Madras High Court
T. Arumugam vs The State Rep. By on 11 December, 2023
Author: M.S.Ramesh
Bench: M.S.Ramesh
W.P.Nos.25359 & 25362 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.12.2023
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
W.P.Nos.25359 & 25362 of 2023
and W.M.P.No.24766 of 2023
T. Arumugam ... Petitioner in WP.No.25359/2023
S. Jayalakshmi ... Petitioner in WP.No.25362/2023
Vs.
1.The State rep. by
Principal Secretary to Government,
School Education Department,
Secretariat, Chennai – 600 009.
2.The Director,
Directorate of Elementary Education,
DPI Campus,
Nungambakkam, Chennai – 600 018.
3.The District Collector,
Thiruvannamalai District.
4.The Chief Educational Officer,
Thiruvannamalai District,
Thiruvannamalai.
5.The District Elementary Educational Officer,
Cheyyar,
Thiruvannamalai District. ... Respondents in both WPs
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W.P.Nos.25359 & 25362 of 2023
6.The Block Educational Officer,
Thellar Block,
Vandavasi Taluk,
Thiruvannamalai District. ... 6th Respondent in
WP.No.25359/2023
6.The Block Educational Officer,
Anakkavur Block,
Cheyyar Taluk,
Thiruvannamalai District. ... 6th Respondent in
WP.No.25362/2023
Common Prayer: Writ Petitions filed under Article 226 of the
Constitution of India, praying to issue a Writ of Certiorarified Mandamus,
calling for the records of the 1st respondent in his proceedings in
Govt.Letter(Nilai)No.2261/Pa.Ka.4(1)/2022 and
Govt.Letter(Nilai)No.2214/Pa.Ka.4(1)/2022, dated 20.03.2023,
subsequent letter of 5th & 6th respondents in their proceedings in
Na.Ka.No.1975/A1/2023 and Na.Ka.No.1206/A1/2023, dated 06.06.2023
and 22.05.2023, quash the same and consequently direct the 1st respondent
to regularize the petitioners' service from the date of appointment i.e.
28.11.1997 and 01.04.2008, respectively, and give time scale salary and
other attendant benefits in the light of judgment passed by this Court in
WP.No.19954 of 2013, which was upheld by the Division Bench in
W.A.No.1258 of 2018.
For Petitioners : Mr.P. Murali
(in both WPs)
For Respondents : Mrs.V. Yamuna Devi,
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W.P.Nos.25359 & 25362 of 2023
(in both WPs) Special Government Pleader
ORDER
Heard the learned counsel for the petitioners, as well as the learned
Special Government Pleader appearing for the respondents.
2. The petitioners who are admittedly the part-time sweepers, seek
for regularization from the date of their appointment and other benefits in
the light of the order passed by this Court in W.P.No.19954 of 2013,
which was upheld by the Division Bench in W.A.No.1258 of 2018.
3. In the order passed by this Court in W.P.No.19954 of 2013, the
four sweepers who were appointed by the Parents Teachers Association
(PTA) as ad hoc appointees, had sought for regularization and their claim
is pending. At this juncture, the Government had brought in
G.O.Ms.No.47, dated 02.03.2012, whereby, they had sought for filling up
5000 posts of sweepers through regular appointment. This Court had
taken note of the fact that those sweepers have put up long service as ad
hoc appointees and even though there were thousands of vacancies, the
Government had not regularized their services but, however, had sought
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W.P.Nos.25359 & 25362 of 2023
for appointing 786 sweepers and it is in this background, this Court
directed the respondents to regularize the services of the ad hoc appointees
from the date of the said Government Order i.e. from 02.03.2012. Thus,
the order passed in W.P.No.19954 of 2013, may not be applicable to the
petitioners herein.
4. Incidentally, in the case of 'S. Anjammal Vs. The State of Tamil
Nadu, Personnel and Administrative Reforms Department & others', an
order came to be passed by me on 21.09.2022 in W.P.No.5619 of 2014,
wherein, reliance was placed on various decisions of the Hon'ble Supreme
Court, as well as this Court and ultimately held that the claim of the
petitioner therein, who was the part-time sweeper, seeking for
regularization, cannot be considered. The said order reads as follows:-
“2. When similarly placed part-time sweepers from the
same respondent/Department had approached this Court
seeking for such regularisation, the issue came to be finally
decided by the Hon'ble Supreme Court in the case of
'Secretary Government, School Education Department,
Chennai Vs. Thiru. R. Govindaswamy & others' reported in
'(2014) 4 SCC 769', in the following manner:-
“5. The issue involved here remains restricted as to
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W.P.Nos.25359 & 25362 of 2023
whether the services of the part-time sweepers could
have been directed by the High Court to be
regularized. The issue is no more res integra.
In State of Karnataka & Ors. v. Umadevi & Ors.,
AIR 2006 SC 1806, this Court held as under:
“There is no fundamental right in those who
have been employed on daily wages or
temporarily or on contractual basis, to claim
that they have a right to be absorbed in
service. As has been held by this Court, they
cannot be said to be holders of a post, since,
a regular appointment could be made only
by making appointments consistent with the
requirements of Articles 14 and 16 of the
Constitution. The right to be treated equally
with the other employees employed on daily
wages, cannot be extended to a claim for
equal treatment with those who were
regularly employed. That would be treating
unequals as equals. It cannot also be relied
on to claim a right to be absorbed in service
even though they have never been selected in
terms of the relevant recruitment rules.”
