Madras High Court
The Union Of India vs Dr.T.Poovaisubramanian on 13 August, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
W.A.Nos.434, 497, 467 & 514 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.08.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
W.A.Nos.434, 497, 467 & 514 of 2022
W.A.No.434 of 2022
1.The Union of India,
Represented by its Secretary,
Ministry of Human Resource Development,
Shastri Bhawan, New Delhi 110 001.
2.The Director,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.The Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Appellants
Vs.
1.Dr.T.Poovaisubramanian
2.V.G.Bhooma,
Director I/C, Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
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W.A.Nos.434, 497, 467 & 514 of 2022
3.Dr.M.Muthuvelu,
Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Respondents
W.A.No.467 of 2022
1.The Union of India,
Represented by its Secretary,
Ministry of Human Resource Development,
Shastri Bhawan, New Delhi 110 001.
2.The Director,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.The Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Appellants
Vs.
1.S.Nagooramal
2.V.G.Bhooma,
Director I/C, Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.Dr.M.Muthuvelu,
Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Respondents
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W.A.No.497 of 2022
1.The Union of India,
Represented by its Secretary,
Ministry of Human Resource Development,
Shastri Bhawan, New Delhi 110 001.
2.The Director,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.The Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Appellants
Vs.
1.Dr.P.Raja
2.V.G.Bhooma,
Director I/C, Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.Dr.M.Muthuvelu,
Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Respondents
W.A.No.514 of 2022
1.The Union of India,
Represented by its Secretary,
Ministry of Human Resource Development,
Shastri Bhawan, New Delhi 110 001.
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2.The Director,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.The Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Appellants
Vs.
1.V.Gayatri
2.V.G.Bhooma,
Director I/C, Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.Dr.M.Muthuvelu,
Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113. ... Respondents
Common Prayer :- Writ Appeal filed under Clause 15 of Letters Patent,
praying to set aside the order dated 09.11.2021 passed in Writ Petition
Nos.12787, 12786, 12785 & 12788 of 2015 respectively.
For Appellants : Mr.A.R.L.Sundaresan, ASGI
Assisted by Mr.A.Kumaraguru, SPC
For R1 : Mr.T.Sundaravadanam
for M/s.Row & Reddy
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COMMON JUDGEMENT
(Judgment of the Court was delivered by S.M.Subramaniam J.)
The intra court appeals have been instituted challenging the writ
order pronounced on 09.11.2021 in Writ Petition Nos.12787, 12786,
12785 & 12788 of 2015. The Government of India established a Central
Institute of Classical Tamil for comprehensive understanding of history
and culture of Tamil Nadu. The Central Institute of Classical Tamil
(hereinafter referred as 'the Institute') started its work towards development
of Tamil language in 2006 with skeleton staff, like Programmer, Web
Designer and Administrative staff etc. The institute issued notice on
25.03.2007, calling for the applications to fill up various posts both on
academic and non academic sides. Pursuant to the notification, the
respondents in the writ appeals have submitted their applications. The
committee conducted an interview and appointed the first respondent in all
the writ appeals in the institute.
2.The grievances of the first respondent in all the writ appeals are
that they were appointed as contract employees and allowed to continue in
service for more than 4 ½ years. Mr.T.Sundaravadanam appearing on
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behalf of the first respondent would submit that the contract has been
extended time to time after the expiry of one year of period of contract,
since the first respondent was allowed to continue on contract basis for
more than 4 ½ years, they are entitled to be regularized in the sanctioned
post in the time scale of pay. Mr.T.Sundaravadanam has taken effort to
convince this Court by stating that the memos are issued on false
allegations. Mere protest was taken as misconduct and several charge
memos were issued. However, the authorities have not imposed any
punishment, but rescinded the contract and relieved the first respondent. In
other words, the respondents were not allowed to continue on expiry of the
period of contract and therefore, the Writ Court has rightly considered the
issues and allowed the writ petitions.
3.Mr.T.Sundaravadanam drew our attention with reference to the
charge memorandum issued to the respondents. The final memo issued
would reveal that the period of contract expired and therefore, the
respondents are not allowed to continue in service. The contract was not
renewed and therefore, the first respondent in all the writ appeals were
unable to continue in service.
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4.Mr.A.Kumaraguru, the learned Senior Panel Counsel, appearing
on behalf of the appellants would submit that the appointment of the first
respondent in all the writ appeals was on contract basis. The period of
contract was one year. No regular recruitment was conducted by following
the service rules. On constitution of the Institute, only skeleton staff were
appointed and no rules were framed. In the absence of rules, contract
appointments are made. Till such time, recruitment rules are framed for the
purpose of regular recruitment in the manner known to law.
5.The first respondent in all the writ appeals had participated in the
agitation. Their conduct in the Institute was assessed and therefore, the
authorities have not extended/renewed the contract and on expiry of the
term of the contract, they were relieved from service.
6.The relief sought for in the writ petition is to quash the order
relieving the first respondent herein from the contract services and to
regularize the services in the sanctioned post. Regularization and
permanent absorption and the principles to be followed are no more res
integra. The legal principles are settled by the constitutional bench of the
Hon'ble Supreme Court of India in the case of State of Karnataka Vs.
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Uma Devi reported in 2006 (4) SCC 1 and in Renu & Ors. Vs. District &
Sessions Judge & Ors. reported in 2014 (4) SCC 50.
7.The constitution bench reiterated that judgments running counter
to the principles laid down in Umadevi's case denuded to lose its status as
precedent and cannot be followed. Thus, the legal principles settled by the
constitutional bench are binding on all Courts.
