, the learned counsel contended that
conferment of permanent status is a right conferred under the Statute. Thus,
the Inspector of Labour in this case has rightly conferred such permanent
status in favour of such workmen. The learned counsel for the respondent -
Workmen is of the opinion that conferment of permanent status is automatic
on completion of 480 days of service in two consecutive years. Therefore, it
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is not necessary that the approval of the employer is required. Employer has
no option, but to confer permanent status, if the conditions of the provisions
are fulfilled.
14. The learned counsel for the workmen reiterated that the Hon'ble
Division Bench of this Court as well as the Hon'ble Supreme Court of India in
humpty number of Judgments settled the principles regarding the conferment
of permanent status to workmen. Beyond all these, the similarly placed other
workmen in the TWAD Board were granted with permanent status, pursuant
to the orders of the Hon'ble Division Bench. In other words, in several cases,
the orders were passed in favour of these contract labourers and permanent
status were granted and the Appeals preferred by the TWAD Board were
dismissed. The TWAD Board implemented those orders and those workmen
were already employed on permanent basis. Thus, the respondents in this writ
petition cannot be treated differently and they are entitled to be absorbed in a
permanent sanctioned post in the time scale-of-pay.
15. The learned counsel for the workmen relied on the Judgments
passed in W.A.No.1644 of 2012, dated 24.08.2012 in the case of the
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Executive Engineer, Tamil Nadu Water Supply and Drainage Board, Madurai
Vs. The Inspectors of Labour, Theni and Others. The Hon'ble Division Bench
held that once a workman completed 480 days of service in two consecutive
years, conferment of permanent status is automatic. In the case decided by
this Court in W.P.No.4723 of 2013, the said Judgment was not considered.
Further, it was not brought to the notice of this Court regarding the dismissal
of the SLP by the Supreme Court against the orders of the Division Bench.
Therefore, now, the TWAD Board cannot take a different stand and deny the
benefits of permanent status to these respondents.
16. In W.P.No.4723 of 2013, the learned Judge has solely gone by
Umarani's case, which related to G.O.Ms.No.86 issued by the Government
of Tamil Nadu regularizing the services of the employees contrary to the
Service Regulation, under the Tamil Nadu Co-operative Societies Act, 1961.
However, the said case was decided in a different context and cannot be
applied in the present case. It is contended that the principles laid down in
Umarani's case do not denude the powers of the Industrial Court to confer
permanent status to the workmen under the Labour Laws. In fact, employing
workmen for a long period as casuals, temporary is an unfair labour practice
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and therefore, on completion of 480 days, permanent status is to be conferred.
The learned counsel for the respondents – workmen relied on the following
Judgments.
17. The learned counsel for the respondents – workmen with reference
to the Judgments cited, elaborated the applications of those Judgments with
reference to the facts and circumstances on hand. The Judgments passed in
W.P.No.12863 of 1994, dated 19.01.1996, the Court held that Industrial
Employment (Standing Orders) Act, 1946 will apply to the workmen and they
will over ride the TWAD Board Regulations framed by the Board. (In
W.A.Nos.917 and 918 of 1987). Further it is stated that the Board is an
Establishment, in which, the work relating to operation connecting with
supply of water is being carried and consequently, the Board is an Industrial
Establishment within the meaning of Section 2(i)(g) of the Payment of Wages
Act, 1936 and therefore, the Industrial Employment (Standing Orders) Act,
1946 would apply to the Board.
18. The learned counsel for the respondents – workmen relied on the
Judgment reported in 2012 (6) MLJ 480 and contended that a reference has
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been made “Whether a workman, who had completed 480 days in a period of
24 calender months would become automatically a permanent employee
under the employer or he will became a permanent employee only on
conferment of permanent status either by the employer on his own or on a
direction given by the Competent Authority under the Act.” With reference to
the said question, the Court held in paragraph 34 that “On going through the
ingredients of Section 3(i) of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen) Act, 1981, we are of the
considered view that the petitioner's husband completed 480 days of work in
a period of 24 calender months and would become automatically a permanent
employee under the Respondent / Tamil Nadu Electricity Board, because of
simple fact that Section mandates the Respondents to confer permanent
status.”
19. The learned counsel for the respondents – workmen relied on the
Judgment in W.A.No.1644 of 2012, wherein the appeal filed by the TWAD
Board was dismissed and the said order was implemented by the TWAD
Board itself. The subsequent Division Bench order in W.A.No.1981 of 2012,
dated 08.10.2012 also passed in conformity with the orders passed in
W.A.No.1644 of 2012, dated 24.08.2012. The SLPs were also dismissed.
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The said Division Bench Judgments were followed by the learned Single
Judges of Madurai Bench of Madras High Court also in Writ Petitions.
20. With reference to the reliance placed by this Court in the earlier
Judgments passed by this Court in W.P.No.4723 of 2015, the learned counsel
for the respondents - workmen relied on the Judgment of the Supreme Court
in Maharashtra State Road Transport Corporation and another Vs.
Casteribe Rajya Parivahan Karmchari Sanghatana reported in (2010 (3)
LLN 552). The Hon'ble Two Judges Bench of the Supreme Court of India
clarified Umadevi's case in paragraphs 21, 35, 36, 37 and 41 as hereunder :-
21. The Constitution Bench in Umadevi1 considered a long
line of cases; constitutional scheme in public employment;
powers of the High Courts under Article 226; powers of this
Court under Articles 32; other constitutional provisions viz.;
Articles 14, 16, 21 and 309 of the Constitution and laid down
that the High Court acting under Article 226 of the
Constitution could not ordinarily issue directions for
regularization and permanent continuance unless the
recruitment itself was made regularly and in terms of the
constitutional scheme.
35. Umadevi (2006 (3) L.L.N78) (vide supra), is an
authoritative pronouncement for the proposition that
Supreme Court (Article 32) and High Courts (Article 226)
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should not issue directions of absorption, regularization or
permanent continuance of temporary, contractual, casual,
daily wage or ad-hoc employees unless the recruitment itself
was made regularly in terms of constitutional scheme.
36. Umadevi (2006 (3) L.L.N 78) (vide
supra)Umadevi1 does not denude the Industrial and Labour
Courts of their statutory power under Section 30 read with
Section 32 of MRTU & PULP Act to order permanency of the
workers who have been victim of unfair labour practice on
the part of the employer under item 6 of Schedule IV where
the posts on which they have been working exists. Umadevi
(vide supra), cannot be held to have overridden the powers of
Industrial and Labour Courts in passing appropriate order
under Section 30 of the MRTU & PULP Act, once unfair
labour practice on the part of the employer under item 6 of
Schedule IV is established.
