Madras High Court
The Commissioner vs T.Saravanan on 29 March, 2023
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.03.2023
Coram
THE HON'BLE MR JUSTICE D. KRISHNAKUMAR
AND
THE HON'BLE MRS. JUSTICE K. GOVINDARAJAN THILAKAVADI
W.A.No. 197 of 2020 and CMP.No. 3070 of 2020
and
W.P.Nos. 34357,34358 /2014, 24859 of 2019, 30291 of 2019 and
27414 of 2019
and
M.P.Nos. 1 & 1/2014 and 1/2015
W.A.No. 197 of 2020
The Commissioner
Vellore Corporation,
Vellore District. ..Appellant
Vs.
1.T.Saravanan
2.R.Nithiyanandam
3.P.Velmurugan
4.S.Ramesh
5. J.Pitchai
6.P.Mahendran
7.G.Siva
8.K.Pitchaimuthu
https://www.mhc.tn.gov.in/judis
1/17
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
9.The Secretary to Government,
Municipal Administration and
Water Supply Department,
Fort St.George, Chennai.
10. The Commissioner of Municipal Administration,
Chepauk,
Chennai ..Respondents
Prayer in W.A.No. 197 of 2020 :This Appeal has been filed under Clause 15
of Letters Patent to set aside the order made in W.P.No.744 of 2018 dated
13.08.2019.
Common prayer in all 5 WPs: Writs petitions are filed under Article 226 of
Constitution of India to issue mandamus, directing the respondents to
regularise the services of the petitioners from the date of their initial
appointment or otherwise at least from the date (25.10.2011) on which
petitioners were absorbed in the 3rd respondent's corporation with all
service and monetary benefits and consequently to direct the respondents
to count the 50% of the service rendered by the petitioners in respective
Village Panchayats for the purpose of calculating regular pension.
For Appellant : Mr.S.Silambanan, Senior Counsel
Assisted by
Mrs.P.Shanthi
For respondents : Mr.P.I,Thirumoorthy – R1 to R8
Mr. V.Manoharan, AGP – R9 & R10
----
For Petitioners
(in all WPs) : Mr.P.I.Thirumoorthy
For respondents : Mr.V.Manohanran, AGP – R1 & R2
(in all WPs) Mr.S.Silambanan, Senior Counsel
Assisted by Mrs.P.Shanthi - R3
https://www.mhc.tn.gov.in/judis
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
COMMON JUDGMENT
[Judgement of the Court was made by D.KRISHNAKUMAR,J.]
Challenging the order of the learned single judge in W.P.No. 744 of
2018, dated 13.08.2019, the appellant-Corporation has filed the in instant
writ appeal. Seeking directions to the respondents to regularise
services of the writ petitioners from the date of their initial appointment or
otherwise at least from the date (25.10.2011) on which petitioners were
absorbed in the 3rd respondent's corporation with all service and monetary
benefits, instant five writ petitions are filed.
2. Since the issue involved in the instant writ appeal and writ
petitions are same, they are clubbed together and taken up for final hearing
and orders passed by way of common judgment.
Brief facts:
3. The respondents 1 to 8 herein have filed a writ petition in W.P.No.
744 of 2018 to set aside the order passed by the appellant herein in
Na.Ka.No. C1/2206/2013 dated 06.01.2016 and consequently to direct the
respondents to regularise the services of the petitioners in the category of
sweepers from the date of their initial appointment or from the date of
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
absorption in the appellant corporation with all attendant service &
monetary benefits. The said writ petition came to be allowed by the
learned Single Judge with a direction to the appellant /3rd respondent
therein to grant benefit of regularisation with all attendant benefits in
terms of G.O.Ms.No. 22 P & AR (F) Department, dated 28.02.2006. Pursuant
to the said order of this Court, the appellant herein has considered the
claim made by the respondents 1-8/petitioners and rejected on the ground
that the petitioners have not worked in any Government Departments as
daily rated employees, they worked in Village Panchayat on consolidated
wages for the period from 01.03.2003 to 01.06.2010 and have not completed
10 years of service as daily wages employees as on 01.01.2006. Aggreived
by the said rejection order, the respondents 1to 8 herein have filed writ
petition before this Court in W.P.No. 744 of 2018, wherein the writ Court
has directed the appellant herein to consider the petitioners' claim in terms
of G.O.Ms.No. 22 P & AR (F) Department, dated 28.02.2006. Assailing the
said order of this Court, the appellant-Corporation has preferred the instant
writ appeal.
