Madras High Court
C.Thangadurai vs The Executive Engineer on 17 October, 2022
W.P.No.18543 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.18543 of 2018
and
W.M.P.No.21885 of 2018
1. C.Thangadurai
2. K.Periathambi
3. V.Arumugam
4. T.K.Kumar
5. N.Saravanan
6. K.Selvam
7. G.Sinagaravelan
8. P.Sugadevarajaguru
9. E.Thiruvenkadam
10. S.Sundaram
11. K.Prabhu
12. L.Govindaraj
13. V.Ramesh ...Petitioners
1/44
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Vs.
1. The Executive Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Division, Krishnagiri
Krishnagiri District
2. The Assistant Executive Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Sub Division
Uthankarai, Krishnagiri District
3. The Assistant Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Sub Division, Uthankarai
Krishnagiri District
4. The Assistant Commissioner of Labour
Krishnagiri District, Krishnagiri .. Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to
issue a writ of Mandamus, directing the first respondent to implement the
award dated 5.3.2018 in proceedings Na.Ka. No.A/36/2015 passed by the
fourth respondent within the time frame as may be fixed by this Honourable
Court.
For Petitioners : Mrs.R.Kamatchi Sundhari for
M/s Law Square
For Respondents :
For R1 to R3 : Mr.S.Ravindran, Senior Counsel
for Mrs.S.Mekhala
For R4 : Mr.G.Nanmaran,
Special Government Pleader
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ORDER
The lis on hand is filed to direct the first respondent to implement the
award passed by the fourth respondent, in Na.Ka.No.A/36/2015 dated
05.03.2018 thereby conferring permanent status to the petitioners.
2. All the writ petitioners are working in the operation and
maintenance of Combined Water Supply Schemes to Perandapalli and other
habitations under the Control of the Tamil Nadu Water Supply and Drainage
Board (hereinafter referred to as 'TWAD' Board) as Electricians and
Maintenance Assistant.
3. The writ petitioners state that they have completed 480 days of
continuous service in a period of 24 calendar months, and therefore, they are
entitled to get permanent status, as per Section 3(1) of the Tamil Nadu
Industrial Establishment (Conferment of Permanent Status to Workmen) Act,
1981. The writ petitioners had approached the competent authorities to
regularize their services from the date of completion of 480 days of
continuous service. In spite of several representations both oral and writing,
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the respondents have failed to look into the same. Consequently, the writ
petitioners filed an application before the fourth respondent, the Assistant
Commissioner of Labour, Krishnagiri, for a direction to regularize their
services from the date of completion of 480 days of continuous service in a
period of 24 calendar months. The fourth respondent considering the claim of
the writ petitioners, passed an order granting permanent status with reference
to the Conferment of Permanent Status Act. Even after passing of the order of
the competent authority, the respondents have not taken any action to
implement the award. Several representations were sent. However, the efforts
of the writ petitioners went in vain. Therefore, the writ petitioners were
constrained to move the present writ petition seeking a writ of Mandamus.
4. The learned counsel for the writ petitioners reiterated that the writ
petitioners were employed as Turn Clock (Valve Operator), Electrician and
Fitter and they have completed 480 days of service. Therefore, they are
entitled for the benefit of the provisions of the Conferment of Permanent
Status Act. As per the order passed by the fourth respondent, the other
respondents ought to have regularized the services of the writ petitioners in
the sanctioned post and in regular time scale of pay.
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5. The learned counsel for the writ petitioners made a submission that
in similar circumstances, the case of other employees were considered by the
Madurai Bench of this Court in W.A.(MD).Nos.567 & 568 of 2018. The
appeal filed by the TWAD Board was dismissed and the benefit of the order
of the fourth respondent was granted in respect of other set of employees.
Thus, the benefit of order of the Division Bench is to be extended to the writ
petitioners in this writ petition also. It is also submitted that the claim of
certain other similarly placed workmen were considered by the Board and
they were regularized. However, the learned Senior counsel objected the said
contention by stating that those employees who got the benefit of
regularization are not similar to the petitioner as they were appointed in a
different category and the petitioners were engaged as contract labourer and
thus the said Government Order passed is not applicable with reference to the
facts and circumstances of the present case.