37. There cannot be any quarrel to the proposition
that courts cannot direct creation of posts. In Mahatma
Phule Agricultural University and Others vs. Nasik Zilla
Sheth Kamgar Union [2001 (3) L.L.N. 867], this Court held,
IN PARAS 11 and 12 at pages 871 and 872:
"11. Smt. Jaising, in support of Civil Appeals Nos. 4461-
70 and 4457-60 [arising out of SLPs (C) Nos. 418-21 of
1999 and SLPs (C) Nos. 9023-32 of 1998] submitted that
the workmen were entitled to be made permanent. She
however fairly conceded that there were no sanctioned
posts available to absorb all the workmen. In view of the
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law laid down by this Court the status of permanency
cannot be granted when there are no posts. She however
submitted that this Court should direct the Universities
and the State Governments to frame a scheme by which,
over a course of time, posts are created and the workmen
employed on permanent basis. It was however fairly
pointed out to the Court that many of these workmen have
died and that the Universities have by now retrenched
most of these workmen. In this view of the matter no useful
purpose would be served in undergoing any such exercise.
12. It is to be seen that, in the impugned judgment,
the High Court notes that, as per the law laid down by this
Court, status of permanency could not be granted. In spite
of this the High Court indirectly does what it could not do
directly. The High Court, without granting the status of
permanency, grants wages and other benefits applicable to
permanent employees on the specious reasoning that
inaction on the part of the Government in not creating
posts amounted to unfair labour practice under Item 6 of
Schedule IV of the MRTU & PULP Act. In so doing the
High Court erroneously ignores the fact that
approximately 2000 workmen had not even made a claim
for permanency before it. Their claim for permanency had
been rejected by the award dated 20-2- 1985. These
workmen were only seeking quantification of amounts as
per this award. The challenge, before the High Court, was
only to the quantification of the amounts. Yet by this
sweeping order the High Court grants, even to these
workmen, the wages and benefits payable to other
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permanent workmen.
41. Thus, there is no doubt that creation of posts is not within
the domain of judicial functions which obviously pertains to the
executive. It is also true that the status of permanency cannot
be
granted by the Court where no such posts exist and that
executive functions and powers with regard to the creation of
posts cannot be arrogated by the Courts.
21. In the case of Ajaypal Singh Vs. Haryana Warehousing
Corporation reported in (2015 (6) SCC 321), the Supreme Court considered
the principles on unfair labour practice by the employer. In the case of
Maharaj Krishnan Bhatt and Another Vs. State of Jammu and Kashmir
reported in (2008 (9) SCC 24), the Apex Court held as follows:-
“ 23. In fairness and in view of the fact that the decision in
Abdul Rashid Rather had attained finality, the State
Authorities ought to have gracefully accepted the decision by
granting similar benefits to present writ-petitioners. It,
however, challenged the order passed by the Single Judge.
The Division Bench of the High Court ought to have
dismissed Letters Patent Appeal by affirming the order of the
Single Judge. The Letters Patent Appeal, however, was
allowed by the Division Bench and the judgment and order of
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the learned Single Judge was set aside. In our considered
view, the order passed by the learned Single Judge was legal,
proper and in furtherance of justice, equity and fairness in
action. The said order, therefore, deserves to be restored.”
22. The learned counsel for the respondents –workmen cited the
Judgment of the Supreme Court of India in the case of Pandurang Sitaram
Jadhav etc.etc Vs. The State of Maharashtra reported in (2019)
Supreme(SC) 1174, wherein the Apex Court held as follows:-
“13. The finding of an unfair labour practice by the
Tribunal has in fact been confirmed by the learned Single
Judge in the present case and the only two reasons for
interference by the Division Bench relating to Umadevi's
case (supra) have already been explained in the aforesaid
subsequent judgments.
14. We thus, direct the respondents to regularize the
appellants accordingly and the necessary orders be issued
within three months from the date of the order.”
23. The learned counsel for the respondents – workmen distinguished
Umarani's case by stating that those facts with reference to the principles on
regularization would have any application as far as the facts placed in the
present Writ Petition is concerned. The learned counsel is of the concrete
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opinion that several orders were passed by this Court granting permanent
status and those orders were implemented by the TWAD Board also. Thus,
the benefits cannot be denied to the respondents / workmen in this Writ
Petition.
24. The learned Senior Counsel for the petitioners TWAD Board, in
reply, contended that the Constitution Bench Judgment in Umadevi's case
settled the legal principles in the matter of grant of permanent status,
appointment and regularization of service. The principles for grant of
permanent absorption, more specifically, for State appointments or the
appointments to be made in instrumentalities of the 'State' is to be
scrupulously followed. The TWAD Board is an instrumentality of the State
and therefore, they are bound to follow the Service Rules, which are all in
force. The appointments are to be made strictly in accordance with the Rules
in force. It is not as if the contract labourers engaged by the contractors can
be regularized in Board's services and such engagement of labourers by the
contractors in Private Companies cannot be compared with reference to the
appointments to be made in public services or the services in Government
undertakings or instrumentalities of the State. State is bound to follow the
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Constitutional Schemes in the matter of appointments and grant of permanent
absorption. Thus, the very arguments advanced on behalf of the respondents –
workmen that the permanent absorption is to be granted based on the earlier
Judgments is of no avail to them.
25. The Senior Counsel solicited the attention of this Court with
reference to the order impugned in the present writ petition passed by the
Inspector of Labour wherein, no document has been relied upon nor the
principles laid down by the Constitution Bench has been considered. The
Inspector of Labour in mechanical and routine manner granted permanent
status merely on the ground that the respondents – workmen were engaged
for 480 days continuously. The order impugned itself clarifies that there is no
document to establish that the respondents – workmen appointed by the
TWAD Board. It is further admitted that the respondents – workmen were
engaged by the contractors and were receiving salary from those contractors.
The workmen admitted before the 14th respondent that there is no
appointment orders issued to them. In view of the fact that there is no
evidence to establish that these respondents – workmen are the employees of
the TWAD Board or there is any relationship of employer-employee exists
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between them, the Labour Officer has mechanically granted the permanent
status, which is unsustainable. The learned Senior counsel for the Petitioner –
TWAD Board further contended that in the case of The Executive Engineer,
TWAD Board Vs. Labour Inspector, Coonoor, Nilgiris in W.P.No.8262 of
2009, dated 26.09.2011, the learned Single Judge held as follows:-
“11. The Supreme Court in Workmen of Nilkgiri
Coop.Mkt.Society Ltd., v. State of T.N., (2004) 3 SCC 514
has held that merely because there was some supervision
over the work of the workers, it will not automatically be a
conclusive factor for establishing the nature of
relationship between the employer and employee.”
