Madras High Court
P.Gopal vs The District Collector on 7 September, 2022
W.P.No.6023 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Writ Petition No.6023 of 2016
P.Gopal ...Petitioner
-Vs-
1. The District Collector,
Erode District, Erode.
2. The District Revenue Officer,
Erode District, Erode. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Mandamus, directing the
respondents to regularize the petitioner's service in the post of Computer
Operator, Collectorate, Erode.
For Petitioner : Mr.C.Prakasam
For Respondents : Mr.J.Mohamed Sathik
Government Advocate
ORDER
The relief sought for in the writ petition is to direct the respondents
to regularize the services of the writ petitioner in the post of Computer
Operator in Collectorate, Erode.
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W.P.No.6023 of 2016
2. The petitioner was appointed as Typist-cum-Computer Operator
on 20.02.2006 on consolidated pay salary. Learned counsel for the
petitioner made a submission that the petitioner was allowed to continue
as a temporary employee on consolidated pay for several years and
therefore, he is entitled to be regularized in the sanctioned post in the
time scale of pay. It is contended that the initial appointment of
Computer Operator was made pursuant to orders passed by the
Government of Tamil Nadu in G.O.(2D)No.4, Highways and Minor Ports
(HV1) Department, dated 06.02.2015. Thus, the petitioner was appointed
based on the Government decision and thus the services are to be
regularized. The persons appointed in similar circumstances, on
consolidated pay salary, were considered and the benefit of
regularization was granted. Thus the same benefit is to be extended to the
writ petitioner also.
3. Learned Government Advocate appearing on behalf of the
respondents objected the said contentions by stating that the writ
petitioner was appointed temporarily on consolidated pay salary and the
consolidated pay salary was enhanced periodically. However, the writ
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W.P.No.6023 of 2016
petitioner was appointed in a project and therefore, he cannot seek any
regularization. That apart, the post was created from 01.01.2015 and it
was renewed every year. All these posts of Computer Operator were
created temporarily for the purpose of completion of certain projects and
scheme and therefore, the benefit of regularization cannot be considered.
That part, the initial appointment of the writ petitioner was not made in
accordance with recruitment rules in force. Thus, the petitioner cannot
seek regularization.
4. Learned Government Advocate relied on the judgment of the
Hon'ble Supreme Court of India, recently rendered in the case of State of
Gujarat and others vs.R.J..Pathan and others reported in (2022) 5 SCC
394. The relevant paragraphs are Paragraphs 2.1, 6, 13 and 16, which
read as follows:
“2.1. The learned Single Judge vide order
dated 25-11-2011 dismissed the said writ petition by
observing that the appointment of the original writ
petitioners was only for eleven months on a fixed
salary, which has been continued from time to time,
and the unit in which they were appointed
temporarily was a "Project Implementation Unit”
only for the purpose of rehabilitation pursuant to the
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W.P.No.6023 of 2016
earthquake for the "Post-Earthquake Redevelopment
Programme" and they were not regularly appointed
on any permanent sanctioned posts in any
establishment of the Government where the writ
petitioners have any lien.
...
6. At the outset, it is required to be noted that
the respondents herein – origina writ petitioners
were, as such, appointed in a temporary project,
which was created only for the purpose of
rehabilitation pursuant to the earthquake for "Post-
Earthquake Redevelopment Programme". All of
them were initially appointed for a period of eleven
months on a fixed salary, which came to be
continued from time to time till the requirement in a
particular project/unit – "Project Implementation
Unit". However, as the said unit was required to be
closed which, as such, was a temporary unit, instead
of putting an end to the services of the respondents,
the State Government thought it fit to transfer and
place them with the Indian Red Cross Society. At this
stage, the respondents approached the High Court
and challenged their placement with the Indian Red
Cross Society.
...
