Madras High Court
A.Anbu vs The Chief Secretary on 20 October, 2022
W.P.No.26472 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.10.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.26472 of 2016
1.A.Anbu
2.K.Radha
3.G.Saravana kumar
4.M.Balakrishnan
5.T.Chandrasekar ...Petitioners
Vs.
1.The Chief Secretary
to Government of Tamil Nadu,
Personnel and Administrative
Reforms (F) Department,
Fort St.George,
Chennai – 600 009.
2.The Principal Secretary
to Government of Tamil Nadu,
Highways and Small Ports (HM2)
Department, Secretariat,
Chennai – 600 009.
3.The Director General,
Highways Department,
Chepauk, Chennai – 600 005.
4.The Joint Director,
O/o.the Director General,
Highways Department,
Chepauk, Chennai – 600 005. ..Respondents
1/15
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W.P.No.26472 of 2016
Prayer : Writ Petition filed Under Article 226 of the Constitution of India,
to issue a Writ of Mandamus, directing the respondents to appoint the
petitioners to the post of Junior Draughting Officer complying with
G.O.Ms.No.22, Personnel and Administrative Reforms Department dated
28.02.2006 and without reference to G.O.Ms.No.74 Personnel and
Administrative (F) Department dated 27.06.2013.
For Petitioners : Mr.T.P.Prabakaran
For R1 to R4 : Mr.K.Karthik Jaganath
Government Advocate
ORDER
The Writ of Mandamus has been instituted to direct the respondents
to appoint the petitioners to the post of Junior Draughting Officer in
compliance with G.O.Ms.No.22, Personnel and Administrative Reforms
Department dated 28.02.2006 and without reference to G.O.Ms.No.74,
Personnel and Administrative (F) Department dated 27.06.2013.
2. The petitioners state that they were engaged as daily wage
employees as Junior Draughting Officers and all the petitioners are the
holders of Diploma in Civil Engineering. The third respondent issued
Recruitment Notification on 26.10.2015, calling for applications from the
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W.P.No.26472 of 2016
Diploma holders in Civil Engineering for recruitment to the post of Junior
Draughting Officer in Highways Department of the Government of Tamil
Nadu. The petitioners submitted their respective applications pursuant to the
Notification. They have stated that they are already working in the
Highways Department as daily wage employees and they have completed 10
years of temporary services and therefore, they are to be considered for
appointment based on G.O.Ms.No.22, P & AR Department dated
28.02.2006 for appointment to the post of Junior Draughting Officer.
However, the case of the writ petitioners were not considered, since they
were over aged. Thus, they have filed the writ petition, stating that the
subsequent Government Order issued in G.O.Ms.No.74, P & R Department
dated 27.06.2013, superseding the Government order issued in
G.O.Ms.No.22, P & AR Department dated 28.02.2006 cannot be
implemented as far as the case of the writ petitioners is concerned.
3. The learned counsel for the writ petitioners made a submission that
the Government imposed several conditions in G.O.Ms.No.74 dated
27.06.2013 and the said Government order cannot be implemented
retrospectively, so as to affect the prospects of the petitioner to secure
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W.P.No.26472 of 2016
appointment to the post of Junior Draughting Officer pursuant to the earlier
Government order issued in G.O.Ms.No.22 dated 28.02.2006.
4. In support of the said contention, the learned counsel for the
petitioners relied on the judgment of the Hon’ble Division Bench dated
10.01.2017 in W.A.(MD).No.1127 of 2016, wherein the Division Bench
held that G.O.Ms.No.74 dated 27.06.2013 has to be implemented
prospectively. The said judgment has been confirmed by the Hon’ble
Supreme court of India in S.L.P.(C).No.7494 of 2017 dated 20.03.2017.
Thus, the authorities have failed to consider the claim of the writ petitioners
for appointment based on G.O.Ms.No.22 dated 28.02.2006. However, they
are attempting to implement the Government order issued in G.O.Ms.No.74,
P & R Department dated 27.06.2013, so as to reject the case of the writ
petitioners for appointment to the post of Junior Draughting Officer. Thus,
the petitioners are constrained to move the present writ petition.
5. The learned Government Advocate appearing on behalf of the
respondents objected the said contentions by stating that regarding the
Recruitment Notification of the year 2015, the petitioners had filed writ
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W.P.No.26472 of 2016
petitions before this Court in W.P.No.37987 of 2015 and other batch of writ
petitions were filed. The prayer sought for is to relax the age limit
prescribed in the recruitment notification. Those writ petitions were
dismissed by this Court. Therefore, the petitioners were not allowed to
participate in the further process of selection and subsequently, they filed
the present writ petition, seeking appointment to the post of Junior
Draughting Officer based on G.O.Ms.No.22 dated 28.02.006, which was
already superseded by the Government through another Government order
issued in G.O.Ms.No.74 dated 27.06.2013.