4. The learned senior counsel appearing for the appellant has
submitted that the Government Orders in G.O.Ms. No. 199, 198, 72 and 125
are not applicable to the respondents 1 to 8/writ petitioners, since they
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
were not appointed based on any service rules or against any sanctioned
posts and also not on the basis of any specific government order.
5. The learned senior counsel for the appellant has further submitted
that G.O.Ms.No. 22 P & AR (F) Department, dated 28.02.2006 has been
subsequently modified to G.O. Ms.No. 74 P& AR Department, dated
27.06.2013. In light of the aforesaid G.O, the respondents 1 to 8 did not
satisfy the guidelines issued by the Government since they have worked as
daily rated basis, therefore the appellant herein has rightly rejected the
claim made by the respondents 1 to 8/writ petitioners. Therefore, the said
G.O. will not applicable to Village Panchayat workers and apply only to the
regular service Government employees.
6. The learned counsel for the respondents 1to 8 /petitioners would
submit that the writ petitioners not relied upon Government Orders in
G.O.Ms. No. 199, 198, 72 and 125. Further, the similarly placed persons
who worked more than 3 years 5 years and 7 years were granted
regularisation of service in local bodies, particularly in Town Panchayats,
therefore the respondents 1to 8 herein also entitled for regularisation of
service from the date of their initial appointment in the Village Panchayat
as per the aforesaid Government Orders.
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
7. The learned counsel for the respondent 1 to 8/writ petitioners
would further submit that G.O.22 P&AR Department, dated.28.02.2006
would also apply to them, since they worked more than 10 years in Town
Panchayats as well as in Corporations and they entitled for regularisation of
service as per the said G.O. The learned counsel for the respondent 1 to
8/writ petitioners would further submit that the said fact has been rightly
considered by the learned Single Judge and directed the appellant-
Corporation to pass appropriate orders by applying the legal principles in
terms of the aforesaid G.O. Ms. No. 22 P&AR Department, dated
28.02.2006. Therefore, according to learned counsel for the respondents 1
to 8/writ petitioners, the impugned order of the learned Single Judge is
perfectly valid and does not require any interference by this Court.
8. Heard both sides and perused the materials available on record.
9. The only point for consideration in the instant writ appeal as well
as in the writ petitions is that whether the respondents 1to 8/writ
petitioners are entitled for regularisation of service on completion of 10
years of service in light of G.O.Ms. 22 P & AR Department, dated 28.02.2006
or in G.O. Ms. No. 74 (P&AR) Department, dated 27.06.2013.
https://www.mhc.tn.gov.in/judis
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
10. The aforesaid G.O.Ms. 22 P & AR Department, dated 28.02.2006
relied upon by the respondents 1 to 8/writ petitioners was subsequently
modified as G.O. Ms. No. 74 (P&AR) Department, dated 27.06.2013. It is
useful to extract para 6 of the the said G.O.
6) In supersession of the orders issued in the Government
Order read above, the Government now issued revised orders
on regularization of services of full time daily wage employees
working in all Government departments as detailed below:
(i). This order shall be deemed to have been come into force
with retrospective effect from 01.01.2006;
(ii). The services of the full time daily wage employees who
were initially appointed on full time basis in consultation
with the Employment Exchange to discharge the function of
the post in the Tamil Nadu Basic Service and completed 10
(ten) years of service as on 01.01.2006 shall be regularized
against regular vacancies in the sanctioned cadre strength:
(iii). In cases of relaxation of service rules, the service rules
relating to the educational qualification and mode of
recruitment shall not be relaxed:
(iv) In cases, where relaxation of rules are involved,
monetary benefit shall be allowed with effect from the date
of issue of orders as per Rule 23(a)(ii) of the General Rules
for Tamil Nadu State and Subordinate Services:
(v) In cases where relaxation of rules are not involved,
monetary benefit shall be allowed with effect from the date
of regularization;
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
(vi) The Part-time and casual employees are not entitled to
the concession referred to at para (ii) above;
(vii) The services of the full time daily wage employees who
have completed 10 years of service after 01.01.2006 shall
not be regularized;
(viii) All the appointing authorities should adhere to the
above instructions scrupulously in future. Failing which, It
will be viewed seriously and necessary disciplinary action will
be initiate as per rules against the person who is responsible
for the said lapses. All the Heads of Departments are
directed to ensure that all the above said Instructions are
followed without fail and lapses if any found, responsibility
will be fixed against them;
(ix). All the proposals for regularization of the services of full
time daily wage employees should be sent to the
Government even in cases where relaxation of rules are not
involved.
