Madras High Court
G.Malathy vs Union Of India on 25 January, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.01.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P No.6948 of 2021
1. G.Malathy
2. P.Purusotharaj
3. Sangeetha.B
4. Athithan
5. S.Selvamuthu
6. RupaAllampalli
7. Subisha.T.K
8. A.Bactavatchalou
9. P.Kumaran
10.P.Arumugam
11.T.Kannan
12.S.Ramesh
13.L.Jayachandran
14.S.Siranjeevi
15.Palepu Chinababu
16.P.Parthiban
17.R.Umadevi
18.U.Sivaraj
19.N.Thayabaran Petitioners
vs.
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2
1.Union of India
Rep by its Secretary,
Ministry of Agriculture Department and Co-Operation,
Krishi Bhavan, New Delhi- 110 001.
2.The Secretary to Government of Puducherry,
Agriculture and Farmers Welfare Department
New light House Road,
Vembakeerapalayam, Puducherry- 605 001.
3.The Government of Puducherry
Rep. by Director of Agriculture
Department of Agriculture
Puducherry.
4.The Additional Director of Agriculture (T and V)- Cum- Project Director
ATMA, Puducherry
Agricultural Complex, Thattanchavady
Puducheery- 605 009.
5.The Additional Director of Agriculture Cum- Project Director
ATMA , Karaikal,
Thalatheru,
Karaikal- 609 605. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus, directing the respondents to desist from
giving artificial breaks in the petitioners service and engage the petitioners in
the same post till the existence of the ATMA Scheme as Block Technology
Manager, Assistant Technology Manager, Computer Programmer, as the case
may be and thereby grant 10% enhancement in the salary annually, including
arrears and other consequential benefits flowing thereof.
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3
For Petitioners : Mr.B.Kumar
Senior Counsel for
Mr.B.Shruthan
For Respondents : Mr.Pazhani Raja
Central Government Standing Counsel
for R1
Mr.Syed Mustafa
Special Government Pleader
for R2 to R5
ORDER
This writ petition has been filed for the issue of writ of mandamus
directing the respondents to desist from giving artificial breaks in the services
of the petitioners and to engage the petitioners in the ATMA Scheme in the
same post and grant 10% enhancement in the salary annually and for a further
direction to the respondents to pay the arrears of salary and other benefits.
2.The petitioners are contractual employees working under Agricultural
Technology Management Agency (ATMA) Scheme. The particulars of the
appointment of the petitioners is tabulated hereunder:
S.No NAME DESIGNATION DoA
1 G.Malathy BTM 19.12.2013
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S.No NAME DESIGNATION DoA
2 P.Purusotharaj BTM 02.06.2014
3 B.Sangeetha BTM 11.06.2014
4 A.Athithan BTM 19.12.2013
5 S.Selvamuthu BTM 26.02.2014
6 RupaAllampalli BTM 19.12.2013
7 Subisha.T.K BTM 26.06.2014
8 A.Bactavatchalou BTM 26.02.2014
9 P.Kumaran BTM 02.06.2014
10 P.Arumugam BTM 26.10.2017
11 T.Kannan BTM 02.11.2017
12 S.Ramesh BTM 05.03.2020
13 L.Jayachandran ATM 26.02.2014
14 S.Siranjeevi ATM 26.02.2014
15 Palepu Chinababu ATM 26.02.2014
16 P.Parthiban ATM 03.11.2017
17 R.Umadevi ATM 08.03.2019
18 U.Sivaraj ATM 08.03.2019
19 N.Thayabaran CP 12.01.2018
3.The petitioners were recruited by the contractors, nominated by the 2 nd
respondent. Initially, the petitioners underwent training conducted by ATMA
and on completion of the training, the petitioners have been appointed to their
respective posts.
4.The ATMA Scheme is completely funded by the Government of India
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insofar as the Union Territory of Puduchery is concerned. The Scheme itself
provides that the implementing authority of the Scheme shall be the concerned
State Government or the Union Territory, as the case may be. The Contractors
who receive the funds from the Government of India, should credit the salary of
the employees and it forms part of the expenses incurred by the contractors.
