Madras High Court

P.Shobitharaj vs The Secretary on 9 June, 2023

                                                                                        W.P.No.4662 of 2018

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                          DATED: 09.06.2023

                                                              CORAM:

                                   THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                                       W.P.No.4662 of 2018

                     1. P.Shobitharaj
                     2. M.Cecil
                     3. Chandara Leela
                     4. A.Stephen
                     5. B.Ravi                                                 ...   Petitioners
                                                                 Vs.
                     The Secretary
                     Government of Tamilnadu,
                     Personnel and Administrative
                        Reform Department,
                     Chennai – 600 009                                         ... Respondent

                                  Writ Petition filed under Article 226 Constitution of India for issuance

                     of a Writ of Mandamus directing the respondents to regularise the service

                     of the petitioners with retrospective effect from the date of their initial

                     appointment made vide G.O.Ms.No.85 dated 04.07.2003 and grant all other

                     service benefits to the petitioners by taking into consideration of the service

                     rendered by the petitioners to the Government pursuant to the petitioners

                     representation dated 13.02.2017.

                                        For Petitioners      : Mr. T.S.Senbagaraman for
                                                               Mr.Julili Jinu

                                        For Respondent       : Mr.M.Shahjagan
                                                               Special Government Pleader
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                                                                                    W.P.No.4662 of 2018




                                                             ORDER

The present Writ Petition has been filed for issuance of a Writ of

Mandamus directing the respondents to regularise the service of the

petitioners with retrospective effect from the date of their initial appointment

made vide G.O.Ms.No.85 dated 04.07.2003 and grant all other service

benefits to the petitioners by taking into consideration of the service

rendered by the petitioners to the Government pursuant to the petitioners

representation dated 13.02.2017.

2. The brief facts of the case are as follows:-

(i) On 01.07.2003, the Government servants working in the

Secretariat as well as in the District Administration proceeded to strike

protesting various decisions taken by the State Government affecting the

interests of the government employees. Therefore, the State Government

passed orders dismissing the employees, who were on strike, in pursuant to

the same, the Government issued G.O.Ms. No. 84, Personnel and

Administrative Reforms (Per.G) Department, dated 4.7.2003 and decided to

recruit temporary Assistants to attend to the work in the Departments of the

Secretariat. Similarly, by G.O.Ms. No. 85, Personnel and Administrative

Reforms (Per.G) Department, dated 4.7.2003, the Government decided to https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

recruit temporary Junior Assistants in various Districts. Thus, the petitioners

who held the requisite qualification for appointment to the post of junior

assistants were recruited on the basis of the employment exchange

seniority. Thereafter, G.O.Ms. No. 155, dated 19.9.2006 came to be issued,

wherein, the State Government has decided to conduct a Special

Competitive Examination in Group IV Standard for those temporarily

recruited Assistants in the Secretariat and Junior Assistants in the various

Districts in supernumerary posts for the purpose of their absorption in

service.

(ii) The petitioners appeared in the said examination and their

services were regularized only after they succeeded in special competitive

exam which was conducted by Tamilnadu Public Service Commission. The

petitioners have tendered their service for more than 7 to 8 years under the

consolidate wages and are discharging their duty with utmost sincere and to

the satisfaction of their higher authority from the date of appointment as

junior assistants and thereafter, their employment of service was made as

permanent after the special examination. Since the petitioners have

performed the duties as compared to that of regular junior assistants, the

petitioners seek for regularisation from the date of initial appointment.

3. The learned counsel for the petitioners would submit that the https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

petitioners were engaged and serving the government continuously without

any break in service from the date of Initial appointment pursuant to the

proceedings of the 2nd respondent in G.O Ms No:85, dated 04.07.2003.

Moreover the duties and responsibilities rendered by the petitioners in

consolidated pay and in regular time scale of pay were one and the same.

Therefore, the service of the petitioners are to be regularized from the date

of their Initial appointments.