6. The petitioners were engaged as daily wage employees and
therefore, they are not entitled for regularization or permanent absorption.
The initial appointment of the writ petitioners were not made in accordance
with the recruitment rules in force. Thus, the appointment of the writ
petitioners were irregular and therefore, they cannot seek regularization in
the sanctioned post of Junior Draughting Officer.
7. Considering the arguments as advanced between the respective
learned counsels appearing on behalf of the parties to the lis, it is not in
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W.P.No.26472 of 2016
dispute that the Government order issued in G.O.Ms.No.74, P & R
Department dated 27.06.2013 has got prospective effect. The principles laid
down in this regard by the Hon’ble Division Bench of this Court in
W.A.(MD).No.1127 of 2016 was confirmed in other judgments also. Thus,
the G.O.Ms.No.74 dated 27.06.2013 is to be given effect to with prospective
effect.
8. Question arises, whether G.O.Ms.No.22, P & AR Department dated
28.02.2006 can be applied in the case of the writ petitioners. The said
Government order issued in G.O.Ms.No.22 dated 28.02.2006 was
superseded through G.O.Ms.No.74, P & R Department dated 27.06.2013
and therefore, the said G.O.Ms.No.22 dated 28.02.2006 is not in force and
thus, it cannot be applied at all.
9. Beyond the Government orders, the principles settled for
appointment, regularization and permanent absorption by the Constitution
Bench of the Hon’ble Supreme Court of India in the case of The Secretary,
State of Karnataka and others vs. Umadevi and others reported in (2006)
4 Supreme Court Cases 1 are to be considered. All appointments are to be
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W.P.No.26472 of 2016
made strictly in accordance with the rules in force. Equal opportunity in
public employment is the constitutional mandate. The equality clause
enunciated in the Constitution at no circumstances be diluted, infringing the
Fundamental Rights of all other citizen, who all are aspiring to secure public
employment through open competitive process. The Hon’ble Supreme Court
has emphatically held that irregular and illegal appointments cannot be
regularized nor persons, who were appointed through backdoor cannot seek
the benefit of regular appointment, regularization or permanent absorption.
In the event of regularizing the irregular and illegal appointments, or
appointing persons in violation of the recruitment rules, the same would
result in infringement of the Constitutional rights of lakh and lakh of youth
of this great Nation and thus, the unconstitutionality in the matter of public
employments must be stopped forthwith. In the context of the principles laid
down by the Constitution Bench, in paragraph 53 of the judgment in 'Uma
Devi's case' (cited supra), the Constitution Bench granted permission to
complete the process in respect of the pending proposals during the relevant
point of time. However, the Hon’ble Supreme Court of India has never
allowed that the irregularity in this regard must be continued in perpetuity.
The one time permission granted by the Hon’ble Supreme Court is restricted
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W.P.No.26472 of 2016
only in respect of the proposals, which were pending during the relevant
point of time, when the judgment was delivered and after the judgment, the
principles laid down by the Constitution Bench became the Law of the land
and binding on all the authorities and the Courts across the country.
10. In paragraph 54 of the judgment in 'Uma Devi's case' (cited
supra), the Constitution Bench in unequivocal terms held that any judgment
of any Court or the Government or its orders running counter to the
principles laid down by the Constitution Bench have denuded to loose its
status as precedent and those judgments or Government orders cannot be
followed for the purpose of appointment, regularization or permanent
absorption. Thus, any Government order in the matter of regularization,
permanent absorption or appointment is to be tested with reference to the
principles laid down by the Constitution Bench of the Hon’ble Supreme
Court of India in the case of 'Uma Devi' (cited supra)
11. In the case of State of Rajasthan and others Vs. Daya Lal and
others reported in (2011) 2 SCC 429, the Hon'ble Supreme Court held that
“the High Courts, in exercising power under Article 226 of the Constitution
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W.P.No.26472 of 2016
will not issue directions for regularization, absorption or permanent
continuance, unless the employees claiming regularization had been
appointed in pursuance of a regular recruitment in accordance with
relevant rules in an open competitive process, against sanctioned vacant
posts. The equality clause contained in Articles 14 and 16 should be
scrupulously followed and Courts should not issue a direction for
regularization of services of an employee which would be violative of the
constitutional scheme. While something that is irregular for want of
compliance with one of the elements in the process of selection which does
not go to the root of the process, can be regularized, back door entries,
appointments contrary to the constitutional scheme and/or appointment of
ineligible candidates cannot be regularized.'
