Madras High Court
R.Jagadeesan vs Union Of India on 30 September, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
WP.No.9645 of 2023
In the High Court of Judicature at Madras
Dated : 30.9.2024
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.9645 of 2023
R.Jagadeesan ...Petitioner
Vs
1.Union of India, rep.by the
Secretary to Government,
Ministry of Corporate Affairs,
Room Nos.502, 505 & 538,
Shastri Bhawan A Wing,
5th Floor, Dr.R.P.Road,
New Delhi-1.
2.The Regional Director (SR),
Ministry of Corporate Affairs,
Shasri Bhavan, Block 1,
V Floor, 26, Haddows Road,
Chennai-6.
3.The Joint Director, Ministry of
Corporate Affairs, Shastri
Bhavan, Block 1, V Floor,
26, Haddows Road,
Chennai-6.
4.The Official Liquidator,
High Court, Madras, Ministry of
Corporate Affairs, Corporate
Bhavan, II Floor, No.29,
Rajaji Salai, Chennai-1. ...Respondents
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1/18
WP.No.9645 of 2023
PETITION under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorarified Mandamus to call for the
records relating to Order No.F.No.1(523)/2022 dated 18.1.2023
passed by the 3rd respondent, quash the same and direct the
respondents to absorb the petitioner as Lower Division Clerk with
effect from the date of initial appointment as Estate Clerk ie. with
effect from 13.3.1995 with arrears of pay and pension and all other
consequential benefits including re-fixation of pay and pension in
favour of the petitioner.
For Petitioner : Ms.Y.Kavitha for
M/s.P.V.S.Giridhar Associates
For R1 to R3 : Mr.AR.L.Sundaresan, ASG-I
assisted by
Mr.K.Srinivasa Murthy, CGSC
R4 : served & no appearance
ORDER
This writ petition has been filed challenging the proceedings of
the third respondent dated 18.1.2023 and for a consequential
direction to the respondents to absorb the petitioner as Lower
Division Clerk (LDC) with effect from the date of his initial
appointment as Estate Clerk on 13.3.1995 with all attendant benefits.
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2. Heard the learned counsel for the petitioner and the
Additional Solicitor General-I assisted by the learned Central
Government Standing Counsel appearing for respondents 1 to 3.
Though the fourth respondent was served and his name printed in the
cause list, he has not chosen to appear either in person or through a
counsel.
3. The case of the petitioner is as follows :
(i) The petitioner was appointed as Estate Clerk on 13.3.1995 in
the office of the fourth respondent. Ever since the date of his
appointment as a Government paid staff, the petitioner was
discharging his duties and responsibilities.
(ii) Earlier, the petitioner filed W.P.No.11571 of 2019 seeking
for regularization/absorption as a regular LDC in the office of the
fourth respondent from the date of his original appointment. The said
writ petition was considered along with other connected writ petitions
in W.P.Nos.11566, 11571, 11573 & 11574 of 2019 and they were
disposed of by learned Single Judge of this Court by a common order
dated 22.4.2019 in the following terms :
"4. As far as the present writ petitions are
concerned, the learned Counsel made a submission that
pursuant to the orders of the Hon'ble Supreme Court of
India dated 27.08.1999, the scheme was framed akin
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to that of the scheme framed during the year 1978.
Accordingly, many number of persons were absorbed in
the regular vacancies and all those employees are now
working as permanent employees in the time scale of
pay. However, the cases of the writ petitioners were not
considered on account of the fact that the vacancies are
not available in the department.
5. The learned counsel for the writ petitioners
state that during the relevant point of time, when the
other employees were regularized, the educational
qualification prescribed was pass in 8th standard. The
subsequent amendment made in the service rules shall
not affect the interest of the employees who had
already been appointed in the services and further the
benefit of regularization had already been extended to
all other similarly placed employees. Thus, the
amended service rules shall not have any application
with reference to the present writ petitioners service
which is yet to be regularized by the respondents in
accord with the judgment of the Hon'ble Supreme Court
of India and the scheme formulated by the respondents
for absorption/ regularization.
6. The learned Counsel fairly made a submission
that, in the event of availability of vacancies in the
department, the case of the writ petitioners will be
considered for grant of regularization. In view of the
said submission, this Court is inclined to pass the
following orders:-
1. The respondents are directed to regularize the
service of the writ petitioners soon after the availability
of vacancy.