5.As per the ATMA guidelines, the remuneration is payable in the
following manner:
2.9 MODE OF RECRUITMENT AND REMUNERATION:
(i) The BTMs and ATMs at Block Level will be engaged by Project
Director (PD), ATMA on contract basis through a mechanism identified
by the State. BTMs and ATMs should be preferably below 45 years of
age, as their work involves extensive travel/field activities. While, the
ATMs will remain under the administrative control of BTM, the BTM
will work under administrative control of PD, ATMA. However, some
States may prefer to link the BTM & ATMs with PD, ATMA through the
Block Development Officer (BDO), if activities of Agriculture and allied
departments are already being coordinated by the BDO at Block level.
(ii)The posts of State Coordinator, Gender Coordinator, BTM & ATM at
Block level and Computer Programmer/ Computer Operator (at State &
District Level are to be filled on contract basis with lump-sum
remuneration. An annual increase of 10% in emoluments of BTMs,
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ATMs, Computer Programmers / Computer Operators, State
Coordinators, Gender Coordinators, Deputy Directors(SAMETI),
Deputy Project Director(ATMA) and Accountant-cum-Clerk deployed
on contractual basis has been provided for such employees who continue
in their employment for more than one year. All other posts may be filled
by deputation/secondment/appointment for the scheme period or such
other mode as the State Government may deem appropriate. In the rare
administrative exigencies that the State Government deems appropriate,
regular vacancies of the level of Deputy Directors in the SAMETIS,
Deputy Project Directors in ATMAS and Accountant-cum-
Establishment-Clerk also may be filled on contractual basis. However,
Project Directors and Director (SAMETI) should in no case be deployed
on contractual basis. Contractual employees (against regular vacancies)
may be paid gross emoluments not exceeding the following ceilings:
(i) Deputy Director, SAMETI: Rs. 44,400
(ii) Deputy Project Director, ATMA: Rs. 42,000
(iii) Accountant-cum-Establishment-Clerk: Rs. 22,500
10% increase per annum will be given after completion of one year of
service (to the satisfaction of the State Government) from the date of
fixation of emoluments as per revised norms. Such contractual
appointment against regular vacancies is only an interim arrangement till
the time these vacancies are filled using any other mode indicated above.
The contractual staff should be preferably engaged through an agency
identified by the State in view of long ramifications of hiring contractual
staff directly. The States should ensure that enough publicity through
newspapers is given before engaging contractual manpower and
selecting service providers/placement agencies (for giving manpower). It
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must be ensured that only genuine/reputed service providers are selected
by a competitive bidding process. Bidding parameter will be profit
margin that a bidder is quoting over and above the gross aggregate
emoluments of all the persons of various categories which are proposed
to be hired through a bid process.
6.The petitioners have further stated that the contractual staffs will also
be eligible for benefits like EPF, ESIC as admissible from time to time as per
the prevalent laws. The guidelines also provide that while renewing the
contract, the concerned implementing agency viz., the State Government must
ensure that existing/experienced contractual manpower is retained and their
services are not terminated without assigning any reason.
7.The grievance of the petitioner is that the contractor in order to avoid
paying the 10% increase in the emoluments as per the guidelines, started giving
artificial breaks in their service and thereby, every time, the petitioners were
attempted to be posted afresh with the same emoluments without any
enhancement as contemplated under the ATMA guidelines. The complaint made
by the petitioners in this regard and the various representations that were made
to the respondents did not receive any response and aggrieved by the same, the
present writ petition has been filed before this Court seeking for appropriate
directions.
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8.The 2nd and 3rd respondents have filed a counter affidavit. On carefully
going through the counter affidavit, it is seen that the counter affidavit is merely
a reiteration of the ATMA guidelines and the manner in which it is being
operated. Even at Paragraph No.12 of the counter affidavit, the pay
scale/remuneration as it existed on 03.09.2019 has been captured and for proper
appreciation the same is extracted hereunder:
12.The State Level Sanctioning Committee (SLSC -2019) held on
03.09.2019 has approved the following contractual post viz., BTM,
ATM for the implementation of ATMA scheme in the Union
Territory of Puducherry, with the below mentioned criteria of
eligibility and remuneration.