7. This Government order shall not be applicable the cases
where orders have already been issued by the competent
authority in pursuance of the Government Order (Ms.) No.
22, Personnel and Administrative Reforms (F) Department,
dated 28.2.2006 and also the orders issued in pursuance of
the Court directions where the verdict reached finality.”
11. Earlier, similarly placed persons have filed writ petition before
this Court in W.P.7594 of 2014 challenging Clause 6 of the Government
Order in G.O.Ms. No. 74, P& AR Department, dated 27.06.2013 on the
ground that on account of completion of 10 years of service, they are
eligible for regularisation of service in accordance with the Government
https://www.mhc.tn.gov.in/judis
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
Order in G.O.Ms.No. 22 P&AR Department, dated 28.02.2006. The learned
single Judge by order dated 22.09.2017, quashed the Clause 6 of the
G.O.Ms.No. 74 P&AR Department, dated 27.06.2013 and held that the writ
petitioners therein were entitled to regularisation on service on completion
of ten years by virtue of G.O.Ms.No. 22 P&AR Department, dated
28.02.2006.
12. Challenging the said order of the learned Single Judge, the
appellant has preferred appeals in W.A.Nos. 2875 of 2018 etc., batch
before the Hon'ble Division Bench of this Court,wherein the Hon'ble Division
Bench by its order dated 16.08.2019 set aside the above order of the
learned Single Judge and remitted the writ petitions to the writ court for
fresh consideration to decide the eligibility as per G.O.Ms. No. 74 P & AR
Department, dated 27.06.2013. As per the directions of the Hon'ble
Division Bench of this Court, the above writ petition in W.P.No. 7594 of
2014 along with other writ petitions filed by the similarly placed person
have been considered by the learned Single Judge and held that the
petitioners therein were entitled for relief and consequentially directed the
respondent authority concerned to grant the benefit of regularisation with
effect from the date of their original appointment.
https://www.mhc.tn.gov.in/judis
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
13. Now coming back to the present case on hand, the appellant
corporation rejected the claim of the respondents 1 to 8 seeking
regularisation of service from the date of initial appointment i.e from 2003
to 2010 worked by them in the village panchayat on the basis that they
have worked on consolidated pay not daily wages employees. The said
rejection order was challenged by the respondents 1 to 8/writ petitioner
before this Court and the same was allowed by the learned single judge.
Challenging the said order the learned single judge, the instant writ appeal
is filed.
14. The contention of the learned counsel for the appellant-
Corporation is that the benefits awarded in G.O.Ms.No. 22 P&AR
Department, dated 28.02.2006 could not be extended to the respondents 1
to 8 as the same is not applicable to Urban local bodies. Further, the
respondents 1 to 8 herein were not appointed on the basis of any service
rules or against any sanctioned post, therefore, the rejection order passed
by the appellant Corporation is perfectly valid.
15. At this stage, the learned counsel for the respondents 1 to 8/writ
petitioners would submit that the petitioners have made claim for
regularisation of service from the year 2003 to 2010, where they worked as
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
sweeper, OHD, etc., in the Village Panchayat. After the said village
panchayat was merged, their services were absorbed as employees in the
appellant-corporation and they are continuing their services from the 2010
till now in various cadres viz., Sweeper, Water supply employee etc., in
the sanctioned post, therefore they are entitled from the date of
absorption in the respondent corporation as they have completed 10 years
of service and also satisfied the guidelines framed in G.O.Ms. No. 74 P &
AR Department, dated 27.06.2013 for regularisation of service.