26. Considering the elaborate arguments of the learned counsel
appearing on behalf of the petitioners and the respondents, this Court has to
consider, whether the respondents – workmen is entitled for permanent
absorption in TWAD Board Services or not?
27. Admittedly, TWAD Board is the Government of Tamil Nadu
Organization. The Board was constituted by virtue of the Tamil Nadu Water
Supply and Drainage Board Act, 1970, which received the assent of the
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President on 24.03.1971 and published in the Tamil Nadu Government
Gazette on 25.03.1971.
28. Section 2(i) of the Act defines Board. 'Board' means the Tamil
Nadu Water Supply and Drainage Board, constituted under Section 4. The
constitution of the Board is provided under Section 4 of the Act.
29. Section 34 of the Act denotes the Board's fund. Sub-clause(4)
states that “All moneys and receipts specified in the foregoing provisions and
forming part of the fund of the Board shall be deposited into the public
accounts of the Government under such detailed head of accounts as may be
prescribed (or) in the Reserve Bank of India constituted under the Reserve
Bank of India Act,1934 (Central Act II of 1934), or the State Bank of India
constituted under the State Bank of India Act, 1955 (Central Act 23 of 1955).
It is relevant to consider Section 58 of the Act, which deals with the powers
of the Government to issue orders and directions to the Board of local
authorities. Under the said provision, the Government may issue to the Board
or to the local authority concerned, such orders and directions as in their
opinion are necessary or expedient for carrying out the purposes of this Act
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and the Board or such local authority, as the case may be, shall give effect to
all such orders and directions.
30. A perusal of the entire service regulations of the year 1972 reveals
that the Government Department Service Rules are mostly adopted with
necessary modifications and more specifically, regulation (9) prescribes the
mode of recruitment, which reads as under:
“9. Mode of Recruitment:- The Board shall notify all
vacancies for posts to be filled up by direct recruitment to
the local employment Exchange as provided for in the
Employment Exchanges (Compulsory Notification of
Vacancies) Act 1959 (Central Act No. 31 of 1959) and the
rules made thereunder. If the local Employment exchange
is unable to sponsor the required number of qualified and
eligible candidates and gives a certificate to that effect,
the Board shall advertise the remaining vacancies in at
least one English daily newspaper and one Tamil Daily
newspaper having wide circulation in the area. The
selection of candidates shall be made from among the
candidates sponsored by the Employment Exchange and
or who responded to the advertisement as the case may be.
The selection shall be made by a Selection Committee to
be constituted by the Board consisting of the Chairman,
the Managing Director and one more member to be
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nominated by the Board. (B.P.Ms.No. 401, dated 28.9.76).
The Chairman shall be the Chairman of the Selection
Committee so constituted shall function for one year from
the date of its constitution. The Board may direct the
Selection Committee to make the selection on the results of
a written examination or interview or of both as it
considers suitable. The lists of candidates selected and
arranged in the order of preference for a Class I Service
shall be submitted to the Board for approval. All
appointments by direct recruitment shall be made only
from the list thus approved by the Board. In case the
Board disagrees with the recommendations of the
Selection Committee, the Board shall cause the matter to
be referred back to the Selection Committee for
reconsideration in the light of the views expressed by the
Board. The Selection Committee's recommendations shall
be final for posts in Class II and Class III and
appointments by direct recruitment to the classes made
with reference to the recommendations of the Selection
Committee be reported to the Board for information.
(2) Selection for appointment by direct recruitment
to Class IV shall be made by the appointing authority by
inviting applications through the Employment Exchange.
(3) The selection of candidates for appointment for
work- charged and nominal muster roll establishment
shall be made by the appointing authorities by inviting
applications through the Employment Exchange.
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(4) For promotion to posts of executive engineers
and Superintending Engineers of the Tamil Nadu water
Supply and Drainage Board, the Chief Engineer of the
Board shall prepare a list of all eligible candidates
arranged in the order of seniority for consideration having
regard to their efficiency-cum-seniority showing in the list
their names, present designation, present pay, age,
qualifications and experience and forward the same to the
Managing Director with their confidential reports. The
Managing Director after scrutinising the lists and the
confidential reports 44 will select and appoint the
candidates in respect of the post of Executive Engineers.
In respect of Superintending Engineers, the Managing
Director will made his recommendations to the Board for
selection, and based on the selection by the Board he will
issue appointment orders. (B.P.Ms.No. 320, dated 1.9.98).
The appointment of Chief Engineer of the Board will be
made subject to the approval of the Government.
(5) No appeal shall lie against the decision of the
Selection Committee in regard to direct recruitment. All
appeal shall
however, lie to the Board for appointments made by
promotion on the basis of the recommendations of the
Selection Committee and the Board shall dispose of such
appeals on merits and its decision shall be final. With
regard to appointment by promotion approved by the
Board, a revision shall lie to Government.
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(6) In respect of promotions to technical posts
below the rank of Assistant Executive Engineers and
promotions to non-technical posts in Board's Secretariat
and Chief Engineer's office and other subordinate offices
of Chief Engineer, the appointing authority is competent
to make the promotions.
(7) Notwithstanding anything contained in the
above Regulation, the Board may in any particular case or
class of cases adopt a special procedure as more
appropriate than the one prescribed in any of the said
Regulations.”
31. Thus, it is made clear that the service regulations are in force and
such regulations are approved by the Government by virtue of the powers
conferred under the Tamil Nadu Water Supply and Drainage Board, 1970.
When the Act is in force, and by virtue of the said statute, service regulations
are framed, then, all the selections, recruitments and regularizations as well as
the permanent absorptions are to be strictly made in accordance with law with
the statute and the provisions of the service regulations of the TWAD Board.
This apart, the Act as well as the Service Regulations, 1972 will prevail over
the general law. For the purpose of TWAD Board, the Tamil Nadu Water
Supply and Drainage Board, 1970 as well as the service regulations of the
year 1972 would be the special law and therefore, the Conferment of
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Permanent Status Act is to be construed as a general law. Under these
circumstances, the Special Act and Special Regulations would prevail over
the Conferment of Permanent Status for the purpose of considering the case
for grant of regularization and permanent absorption in Board's services.
32. In view of the fact that the special law will prevail over the general
law and further, the TWAD Board Act and the service regulations constituted
by virtue of the powers conferred under Section 73 of the Tamil Nadu Water
Supply and Drainage Board Act, the provisions of the Conferment of
Permanent Status Act would not be applicable for grant of regularization and
permanent absorption, with reference to the employees of the TWAD Board.
Accordingly, the provisions of the Tamil Nadu Industrial
Establishment [Conferment of Permanent Status] Act, 1981 is not applicable
to the employees of the TWAD Board for granting the benefit of
regularization and permanent absorption.
