Madras High Court

R.Settu vs The Secretary To The Government on 16 September, 2022

                                                                              W.P.No.24969 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 16.09.2022

                                                      CORAM :

                            THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM

                                            Writ Petition No.24969 of 2016
                                                          and
                                              W.M.P.No.21338 of 2016


                     R.Settu                                                 ...Petitioner

                                                         -Vs-


                     1. The Secretary to the Government,
                        Industries Department,
                        St.George Fort, Chennai-600 009

                     2. The Director,
                        Sericulture Department,
                        Aanaimedu, Salem-1.                                  ...Respondents

                     Prayer: Writ Petition filed under Article 226 of the Constitution of India
                     praying for the issuance of a Writ of Mandamus, directing the 2 nd
                     respondent to regularise petitioner's service from the date of appointment
                     i.e., on 04.03.1992 in the regular time scale of pay and with all other
                     consequential benefits.

                                     For Petitioner   : Mr.R.Murugesan

                                     For Respondents : Mr.K.H.Ravi Kumar,
                                                      Government Advocate

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                     1/11
                                                                                    W.P.No.24969 of 2016

                                                           ORDER

The relief sought for in the present writ petition is to direct the

second respondent to regularise the service of the writ petitioner from the

date of appointment i.e., from 04.03.1992 in the regular time scale of pay

with all consequential service benefits.

2. The petitioner states that he was appointed as daily wage

employee in the Sericulture Department on 04.03.1992. The learned

counsel for the petitioner reiterated that the petitioner was working

continuously in the Department and therefore, he is entitled to be

regularised in the sanctioned post in the time scale of pay. The petitioner

made several representations to consider his case for grant of

regularisation in accordance with G.O.Ms.No.22 dated 28.02.2006 which

was issued by the Government for the purpose of regularising the

services of the daily wage employee. In spite of the representations, the

case of the writ petitioner was not considered. Thus, the petitioner is

constrained to move the present writ petition.

3. The learned Government Advocate appearing on behalf of the

respondents objected to the said contentions by stating that the petitioner

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W.P.No.24969 of 2016

initially joined duty as daily wage worker in Manikandam Farmers

Training Centre under control of the Assistant Director of Sericulture,

Trichy, on 14.03.1992. The petitioner worked up to 31.05.1995 and from

01.06.1995 to 30.08.1998 the petitioner was not in duty. The petitioner

returned to duty on 01.09.1998 and worked up to 30.06.2000. Again the

petitioner did not turn up for duty from 01.07.2000 to 31.08.2000 and

turned up for duty from 01.09.2000 to 31.12.2000. Again, the petitioner

was not in duty from 01.01.2001 to 31.01.2001 and turned up again for

duty from 01.02.2001 to 31.05.2001. Then the petitioner again did not

turn up for duty from 01.06.2001 to 12.03.2015. The petitioner joined

duty again on 13.03.2015 and he has worked up to 31.07.2016. The

petitioner had not rendered continuous service. As there were as many as

four breaks in the service, the petitioner is not entitled to the benefit of

regularisation of the service.

4. It is contended that the Government Order issued in

G.O.(Ms)No.22, Personal and Administrative Reforms (F) Department,

dated 28.02.2006 was canceled and subsequently, a modified order was

issued in G.O.(Ms)No.74, Personal and Administrative Reforms (F)

Department dated 27.06.2013. The case of the writ petitioner, during the https://www.mhc.tn.gov.in/judis

W.P.No.24969 of 2016

relevant point of time, was not considered since the petitioner had not

rendered continuous service as required under the Government Order.

5. This Court is of the considered opinion that the regularisation or

permanent absorption cannot be claimed as an absolute right.

Regularisation is to be granted strictly in accordance with the rules in

force. Irregular or illegal appointments cannot be regularised in violation

of the service rules in force. Perusal of the order of appointment dated

04.03.1992 reveals that the petitioner was appointed as daily wage

employee through Employment Exchange. However, the rules relating to

the reservation and other procedures were not followed, and thus, the

initial appointment of the writ petitioner cannot be construed as regular

and in accordance with the rules in force. Since the initial appointment of

the writ petitioner was on a daily wage basis and he was not appointed in

a sanctioned post in the time scale of pay, he cannot claim regularisation

or permanent absorption. That apart, the respondents have stated that the

petitioner was not working continuously. Irregular or illegal

appointments cannot be regularised in violation of the rules in force. In

this regard, the principles are settled by the Constitution Bench of the

Hon’ble Supreme Court of India in the case of State of Karnataka Vs.

Uma Devi and Others reported in (2006) 4 SCC 1. Hon’ble Supreme https://www.mhc.tn.gov.in/judis

W.P.No.24969 of 2016

Court in a subsequent judgement in Secretary to Government, School

Education Department, Chennai, Vs. R. Govindaswamy and Others,

reported in (2014) 4 SCC 769 reiterated that the High Court exercising

power under Article 226 of the Constitution of India will not issue

direction for regularization or permanent absorption, unless the

employees claiming regularisation had been appointed in pursuance of

the regular recruitment in accordance with the relevant rules in open

competitive process against sanctioned vacant posts. The equality clause

contained in Articles 14 and 16 should be scrupulously followed and

Court should not issue a direction for regularisation 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 regularised. Back door entries, appointments, contrary to

the constitutional scheme and/or appointment of ineligible candidates

cannot be regularised. The principles regarding the grant of

regularisation and permanent absorption with reference to the

judgements were considered by this Court in W.P.No.33001 of 2014

dated 29.06.2022 and the relevant paragraphs are as under:

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W.P.No.24969 of 2016

“ 4. The validity of the said Government Order at this length of time is questionable, in view of the principles settled by the Constitution Bench of the Hon'ble Supreme Court of India in the case of State of Karnataka Vs. Uma Devi reported in 2004 (4) SCC 1 which became the law on the subject of regularization and permanent absorption. The Government Orders issued years back cannot be implemented. Any decisions which are running counter to the principles laid down by the Hon'ble Constitution Bench of India cannot be followed at this length of time and in the event of any such consideration, the Courts are violating the principles settled by the Constitution Bench and by the subsequent judgments of the Apex.

