K.R.Vijaya Kumar vs The State Of Tamil Nadu
2025 Latest Caselaw 2877 Mad

Madras High Court

K.R.Vijaya Kumar vs The State Of Tamil Nadu on 17 February, 2025

    2025:MHC:464




                                                                           W.P.(MD) No.5013 of 2019


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED : 17.02.2025

                                                      CORAM:

                                     THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN


                                              W.P.(MD) No.5013 of 2019

                 K.R.Vijaya Kumar                      ...        Petitioner

                                                       -vs-

                 1 The State of Tamil Nadu,
                   Rep. by its Principal Secretary to Government,
                   Rural Development and Panchayat Raj Department,
                   Secretariat,
                   Chennai-9.

                 2 The Commissioner,
                   Rural Development and Panchayat Raj Department,
                   Secretariat,
                   Chennai-9.

                 3 The District Collector,
                   Thoothukudi District.
                   Thoothukudi.                        ...        Respondents



                 PRAYER: Writ Petition is filed under Article 226 of the Constitution of India,

                 praying for issuance of a writ of mandamus,      to direct the respondents to

                 regularize the services of the petitioner with other candidates who were

                 recruited through employment exchange taking into consideration of the


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                                                                                  W.P.(MD) No.5013 of 2019


                 length of service of the petitioner in the light of Judgment, dated 28.11.2017,

                 of the Honble Division Bench made in W.A.No.1594 of 2017.



                                  For Petitioner :    Mr.C.Venkatesh Kumar,
                                                      for M/s.Ajmal Associates.

                                  For Respondents : Mr.G.V.Vairam Santhosh,
                                                    Addl. Govt. Pleader.



                                                           ORDER

The present Writ Petition has been filed to issue a writ of

mandamus, directing the respondents to regularize the services of the

petitioner with other candidates, who were recruited through employment

exchange, taking into consideration of the length of service of the petitioner, in

the light of Judgment, dated 28.11.2017, of the Honble Division Bench of this

Court, made in W.A.No.1594 of 2017.

2. The case of the petitioner is that he was initially appointed as

Computer Assistant in the year 2008 on consolidated pay. The third

respondent issued a paper publication in a daily newspaper on 14.03.2008.

The petitioner participated in the interview and, it was only on that basis,

appointment order was issued under National Rural Employment Guarantee

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Scheme (NREGS). The said appointment was made in a sanctioned post.

While he was working as Computer Assistant, the third respondent

terminated his services, vide proceedings, dated 31.07.2008, on account of

administrative reasons. He was again appointed, but, his appointment seemed

to have been made on the basis of outsourcing, as if he was recruited through

private agencies. But, the fact remained that he was originally appointed on

the basis of paper publication. He rendered more than ten years of service.

While so, the Government issued G.O.Ms.No.37, Rural Development and

Panchayat Raj (E5) Department, dated 22.03.2017, for absorption of 906

Computer Assistants, working under MGNREGS, as Junior Assistants. The

said G.O. would go to show that that there were as many as 1791 posts of

Computer Assistant, out of which 906 alone were sought to be absorbed. The

petitioner was not brought within the purview of the said G.O. The mode of

absorption was to the effect that those 906 Computer Assistants should be

allowed to participate in special qualifying test, conducted by TNPSC

exclusively, and, thereby, they would be absorbed. The petitioner sent a

representation, dated 21.02.2019, but the same was not considered by the

respondents. Similarly placed persons filed a writ petition in W.P.28961of

2014 before the Principal Seat of this Court and this Court, by its order, dated

27.04.2017, directed the respondents to consider the representation of the

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petitioners therein. In this regard, the writ petitioner states that the

Government filed a writ appeal in W.A.No.1594 of 2017 and the same was

dismissed on 28.11.2017, with an observation that the petitioner could be

treated on par with Computer Assistants, who were recruited through

employment exchange. Hence, this Writ Petition.