33. The learned counsel for the respondents – workmen is of the
opinion that the conferment of permanent status Act is a Special Act, as far as
the petitioner establishment is concerned. The TWAD Board Act is the
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General Law and therefore, the Special Act viz., the Permanent Status Act
must be applied as far as the present case is concerned. The said proposition
is disputed by the learned Senior Counsel appearing on behalf of the
petitioners – TWAD Board.
34. This Court is of the considered opinion that when the TWAD
Board is an instrumentality of the State within the meaning of Article 12 of
the Constitution of India and the Service Regulation of the year 1972 is
applicable regarding appointments, regularization or permanent absorption is
concerned, then, the said Law governing the service conditions of the
employees of the TWAD Board are to be construed as Special Law and the
conferment of permanent status, which would be applicable to all the
Industrial Establishments across the Country is to be considered as General
Law. Thus, it is unambiguous that the Service Regulations 1972 framed by
the TWAD Board under the powers conferred under the TWAD Board Act
would be the Special Law for the purpose of recruitment, grant of permanent
absorption or otherwise.
35. It is contended that the TWAD Board is following the provisions of
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the Tamil Nadu Water Supply and Drainage Board Service Regulations Act,
1972 constituted with reference to the powers conferred under Section 73 of
the TWAD Board Act. At no point of time, the Tamil Nadu Industrial
Establishments (Conferment of Permanent Status to Workmen) Act, is made
applicable to the employee of the TWAD Board. The Board in its reply also
informed to the first respondent that the Service Regulations are in force and
therefore, the Tamil Nadu Industrial Establishments (Conferment of
Permanent Status to Workmen) Act cannot be applied to these workmen. In
this regard, the Board also informed the Joint Commissioner of Labour,
Chennai and addressed the Government, seeking exemptions from
implementing the Standing Orders in TWAD Board. Therefore, application of
Standing Orders would not arise at all, as it never made applicable to the
employees of the TWAD Board. Thus, the binding Law regarding the
entitlement of the workmen for regularization and permanent absorption is to
be considered with reference to the Special Law in force and as applicable to
the TWAD Board employees.
36. Once this Court arrived at a conclusion that pursuant to the powers
conferred under the TWAD Board Act, the petitioners – TWAD Board
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framed Service Regulations and such Service Regulations are to be construed
as Special Law, then, the principles laid down by the Constitution Bench of
the Hon'ble Supreme Court of India in the case of Umadevi Vs. State of
Karnataka reported in (2006 (4) SCC 1) would be directly applicable.
Several Judgments cited with reference to the industries within the definition
of Permanent Status Act would have no application as far as the employees,
who are all governed by the Service Regulations framed by the TWAD
Board, which is a State within the meaning of Article 12 of the Constitution
of India.
37. The legal principles as well as the ratio decidendi laid down by the
Constitution Bench of the Hon'ble Supreme Court of India in Umadevi's case
had not been considered either by the Inspector of Labour or in the judgment
cited by the learned Senior Advocate for the Workmen. In view of the fact
that the applicability of the Conferment of Permanent Status Act to the
TWAD Board employees as well as the legal principles settled by the
Constitution Bench of the Hon'ble Supreme Court of India are not considered,
this Court is bound to follow the binding precedent of the Constitution Bench
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of the Hon'ble Supreme Court of India, as the same became the law of the
Land under Article 141 of the Constitution of India.
38. The learned counsel for the respondents - Workmen brought to the
notice of this Court regarding various orders passed by this Court, granting
the benefit of orders passed by the Inspector of Labour, for grant of
conferment of permanent status and regularization of the services of the
temporary employees, and made a request to follow the same and
accordingly, allow the writ petition by issuing a direction to grant of
permanent absorption and regularization.
39. This Court is of the view that the Constitution Bench Judgment of
the Apex Court is the binding law, and more specifically, in paragraph No.54
of the Umadevi's case, the Constitution Bench in unequivocal terms held that
“those decisions which run counter to the principle settled in this
decision, or in which directions running counter to what we have held
herein, will stand denuded of their status as precedents”.
40. The doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and consistency in
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judicial decisions. Judicial consistency promotes confidence in the system. In
this perspective, this Court is bound to consider the legal principles settled by
the Constitution Bench of the Hon'ble Supreme Court of India regarding the
doctrine of binding precedent in the case of NATIONAL INSURANCE
COMPANY LIMITED vs. PRANAY SETHI AND OTHERS, (2017) 6
SCC 680, the Constitution Bench reiterated that the principles laid down by
the Constitution Bench of the Apex Court would be binding precedent and it
became the law of the Land and is to be followed scrupulously, even in cases,
where two Judges Bench of the Supreme Court are running counter to the
Judgment of the Constitution Bench. Therefore, the Judgment of the
Constitution Bench, in the present context, would be relevant for the purpose
of considering the case of the writ petitioners herein. In the National
Insurance Company case cited supra, the Constitution Bench in unequivocal
terms held that a decision or judgment can be per incuriam any provision in a
statue, rule or regulation, which is not brought to the notice of this Court.
41. In the present case, the provision of the Tamil Nadu Water Supply
and Drainage Board Act, 1970 as well as the TWAD Board Service
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Regulations Act, 1972 were not brought to the notice of this Court in respect
of the earlier orders passed by this Court, which are all cited by the writ
petitioners. In none of the said judgments, the provisions of the TWAD Board
Act as well as the Service Regulations, 1972 and the binding law laid down
by the Constitution Bench of the Hon'ble Supreme Court of India were
considered. Thus, this Court is bound to follow the Judgment of the
Constitution Bench of India in the matter of grant of regularization and
permanent absorption.
42. As far as the Constitution Bench Judgment is concerned, the legal
principles are settled. In paragraph No.5 of the Judgment,the Supreme Court
had also on occasions issued directions which could not be said to be
consistent with the constitutional scheme of public employment. Such
directions are issued presumably on the basis of equitable considerations or
individualization of justice. The question that arises is, equity to whom?
Equity for the handful of people who have approached the Court with a claim,
or equity for the teeming millions of this Country, who are seeking
employment and a fair opportunity for competing for employment? When one
side of the coin is considered, the other side of the coin has also to be
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considered and the way open to any Court of law or justice, is to adhere to
the law as laid down by the Constitution and not to make directions, which at
times, even if do not run counter to the constitutional scheme, certainly tend
to water down the constitutional requirements. It is this conflict that is
reflected in these cases referred to the Constitution Bench.
