Madras High Court
K. Subramani vs The Secretary To The Government on 26 September, 2023
W.P(MD)No.8933 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.(MD)No.8933 of 2016
K. Subramani ...Petitioner
Vs.
1. The Secretary to the Government,
Department of School Education,
State of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2. The Director of School Education,
College Road, Chennai – 600 006.
3. The Chief Educational Officer,
Trichy District, Trichy.
4. The Headmaster
Government High School,
Poongudi, Paganur Post – 620 009.
Trichy District. ....Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Certiorarified
Mandamus calling for the records relating to the impugned
proceedings issued by the 2nd respondent herein in NaKa.No.
1
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W.P(MD)No.8933 of 2016
67765/A5/E2/2014 dated 18.12.2014, quash the same and further
directing the respondents herein to regularize the service of the
petitioner as Sweeper since 02.02.1982 with salary and other
attendant benefits on par with the similarly placed person whose
service have been regularized vide G.O.Ms.No.179 (School
Education (R-1) Department) dated 13.07.2012 and G.O.Ms.No.247
(School Education (R-1) Department dated 03.10.2012.
For Petitioner : Mr.E.V.N.Siva
For R1 to R3 : Mr.V.Nirmalkumar
Government Advocate
ORDER
This Writ Petition has been filed seeking a Writ of
Certiorarified Mandamus against the impugned proceedings issued by
the 2nd respondent herein in Na.Ka.No.67765/A5/E2/2014 dated
18.12.2014 and for a consequential direction to the respondents to
regularize the service of the petitioner as Sweeper since 02.02.1982
with salary and other attendant benefits on par with the similarly
placed person whose service have been regularized vide G.O.Ms.No.
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W.P(MD)No.8933 of 2016
179 (School Eudcation (R-1) Department) dated 13.07.2012 and
G.O.Ms.No.247 (School Education (R-1) Department dated
03.10.2012.
2. Heard the learned counsel for the petitioner and learned
Government Advocate for respondents 1 to 3 and perused the record.
3. The case of the petitioner is that the petitioner was working
as Sweeper (Part Time) in the 4th respondent-School, which is a
Government School on 02.02.1982 in pursuance to the appointment order
issued by the 3rd respondent on 26.01.1982.
4. Since the petitioner was working as Sweeper (Part Time)
from 02.02.1982, he is eligible for regularization and therefore, the
proposal for regularization was forwarded by the 3rd respondent to the 2nd
respondent. However, there is no progress. The service of the similarly
placed persons working in the Education Department were regularised by
the State Government. Hence, the petitioner submitted a detailed
representation to the respondents on 01.07.2014 requesting them to take
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W.P(MD)No.8933 of 2016
necessary steps to regularize the service on par with the similarly placed
persons. As there was no response on his representation, the petitioner
has filed a Writ Petition in W.P(MD)No.13084 of 2014. By by order
dated 01.07.2014, this Court disposed of the Writ Petition with a
direction to the 2nd respondent to consider the representation dated
01.07.2014 within the period of four weeks. The 2nd respondent rejected
the request of the petitioner by the impugned order dated 18.12.2014.
Challenging the impugned order, the present Writ Petition has been filed.
5. Resisting the claim of the petitioner, counter affidavit has
been filed by the 4th respondent. In the said counter affidavit, it is
averred that the petitioner is not sponsored through employment
exchange and he has not appointed in a sanctioned post and not a full
time employee and therefore, the claim of regularization is unsustainable.
It is also averred the petitioner was not engaged in any full time
employment and as such, he is not entitled for regularization in terms of
G.O.Ms.No.22, dated 28.02.2006.
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W.P(MD)No.8933 of 2016
6. Learned counsel for the petitioner would submit that the
petitioner was appointed in a sanctioned post. The appointment order
issued on 26.01.1982 clearly proves that though it is mentioned that the
petitioner was appointed as Part Time Sweeper, it is mentioned in the
appointment order that he was appointed in the existing vacancy.
Learned counsel further submits that though it is mentioned in the
appointment order as Part Time Sweeper, the petitioner's services were
utilized for all other works like regular employees.
7. The learned counsel also contends that the 1st respondent
regularized the services of 12 other Part Time employees in time scale of
pay and disbursed monetary benefits to them vide G.O.(3D) No.33,
School Education (R1) Department, dated 20.03.2012 and regularized the
services of 618 Part Time employees vide G.O.Ms.No.111, School
Education (R1) Department, dated 09.05.2012 from the date of
completion of 10 years of service. But the respondents did not extend the
same benefit to the petitioner, which is discriminatory.
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W.P(MD)No.8933 of 2016
8. The learned counsel finally submits that the petitioner is
entitled for regularization from the date of completion of 10 years of
service, as he was appointed in the sanctioned post and sought to allow
the writ petition.
9. On the other hand, the learned Government Advocate
appearing for respondents 1 to 3 contends that as the petitioner was
appointed as Part Time Sweeper, he is not entitled for the benefit of
regularization after completion of 10 years of service provided under
G.O.Ms.No.22, dated 28.02.2006. The learned Government Advocate
would submit that the services of 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 who completes 10 years service as on
01.01.2006 only shall be regularized against regular vacancies under the
sanctioned cadre strength. In view of the facts and circumstances of the
case, as the petitioner was appointed as only Part Time Sweeper, he is not
entitled for regularization and other relief sought in this Writ Petition and
prayed to dismiss the Writ Petition.
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W.P(MD)No.8933 of 2016
10. Having heard the submissions of the respective counsels
and upon perusal of the material available on record, it is an admitted fact
that the petitioner is working as Part Time Sweeper from 02.02.1982.