Sl.No. Name of the Post Name Mode of Deployment & Pay Scale /
of the Qualification prescribed Remuneration
Posts by GOI
approv
ed
SLSC
1 Block Tech. Manager 12 Contract-Post graduate in Consolidated
(BTM) Agri./ Allied sector with Rs.30,000/-
Computer Skills and month as per
minimum 2 years field 2018 guidelines
experience in Agri.
Related activities.
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2 Asst. Tech. Manager (ATM) 6 Contract-Graduate/ Post Consolidated
Sl.No. Name of the Post Name Mode of Deployment & Pay Scale /
of the Qualification prescribed Remuneration
Posts by GOI
approv
ed
SLSC
graduate in Agri./ Allied Rs.25,000/-
sector and preferably 1 month as per
year field experience in 2018 guidelines
Agri. Related activities.
3 Computer Programmer / 3 (i). Contract-B.Tech/MCA Average figure
Operator for computer programmer Rs. 16,000/-
(1 year experience for month as per
B.Tech and 1.5 years of 2018 guidelines
MCA) (ii). Contract-
Graduate with Diploma in
Computer application or
equivalent qualification
from a recognized or
reputed institution with 1
year experience.
9.The 2nd and 3rd respondents have questioned the claim made by the
petitioners only on the ground that an attempt has been made seeking for
regularization and such regularization cannot be granted since they are
contractual employees. That apart, the 2nd and 3rd respondents have also stated
that the renewal of the subsisting contract does not automatically result in the
renewal of the contract with the petitioners, if they are found in eligible.
10.The 4th and 5th respondents have also filed a separate counter affidavit.
On carefully going through the same, there is no pleading that runs contrary to
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the guidelines and the counter affidavit is more in the nature of a reiteration of
the ATMA guidelines. The 4th and 5th respondents have also raised the very
same objections as was done by the 2nd respondent in their counter affidavit.
11.Heard Mr.B.Kumar, learned Senior Counsel appearing on behalf of
the petitioners, Mr.Pazhani Raja, learned Central Government Standing
Counsel appearing on behalf of the 1st respondents and Mr.Syed Mustafa,
learned Special Government Pleader appearing on behalf of the respondents 2
to 5.
12.It must be made clear that the petitioners are not seeking for
regularization of their employment. The petitioners only want the strict
implementation of the ATMA guidelines and the payment of the emoluments in
accordance with the guidelines that has been extracted supra. In order to ensure
the same, the petitioners have sought for a direction from this Court to desist
the respondents from giving artificial breaks and thereby, continue with the
services of the petitioners afresh every time by paying the same emoluments
every year without any increments.
13.A similar grievance as has been raised in this writ petition, was raised
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before this Court by the employees who were engaged in Tamil Nadu under the
ATMA Scheme. The Madurai Bench while dealing with W.P.MD.Nos.1627 etc.
of 2018, went into the scope of the Scheme and specifically dealt with the issue
of giving artificial breaks. On considering the same, the following order was
passed by issuing directions.
(i)It is made clear that the scheme appointees could have no
claim for regularization. But then so long as the scheme continues,
subject to one being fit and not found guilty of any misconduct, the
scheme appointee can continue in the said post so long as the
scheme is in force.
(ii).The Hon'ble Supreme Court in the decision reported in
1985 4 SCC 43-(Rattan Lal & Others Vs. State of Haryana &
Others), deplored the practice of giving artificial break in service.
The state Government is expected to function as a model employer.
This proposition continues to hold good even in this age of
liberalisation and globalisation. The aforesaid judgment was
relied on in the subsequent Full Bench decision of the Hon'ble
Supreme Court reported in (1991) 2 SCC 599-(Sri Rabinarayan
Mohapatra Vs. State of Orissa and others). The very same
principle has been reiterated in yet another decision of the
Hon'ble Supreme Court reported in (2009) 6 SCC 611-(MD.Abdul
Kadir & Another Vs. Director General of Police, Assam &
others). Therefore, it cannot lie in the mouth of the State
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Government to now contend that they are entitled to terminate the
services of the contractual employee on the expiry of the 11th
month and give artificial break after which engage them again.