43. The Constitution Bench, referring the earlier orders, arrived at a
conclusion that the practice of continuing “such individualization of justice”
is to be averted. The Constitutional philosophy and ethos in the matter of
equal opportunity in public employment are to be ensured in this context. The
Supreme Court while considering the earlier orders passed by the High Court
as well as the Supreme Court, referred the matter to the Constitution Bench,
in order to regulate the illegal and irregular appointments and to ensure that
all appointments are to be made under the Constitutional Scheme and by
following the rules in-force. In Paragraph No.6 of the judgment, the following
observations are made:
6. The power of a State as an employer is more
limited than that of a private employer in as much as it
is subjected to constitutional limitations and cannot be
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exercised arbitrarily (see Basu's Shorter Constitution of
India). Article 309 of the Constitution gives the
Government the power to frame rules for the purpose of
laying down the conditions of service and recruitment of
persons to be appointed to public services and posts in
connection with the affairs of the Union or any of the
States. That article contemplates the drawing up of a
procedure and rules to regulate the recruitment and
regulate the service conditions of appointees appointed
to public posts. It is well acknowledged that because of
this, the entire process of recruitment for services is
controlled by detailed procedures which specify the
necessary qualifications, the mode of appointment, etc.
If rules have been made under Article 309 of the
Constitution, then the Government can make
appointments only in accordance with the rules. The
State is meant to be a model employer. The Employment
Exchanges (Compulsory Notification of Vacancies) Act,
1959 was enacted to ensure equal opportunity for
employment seekers. Though this Act may not oblige an
employer to employ only those persons who have been
sponsored by employment exchanges, it places an
obligation on the employer to notify the vacancies that
may arise in the various departments and for filling up
of those vacancies, based on a procedure. Normally,
statutory rules are framed under the authority of law
governing employment. It is recognised that no
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government order, notification or circular can be
substituted for the statutory rules framed under the
authority of law. This is because, following any other
course could be disastrous inasmuch as it will deprive
the security of tenure and the right of equality conferred
on civil servants under the constitutional scheme. It may
even amount to negating the accepted service
jurisprudence. Therefore, when statutory rules are
framed under Article 309 of the Constitution which are
exhaustive, the only fair means to adopt is to make
appointments based on the rules so framed.”
44. In the above paragraph, the Supreme Court reiterated that the rules
framed under the Statues are to be followed for the purpose of selection and
appointments or regularization or permanent absorption. In the present case,
the service regulations are framed pursuant to the powers conferred on the
authority under the provisions of the Tamil Nadu Water Supply and Drainage
Board Act, 1970. Therefore, such service regulations are to be followed for
the purpose of recruitment, regularization, permanent
absorption or otherwise.
45. It is relevant to extract paragraph Nos.43 to 50 of the Judgment.
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The Constitution Bench settled the legal principles and the same are extracted
hereunder:
“43. Thus, it is clear that adherence to the rule of
equality in public employment is a basic feature of our
Constitution and since the rule of law is the core of our
Constitution, a court would certainly be disabled from
passing an order upholding a violation of Article 14 or in
ordering the overlooking of the need to comply with the
requirements of Article 14 read with Article 16 of the
Constitution. Therefore, consistent with the scheme for
public employment, this Court while laying down the law,
has necessarily to hold that unless the appointment is in
terms of the relevant rules and after a proper competition
among qualified persons, the same would not confer any
right on the appointee. If it is a contractual appointment,
the appointment comes to an end at the end of the
contract, if it were an engagement or appointment on
daily wages or casual basis, the same would come to an
end when it is discontinued. Similarly, a temporary
employee could not claim to be made permanent on the
expiry of his term of appointment. It has also to be
clarified that merely because a temporary employee or a
casual wage worker is continued for a time beyond the
term of his appointment, he would not be entitled to be
absorbed in regular service or made permanent, merely
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on the strength of such continuance, if the original
appointment was not made by following a due process of
selection as envisaged by the relevant rules. It is not
open to the court to prevent regular recruitment at the
instance of temporary employees whose period of
employment has come to an end or of ad hoc employees
who by the very nature of their appointment, do not
acquire any right. The High Courts acting under Article
226 of the Constitution, should not ordinarily issue
directions for absorption, regularisation, or permanent
continuance unless the recruitment itself was made
regularly and in terms of the constitutional scheme.
Merely because an employee had continued under cover
of an order of the court, which we have described as
“litigious employment” in the earlier part of the
judgment, he would not be entitled to any right to be
absorbed or made permanent in the service. In fact, in
such cases, the High Court may not be justified in issuing
interim directions, since, after all, if ultimately the
employee approaching it is found entitled to relief, it may
be possible for it to mould the relief in such a manner
that ultimately no prejudice will be caused to him,
whereas an interim direction to continue his employment
would hold up the regular procedure for selection or
impose on the State the burden of paying an employee
who is really not required. The courts must be careful in
ensuring that they do not interfere unduly with the
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economic arrangement of its affairs by the State or its
instrumentalities or lend themselves the instruments to
facilitate the bypassing of the constitutional and statutory
mandates.
44. The concept of “equal pay for equal work” is
different from the concept of conferring permanency on
those who have been appointed on ad hoc basis,
temporary basis, or based on no process of selection as
envisaged by the rules. This Court has in various
decisions applied the principle of equal pay for equal
work and has laid down the parameters for the
application of that principle. The decisions are rested on
the concept of equality enshrined in our Constitution in
the light of the directive principles in that behalf. But the
acceptance of that principle cannot lead to a position
where the court could direct that appointments made
without following the due procedure established by law,
be deemed permanent or issue directions to treat them as
permanent. Doing so, would be negation of the principle
of equality of opportunity. The power to make an order
as is necessary for doing complete justice in any cause or
matter pending before this Court, would not normally be
used for giving the go-by to the procedure established by
law in the matter of public employment. Take the
situation arising in the cases before us from the State of
Karnataka. Therein, after Dharwad decision [(1990) 2
SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
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(1990) 1 SCR 544] the Government had issued repeated
directions and mandatory orders that no temporary or ad
hoc employment or engagement be given. Some of the
authorities and departments had ignored those directions
or defied those directions and had continued to give
employment, specifically interdicted by the orders issued
by the executive. Some of the appointing officers have
even been punished for their defiance. It would not be
just or proper to pass an order in exercise of jurisdiction
under Article 226 or 32 of the Constitution or in exercise
of power under Article 142 of the Constitution permitting
those persons engaged, to be absorbed or to be made
permanent, based on their appointments or engagements.
Complete justice would be justice according to law and
though it would be open to this Court to mould the relief,
this Court would not grant a relief which would amount
to perpetuating an illegality.