4. The learned counsel for the petitioners further submits that from

the date of petitioners' appointments, they have been discharging the same

function in the same department as temporary junior assistants, expect the

change in nomenclature, there is no other difference in the nature of duties

performed by the petitioners as compared to that of regular junior

assistants. The petitioners equally qualified and have done identical work as

that of the regular junior assistants. Therefore, the petitioners are entitled for

regularization from the date of initial appointment and hence they had made

several representations to the appropriate authority and requested them to

regularize their service from the date of appointment to enable them to avail

all other service benefits retrospectively. Since there was no response from

the respondents, the present Writ Petition has been filed.

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W.P.No.4662 of 2018

5. Besides the above, the learned counsel for the petitioners relied on

the Judgment of Hon'ble Supreme Court reported in (2010) 6 Supreme

Court Cases 791 [S.Sumnyan and Others Vs. Limi Niri and Others] & the

Order of this Court in W.P.No.27900 of 2018 & W.P.Nos.11923 & 13033 of

2013 [A.Vijayan and Others Vs. The State of Tamilnadu, rep. By its Chief

Secretary to Government, Government of Tamilnadu, Fort St. George,

Chennai and Another].

6. On the other hand, the learned Special Government Pleader

appearing for the respondent would submit that the terms of the contract

appointments of the petitioners are purely temporary in nature and it shall

not confer any right to claim any preferential treatment for regular

appointments. However, taking into consideration the welfare of the said

temporarily appointed employees 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 the

petitioners and other similarly placed persons as Junior Assistants in Tamil

Nadu Ministerial Service / Tamil Nadu Judicial Ministerial Service only.

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W.P.No.4662 of 2018

7. The learned Special Government Pleader appearing for the

respondents also submits that the petitioners were appointed only under

Rule 11 of the erstwhile General Rules for the Tamil Nadu State and

Subordinate Services by agreements [Presently under Section 19 of Tamil

Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu

Act 14 of 2016)] and their service were under contract basis that too with

consolidated pay, hence the same will not make them eligible to claim any

preferential treatment for retrospective regularization from the date of their

initial appointment. Initially they were not appointed through normal method

of recruitment, viz., Tamil Nadu Public Service Commission, as envisaged

in the Constitution of India, Tamil Nadu Public Service Commission

Regulations and any other Service Rules. Further, in the appointment order

issued to them, it is made very clear that they will be discharged at any point

of time without prior order and without assigning any reasons therefore, the

petitioners could not make any claim at a later date. The Government in the

interest and welfare of the contract employees alone, without discharging

them, took a policy decision to conduct a special competitive examination for

their absorption into Tamil Nadu Ministerial Service / Tamil Nadu Judicial

Ministerial Service as Junior Assistants and based on the marks obtained in

written examination departmental preference exercised at the time of

applications and communal rotation, the petitioners were absorbed in https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

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, thereby prayed to dismiss the writ petition.

8. Heard the learned counsel for the petitioners and the learned

Special Government Pleader appearing for the respondent and perused the

documents placed on record carefully.

9. Admittedly, it is the case of the petitioners that 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. That apart, the

petitioners were also not granted the benefit of drawal of pension under old

pension scheme.

10. On going through the appointment orders issued by the 3rd

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 https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

purely on temporary basis under Rule 11 of State and Subordinate Officers

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.

11. 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.

12. 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

various Government Departments as Junior Assistants in Tamil Nadu https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

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.

13. As far as the contention of the petitioners seeking to rely on the

orders passed by this Court in W.P.No.27900 of 2018 dated 15.03.2023

[wherein this Court had allowed the said writ petition filed by the similarly

placed candidates based on the precedent of the Hon'ble Apex Court

reported in (2010) 6 Supreme Court Cases 791 [S.Sumnyan and Others

Vs. Limi Niri and Others] and Judgment rendered by the Division Bench of

this Court [Indian Council of Medical Research & others Vs.

K.Rajalakshmi & another reported in 2005 (1) CTC 488] is concerned, 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 v. 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'.

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W.P.No.4662 of 2018

"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 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."

14. That apart, 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 https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

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 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."

15. Considering the facts and circumstances of the case and taking

note of the Judgments of the Hon'ble Apex Court and Hon'ble Division https://www.mhc.tn.gov.in/judis

W.P.No.4662 of 2018

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 by agreements and as

per the terms of contract, the appointments of the petitioners are purely

temporary in nature 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 of the

view that the petitioners cannot be granted the reliefs as sought for in the

present Writ Petition.