This Court makes it clear that the practice of giving artificial
breaks shall be discontinued henceforth. The benefits payable to
the petitioners/Scheme appointees in terms of the scheme norms,
shall be disbursed. In view of the comprehensive nature of the
relief given to the petitioners herein, there shall be of no claim for
payment of past arrears. However, as regards the future, it is
undertaken by the Government that the periodical/annual
increment will be given effect in terms of the scheme regulations.
14.I am in complete agreement with the above directions issued by the
learned Single Judge of this Court. The funding agency for carrying out the
ATMA Scheme is the Central and State Government and the implementing
agency is the concerned State Government. The contractor is choosen by the
implementing agency and whatever payments are made by the contractor, is
from the funds that is received by him from the funding agency. In view of the
same, the contractor is expected to strictly follow the guidelines issued under
the ATMA Scheme. As rightly held in the above judgment, the entitlement for
increase in emoluments annually, cannot be defeated by giving artificial break
in service. Such practice adopted will amount to an unfair labour practice and
this practice must be discontinued henceforth by the respondents. The
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petitioners derive their right from the ATMA guidelines and they have been
engaged by entering into a contract every year. Therefore, the petitioners will
be entitled for the benefits that are given under the Scheme and they cannot be
deprived of the same by adopting unfair labour practices.
15.In the light of the above, this writ petition is disposed of with the
following directions:
(a)It is made clear that the scheme appointees could have no claim for
regularization. But then so long as the scheme continues, subject to one
being fit and not found guilty of any misconduct, the scheme appointee can
continue in the said post so long as the scheme is in force.
(b)There shall be a direction to the respondents to henceforth discontinue
the practice of giving artificial breaks and deprive the persons who are
engaged in the Scheme from increasing the emoluments as provided under
the ATMA guidelines.
(c)The petitioners 1 to 12 were engaged as Block Technical Managers, 13 to
18 were engaged as Assistant Technical Managers and 19th petitioner was
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engaged as Computer Programmer and the date from which they were
engaged has already been extracted supra. Till the year 2018, the 10%
increase in the emoluments was properly given to the petitioners every year.
The problem started only from the year 2019 and it is brought to the notice
of this Court that the salary of the petitioners was fixed at the rate at which
they were receiving it in the year 2018 and thereafter, there has been
absolutely no increase in the emoluments because of the artificial breaks
given in their services. Since such artificial breaks have been held to be
illegal by this Court, there shall be a direction to the respondents to fix the
salary of the petitioners from 2019 by giving the necessary increase in
emoluments as per the ATMA guidelines and pay the arrears of salary to the
petitioners, within a period of eight weeks from the date of receipt of copy
of this Order and
(d)Till the services of the petitioners continue, the respondents shall ensure
that the salary is fixed only based on the ATMA guidelines. No Costs.
25.01.2023
Index : Yes/No (2/2)
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ssr
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To
1.The Secretary,
Union of India
Ministry of Agriculture Department and Co-Operation,
Krishi Bhavan, New Delhi- 110 001.
2.The Secretary to Government of Puducherry,
Agriculture and Farmers Welfare Department
New light House Road,
Vembakeerapalayam, Puducherry- 605 001.
3.The Government of Puducherry
Rep. by Director of Agriculture
Department of Agriculture
Puducherry.
4.The Additional Director of Agriculture (T and V)- Cum- Project Director
ATMA, Puducherry
Agricultural Complex, Thattanchavady
Puducheery- 605 009.
5.The Additional Director of Agriculture Cum- Project Director
ATMA , Karaikal,
Thalatheru,
Karaikal- 609 605.
https://www.mhc.tn.gov.in/judis
N. ANAND VENKATESH, J.
ssr
W.P No.6948 of 2021
25.01.2023
(2/2)
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