6. The learned counsel appearing on behalf of the respondents/TWAD
Board disputed the contention by stating that several other judgments were
also passed, rejecting the claim of the employees for grant of permanent
status and therefore, the writ petition is liable to be dismissed. By way of a
counter, the learned counsel for the respondents reiterated that in respect of
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the orders passed under the provisions of the Permanent Status Act, the
benefit was granted to other similarly placed persons in other judgments also
and therefore, the present writ petition is to be allowed by issuing a direction
to the respondents to implement the orders of the fourth respondent
conferring the permanent status. In view of the counter submissions, this
Court has to consider the following issues:
(i) Whether the Tamil Nadu Industrial Establishment (Conferment of
Permanent Status to Workmen), 1981 would be applicable to the employees
of the TWAD Board, which is a State Government Organization for the
purpose of granting the benefit of permanent absorption and regularization?
(ii) Whether the legal principles laid down by the Constitution Bench
of the Hon'ble Supreme Court of India in the case of State of Karnataka vs.
Uma Devi, 2006 (4) SCC 1, are followed in the earlier cases, regarding
appointments, regularization and permanent absorption.
(iii) Whether the Service Regulations, 1972 framed by virtue of powers
under Section 73 of the Tamil Nadu Water Supply and Drainage Board, 1970,
will prevail over the general law, namely the Conferment of Permanent Status
Act, as the Tamil Nadu Water Supplies and Drainage Board is a special law,
as far as the TWAD Board is concerned.
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7. Admittedly, the 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
President on 24.03.1971 and published in the Tamil Nadu Government
Gazette on 25.03.1971.
8. 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.
9. 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
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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
and the Board or such local authority, as the case may be, shall give effect to
all such orders and directions.
10. 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
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Committee to be constituted by the Board consisting of the
Chairman, the Managing Director and one more member to be
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.
(4) For promotion to posts of executive engineers and
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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.
(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.
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(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.
11. 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
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.
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12. 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. Accordingly, issues 1 and 3 are answered.
12(a). It is contended by the learned counsel for the
respondents/TWAD Board that the Standing Orders are applicable to the
TWAD Board. In fact, the Standing Orders are not adopted and all along the
TWAD Board is following the provisions of the Tamil Nadu Water Supply
and Drainage Board, 1970 and the Service Regulations, 1972 constituted in
order to exercise the powers conferred under Section 73 of the TWAD Board
Act. At no point of time, the Tamil Nadu Industrial Establishment
[Conferment of Permanent Status] is made available to the employees of the
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TWAD Board. In this regard, the Board also informed the Joint
Commissioner of Labour, Chennai and addressed the Government Scheme
seeking exemption from implementing the Standing Orders in TWAD Board.
Therefore, application of Standing Orders would not arise at all in this case,
as it was never made applicable to the employees of the TWAD Board.
13. In respect of Issue No.2, this Court is bound to consider what is the
binding law and whether the petitioners are entitled for the benefit of
regularization and permanent absorption, pursuant to the orders passed by the
fourth respondent under the Conferment of Permanent Status Act.
14. The admitted fact is that the petitioners have completed 480 days
of continuous service in a period of 24 calendar months. Therefore, the writ
petitioners have approached the fourth respondent, and the fourth respondent
also verified the fact regarding the length of services and accordingly, granted
the benefit of permanent status under the Conferment of Permanent Status
Act.
15. The legal principles as well as the ratio decidendi laid down by the
Constitution Bench of the Hon'ble Supreme Court of India in Uma Devi case
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had not been considered either by the fourth respondent or in the judgment
cited by the learned counsel for the writ petitioner. 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 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.
16. The learned counsel for the writ petitioner brought to the notice of
this Court regarding various orders passed by this Court, granting the benefit
of orders passed by the fourth respondent, 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 to the writ petitioners.
17. 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
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of the Uma Devi 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”.
18. The doctrine of binding precedent is of utmost importance in the
administration of our judicial system. It promotes certainty and consistency in
judicial decisions. Judicial consistency promotes confidence in the system. In
this prescriptive, 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 again 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
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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.
19. In the present case, the provision of the Tamil Nadu Water Supply
and Drainage Board Act, 1970 as well as the TWAD Board Service
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.
20. As far as the Constitution Bench Judgment is concerned, the legal
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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
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.