3. Learned counsel, appearing for the petitioner, would submit

that G.O.Ms.No.37, Rural Development and Panchayat Raj (E5) Department,

dated 22.03.2017, was not acted upon and absorption was directed to be

made without special qualifying test. The sole reason for differentiating the

candidates was that they were recruited through employment exchange and

the petitioner was not recruited through employment exchange. The petitioner

also rendered more than ten years of service and, after having long length of

service, the petitioner should not be discriminated, that too without any

reason, and, if the same was allowed to proceed, it would only result in

violation of equality clause, namely, Article 14 of the Constitution of India.

4. Per contra, learned Additional Government Pleader, appearing

on behalf of the respondents, would submit that the petitioner was appointed

on consolidated pay on contract basis through a Non-Governmental

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Organisation. He would further submit that only 906 Computer Assistants,

who were appointed through employment exchange and had completed five

years of service as on 30.09.2015 and were working in District Rural

Development Agencies and Blocks under MGNREGS, were recruited, following

due procedures and communal roster. The other persons, who were not

recruited through employment exchange by following rule of reservation, like

the petitioner herein, were not entitled to be absorbed as Junior Assistants in

approved vacancies. He would also submit that a policy decision was taken

vide G.O.Ms.No.37, dated 22.03.2017, to create posts to absorb 906 Computer

Assistants as Junior Assistants, as they were recruited through employment

exchange under MGNREGS and their services were regularly used in Unit

offices and, as such, their services were absolutely necessary and hence the

Government was pleased to take a policy decision to appoint them under

regular vacancies in the said Government Order.

5. Learned Additional Government Pleader has drawn the

attention of this Court to G.O.Ms.No.92, Rural Development and Panchayat

Raj (E5) Department, dated 13.07.2023, and submitted that Tamil Nadu

Public Service Commission had not concurred to conduct special qualifying

test to absorb 906 Computer Assistants working under Mahatma Gandhi

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National Rural Employment Guarantee Scheme (MGNREGS) as Junior

Assistants, by following the ratio laid down by the Hon'ble Supreme Court in

State of Karnataka & Others v. Umadevi, 2006 (4) SCC 1, and State of

Rajasthan v. Daya Lal, 2011 (2) SCC 429. He would further submit that the

Government, after careful examination, decided to accept the request of the

Commissioner of Rural Development and Panahayat Raj and thereby cancelled

the orders issued in G.O.Ms.No.37, Rural Development and Panahayat Raj

(E5) Department, dated 22.03.2017.

6. The Hon'ble Supreme Court has consistently taken a view that

Rules provide for a method of recruitment and those Rules are binding on the

Government and its agencies and, therefore, there cannot be a new method of

appointment, namely, regularisation or absorption, in service, without

following the process contemplated by the laws.

7. At this juncture, it is relevant to refer to the decision of the

Supreme Court in the case of State of Karnataka & Others v. Umadevi, 2006 (4)

SCC 1, wherein it is held as under :

''47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement

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is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.

48... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The

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arguments based on Articles 14 and· 16 of the Constitution are therefore overruled.

49. 1t is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law.

The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India. It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution.''

8. In State of Rajasthan v. Daya Lal, 2011 (2) SCC 429, the

Hon'ble Supreme Court has held as under :

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''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 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.

(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

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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 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.''

9. In view of the ratio laid down by the Hon'ble Supreme Court in

the above rulings, this Writ Petition is devoid of merit and dismissed. No costs.

Consequently, the connected W.M.P.(MD) Nos.3983 and 3984 of 2019 are

closed.

                                                                                           17.02.2025
                 NCC      : Yes / No
                 Index : Yes / No
                 Internet : Yes / No

                 dixit




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                 To:


                 1 The State of Tamil Nadu,

Rep. by its Principal Secretary to Government, Rural Development and Panchayat Raj Department, Secretariat, Chennai-9.

2 The Commissioner, Rural Development and Panchayat Raj Department, Secretariat, Chennai-9.

3 The District Collector, Thoothukudi District.

Thoothukudi.

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M.JOTHIRAMAN, J.

dixit

17.02.2025

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