16. All these facts are adjudicated by the learned counsel for the
respondents 1 to 8/writ petitioners only before this Court at the time of
hearing the appeal, but no materials have been placed before this Court.
Such a claim was not made before the appellant- Corporation.
17. At this juncture, it would be relevant to refer the decision of the
Honourable Supreme Court in Secretary to Government, School Education
Department, Chennai vs. R.Govindaswamy and others [(2014) 4 SCC
769] wherein in Paragraph Nos.7 & 8, it has been observed as follows:
“7. This Court in State of Rajasthan & Ors. vs. Daya Lal &
Ors., AIR 2011 SC 1193, has considered the scope of
regularisation of irregular or part-time appointments in all
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
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 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
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
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 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)
18. As held by the Honourable Apex Court in R.Govindaswamy's case
(supra) mere continuation of service by a temporary or daily wage employee
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
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 will not entitle such employee to
claim regularisation, if he is not working against a sanctioned post.
19. A perusal of the rejection order passed by the appellant
Corporation would reveal that the rejection was made only on the basis that
the respondents 1to 8 herein have worked on consolidated pay from the
year 2003 to 2006 and have not completed ten years of service to extend
the benefits as per G.O.Ms.No. 22 P&AR Department, dated 28.02.2006.
20. It is clear from the impugned rejection order that order passed by
the appellant-Corporation is only in respect of the claim made by the
petitioner for regularisation of service rendered in the village panchayats
for the period from 2003 to 2010. Therefore, in view of the aforesaid
submissions made by the learned counsel for the respondents 1to 8 that
after the said village panchayat was merged, their services were absorbed
as employees in the appellant-corporation and they are continuing their
services from the 2010 till now in various cadres viz., Sweeper, Water
supply employee etc., in the sanctioned post and completed 10 years of
service, the applicability of G.O.Ms. No. 74 P & AR Department, dated
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
27.06.2013 to the respondents 1to 8 for regularisation of service and
granting other consequential benefits has to be decided by the appellant
Corporation based on the materials.
21. In view of the above, the impugned order passed by the learned
Single Judge in W.P. No. 744 of 2018, dated 13.08.2019 is set aside and
consequently, the writ appeal is allowed. Likewise, the instant writ
petitions are disposed of. Liberty is granted to the respondents 1 to
8/writ petitioners in W.A.No. 197 of 2020 and writ petitioners in other writ
petitions to make fresh individual representations along with necessary
particulars to satisfy the authority concern that they are eligible for
consideration in terms of G.O.Ms. No. 74 P & AR Department, dated
27.06.2013 or any other Government Orders, to the appellant-corporation,
within a period of two weeks from the date of receipt of a copy of this
order.
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W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
22. On receipt of such representations, the authority concern shall
consider the same by taking note of the decision of the Hon'ble Supreme
Court in Govindasamy's case cited supra and the Government Orders in
G.O.Ms. No. 74 P & AR Department, dated 27.06.2013 and pass appropriate
orders in accordance with law, within a period of eight (8) weeks
thereafter.
23. With the above discussions and directions, the writ appeal is
allowed and writ petitions are disposed of. No costs. Consequently,
connected Miscellaneous Petitions are closed.
[D.K.K.J.] [K.G.T.J.]
29.03.2023
Speaking/Non Speaking Judgment
Index: Yes/No
ak
https://www.mhc.tn.gov.in/judis
W.A.No. 197 of 2020 and
W.P.Nos. 34357,34358 /2014, 24859 of 2019,
30291 of 2019 and 27414 of 2019
D. KRISHNAKUMAR, J.
AND
K. GOVINDARAJAN THILAKAVADI, J
ak
Common Judgemnt in
W.A.No. 197 of 2020
and CMP.No. 3070 of 2020
and
W.P.Nos. 34357,34358 /2014,
24859 of 2019, 30291 of 2019 and 27414 of 2019
and
M.P.Nos. 1 & 1/2014 and 1/2015
29.03.2023
https://www.mhc.tn.gov.in/judis