12. Mere continuance of service of a temporary or ad hoc or daily
wage employee, under cover of some interim orders of the Court, would not
confer upon him any right to be absorbed into service as such absorption
would result in violation of the recruitment rules in force and therefore, all
appointments are to be made only by following the procedures as
contemplated under the recruitment rules in force.
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W.P.No.26472 of 2016
13. In the present case, the writ petitioners were engaged as daily
wage employees and continuing as such. At the time of appointment,
knowing the terms and conditions, the petitioners accepted the daily wage
employment and therefore, now they cannot turn around and claim the
benefit of regular appointment, regularization or permanent absorption,
which is in violation of the recruitment rules in force. Once the terms and
conditions of the appointments are agreed between the employer and the
employee, then the employee cannot seek permanent absorption or
appointment in violation of the recruitment rules and in the event of such
consideration either by the authorities or by the Courts, the same would
result in unconstitutionality and infringe the rights of large number of
citizen, who all are longing to secure public employment through open
competitive process.
14. The very principles laid down indicates that backdoor
appointments are to be stopped forthwith. The practice of entering into
public services through backdoor and thereafter, claiming appointment in a
sanctioned post or regularization or permanent absorption if allowed, the
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W.P.No.26472 of 2016
repercussion would be disastrous and the equality clause enunciated is
directly violated. The Courts in this regard are not expected to show any
misplaced sympathy merely based on the services rendered by these
employees as daily wage employees. Such misplaced sympathy would result
in violation of equality clause enunciated under Article 14 of the
Constitution of India. Thus, the Government orders if at all issued, which all
are running counter to the principles laid down by the Constitution Bench in
Uma devi's case (cited supra), such Government orders cannot be followed
by the authorities competent and the law laid down by the Constitution
Bench became binding on all the authorities and the Courts. Thus, the
Government orders issued are also to be implemented with reference to the
principles settled by the Hon’ble Supreme Court of India.
15. The main contention raised in the present writ petition is that the
Government order issued in G.O.Ms.No.74 dated 27.06.2013 cannot be
implemented retrospectively, so as to affect the prospects of the petitioner
for appointment to the post of Junior Draughting Officer based on
G.O.Ms.No.22 dated 28.02.2006. The issue became irrelevant, in view of
the fact that the Government order issued in G.O.Ms.No.22 dated
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W.P.No.26472 of 2016
28.02.2006 was superseded and based on the said superseded order, no one
can claim the benefit of appointment, regularization and permanent
absorption. Once the Government order has been superseded, the
subsequent Government order issued in G.O.Ms.No.74 dated 27.06.2013
came into force and any proposal, which is pending or which is to be
submitted, the said proposals are to be considered only with reference to the
order issued in G.O.Ms.No.74 dated 27.06.2013.
16. Even in respect of the said Government order issued in
G.O.Ms.No.74 dated 27.06.2013, the backdoor appointments or illegal or
irregular appointments at no circumstances can be a basis for providing
appointment, regularization or permanent absorption. Thus, G.O.Ms.No.74
dated 27.06.2013 must also be implemented, keeping in mind the principles
settled by the Hon’ble Supreme court of India.
17. At the outset, backdoor appointments can never be regularized.
Persons appointed through backdoor must be allowed to go out from the
door through which they have entered into public service and therefore, this
Court is of the considered opinion that the petitioners, who were engaged as
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W.P.No.26472 of 2016
daily wage employees are not entitled for appointment to the post of Junior
Draughting Officer in a sanctioned post and they are bound to participate in
the process of selection if they are otherwise qualified for securing
permanent employment.
18. Thus, this Court is not inclined to consider the relief as such
sought for in the present writ petition and accordingly, the writ petition
stands dismissed. No costs.
20.10.2022
Index : Yes
Speaking order:Yes
kak
To
1.The Chief Secretary
to Government of Tamil Nadu,
Personnel and Administrative
Reforms (F) Department,
Fort St.George, Chennai – 600 009.
2.The Principal Secretary
to Government of Tamil Nadu,
Highways and Small Ports (HM2)
Department, Secretariat,
Chennai – 600 009.
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W.P.No.26472 of 2016
3.The Director General,
Highways Department,
Chepauk, Chennai – 600 005.
4.The Joint Director,
O/o.The Director General,
Highways Department,
Chepauk, Chennai – 600 005.
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W.P.No.26472 of 2016
S.M.SUBRAMANIAM, J.
kak
W.P.No.26472 of 2016
20.10.2022
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