45. While directing that appointments, temporary
or casual, be regularised or made permanent, the courts
are swayed by the fact that the person concerned has
worked for some time and in some cases for a
considerable length of time. It is not as if the person who
accepts an engagement either temporary or casual in
nature, is not aware of the nature of his employment. He
accepts the employment with open eyes. It may be true
that he is not in a position to bargain - not at arm's
length - since he might have been searching for some
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employment so as to eke out his livelihood and accepts
whatever he gets. But on that ground alone, it would not
be appropriate to jettison the constitutional scheme of
appointment and to take the view that a person who has
temporarily or casually got employed should be directed
to be continued permanently. By doing so, it will be
creating another mode of public appointment which is
not permissible. If the court were to void a contractual
employment of this nature on the ground that the parties
were not having equal bargaining power, that too would
not enable the court to grant any relief to that employee.
A total embargo on such casual or temporary
employment is not possible, given the exigencies of
administration and if imposed, would only mean that
some people who at least get employment temporarily,
contractually or casually, would not be getting even that
employment when securing of such employment brings at
least some succour to them. After all, innumerable
citizens of our vast country are in search of employment
and one is not compelled to accept a casual or temporary
employment if one is not inclined to go in for such an
employment. It is in that context that one has to proceed
on the basis that the employment was accepted fully
knowing the nature of it and the consequences flowing
from it. In other words, even while accepting the
employment, the person concerned knows the nature of
his employment. It is not an appointment to a post in the
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real sense of the term. The claim acquired by him in the
post in which he is temporarily employed or the interest
in that post cannot be considered to be of such a
magnitude as to enable the giving up of the procedure
established, for making regular appointments to
available posts in the services of the State. The argument
that since one has been working for some time in the
post, it will not be just to discontinue him, even though he
was aware of the nature of the employment when he first
took it up, is not one that would enable the jettisoning of
the procedure established by law for public employment
and would have to fail when tested on the touchstone of
constitutionality and equality of opportunity enshrined in
Article 14 of the Constitution.
46. Learned Senior Counsel for some of the
respondents argued that on the basis of the doctrine of
legitimate expectation, the employees, especially of the
Commercial Taxes Department, should be directed to be
regularised since the decisions in Dharwad[(1990) 2
SCC 396 : 1990 SCC (L&S) 274 : (1990) 12 ATC 902 :
(1990) 1 SCR 544] ,Piara Singh [(1992) 4 SCC 118 :
1992 SCC (L&S) 825 : (1992) 21 ATC 403 : (1992) 3
SCR 826] , Jacob [Jacob M. Puthuparambil v.Kerala
Water Authority, (1991) 1 SCC 28 : 1991 SCC (L&S) 25
: (1991) 15 ATC 697] and Gujarat Agricultural
University [Gujarat Agricultural University v. Rathod
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Labhu Bechar, (2001) 3 SCC 574 : 2001 SCC (L&S)
613] and the like, have given rise to an expectation in
them that their services would also be regularised. The
doctrine can be invoked if the decisions of the
administrative authority affect the person by depriving
him of some benefit or advantage which either (i) he had
in the past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be permitted to
continue to do until there have been communicated to
him some rational grounds for withdrawing it on which
he has been given an opportunity to comment; or (ii) he
has received assurance from the decision-maker that they
will not be withdrawn without giving him first an
opportunity of advancing reasons for contending that
they should not be withdrawn. [See Lord Diplock in
Council for Civil Services Union v. Minister of Civil
Service [1985 AC 374 : (1984) 3 All ER 935 : (1984) 3
WLR 1174 (HL)] , National Buildings Construction
Corpn. v. S. Raghunathan [(1998) 7 SCC 66 : 1998 SCC
(L&S) 1770] and Chanchal Goyal (Dr.) v. State of
Rajasthan [(2003) 3 SCC 485 : 2003 SCC (L&S) 322] .]
There is no case that any assurance was given by the
Government or the department concerned while making
the appointment on daily wages that the status conferred
on him will not be withdrawn until some rational reason
comes into existence for withdrawing it. The very
engagement was against the constitutional scheme.
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Though, the Commissioner of the Commercial Taxes
Department sought to get the appointments made
permanent, there is no case that at the time of
appointment any promise was held out. No such promise
could also have been held out in view of the circulars
and directives issued by the Government after Dharwad
decision [(1990) 2 SCC 396 : 1990 SCC (L&S) 274 :
(1990) 12 ATC 902 : (1990) 1 SCR 544] . Though, there
is a case that the State had made regularisations in the
past of similarly situated employees, the fact remains that
such regularisations were done only pursuant to judicial
directions, either of the Administrative Tribunal or of the
High Court and in some cases by this Court. Moreover,
the invocation of the doctrine of legitimate expectation
cannot enable the employees to claim that they must be
made permanent or they must be regularised in the
service though they had not been selected in terms of the
rules for appointment. The fact that in certain cases the
court had directed regularisation of the employees
involved in those cases cannot be made use of to found a
claim based on legitimate expectation. The argument if
accepted would also run counter to the constitutional
mandate. The argument in that behalf has therefore to be
rejected.
47. When a person enters a temporary
employment or gets engagement as a contractual or
casual worker and the engagement is not based on a
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proper selection as recognised by the relevant rules or
procedure, he is aware of the consequences of the
appointment being temporary, casual or contractual in
nature. Such a person cannot invoke the theory of
legitimate expectation for being confirmed in the post
when an appointment to the post could be made only by
following a proper procedure for selection and in cases
concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate
expectation cannot be successfully advanced by
temporary, contractual or casual employees. It cannot
also be held that the State has held out any promise while
engaging these persons either to continue them where
they are or to make them permanent. The State cannot
constitutionally make such a promise. It is also obvious
that the theory cannot be invoked to seek a positive relief
of being made permanent in the post.
48. It was then contended that the rights of the
employees thus appointed, under Articles 14 and 16 of
the Constitution, are violated. It is stated that the State
has treated the employees unfairly by employing them on
less than minimum wages and extracting work from them
for a pretty long period in comparison with those directly
recruited who are getting more wages or salaries for
doing similar work. The employees before us were
engaged on daily wages in the department concerned on
a wage that was made known to them. There is no case
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that the wage agreed upon was not being paid. Those
who are working on daily wages formed a class by
themselves, they cannot claim that they are discriminated
as against those who have been regularly recruited on
the basis of the relevant rules. No right can be founded
on an employment on daily wages to claim that such
employee should be treated on a par with a regularly
recruited candidate, and made permanent in
employment, even assuming that the principle could be
invoked for claiming equal wages for equal work. There
is no fundamental right in those who have been employed
on daily wages or temporarily or on contractual basis, to
claim that they have a right to be absorbed in service. As
has been held by this Court, they cannot be said to be
holders of a post, since, a regular appointment could be
made only by making appointments consistent with the
requirements of Articles 14 and 16 of the Constitution.