2. The service benefits as per the rules are to be
extended to the writ petitioners whose services are yet
to be regularized in the event of their regularization in
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the permanent vacancies.
3. It is made clear that the respondents shall not
insist the amended educational qualification of SSLC in
respect of the writ petitioners whose services are yet to
be regularized based on the judgment of the Hon'ble
Supreme Court of India and as per the scheme
formulated."
(iii) The said common order dated 22.4.2019 was passed after
taking into account the judgment of the Apex Court in the case of
Government of India Vs. Court Liquidator's Employees
Association [Civil Appeal No.5642 of 1994 etc. cases dated
27.8.1999]. That was a case where the similarly placed persons,
who were working in the offices of the Official Liquidator in various
places, approached the Apex Court seeking for the same relief. The
Apex Court, after considering the grievance, issued directions for
framing a scheme within six months in order to absorb the
Government paid staff working in the offices of the Official Liquidator
in Calcutta High Court and in other High Courts.
(iv) Pursuant to the said order passed by the Apex Court, a
scheme was framed on 01.10.1999 by the Government of India,
Department of Company Affairs. Thereafter, the Government issued a
communication to the Official Liquidator, Chennai and other places
and provided the list of empanelled candidates, who should be
considered for absorption as and when the vacancy arose. Further,
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the name of the petitioner was also added in S.No.62 in respect of
the panel that was prepared for the Southern Region to the post of
LDC. In spite of the scheme being framed by the Central
Government, there was no development and as a result, the
petitioner filed the said writ petition in W.P.No.11571 of 2019, in
which, a common order dated 22.4.2019 was passed by a learned
Single Judge of this Court along with other connected writ petitions.
(v) The grievance of the petitioner is that pursuant to the said
common order dated 22.4.2019, the third respondent, through
proceedings dated 18.1.2023, rejected the claim made by the
petitioner for regularization. By the time the said order dated
18.1.2023 was passed, the petitioner retired from service with effect
from 30.6.2020. It is under these circumstances, the present writ
petition came to be filed before this Court.
4. The third respondent filed a counter affidavit for himself and
on behalf of respondents 1 and 2 wherein she took a stand that the
claim made by the petitioner cannot be considered beyond the scope
of the scheme, that the scheme contemplated absorption only if any
vacancy arose and that since the petitioner retired from service, he
cannot seek for regularization as the LDC after retirement nor seek
for payment of pension.
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5. The third respondent also took a stand that the petitioner
cannot equate his case with one Mrs.S.Usharani and one Mr.K.M.
Wilson, that they were given the relief pursuant to the order passed
by the Apex Court dated 13.1.2020 in S.L.P.(Civil) Nos.25025 &
25026 of 2019 filed by the Union of India & Others as against the
common interim order dated 10.7.2019 in W.A.Nos.1308 & 1309 of
2019 granted by a Division Bench of this Court and that the Apex
Court, while passing said order dated 13.1.2020, made it clear that
the same could not be treated as a precedent.
6. The third respondent took a further stand that the claim
made by the petitioner was considered in the light of the scheme and
it was rejected and that therefore, there is no ground to interfere
with the impugned order passed by the third respondent. Ultimately,
she sought for dismissal of this writ petition.
7. This Court has carefully considered the submissions of the
learned counsel on either side and perused the materials available on
record and more particularly the impugned order passed by the third
respondent.
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8. The main ground that was urged by the petitioner hinges
upon the relief that was granted to the said Mrs.S.Usharani and the
said Mr.K.M.Wilson, who obtained similar orders before this Court in
W.P.Nos.15053 of 2019 dated 19.2.2019 & W.P.No.15054 of 2018
dated 25.2.2019 respectively. However, the said Mrs.S.Usharani and
the said Mr.K.M.Wilson filed two writ appeals in W.A.Nos.1308 & 1309
of 2019, in which, an interim order was granted by a Division Bench
of this Court on 10.7.2019 in the following terms :
"The appellants were not absorbed in service in
spite of a scheme framed pursuant to the direction
issued by the Supreme Court. The ban imposed for
filling up the post of Group C & D was the main reason
for the non availability of posts for absorption. The
appellants were not responsible for the situation. We
are, therefore, of the view that the Ministry must take a
decision forthwith for absorption of the appellants,
taking into account the letter dated 12 June 2019. The
appellants would be entitled to the benefits notionally
without any claim for differential salary. We are issuing
this interim direction to the respondent, in view of the
pitiable condition of the appellants, who are now out of
service."
