Madras High Court
S.Arul Lingom vs The Government Of Tamilnadu on 9 June, 2023
W.P.No.4557 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.06.2023
CORAM:
THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.4557 of 2016
1. S.Arul Lingom
2. P.Nangil Nidhi
3. R.Yesu Mohan ... Petitioners
Vs.
1. The Government of Tamilnadu
rep. By its Principal Secretary to
Government, Personnel &
Administrative Reforms Department,
Fort St. George, Chennai – 600 009
2. The Government of Tamilnadu
rep. Principal Secretary to Government,
Finance (Pay cell) Department,
Fort St. George, Chennai – 600 009
3. The District Collector,
Nagercoil, Kanyakumari District ... Respondents
Writ Petition filed under Article 226 Constitution of India for issuance
of a Writ of Certiorarified Mandamus to call for the records from the 1st
respondent relating to his proceedings made in Letter No.44182/P/2015-01
dated 23.11.2015 and quash the same as null and void, illegal and invalid
and consequently to regularise the services of the petitioners from July
2003, the initial date of their appointments as 'junior assistants' and
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W.P.No.4557 of 2016
according promotions taking into account their initial date of appointees as
Junior Assistants besides counting the services of the petitioners from their
respective initial dates of entry into services for the purpose of earning
pension under the old pension scheme applying the law laid down by the
Division Bench of this Court reported in 2014 (2) CTC 777 besides settling
the difference of monetary and service benefits.
For Petitioner : Mr. A.Amal Raj
For Respondents : Mr.M.Shahjagan
Special Government Pleader
ORDER
The present Writ Petition has been filed for issuance of a Writ of
Certiorarified Mandamus to call for the records from the 1st respondent
relating to his proceedings made in Letter No.44182/P/2015-01 dated
23.11.2015 and quash the same as null and void, illegal and invalid and
consequently to regularise the services of the petitioners from July 2003,
the initial date of their appointments as 'junior assistants' and according
promotions taking into account their initial date of appointees as Junior
Assistants besides counting the services of the petitioners from their
respective initial dates of entry into services for the purpose of earning
pension under the old pension scheme applying the law laid down by the
Division Bench of this Court reported in 2014 (2) CTC 777 besides settling
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W.P.No.4557 of 2016
the difference of monetary and service benefits.
2. The brief facts of the case are as follows:-
The petitioners are the colleagues as 'Junior Assistants' attached to
different departments. Initially, the petitioners were appointed as 'junior
assistants' as early as in July 2003, which is prior to the introduction of
G.O.Ms.No.259 Finance (pension) department dated 06.08.2003, the New
Contribution Scheme. The cause of action for appointment of the petitioners
arose on account of extraordinary strike called for by the Government
servants, but the appointments of the petitioners were made not in the place
of those government employees went on strike, but separately by way of
creating supernumerary posts of 'Junior Assistants' in each districts to meet
the contingency and the emergency situation invoking Rule 11 of the
General Rules, namely, the Tamilnadu State & Subordinate Services in the
Tamilnadu Ministerial Service Rules by issuing G.O.Ms.No.85 P&AR Dept.,
dated 14.07.2003 within the limits of 500 newly created supernumerary
posts and through proper channel, Rule of reservation within the meaning of
Rule 22 of T.N. State & Subordinate Services were also adhered.
(ii) Even after the strike made by the Government employees came to
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W.P.No.4557 of 2016
an end and thereafter they were reinstated into service, the petitioners were
allowed to continue in their respective posts without any interruption in any
manner. After realising the necessity of petitioners' services, the
Government had taken a policy to regularise the services by way of
competition examination through TNPSC. Accordingly, G.O.Ms.No.155
P&AR Department dated 19.09.2006 requesting TNPSC to conduct special
competitive examination in Group-IV. The petitioners are entitled to get the
services regularised not from the date of passing the competitive
examination but from the dates of initial appointments. Challenging the
validity of the proposal to regularize the petitioners' services by conducting
special competitive examination, PIL Writ Petitions were filed in
W.P.No.36731/2006 etc., batch before this Court and by order dated
11.06.2007, the Division Bench of this Court dismissed all the batch Writ
Petitions upholding the conducting of competitive exams and further held
that there is no illegality or irregularity in the initial appointments.
(iii) The petitioners have successfully come out in the special
competitive exams and consequently, absorbed into regular service as
Junior Assistants giving placements as per order of scoring marks, the
petitioners became entitled for seniority not from the date of passing the
competitive exam, but from the date of our initial entry into service as 'Junior
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W.P.No.4557 of 2016
Assistants'. While that being the case, the petitioners' name were not
included in the seniority list of Junior Assistants taking into account of the
fact that petitioners' initial appointments were made under Rule 11 of
Tamilnadu State and Subordinate Services by creating supernumerary
posts with effect from July 2003. Consequently, the petitioners have made
a joint representation dated 25.02.2013 joining together all the aggrieved
'Junior Assistants' before the 1st respondent seeking to regularise the
services from July 2003 with all attendant benefits and old pensional
benefits, since no orders have been passed, he petitioner has approached
this Court in W.P.No.30752 of 2015. The 1st respondent issued a
impugned order rejecting the claim of the petitioners on the ground that the
service rendered on contract basis during the government servants general
strike period, 2003 cannot be added with that of regular appointment.