8.Equal opportunity in public employment is the constitutional
mandate. All the appointments are to be made in accordance with the
recruitment rules in force. Rules of reservation are to be followed. Equal
opportunity enshrined under the constitution at no circumstances be
diluted. Back door, irregular and illegal appointments cannot be
regularized and such regularization would result in infringement of
fundamental rights of the citizens, who are aspiring to secure public
employment through open competitive process. Therefore, contract
employment for a period of one year would not confer any right to seek
regularization or permanent absorption. On expiry of the contract, it is left
to the employer to continue the period of contract or to relieve the contract
employee and go for regular recruitment by following the service rules in
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force. In such circumstances, the contract employees may be permitted to
participate in the process of recruitment. However, mere contract
appointment would not confer any right to seek regularization or
permanent absorption.
9.Many eligible candidates and lakhs and lakhs of youth of our great
nation are longing to secure public employment through open competitive
process. Authorities cannot appoint persons on contract
basis/temporarily/daily wages and regularize their services without
following the rules of reservation and recruitment rules in force. The
ramifications and repercussions of regularizing the irregular, illegal and
back door appointments were considered by the constitution bench and it
is reiterated in unequivocal terms that irregular, illegal and back door
appointments cannot be regularized. In the present case, it cannot be
construed as irregular, illegal and back door appointments, but it is a
contract appointment. The contract appointments are made, in order to
meet out certain administrative exigencies. Such contract appointments
would not provide any right to claim regularization or permanent
absorption. The contract appointees have to undergo the regular
recruitment process by participating in the open competitive process.
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Therefore, we are of the opinion that the appointment of the first
respondent may not be irregular or illegal, but it is a contractual
appointment for a period of one year and the period of contract was
renewed periodically and the first respondent in all the writ appeals
continued in service for about 4 ½ years. Thereafter, it was not renewed
and by virtue of an interim order, they were paid salary for about 1 ½
years.
10.It is not in dispute between the parties that the initial
appointment of the first respondent in all the writ appeals was on contract
basis for a period of one year. That being the case, regularization or
permanent absorption cannot be sought for in violation of the regular
recruitment rules in force. While establishing Central Institute of Classical
Tamil, the employees were appointed on contract basis and thereafter,
service rules are framed and therefore, the appellants have to recruit
candidates strictly by following the recruitment rules in force and by
affording equal opportunity to all the candidates, who are all aspiring to
secure the public employment through open competitive process.
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11.The Writ Court has not considered the legal principles settled by
the constitution bench of the Supreme Court of India, in the case of
Umadevi cited supra and further, in the case State of Rajasthan and
Others Vs. Daya Lal and Others reported in (2011) 2 SCC 429, the
Supreme Court has directed the High Court not to issue any directions to
regularize the services in violation of the recruitment rules. The sanctioned
posts has to be filled up strictly in accordance with the service rules and by
following due process and the relevant portion of the said judgment reads
as follows:
8. We may at the outset refer to the
following well settled principles relating to
regularization and parity in pay, relevant in the
context of these appeals:
(i) High Courts, in exercising power
under Article 226 of the Constitution will not issue
directions for regularization, absorption or
permanent continuance, unless the employees
claiming regularization 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
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clause contained in Articles 14 and 16 should be
scrupulously followed and courts should not issue
a direction for regularization of services of an
employee which would be violative of
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 regularized,
back door entries, appointments contrary to the
constitutional scheme and/or appointment of
ineligible candidates cannot be regularized.
(ii) Mere continuation of service by an
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 regularization, if he is not
working against a sanctioned post. Sympathy and
sentiment cannot be grounds for passing any
order of regularization in the absence of a legal
right.
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(iii) Even where a scheme is formulated for
regularization 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 regularization as they are not working
against any sanctioned posts. There cannot be a
direction for absorption, regularization 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
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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.
12.Creation or sanctioning of posts and running administration is
the prerogative of the employer and the employee has no say about
sanctioning of the post or running of administration. Even in the absence
of the service rules, regular recruitment to the sanctioned posts are to be
made only by following the established principles laid down by the
constitutional Courts across the country. The selection and appointments
to the sanctioned post in the time scale of pay is to be made by
scrupulously following the established principles in the absence of any
service rules in force. However, contract/temporary/daily wages
employment cannot result in regularization or permanent absorption.
13.In view of the fact that the first respondent in all the writ appeals
were admittedly appointed as contract employees for a period of one year
and the contract was extended for about four years, the said extension
would not confer any right to claim regularization or permanent absorption
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in violation of the service rules in force. Thus, the first respondent in all the
writ appeals are not entitled for the relief of regularization and permanent
absorption, which has been granted counter to the legal principles settled
by the constitution bench of the Supreme Court of India.
14.Thus, the writ order impugned dated 09.11.2021, passed in Writ
Petition Nos.12787, 12786, 12785 & 12788 of 2015 is set aside and the
Writ Appeal is allowed. No costs.
(S.M.S.J.,) (V.S.G.J.,)
13.08.2024
sli
Index : Yes/No
Internet: Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
To
1.The Union of India,
Represented by its Secretary,
Ministry of Human Resource Development,
Shastri Bhawan, New Delhi 110 001.
2.The Director,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
3.The Registrar,
Central Institute of Classical Tamil,
IRT Campus, 100 Feet Road,
Taramani, Chennai 600 113.
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S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
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W.A.Nos.434, 497, 467 & 514 of 2022
13.08.2024
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