9. The said common interim order dated 10.7.2019 was put to
challenge before the Apex Court by the Union of India & others in
S.L.P.(Civil) Nos.25025 & 25026 of 2019. However, the Apex Court
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dismissed the said special leave petitions by a common order dated
13.1.2020 in the following terms :
"We are informed that the respondent has
retired on attaining the age of superannuation on
31.5.2019. The petitioner shall implement the
directions issued by the High Court in the impugned
order and regularize the services of the respondent. It
is reiterated that the respondent shall not be entitled
for any differential salary on the basis of the fixation of
pay. We make it clear that the respondent shall be paid
the pensionary benefits to which she is entitled to
pursuant to the regularization of her services.
This order shall not be treated as a precedent."
10. Pursuant to the said common order of the Apex Court dated
13.1.2020, the said Mrs.S.Usharani and the said Mr.K.M.Wilson were
granted the pensionary benefits by regularizing their services. The
petitioner is claiming a similar relief in this writ petition.
11. The relief that was granted to the said Mrs.S.Usharani and
the said Mr.K.M.Wilson cannot be extended to the petitioner since the
said relief was granted to them pursuant to the common order dated
13.1.2020 passed in the said two special leave petitions and the Apex
Court also made it clear that it should not be treated as a precedent.
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12. The learned Additional Solicitor General-I appearing on
behalf of respondents 1 to 3, by placing reliance upon the judgment
of the Apex Court in the case of Official Liquidator Vs. Dayanand
[reported in 2008 (10) SCC 1], submitted that the petitioner will
not be entitled to claim any relief beyond the scheme that was
framed by the Government pursuant to the directions of the Apex
Court, that unless a vacancy arises, the petitioner cannot be
absorbed, that the petitioner already retired from service in the year
2020, that therefore, there is no question of regularizing his services
and granting pension and that such relief will go beyond the scope of
the scheme framed by the Union of India. In order to substantiate
this submission, he specifically relied upon paragraph Nos.51 to 53,
65 and 114 to 118 in the above said judgment of the Apex Court.
13. It is not necessary for this Court to deal with the above
issue raised by the learned Additional Solicitor General-I in the light
of the following development that has taken place in this case :
Persons similarly placed like the petitioner also filed a writ
petition in W.P.No.6832 of 2019 seeking for regularization and it was
disposed of by an order dated 11.3.2019. The purport of that order is
similar to the common order dated 22.4.2019 that was passed in
favour of the petitioner and others in in W.P.No.11566 of 2019 etc.
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cases. The petitioners in W.P.No.6832 of 2019 filed a writ appeal in
W.A.No.2237 of 2022.
14. It is also pertinent to note that there were six petitioners in
W.P.No.6832 of 2019 and out of the same, at least four of the
petitioners were above the petitioner herein in the list that was
prepared pursuant to the scheme framed by the Government of India.
The petitioner was placed at S.No.62 in that list. Further, W.A.No.
2237 of 2022 came to be dismissed by a Division Bench of this Court
by judgment dated 27.3.2024, the relevant portions of which are
extracted as hereunder :
"7. It is not in dispute that the appellants were
appointed as Estate Clerks in the office of the Official
Liquidator, High Court of Madras during the periods
1981-1989 and they have been working as such, till
date. However, their services have not been
regularised. It is also not in dispute that several
similarly situated employees working in other Official
Liquidators' offices in Kerala and Delhi were
regularized, even though they were juniors to the
appellants. The appellants state that they should have
been regularized as Lower Division Clerks (LDCs) as per
the absorption scheme framed pursuant to the
Supreme Court's directions in Civil Appeal No.5677 of
1994, in view of the fact that they have been working
continuously for more than 30 years and they are
qualified to hold the post of LDCs. Therefore, the order
of the learned Judge directing the respondents to grant
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regularisation to the appellants, as and when vacancies
arise, is unjustified and contrary to the scheme.
Whereas, it is the stand of the respondents that
the absorption scheme was merely an one-time
measure and not a mandatory requirement, and the
respondents have not acted arbitrarily or illegally in not
absorbing or regularizing the appellants.