21. 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
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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 inasmuch as it is subjected to
constitutional limitations and cannot be 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
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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 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.
22. 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.
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23. It is relevant to extract paragraph Nos.43 to 50 of the Judgment.
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 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
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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 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
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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 :
(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
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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
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
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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 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
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Agricultural University [Gujarat Agricultural University v. Rathod
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. 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
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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 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
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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 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
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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 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
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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 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
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light of all relevant circumstances. It also appears to us that
importing of these theories to defeat the basic requirement of public
employment would defeat the constitutional scheme and the
constitutional goal of equality.
24. 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.
25. This being the authoritative pronouncement of the Constitution
Bench, and applying the ratio decidenti laid down by other Constitution
Bench in the National Insurance Company of India, this Court is bound to
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follow the Constitution Bench judgment in the matter of permanent
absorption or regularization or appointments. Thus, all other judgments
produced by the learned counsel for the writ petitioner are of no avail to
consider the case of the writ petitioner for grant of permanent absorption or to
issue a direction to implement the orders of fourth respondent granting the
permanent status.
26. The fourth respondent has 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 fourth respondent
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 these fourth respondents, this Court
has to consider the legal principles, implications and adverse consequences as
well as the violation of the Constitutional principles.
27. To elaborate the adverse consequences in respect of these routine
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orders of the fourth respondents, for instance, large number of such casual
laborers are engaged by various Government Organizations, undertakings,
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.
28. In the event of granting permanent status for these causal labourers,
based on the orders of the fourth respondent 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
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Constitutional rights of all eligible candidates, who are all aspiring to secure
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.
29. 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
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such molding may be considered as an excess exercise. However, the scope
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. Even 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 “Uma Devi 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
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irregular appointments.
30. Even recently, the Hon'ble Supreme Court of India in the case of
State of Bihar and others vs. Devendra Sharma in C.A.No.7879 of 2019
delivered a judgment on 17.10.2019. In the said case, the Government of
Bihar appointed Class III or Class IV employees in large scale without
following the recruitment rules and with some bogus letters. There are no
sanctioned posts and in the absence of sanctioned posts, large number of
persons were appointed through backdoor. Such appointments were dealt
with by the Apex Court of India in the above case and the Hon'ble Supreme
Court of India reiterated again that “ if the initial entry itself is unauthorised
and that appointment is not against sanctioned vacancy, therefore, the
question of regularizing of services would never arise for consideration”. It
is further observed that “ this Court found that as many as 3750 candidates
were appointed in totally unauthorised manner and were squatting against
non-existing vacancies. A situation had arisen which required immediate
action for clearing the stables and for eradicating the evil effects of these
vitiated recruitments”.
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31. While relying other judgments of the Apex Court including the
Constitution Bench of the “Uma Devi” and the other judgment in Ashwini
Kumar, the Supreme Court re-emphasized as follows:
42) In Nidhi Kaim & Anr. v. State of Madhya Pradesh &
Ors.16, a three Judge Bench was dealing with admission of students
to MBBS Course on the basis of illegal and unfair admission
process. The Court held as under:
“92. …Having given our thoughtful consideration to
the above submission, we are of the considered view
that conferring rights or benefits on the appellants,
who had consciously participated in a well thought
out, and meticulously orchestrated plan, to circumvent
well laid down norms, for gaining admission to the
MBBS course, would amount to espousing the cause of
“the unfair”. It would seem like allowing a thief to
retain the stolen property. It would seem as if the
Court was not supportive of the cause of those who
had adopted and followed rightful means. Such a
course would cause people to question the credibility
of the justice-delivery system itself. The exercise of
jurisdiction in the manner suggested on behalf of the
appellants would surely depict the Court's support in
favour of the sacrilegious. It would also compromise
the integrity of the academic community. We are of the
view that in the name of doing complete justice it is
not possible for this Court to support the vitiated
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actions of the appellants through which they gained
admission to the MBBS course.
94. …Even in situations where a juvenile
indulges in crime, he has to face trial, and is subjected
to the postulated statutory consequences. Law, has
consequences. And the consequences of law brook no
exception. The appellants in this case, irrespective of
their age, were conscious of the regular process of
admission. They breached the same by devious means.