5. Once the Constitution Bench has settled the principles regarding the regularization and permanent absorption, any Government Order running counter to the principles, cannot be implemented and based on such Government Orders, benefits cannot be conferred by the Courts. The said position also has been unambiguously stipulated by the Constitution Bench of Hon'ble Supreme Court of India in Paragraph 54 of the Judgment. In Paragraph 53 of the Judgment, the Hon'ble Supreme Court of India has given one time measure for the purpose of regularizing the services for the purpose of clearing the proposals, which all were pending before the Government for regularization. Such one time measure granted cannot be continued for an indefinite period. In Paragraph 54 of the

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W.P.No.24969 of 2016

said judgment, the Hon'ble Supreme Court in unambiguous terms held that 'It is also clarified 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 all the judgments and Government Orders running counter to the principles laid down by the Constitution Bench of the Hon'ble Supreme Court of India stands denuded of their status as precedents and the said Government Orders or the judgments by the High Courts or even by two Judges' Bench of the Hon'ble Supreme Court of India cannot be followed. Those judgments are to be read in the context of the particular facts and circumstances of the case.

6. However, the principles settled by the Constitution Bench is to be followed as precedent. In the matter of following the precedents again another Constitution Bench of the Hon'ble Supreme Court of India in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 (6) SCC 680 held that the hierarchy in this aspect is to be maintained by all Courts scrupulously.

7. Thus, any judgment running counter to the principles settled by the Constitution Bench of the Hon'ble Supreme Court cannot be followed as precedent for the purpose of considering the relief. All such judgments are to be confined only with reference to the facts of that particular case and cannot be followed as precedent. The Government has

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W.P.No.24969 of 2016

passed several such orders granting the benefit of regularization or permanent absorption on various circumstances for many years by granting relaxation of Rules, such relaxation of Rules cannot be now granted in a routine manner, even by the Government. The appointments made in an irregular or illegal manner cannot be regularized by granting relaxation or otherwise.

8. Regularisation or permanent absorption cannot be granted in violation of the recruitment rules in force. Equal opportunity in public employment is the Constitutional mandate. Lakhs and Lakhs youth of our great Nation are longing to secure public employment through open competitive process and they are working hard for the purpose of succeeding in the competitive process. While so, back door appointments or illegal or irregular appointments, if regularised, undoubtedly, the fundamental rights of those candidates, who all are aspiring to secure public employment through open competitive process are infringed. The equality clause enunciated under the Constitution must be implemented in its real spirit. Thus, the back door appointments are to be stopped forthwith in order to ensure that equal opportunity in public employment is provided to all the eligible candidates through open competitive process by implementing the rule of reservation.

9. The principles of justice requires that the Constitutional principles and mandates are preserved in the interest of the

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W.P.No.24969 of 2016

society at large. Misplaced sympathy or leniency, if leads to unconstitutionality, then the Courts would be slow in showing such sympathy or leniency. Therefore, the leniency may be permissible only in certain exceptional cases, in the event of no unconstitutionality or non violation of any Statutes and Rules. Thus, there cannot be any misplaced sympathy in the matter of upholding the Constitutional mandates, Philosophy and Ethos.

10. If at all, the benefit of regularisation and permanent absorption are granted to irregular and illegal appointments in a routine manner, no doubt, the fundamental rights of all the eligible persons, who all are waiting for securing public employment are violated. Courts are bound to consider the plea of those poor people from rural and semi-urban areas of our great Nation, who all are preparing meticulously to face the competitive process with a fond of hope that their merits will be recognised by the State in one way or other for the purpose of securing public employment. What would be the answer for those poor people from villages and semi-urban areas, who all are mostly non exposed to these illegalities and irregularities and corrupt activities in Government employments. Thus, the Constitutional Courts are bound to protect the interest of those meritorious candidates, who all are not before the Courts. The principles of justice requires that all these aspects are to be borne in mind.

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11. All appointments are to be made strictly in accordance with the recruitment Rules in force. Thus, the back door appointments, at no circumstances be regularized and the persons who were appointed through back door must be allowed to go out from the door through which they have entered into public service.

6. In view of the facts and circumstances, this Court is of the

considered opinion that the petitioner was engaged as daily wage

employee and he was not serving continuously and that apart, the

Government with reference to its orders found that the petitioner was not

eligible for regularisation and therefore, this Court is not inclined to

consider the relief as such sought for in the present writ petition.

7. Accordingly, this writ petition stands dismissed. No costs.

Consequently, connected miscellaneous petition also stands closed.

16.09.2022

Index:Yes Speaking order sha/gpa

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W.P.No.24969 of 2016