Challenging the same, the present Writ Petition has been filed.
3. Per contra, the learned Special Government Pleader appearing for
the respondents would contend that the petitioners were selected for
appointment on temporary contract basis in consolidated pay as Assistants
/ Junior Assistants in Tamilnadu Secretariat Service / Tamilnadu Ministerial
service respectively under General Rule 11 of the Tamilnadu State and
Subordinate Service Rules during the Tamil nadu Government employees
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W.P.No.4557 of 2016
general strike 2003 through Employment Exchange by executing a
temporary appointment agreement in favour of the Governor of Tamilnadu
on certain terms and conditions. As per the same, such appointments were
purely temporary and it shall not confer any right to claim any preferential
treatment for regular appointments. In view of the same, the claim of the
petitioners in their representation dated 25.02.2013 to consider the
temporary service rendered on contract basis for service and monetary
benefit is not legally sustainable and the same was rejected.
4. The learned Special Government Pleader appearing for the
respondents also submited that in batch of cases in W.P.No.3498 of 2013
etc., filed by the temporary junior assistants / typists appointed in Tamilnadu
Judicial Ministerial Service with a prayer to regularise their service with all
attended benefit, the Hon'ble Division Bench of this Court in its common
order dated 27.11.2014 has ordered as follows:
“5. We have examined the said submission. We are of
the considered view that such a direction cannot be granted for
more than one reason. Firstly, the petitioners, while working in
the post on temporary basis, had an opportunity to participate in
the examination conducted by the public service commission
for appointment in the said post. Some of the candidates had
appeared for examination and also come out successfully. The
petitioners, it appears, have not participated in the selection
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W.P.No.4557 of 2016
process. Secondly the petitioner while accepting the
appointment on temporary basis were conscious of the fact that
their appointment was only till regularly appointed incumbents
are available. Thirdly, the petitioners' appointment was not in
accordance with the constitution scheme of employment.
Thus, it cannot be directed to conduct a separate examination
for regularisation of the present employees.”
hence, pleaded to dismiss the petition.
5. Heard the learned counsel on either side and perused the
documents placed on record.
6. Admittedly, the petitioners were appointed as 'junior assistants' as
early as on July 2003, prior to the introduction of G.O.Ms.No.259 Finance
(pension) Department dated 06.08.2003, the New Contribution Scheme, on
account of extraordinary strike called for by the Government Servants and
the petitioners were not regularised from the date of their initial
appointments. Further, the petitioners were not granted the benefit of
drawal of pension under old pension scheme.
7. On going through the appointment orders issued by the 3 rd
respondent to the petitioners by way of proceedings A1/46194/2003 dated
08.07.2003, it is clearly seen that the appointment of the petitioners are
purely on temporary basis under Rule 11 of State and Subordinate Officers
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W.P.No.4557 of 2016
Rules and the petitioners are liable for termination at any time without any
prior notice. It is also stated in the appointment orders that they are not
eligible for other allowances other than gross remuneration of Rs.4,000/- . In
fact, the said appointment orders shall not confer any right to claim any
preferential treatment for regular appointments.
8. It is relevant to note that the Government, by way of
G.O.Ms.No.263 dated 21.06.2004 issued orders terminating the services of
all appointees including the petitioners. Taking into consideration the welfare
of those appointed temporarily on contract basis and continuing in service
as a contract employees, the Government have issued orders in G.O. (Ms)
No.155, Personnel and Administrative Reforms (P) Department, dated
19.09.2006 to conduct a special competitive examination in Group IV
standard through the Tamil Nadu Public Service Commission to absorb
them as Junior Assistants in Tamil Nadu Ministerial Service / Tamil Nadu
Judicial Ministerial Service only.
9. At this juncture, it is pertinent to note that based on the marks
obtained in written examination, departmental preference exercised at the
time of applications and communal rotation, the petitioners were absorbed in
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W.P.No.4557 of 2016
various Government Departments as Junior Assistants in Tamil Nadu
Ministerial / Judicial Ministerial service through special competitive
examination conducted by the Tamil Nadu Public Service Commission.
Hence, the contention of the petitioners that they are serving in the same
department in the same post since their initial appointment from the year
2003 is not justifiable.
10. As far as the contention of the petitioner seeking to apply the law
laid down by the Hon'ble Division Bench of this Court reported in 2014 (2)
CTC 777 (W.P.No.2110 of 2014) [Union of India and Another Vs.
K.Punniyakoti and Others] is concerned, the respondents therein were
appointed as Casual Labourers on daily wage basis for cleaning and
assisting the technicians and scientists carrying out the task on various
Laboratories of IGCAR and the Government of India has introduced a
scheme called 'Casual Labourers (Grant of Temporary Status and
Regularisation) Scheme, 1993”, with effect from 01.09.1993 and according
to the said scheme, the casual labourers employed as on date of order, who
have rendered one year of continuous service in IGCAR are bound to be
conferred temporary employee status and they are regularly selected under
Group 'D', after selection for permanent absorption, whereas, in the present
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case, the petitioners were recruited by an agreement under General Rule 11
of Tamilnadu State and Subordinate Services, therefore, it is crystal clear
that the said case does not apply to the facts and circumstances of the
present case on hand, as the facts of the said case is entirely different.
