Madras High Court
The Vice Chancellor vs C.Raju .. 1St on 6 October, 2023
2023/MHC/4561
W.A.(MD)Nos.1104 and 1105 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
W.A.(MD)Nos.1104 and 1105 of 2016
1.The Vice Chancellor,
Tamil Nadu Agricultural University,
Coimbatore – 641 003.
2.The Registrar,
Tamil Nadu Agricultural University,
Coimbatore – 641 003.
3.The Professor and Head,
Horticultural Research Station,
Pechiparai,
Kanyakumari District. ... Appellants / Respondents 2 to
4 in both the Writ Appeals
Vs
C.Raju .. 1st Respondent / Petitioner in
W.A.(MD) No.1104 of 2016
R.Jeyaraj .. 1st Respondent / Petitioner in
W.A.(MD) No.1105 of 2016
The Agricultural Production Commissioner
and Secretary to Government,
Agricultural (AU) Department,
Secretariat,
1/10
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1104 and 1105 of 2016
Chennai – 600 009. .. 2 nd Respondent / 1st Respondent
in both the Writ Appeals
COMMON PRAYER:- Writ Appeals filed under Clause 15 of Letters
Patent Act, to set aside the common order dated 29.01.2014 made in W.P.
(MD)Nos.4334 and 4335 of 2012 on the file of this Court.
For Appellant in both : Mr.T.Sakthikumaran
the Writ Appeals for M/s.A.Thirumurthy
For Respondents : Mr.P.R.Prithiviraj
for R1 in both Writ Appeals
Mr.T.Amjadkhan
Government Advocate
for R2 in both Writ Appeals
****
COMMON JUDGMENT
(Judgment of the Court was delivered by S.M.SUBRAMANIAM, J.)
These appeals have been filed against the common order dated
29.01.2014, passed in W.P.(MD)Nos.4334 and 4335 of 2012, granting the
benefit of regularization in favour of the first respondent employees.
2. Admittedly, the first respondent employees were engaged as
daily wage employees and were continuously working for long years.
Pursuant to the Government Order, the daily wage employees were
brought under the regular establishment in the time scale of pay. The first
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W.A.(MD)Nos.1104 and 1105 of 2016
respondents in these Writ Appeals also claimed the said benefits, but that
was not considered. Therefore, the Writ Petitions were instituted. The
learned Single Judge, considering the Government Order and taking note
of the fact that the benefit of regularization was extended to other
employees, directed the authorities to regularize the services of the writ
petitioners.
3. Learned counsel appearing for the appellants would mainly
contend that a proposal was submitted by the Tamil Nadu Agricultural
University to Government for the purpose of regularization of the daily
wages employees and the Government negatived the claim on 24.11.2011
mainly on the ground that the intial appointments of these daily wage
employees were not in accordance with the recruitment rules in force and
therefore, the illegal appointments cannot be regularized or brought
under regular establishment.
4. In this context, the learned counsel for the appellants relied
on the judgment of the Hon'ble Supreme Court of India in the case of
Union of India and others v. Ilmo Devi and another reported in 2021
SCC Online SC 899 and relevant paragraphs are under:-
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W.A.(MD)Nos.1104 and 1105 of 2016
“25. The observations made in paragraph 9 are on
surmises and conjunctures. Even the observations made that
they have worked continuously and for the whole day are also
without any basis and for which there is no supporting
evidence. In any case, the fact remains that the respondents
served as part-time employees and were contingent paid staff.
As observed above, there are no sanctioned posts in the Post
Office in which the respondents were working, therefore, the
directions issued by the High Court in the impugned judgment
and order are not permissible in the judicial review under
Article 226 of the Constitution. The High Court cannot, in
exercise of the power under Article 226, issue a Mandamus to
direct the Department to sanction and create the posts. The
High Court, in exercise of the powers under Article 226 of the
Constitution, also cannot direct the Government and/or the
Department to formulate a particular regularization policy.