6. In Union of India & Ors. v. A.S. Pillai & Ors.,
(2010) 13 SCC 448, this Court dealt with the issue of
regularisation of part-time employees and the court
refused the relief on the ground that part-timers are
free to get themselves engaged elsewhere and they
are not restrained from working elsewhere when they
are not working for the authority/employer. Being
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W.P.Nos.25359 & 25362 of 2023
the part-time employees, they are not subject to
service rules or other regulations which govern and
control the regularly appointed staff of the
department. Therefore, the question of giving them
equal pay for equal work or considering their case
for regularisation would not arise.
7. This Court in State of Rajasthan & Ors. v. Daya
Lal & Ors., AIR 2011 SC 1193, has considered the
scope of regularisation of irregular or part-time
appointments in all possible eventualities and laid
down well-settled principles relating to
regularisation and parity in pay relevant in the
context of the issues involved therein. The same are
as under:
“8(i) The High Courts, in exercising power
under Article 226 of the Constitution will not
issue directions for regularisation,
absorption or permanent continuance, unless
the employees claiming regularisation 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 regularisation of
services of an employee which would be
violative of the constitutional scheme. While
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W.P.Nos.25359 & 25362 of 2023
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.
(ii) Mere continuation of service by 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 service would be “litigious
employment”. Even temporary, ad hoc or
daily-wage service for a long number of
years, let alone service for one or two years,
will not entitle such employee to claim
regularisation, if he is not working against a
sanctioned post. Sympathy and sentiment
cannot be grounds for passing any order of
regularisation in the absence of a legal
right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a
scheme providing that persons who had put
in a specified number of years of service and
continuing in employment as on the cut-off
date), it is not possible to others who were
appointed subsequent to the cut-off date, to
claim or contend that the scheme should be
applied to them by extending the cut-off date
or seek a direction for framing of fresh
schemes providing for successive cut-off
dates.
(iv) Part-time employees are not entitled to
seek regularisation as they are not working
against any sanctioned posts. There cannot
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W.P.Nos.25359 & 25362 of 2023
be a direction for absorption, regularisation
or permanent continuance of part-time
temporary employees.
(v) Part-time temporary employees in
government-run institutions cannot claim
parity in salary with regular employees of
the Government on the principle of equal pay
for equal work. Nor can employees in private
employment, even if serving full time, seek
parity in salary with government employees.
The right to claim a particular salary against
the State must arise under a contract or
under a statute.” (Emphasis added)
8. The present appeals are squarely covered by
clauses (ii), (iv) and (v) of the aforesaid judgment.
Therefore, the appeals are allowed. However, in
light of the facts and circumstances of the case as
Shri P.P. Rao, learned senior counsel has submitted
that the appellant has already implemented the
impugned judgments and does not want to disturb
the services of the respondents, the services of the
respondents which stood regularised should not be
affected.”
3. A similar view was also taken in the case of
'Secretary to Government Commercial Taxes and
Registration Department & another Vs. A.Singamuthu'
wherein, the ratio laid down in the case of 'Secretary
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W.P.Nos.25359 & 25362 of 2023
Government, School Education Department, Chennai Vs.
Thiru. R. Govindaswamy & others' supra was followed.
Thus, the claim of the petitioner who is a part-time sweeper,
seeking for regularisation, cannot be considered in view of
the aforesaid decisions....”
5. The petitioners herein, who are also part-time sweepers, have now
sought for regularization of their services. In view of the decision taken by
me in S. Anjammal's case (supra), the present Writ Petitions cannot be
taken into consideration.
6. At this juncture, the learned counsel for the petitioners submitted
that though T.Arumugam (petitioner in WP.No.25359 of 2023) had
continued in service after 2013 also, he was not paid the consolidated
salary.
7. Per contra, the learned Special Government Pleader placed
reliance on the averments made in the counter-affidavit and submitted that
the T.Arumugam (petitioner in WP.No.25359 of 2023) was relieved from
work on 01.06.2018 and all the dues were paid.
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W.P.Nos.25359 & 25362 of 2023
8. In case, T.Arumugam (petitioner in WP.No.25359 of 2023) is of
the view that the statement made by the respondents is not correct, liberty
is hereby granted to him, to make a representation seeking for any unpaid
amounts and on receipt of such representation, the respondents shall
consider the same within a period of four (4) weeks from the date of
receipt of the representation.
9. Accordingly, the Writ Petitions stand dismissed. No costs.
Connected miscellaneous petition is closed.
11.12.2023
Speaking/Non-speaking order
Index:Yes/No
Internet: Yes/No
Neutral Citation: Yes/No
Sni
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W.P.Nos.25359 & 25362 of 2023
To
1.The Principal Secretary to Government,
School Education Department,
Secretariat, Chennai – 600 009.
2.The Director,
Directorate of Elementary Education,
DPI Campus,
Nungambakkam, Chennai – 600 018.
3.The District Collector,
Thiruvannamalai District.
4.The Chief Educational Officer,
Thiruvannamalai District,
Thiruvannamalai.
5.The District Elementary Educational Officer,
Cheyyar,
Thiruvannamalai District.
6.The Block Educational Officer,
Thellar Block,
Vandavasi Taluk,
Thiruvannamalai District.
7.The Block Educational Officer,
Anakkavur Block,
Cheyyar Taluk,
Thiruvannamalai District.
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W.P.Nos.25359 & 25362 of 2023
M.S.RAMESH,J.
Sni
W.P.Nos.25359 & 25362 of 2023
11.12.2023
https://www.mhc.tn.gov.in/judis