11. On consideration of the rival contentions made on either
side, the only issue to be considered in this Writ Petition is whether the
petitioner is entitled for regularization after completion of 10 years of
service in terms of G.O.Ms.No.22, Personnel and Administrative
Reforms (F) Department, dated 28.02.2006 or not.
12. As per the contention of the petitioner, the petitioner's
appointment was approved the Chief Educational Officer, Trichy. From
the date of appointment, the petitioner is discharging his duties without
any break or blemish and he completed service of 34 years as on the date
of filing of the writ petition without any interruption and utmost
satisfaction to the respondents.
13. There is no any dispute that the 1st respondent issued
G.O.Ms.No.22, dated 28.02.2006 to regularize the services of the Part
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W.P(MD)No.8933 of 2016
Time employees, who completed 10 years of service. The case of the
petitioner is that as the petitioner was appointed in the sanctioned post,
he is entitled for the benefit under G.O.Ms.No.22. But the contention of
respondents 1 to 3 is that as the petitioner was appointed as Part Time
Sweeper and his nature of work is to be limited for two hours per day, he
is not entitled for the benefit under G.O.Ms.No.22, for regularization of
his services. It is true that the 3rd respondent has sent a proposal to the
2nd respondent to regularize the services of the petitioner and to place him
under Time Scale of Pay from the date of completion of 10 years of
service. It is an admitted fact that the petitioner has completed 10 years
of service by 02.02.1992.
14. On a careful perusal of the appointment order, dated
26.01.1982, which is annuexed in paper No.1 of the typed set of papers,
it clearly proves that the petitioner was appointed as Part Time Sweeper
in the existing vacancy. The said appointment was approved by the
Chief Educational Officer, Trichy, on 26.01.1982 in Na.Ka.No.
1289.B2/82. As such, this Court has no hesitation to note that the
petitioner was appointed in the sanctioned post.
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W.P(MD)No.8933 of 2016
15. Learned counsel for the petitioner has drawn the attention
of this Court to a judgment of the Division Bench of this Court in W.A.
(MD) No.93 of 2018, dated 27.03.2018 (Director of Elementary
Education and others Vs. Rani).
16. On careful perusal of the said judgment, it appears that in
identical situation, the respondent therein was appointed as Part Time
employee in a sanctioned post. The Division Bench, after considering
several decisions passed by this Court, rejecting the contentions of the
appellants therein, dismissed the said writ appeal. The finding of the
Division Bench is extracted herein under for proper adjudication of this
case:
“6.We have considered submission on
either side and perused the material placed on record
and decision of various Courts relied on by the
learned counsels. The undisputed fact is that the
respondent/writ petitioner has been appointed in a
sanctioned post, therefore, there is no allegation that
the writ petitioner was appointed in an unauthorised
vacancy. The next question would be whether there
can be any Part Time Employment in the sanctioned
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W.P(MD)No.8933 of 2016
post. The answer to the question should be negative-
against the appellant and in favour of the
management appointed Teacher. This is so because in
the sanctioned post, there cannot be a temporary
appointment without prior approval of the
department, there cannot be a Part Time Employee.
The service particulars furnished by the writ
petitioner clearly shows that all along the writ
petitioner was treated as full time employee and
continued to function in the school through out the
year and had sufficient work because the School was
a Higher Secondary School. In the case of Secretary
to Government, Commercial Taxes and Registration
Department, Secretariat and another Vs.
A.Singamuthu reported in AIR 2017 SC 1304, the
Hon'ble Supreme Court pointed out that the Part-time
employees will not be entitled to claim regularisation
particularly when he has not worked in the sanctioned
post. Therefore, the case on hand is clearly
distinguishable on facts. The learned counsel for the
appellant-State before the Hon'ble Supreme Court
contended that the respondent therein had worked
only for 2 to 3 hours per day regularisation granted to
such Masalchi was one time scheme to bring it on
time scale and such regularisation can be only from
the date of issuance of the particular decision. The
decision in the case of A.Singamuthu cannot be
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W.P(MD)No.8933 of 2016
applied to the facts and circumstances of the present
case.”
17. In view of the facts and circumstances of the case, this
Court is satisfied that the petitioner had been working as Part Time
Sweeper in a sanctioned post and had completed 10 years of service on
02.02.1992 and as such, from that date, the petitioner is entitled to get his
services regularized.
18. In the above referred judgment, the Division Bench of this
Court, categorically held that there cannot be any Part Time employment
in the sanctioned post. This Court has to follow the proposition of law
laid down by the Division Bench of this Court, as the facts and
circumstances of the present case are also identical.
19. For the above mentioned reasons, this Writ Petition is
allowed with the following directions:
i) The impugned order issued by the 2nd respondent herein
in NaKa.No.67765/A5/E2/2014 dated 18.12.2014;
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W.P(MD)No.8933 of 2016
ii) The respondents 1 to 3 are directed to regularize the
services of the petitioner from the date of completion of 10 years of
service, i.e., 02.02.1992 and disburse all monetary benefits to him for
which he is entitled from the said date;
iii) The entire exercise shall be completed within a period of
six weeks from the date of receipt of a copy of this order.
20. No costs.
21.Consequently, connected miscellaneous petition is
closed.
26.09.2023
Index : Yes / No
NCC : Yes / No
CM
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W.P(MD)No.8933 of 2016
To,
1. The Secretary to the Government,
Department of School Education,
State of Tamil Nadu,
Fort St. George, Chennai – 600 009.
2. The Director of School Education,
College Road, Chennai – 600 006.
3. The Chief Educational Officer,
Trichy District, Trichy.
4. The Headmaster
Government High School,
Poongudi, Paganur Post – 620 009.
Trichy District.
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W.P(MD)No.8933 of 2016
BATTU DEVANAND, J.
CM
W.P.(MD)No.8933 of 2016
26.09.2023
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