13. Now, so far as the reliance placed upon the
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W.P.No.6023 of 2016
decision of this Court in Umadevi (3) 4 and the
subsequent decision of this Court in Narendra
Kumar Tiwari5, relied upon by the learned counsel
appearing on behalf of the respondents is concerned,
none of the aforesaid decisions shall be applicable
to the facts of the case on hand. The purpose and
intent of the decision in Umadevi (3)4 was, (1) to
prevent irregular or illegal appointments in the
future, and (2) to confer a benefit on those who had
been irregularly appointed in the past and who have
continued for a very long time. The decision of
Umadevi (3)4 may be applicable in a case where the
appointments are irregular on the sanctioned posts
in regular establishment. The same does not apply to
temporary appointments made in a
project/programme.
...
16. From the impugned order1 passed by the
Division Bench of the High Court it appears that the
High Court has observed herein above that in the
peculiar facts and circumstances of the case, it is
directed that the order of absorption and
regularisation and if necessary, by creating
supernumerary posts, will not be treated as a
precedent in other cases. Even such a direction
could not have been passed by the Division Bench of
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W.P.No.6023 of 2016
the High Court as there were no peculiar facts and
circumstances which warranted the above
observation. No such order of absorption and/or
regularisation even if required for creating
supernumerary posts and not to treat the same as
precedent could have been passed by the High Court
in exercise of powers under Article 226 of the
Constitution of India.”
5. Regularization or permanent absorption cannot be granted in
violation of the Recruitment Rules in force. Irregular and illegal
appointments cannot be regularised. Equal opportunities in public
employment is the constitutional mandate. All eligible candidates who all
are aspiring to secure public employment must be provided an
opportunity to participate in the process of selection and thus, the
Authorities Competent cannot regularise the services of the temporary,
irregular or illegal appointments in violation of the Recruitment Rules in
force. Only if the appointments in sanctioned posts are made in
accordance with the rules, then alone the benefit of regularisation can be
granted but not otherwise.
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W.P.No.6023 of 2016
6. The principles regarding the grant of regularisation or
permanent absorption are settled by the Constitutional Bench of the
Hon'ble Supreme Court of India in the Case of State of Karnataka Vs.
UmaDevi and Others reported in (2006)4SCC 1. The Apex Court has
reiterated that back door appointments can never be regularised. In the
present case, though it is not a back door appointment, it was made for
completion of a project through Employment Exchange. However, the
Recruitment Rules as applicable has not been followed. That apart, the
post itself is not a sanctioned post and it was a temporarily created post
and the same was renewed by the Government on yearly basis. Thus, the
employment itself is temporary and the petitioner was appointed on
consolidated pay salary. Beyond all these, the petitioner while accepting
the offer of appointment, agreed with the terms and conditions stipulated
in the order of appointment. Appointment order stipulates that he is
appointed on temporary basis on consolidated pay salary. On expiry of
the post on completion of one year, the post was renewed and also the
temporary employee was allowed to continue on same terms and
conditions. Thus, the petitioner was all along serving accepting the terms
and conditions stipulated and thus, he cannot turn around and seek
regularization in a sanctioned post in the time scale of pay.
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W.P.No.6023 of 2016
7. If at all, the petitioner wants to secure permanent employment,
he has to participate in the open competitive process along with all other
eligible candidates whenever such notifications are issued for selection
and appointment. The equality clause enunciated under the constitution
at no circumstance be violated by the Competent Authorities and in the
event of regularising such temporary appointments, the scope for regular
appointment will be minimized and in such circumstances, the
fundamental right of eligible citizen is also infringed. Thus, the terms
and conditions of the appointments are to be scrupulously followed and
the eligible candidates, who all are aspiring to secure public employment
have to participate in the process of selection along with all other
candidates and get appointment on merits in accordance with law and
also through rules of reservation as contemplated.
8. However, this Court has not expressed any opinion regarding
the continuance of the petitioner as a temporary employee on need basis.
9. With these observations the writ petition stands dismissed. No
costs.
07.09.2022
Index:Yes
Speaking order
sha/gpa
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W.P.No.6023 of 2016
To
1. The District Collector,
Erode District, Erode.
2. The District Revenue Officer,
Erode District, Erode.
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W.P.No.6023 of 2016
S.M.SUBRAMANIAM, J.
sha/gpa
W.P.No.6023 of 2016
07.09.2022
https://www.mhc.tn.gov.in/judis