The right to be treated equally with the other employees
employed on daily wages, cannot be extended to a claim
for equal treatment with those who were regularly
employed. That would be treating unequals as equals. It
cannot also be relied on to claim a right to be absorbed
in service even though they have never been selected in
terms of the relevant recruitment rules. The arguments
based on Articles 14 and 16 of the Constitution are
therefore overruled.
49. It is contended that the State action in not
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regularising the employees was not fair within the
framework of the rule of law. The rule of law compels the
State to make appointments as envisaged by the
Constitution and in the manner we have indicated
earlier. In most of these cases, no doubt, the employees
had worked for some length of time but this has also been
brought about by the pendency of proceedings in
tribunals and courts initiated at the instance of the
employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted to
perpetuate an illegality in the matter of public
employment and that would be a negation of the
constitutional scheme adopted by us, the people of India.
It is therefore not possible to accept the argument that
there must be a direction to make permanent all the
persons employed on daily wages. When the court is
approached for relief by way of a writ, the court has
necessarily to ask itself whether the person before it had
any legal right to be enforced. Considered in the light of
the very clear constitutional scheme, it cannot be said
that the employees have been able to establish a legal
right to be made permanent even though they have never
been appointed in terms of the relevant rules or in
adherence of Articles 14 and 16 of the Constitution.
50.It is argued that in a country like India where
there is so much poverty and unemployment and there is
no equality of bargaining power, the action of the State
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in not making the employees permanent, would be
violative of Article 21 of the Constitution. But the very
argument indicates that there are so many waiting for
employment and an equal opportunity for competing for
employment and it is in that context that the Constitution
as one of its basic features, has included Articles 14, 16
and 309 so as to ensure that public employment is given
only in a fair and equitable manner by giving all those
who are qualified, an opportunity to seek employment. In
the guise of upholding rights under Article 21 of the
Constitution, a set of persons cannot be preferred over a
vast majority of people waiting for an opportunity to
compete for State employment. The acceptance of the
argument on behalf of the respondents would really
negate the rights of the others conferred by Article 21 of
the Constitution, assuming that we are in a position to
hold that the right to employment is also a right coming
within the purview of Article 21 of the Constitution. The
argument that Article 23 of the Constitution is breached
because the employment on daily wages amounts to
forced labour, cannot be accepted. After all, the
employees accepted the employment at their own volition
and with eyes open as to the nature of their employment.
The Governments also revised the minimum wages
payable from time to time in the light of all relevant
circumstances. It also appears to us that importing of
these theories to defeat the basic requirement of public
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employment would defeat the constitutional scheme and
the constitutional goal of equality.”
46. Undoubtedly, in paragraph No.53, the Supreme Court has granted
one time permission to clear the pending files regarding grant of
regularization. However, in paragraph No.54, the Supreme Court in clear
terms held that “those decisions which run counter to the principle settled in
this decision, or in which directions running counter to what we have held
herein, will stand denuded of their status as precedents.” Therefore, in the
matter of confirmation of service of the permanent absorption, the
Constitution Bench Judgment is the binding law and any other judgment of
any Court running counter to the legal principles settled by the Constitution
Bench stands denuded of their status as precedents.
47. This being the authoritative pronouncement of the Constitution
Bench, and applying the ratio decidenti laid down by other Constitution
Bench in the case of National Insurance Company of India, this Court is
bound to follow the Constitution Bench judgment in the matter of permanent
absorption or regularization or appointments. Thus, all other judgments
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produced by the learned counsel for the respondents – workmen are of no
avail to consider the case of the respondents – workmen for grant of
permanent absorption or to issue a direction to implement the orders of
Inspectors of Labour granting the permanent status.
48. The Inspector of Labour had not considered any of these legal
principles settled by the Constitution Bench of the Supreme Court of India.
Contrarily, mechanical approach has been adopted by the Inspectors of
Labour and the relief of permanent status is granted by merely verifying the
length of services rendered by these casual laborers. In other words, he
simply verified certain records to find out whether the casual laborers have
served 480 days are not. If so, then pass an order for grant of permanent
status. This being the routine and mechanical orders passed by the Inspector
of Labour, this Court has to consider the legal principles, implications and
adverse consequences as well as the violation of the Constitutional principles.
49. To elaborate the adverse consequences in respect of these routine
orders of the Inspectors of Labour, for instance, large number of such casual
laborers are engaged by various Government Organizations, undertakings,
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Boards and Government Company. The casual laborers were engaged on
daily wage basis in order to complete projects or to meet out certain
emergency or exigency. Thus, the casual laborers were not appointed by
following the recruitment rules in force. The engagement of these contract
laborers on daily wage basis are made on the basis of mere identification. At
the outset, all such engagements are made at the choice of the authorities and
they are appointed even through certain corrupt practices, favoritism or
nepotism. Thus, all these engagements of casual laborers, on need basis, are
either illegal or irregular appointment.
50. In the event of granting permanent status for these causal labourers,
based on the orders of the Inspector of Labour under the conferment of
Permanent Status Act, then the back door route created by these authorities
would become an illegal channel of appointment and consequently, it would
amount to violation of the Constitutional mandates. No reservations are
followed. No merit assessments are made. No selection process was
conducted. Such practice would lead to corrupt activities and the
Constitutional rights of all eligible candidates, who are all aspiring to secure
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public employment would remain infringed. Thus, such method of granting
conferment of permanent status can never be approved by the Constitutional
Courts. Even in respect of causal laborers, the process of selection must be
conducted for grant of regularization or permanent absorption, and rules in
force are to be followed, so as to ensure that the regular appointments in the
sanctioned posts are made by following the rules and by providing equal
opportunity to all the eligible candidates, who are all aspiring to secure
employment.
51. The adverse consequences of this method of grant of confirmation
would be that the principles of equality in employment enunciated in the
Constitution is violated. The rule of reservations are violated. The scheme of
appointment under the recruitment rules are also violated. Thus, the
Constitutional Courts cannot approve such appointments, regularization or
permanent absorption, which would have adverse impact on the concept of
social justice as resolved by “We, the people of India” in the preamble of the
Constitution. “Individualization of justice” can never be appreciated.