Framing of any scheme is no function of the Court and is the
sole prerogative of the Government. Even the creation and/or
sanction of the posts is also the sole prerogative of the
Government and the High Court, in exercise of the power
under Article 226 of the Constitution, cannot issue Mandamus
and/or direct to create and sanction the posts.
26. Even the regularization policy to regularize the
services of the employees working on temporary status and/or
casual labourers is a policy decision and in judicial review the
Court cannot issue Mandamus and/or issue mandatory
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W.A.(MD)Nos.1104 and 1105 of 2016
directions to do so. In the case of State of Maharashtra v. R.S.
Bhonde, [(2005) 6 SCC 751], it is observed and held by this
Court that the status of permanency cannot be granted when
there is no post. It is further observed that mere continuance
every year of seasonal work during the period when work was
available does not constitute a permanent status unless there
exists a post and regularization is done.
27. In the case of State of Rajasthan Daya Lal
[(2011) 2 SCC 429] in paragraph 12, it is observed and held as
under:-
“12. We may at the outset refer to the following
wellsettled principles relating to regularisation and parity in
pay, relevant in the context of these appeals:
(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
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W.A.(MD)Nos.1104 and 1105 of 2016
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
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W.A.(MD)Nos.1104 and 1105 of 2016
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.
[See State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1],
M. Raja v. CEERI Educational Society [(2006) 12 SCC
636], S.C. Chandra v. State of Jharkhand [(2007) 8 SCC
279], Kurukshetra Central Coop. Bank Ltd. v. Mehar
Chand [(2007) 15 SCC 680] and Official Liquidator v.
Dayanand [(2008) 10 SCC 1.]
28. Thus, as per the law laid down by this Court in
the aforesaid decisions part-time employees are not entitled to
seek regularization as they are not working against any
sanctioned post and there cannot be any permanent
continuance of part-time temporary employees as held. Part-
time temporary employees in a Government run institution
cannot claim parity in salary with regular employees of the
Government on the principle of equal pay for equal work.”
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W.A.(MD)Nos.1104 and 1105 of 2016
5. The Constitution Bench of the Hon'ble Supreme Court of
India in State of Karnataka v. Umadevi (3) [(2006) 4 SCC 1] in
unequivocal terms held that illegal appointments cannot be regularized.
All appointments are to be made under the Constitutional Schemes by
following the recruitment rules in force. Back door entries would cause
infringement of right of equality to secure employment by the eligible
persons and therefore, the practise of appointing daily wage employees
and regularising their services would result in infringement of right of
lakh and lakh of youths of our great nation longing to secure public
employment through open competitive process.
6. However, it is brought to our notice that the case of the first
respondents in these Writ Appeals was already considered by the
appellant University and their services are regularized and they are
brought under the regular time scale of pay with effect from 04.02.2019.
Since the grievances of the first respondents in these Writ Appeals were
redressed and they have no further right to claim any retrospective
benefits in view of the fact that their initial appointments were not in
accordance with the service rule requires, we do not entertain the other
grounds raised by the first respondents.
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W.A.(MD)Nos.1104 and 1105 of 2016
7. Accordingly, the common order dated 29.01.2014, passed in
W.P.(MD) No.4334 and 4335 is set aside and the Writ Appeals stand
allowed. No costs.
[S.M.S.J.,] & [V.L.N.J.,]
NCC :Yes/No 06.10.2023
Index :Yes/No
Internet :Yes/No
SJ
To
The Agricultural Production Commissioner
and Secretary to Government,
Agricultural (AU) Department,
Secretariat,
Chennai – 600 009.
https://www.mhc.tn.gov.in/judis
W.A.(MD)Nos.1104 and 1105 of 2016
S.M.SUBRAMANIAM, J.
AND
V. LAKSHMINARAYANAN, J.
SJ
W.A.(MD)Nos.1104 and 1105 of 2016
06.10.2023
https://www.mhc.tn.gov.in/judis