8. In the judgments relied on by the learned
Additional Solicitor General for the respondents, the
Kerala High Court in C.B. Lalithakumari (supra) and the
Division Bench of this Court in W.P.No.27213 of 2021,
have set aside the orders granted by the Tribunal, with
respect to absorption and regularisation of services of
Estate Clerks, considering two key aspects: one is the
delay and laches in prosecuting the matter, and
secondly, similarly placed persons had been granted
such benefit based on the decision of the Apex Court
and in accordance with the scheme and that, the
appointment order issued to them was not challenged
before any court of law. That apart, both the High
Courts upheld the principle that back door entries and
appointments contrary to the constitutional scheme,
cannot be regularized.
9. Pertinently, it is to be pointed out that the
appellants remained silent for several years, after their
initial appointment as Estate Clerks. The Kerala High
Court in C.B. Lalithakumari (supra), held that though a
positive direction was issued in O.P.No.9732 of 1990 to
absorb the applicants in service from the date of their
appointments, when the matter was taken up before
the Apex Court, after rejecting the appeals filed by the
Union of India, the Government was permitted to frame
a scheme for their absorption, pursuant to which, the
applicants were absorbed in service in the year 2000.
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O.P.No.249 of 2002 came to be filed by the persons
who were not absorbed, but who were parties to the
proceedings in O.P.No.9732 of 1990 seeking a direction
to absorb them in service and the said original petition
came to be allowed based on the directions passed in
O.P.No.9732 of 1990. The Supreme Court did not
interfere with the order granted in O.P.No.249 of 2002,
but observed:
'Civil Appeals are dismissed leaving the question
of law open. However, this may not be taken as
precedent for future cases'.
The appellants in the present case were not
absorbed pursuant to that scheme, but had been
working as Estate Clerks since their initial appointment
between 1981 and 1989. They did not challenge their
non-absorption or non- regularization for several years
and they raised this issue belatedly (i.e.), after three
decades post their slumber. At this juncture, it is to be
noted that the orders benefiting other similar
employees cannot be treated as precedents for future
cases, especially when the beneficiaries themselves
delayed acting on time."
15. It is brought to the notice of this Court that as against the
said judgment dated 27.3.2024 rendered by the Division Bench of
this Court, a special leave petition in S.L.P.(Civil) No.13124 of 2024
has been filed before the Apex Court, in which, notice has been
ordered and the same is pending.
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16. In the light of the said judgment dated 27.3.2024 rendered
by the Division Bench of this Court in W.A.No.2237 of 2022, this
Court cannot take a different view in this writ petition and judicial
discipline requires that as a Single Judge, this Court must fall in line
with the said judgment rendered by the Division Bench of this Court.
If the other similarly placed persons were not given relief by the
Division Bench of this Court, as a Single Judge, there is no scope for
granting the relief in favour of the petitioner also. This Court has
already held that the cases of the said Mrs.S.Usharani and the said
Mr.K.M.Wilson stand on a different footing as the relief was granted
to them by the Apex Court.
17. In the light of the above discussions, the relief as sought
for by the petitioner cannot be granted. However, the right of the
petitioner is kept intact and depending upon the final result in the
pending special leave petition in S.L.P.(Civil) No.13124 of 2024 filed
against the judgment dated 27.3.2024 in W.A.No.2237 of 2022, the
petitioner can revive the claim in future. Except giving this clarity, no
further orders can be passed in this writ petition.
18. This writ petition is disposed of accordingly. No costs.
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30.9.2024
RS
To
1.The Secretary to Government,
Union of India, Ministry of
Corporate Affairs,
Room Nos.502, 505 & 538,
Shastri Bhawan A Wing,
5th Floor, Dr.R.P.Road,
New Delhi-1.
2.The Regional Director (SR),
Ministry of Corporate Affairs,
Shasri Bhavan, Block 1,
V Floor, 26, Haddows Road,
Chennai-6.
3.The Joint Director, Ministry of
Corporate Affairs, Shastri
Bhavan, Block 1, V Floor,
26, Haddows Road,
Chennai-6.
4.The Official Liquidator,
High Court, Madras, Ministry of
Corporate Affairs, Corporate
Bhavan, II Floor, No.29,
Rajaji Salai, Chennai-1.
RS
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH,J
RS
30.9.2024
https://www.mhc.tn.gov.in/judis