11. It also cannot be forgotton that though this Court in
W.P.No.27900 of 2018 dated 15.03.2023 had allowed the said Writ Petition
filed by similarly placed candidates based on the precedent of Hon'ble
Supreme Court S. Sumnyan & others Vs. Limi Niri & others reported in
(2010) 6 SCC 791 and Judgement rendered by Hon'ble Division Bench of
this Court in Indian Council of Medical Research & others Vs.
K.Rajalakshmi & another reported in 2005 (1) CTC 488, however, it
would be relevant to point that the Hon'ble Supreme Court [Malook Singh
and Ors. Vs. State of Punjab and Ors. (28.09.2021 – SC)] reported in
MANU/SC/0795/2021 relied on the Constitution Bench in Direct Recruit
Class II Engineering Officers' Association Vs. State of Maharashtra and
held that ad hoc service cannot be counted for determining the seniority if
the initial appointment has been made as a stop gap arrangement and not
according to Rules.
"The notification dated 3 May 1977 stated that the ad hoc
appointments were made in administrative interest in
anticipation of regular appointments and on account of delay
that takes place in making regular appointment through the
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concerned agencies. In this regard, the vacancies were notified
to the Employment Exchange or advertisements were issued,
as the case maybe, by appointing authorities. The
appointments were not made on the recommendation of the
Punjab Subordinate Service Selection Board. However,
subsequently a policy decision was made to regularize the ad
hoc appointees since their ouster after a considerable period of
service would have entailed hardship. Thus, the initial
appointment was supposed to be a stop gap arrangement,
besides being not in accordance with the rules, and the ad
hoc service cannot be counted for the purpose of
seniority."
12. It is also relevant to note that the Hon'ble Division Bench of this Court
while dealing with similar issue in M. Gopinathan Vs. The Secretary to the
Government of Tamil Nadu and Ors. (25.02.2019 - MADHC) :
MANU/TN/2209/2019 has held as follows:-
"4. The Learned Counsel for the Appellant relying on the
decision of the Hon'ble Supreme Court of India in S. Sumnyan vs.
Limi Niri [MANU/SC/0275/2010 : (2010) 6 SCC 791], contended that
once an employee was appointed according to the rules, his
seniority has to be counted from the date of his initial appointment
and inasmuch as the appointment of the Appellant had been made
under rule 10(a)(i) of the Tamil Nadu State and Subordinate Service
Rules by calling from the list of candidates sponsored by the
employment exchange, there was no illegality in his appointment
and as such, the Appellant should be granted the benefit of
regularization from the date of his initial appointment on 02.04.2007
instead of the date of issuing the order of regularization.
5. We are unable to countenance the aforesaid submission. It
is not in dispute that the post of Typist to which the Appellant was
appointed is a regular post for which recruitment had to be done
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through Tamil Nadu Public Service Commission in accordance with
the Rules and that exercise had not been taken up at the time of his
initial appointment. The mere circumstance that the name of the
Appellant had been sponsored through employment exchange
would not per se clothe him with the right to claim that there was no
illegality in his initial appointment ………
Hence, we do not find any infirmity in the conclusion
arrived by the Learned Judge that the Appellant is not entitled
to include the period from 02.04.2007 to 25.11.2010, when she
had worked on temporary basis, for the purpose of reckoning
seniority or extending other benefits of regularization with
retrospective effect, and we confirm the same."
13. Considering the facts and circumstances of the case and taking
note of the Judgments of the Hon'ble Apex Court and Hon'ble Division
Bench of this Court mentioned supra and coupled with the fact that the
petitioners were appointed only under Rule 11 of the erstwhile General
Rules for Tamilnadu State and Subordinate Services on appointment by
agreements and as per the terms of contract, the appointments of the
petitioners are purely temporary and it cannot confer any right to claim
preferential treatment for retrospective regularisation from the date of their
initial appointment and intially, the petitioners were not appointed under
normal method of recruitment through Tamilnadu Public Service
Commission as envisaged in the Constitution of India, Tamilnadu Public
Service Commission Regulations and any other Service Rules, this Court is
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W.P.No.4557 of 2016
of the view that the prayer of the petitioners cannot be granted.
In the result, the Writ Petition is dismissed. No costs.
09.06.2023
Index:Yes/No
Internet:Yes/No
Speaking / Nonspeaking order
ssd
V.BHAVANI SUBBAROYAN J.
ssd
To
1. The Government of Tamilnadu
rep. By its Principal Secretary to
Government, Personnel &
Administrative Reforms Department,
Fort St. George, Chennai – 600 009
2. The Government of Tamilnadu
rep. Principal Secretary to Government,
Finance (Pay cell) Department,
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W.P.No.4557 of 2016
Fort St. George, Chennai – 600 009
3. The District Collector,
Nagercoil, Kanyakumari District
W.P.No.4557 of 2016
09.06.2023
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