They must therefore, suffer the consequences of their
actions. It is not the first time that admissions
obtained by deceitful means would be cancelled. This
Court has consistently annulled academic gains
arising out of wrongful admissions. Acceptance of the
prayer made by the appellants on the parameter
suggested by them would result in overlooking the
large number of judgments on the point. Adoption of a
different course, for the appellants, would trivialise
the declared legal position. Reference in this behalf
may be made to the judgments relied upon by the
learned counsel representing Vyapam.
108. …In the facts and circumstances of the case in
hand, it would not be proper to legitimise the
admission of the appellants to the MBBS course in
exercise of the jurisdiction vested in this Court under
Article 142 of the Constitution. We, therefore, hereby
decline the above prayer made on behalf of the
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appellants.”
43) In another three Judge Bench judgment in Chairman and
Managing Director, Food Corporation of India & Ors. v.Jagdish
Balaram Bahira & Ors.17, the Court was examining the
consequences of false caste certificate produced to seek
appointment. The Court held as under:
“69. For these reasons, we hold and declare that:
69.3. The decisions of this Court in
R.Vishwanatha Pillai [R. VishwanathaPillai v. State of
Kerala, (2004) 2 SCC 105 : 2004 SCC (L&S) 350] and
in Dattatray [Union of India v. Dattatray, (2008) 4
SCC 612 :(2008) 2 SCC (L&S) 6] which were rendered
by Benches of three Judges laid down the principle of
law that where a benefit is secured by an individual-
such as an appointment to a post or admission to an
educational institution—on the basis that the candidate
belongs to a reserved category for which the benefit is
reserved, the invalidation of the caste or tribe claim
upon verification would result in the appointment or,
as the case may be, the admission being rendered void
or non est.
69.7. Withdrawal of benefits secured on the basis of a
caste claim which has been found to be false and is
invalidated is a necessary consequence which flows
from the invalidation of the caste claim and no issue of
retrospectivity would arise;”
44) In view of the aforesaid judgments, it cannot be said that the
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appointment of the employees in the present set of appeals were
irregular appointments. Such appointments are illegal appointment
in terms of the ratio of Supreme Court judgment in Uma Devi. As
such appointments were made without any sanctioned post, without
any advertisement giving opportunity to all eligible candidates to
apply and seek public employment and without any method of
recruitment. Such appointments were backdoor entries, an act of
nepotism and favoritism and thus from any judicial standards cannot
be said to be irregular appointments but are illegal appointments in
wholly arbitrary process.
45) In light of the above discussion, we find that the order
dated July 12, 2011 or other similar orders passed by the High
Court cannot be sustained in law and, thus, are set aside. The
appeals filed by the State are allowed.
32. Even in the present case, these writ petitioners were engaged as
daily wage employees in non-sanctioned posts. The initial appointments were
not in accordance with recruitment rules in force, more specifically, the
Service Regulations of the year 1972. This being the factum, the question of
grant of permanent absorption would not arise at all and the said benefit, in
view of the above principles cannot be granted.
33. In the present case, the TWAD Board which is a “State” within the
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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
service regulations.
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34. The fourth respondent 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 fourth respondent, get a routine order of the permanent status and
file a writ petition seeking implementation of the order of fourth respondent.
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
Organizations/Undertakings is in violation of the Constitution of Scheme of
appointments and recruitment rules can never be approved by the High Court.
Such a practice is going on for the purpose of securing public appointments
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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
fourth respondent 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 in the
Constitution of India. Such a back door route created for securing permanent
absorption is undoubtedly unconstitutional. Accordingly, Issue No.2 is
answered.
35. In view of the discussions made in the afore-mentioned paragraphs,
this Court has no hesitation in arriving at a conclusion that the relief as such
sought for in the present writ petition is devoid of merits and stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
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17.10.2022
Index : Yes
Speaking order
sha
To
1. The Executive Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Division, Krishnagiri
Krishnagiri District
2. The Assistant Executive Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Sub Division
Uthankarai, Krishnagiri District
3. The Assistant Engineer
Tamil Nadu Water Supply and Drainage Board
Maintenance Sub Division, Uthankarai
Krishnagiri District
4. The Assistant Commissioner of Labour
Krishnagiri District, Krishnagiri
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S.M.SUBRAMANIAM, J.
sha
W.P.No.18543 of 2018
17.10.2022
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