Sometimes one may contend that the molding of relief is not preferable or
such molding may be considered as an excess exercise. However, the scope
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of Article 226 of the Constitution of India has been elaborated by the
Constitution Bench and the Larger Benches of the Constitutional Courts
across the Country. Thus, as a custodian of the Constitution, the High Court
has to ensure that the principles of social justice, philosophy and ethos of the
Constitution are also taken care, while granting the relief or molding of the
relief. The writ petition under Article 226 cannot be compared with the Civil
suit, wherein the issues alone are to be settled with reference to the
documents and evidences. In a Writ Petition under Article 226 of the
Constitution of India, the Courts are empowered to mould the relief in order
to ensure that Constitutional mandates and perspectives are implemented and
protected. This being the spirit of the Constitution, this Court is of the
considered opinion that the principles laid down by the Constitutional Bench
in “Umadevi's” case, is not only the guiding principles, but also binding the
law under Article 141 of the Constitution of India. Thus, any other judgment
of any High Court or the judgment of the two judges Bench of the Hon'ble
Supreme Court of India denuded of their status as precedents. All the Courts
across the Country are bound by the Constitution Bench judgment in the
matter of grant of permanent absorption, with reference to the illegal or
irregular appointments.
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52. In the present case, the TWAD Board which is a “State” within the
meaning of Article 12 of the Constitution of India, is a Board created under a
statute and being administered. The Board is implementing the Water Supply
and Drainage Schemes across the State of Tamil Nadu. Thus, the TWAD
Board being a “State” is governed under the Act namely the Tamil Nadu
Water Supply and Drainage Board Act, 1970 as well as the service
regulations of the year 1972. The said Act and Rules alone are to be
construed as special laws, as far as appointments, regularizations and
permanent absorptions of the employees of the Board are concerned. The
conferment of permanent status is a general law, as far as the TWAD Board
is concerned. Thus, the recruitments, regularizations or permanent
absorptions are to be made strictly in consonance with the service regulations
of the TWAD Board. Any other order passed by the authority under the
general law, running counter to the service regulations of the TWAD Board
cannot be implemented at all. But such orders of the competent authorities
under the general law are to be construed as in violation of the special Act
and Rules, and further to be construed in violation of the scheme of
recruitment as well as grant of permanent absorption under the TWAD Board
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service regulations.
53. The Inspector of Labour is routinely and mechanically passing
orders conferring permanent status without following the legal principles
settled by the Apex Court of India. Number of such orders are passed.
However, the fact remains that the casual labourers/daily wage rated
employees who were engaged by the Government Departments or
Government Undertakings or Organizations are very much aware of their
engagements and they have no right of permanent absorption. The terms and
conditions of such services are also known to these casual labourers.
Accepting all such terms and conditions, they are working as casual
labourers/daily wage rated employees. Under these circumstances, the Modus
Operandi being adopted by these casual laborers or their
Organizations/Unions is that to file an application before the Inspector of
Labour, get a routine order of the permanent status and file a writ petition
seeking implementation of the order of Inspector of Labour. Thereafter,
secure permanent appointment in the Government Organizations,
Undertakings and Departments. This Modus Operandi being followed by
these causal labourers for securing permanent appointment in Government
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Organizations/Undertakings is in violation of the Constitution of Scheme of
appointments and Recruitment Rules and can never be approved by the High
Court. Such a practice is going on for the purpose of securing public
appointments across the State, more specifically, in Government
Undertakings, Government Organizations and Government Departments. The
Standing Orders are not adopted by the Government
Departments/Organizations. When a separate statute is in force governing the
Organizations and Service Regulations are also framed by virtue of powers
conferred under the Act, then there is no reason whatsoever to grant such
routine orders of permanent status by the Inspector of Labour under the
general law. Under these circumstances, this Court is of the strong opinion
that such method of back door appointments/permanent absorptions must be
stopped at once in order to enforce the principles of equal opportunity in
employment enunciated under the Constitution of India. Such a back door
route created for securing permanent absorption is undoubtedly
unconstitutional.
54. All appointments, permanent absorptions are to be made strictly in
accordance with Rules in force. Equal opportunity being the Constitutional
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mandate, all Citizen, who are all aspiring to secure public employment must
be provided with an opportunity to participate in the open competitive
process with reference to the Rules of Reservation in force. The equality
clause enunciated cannot be diluted at any costs, in view of the fact that there
are many back doors kept open even now for entering into public services.
All those back door methods are to be closed forthwith and all public
appointments are to be made by providing not only equal opportunity but also
create an effective and efficient public administration, which is also a
Constitutional mandate. The Constitution provides that even while
implementing the reservation, the State must ensure efficient Public
Administration. Thus, efficient public administration being a concept
contemplated under the Constitution, the equal opportunity must go hand-in-
hand and then only, the State can achieve the Constitutional goal in this
regard. Back door methods are utilized for entering into the public services
only by the persons, who are incapable of participating in the competitive
process. Thus, such method of appointments other wise not in accordance
with the Rules in force can never be encouraged by the Court nor any orders
can be passed for grant of permanent absorption depriving the meritorious
candidates to secure public employment by participating in the competitive
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process under the Constitutional Scheme.
55. The learned counsel for the respondents - workmen contended that
the Conferment of Permanent Status is automatic and this Court is of the
opinion that the said principles may be applied in an Industrial Establishment,
which is not a State within the meaning of Article 12 of the Constitution of
the India. However, the said principles laid down by the Division Bench of
this Court cannot be applied with reference to the appointments to be made in
public services in a State or in instrumentality of the State. The conferment of
permanent status cannot have any universal application. It has got restricted
application in order to prevent unfair labour practice in Industrial
Establishments. However, those concepts would not be applicable with
reference to the public services in a State or in instrumentality of the State
wherein the Service Regulations are very much in force and those Service
Regulations being Special Law must be applied in order to provide
appointments and permanent absorption with reference to the procedures
contemplated.
56. This being the principles to be followed, this Court is of the
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considered opinion that the Inspector of Labour has not considered any of
these issues. The Labour Officer has simply verified the fact whether the
respondents – workmen have completed 480 days of service or not, then,
passed an order, granting permanent status. If such order is allowed to be
implemented, then the consequences would be disastrous. There is a
possibility of appointing any person without even assessing the suitability and
eligibility as casual labourers and thereafter, grant permanent absorption
through back door methods. If the sanctioned posts of the Government
Organizations are filled up in such a manner, then, undoubtedly, the efficient
administration to be provided under the Constitution is completely diluted and
such back door appointments are to be curbed and all appointments are to be
made in accordance with the Rules in force.
57. In this view of the matter, the Writ Petition is allowed and the
impugned order passed by the Inspector of Labour in Proceeding in
Na.Ka.No.Aa/36/2015 dated 05.03.2018 is quashed. However, there shall be
no order as to costs. Consequently, the connected miscellaneous petition is
closed.
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Index : Yes 17.10.2022
Speaking order
sha
To
Inspector of Labour,
Authority under (conferment
of Permanent Status to workmen) Act 1981,
Krishngiri Dist.
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W.P.No.15377 of 2018
S.M.SUBRAMANIAM, J.
sha
W.P.No.15377 of 2018
17.10.2022
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