Madras High Court
The Secretary To Government vs /13 on 24 March, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
2025:MHC:762
W.A.No.2569 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.01.2025
PRONOUNCED ON : 24.03.2025
CORAM:
THE HON'BLE DR.JUSTICE ANITA SUMANTH
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.A.No.2569 of 2022
and C.M.P.No.20290 of 2022
1.The Secretary to Government,
Education Department,
Fort St.George,
Chennai - 9.
2.The Commissioner / Director,
Director of Technical Education,
Chennai - 25.
3.The Principal,
Thanthai Periyar Government Institute
of Technology,
Vellore - 632 002.
4.The District Employment Officer,
District Employment Office,
Vellore District, Vellore. ... Appellants /
Respondents
versus
1/13
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W.A.No.2569 of 2022
1.M.Kamalanathan
2.K.Ramesh Kumar
3.S.Ashok Kumar
4.K.Elumalai
5.M.Pichandi ... Respondents /
Petitioners
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against
the order dated 27.07.2021 in W.P.No.33454 of 2015.
For Appellants : Mr.D.Ravichander
Special Government Pleader
For Respondents : Ms.R.T.Sundari
JUDGMENT
[Judgment of the Court was made by G.ARUL MURUGAN, J.]
The State is on appeal challenging the order of the writ court dated
27.07.2021 made in W.A.No.33454 of 2015, whereby the services of the
respondents were directed to be regularised with effect from the date of their
initial appointment.
2. The respondents herein who are working in the third appellant
institution, since without their services being regularised, attempts were
made by the respondents to issue a notification to fill up several posts, have
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approached the writ court seeking to quash the notification dated
02.09.2015 and direct the appellants for regularisation of their services.
3. The writ court by considering the decision of the Hon'ble
Supreme Court in Sheo Narain Nagar & Others Vs. State of Uttar Pradesh
& Orthers reported in (2018) 13 SCC 432 wherein the Hon'ble Supreme
Court had distinguished the back door appointments and employment
process by fair means holding that the employment cannot be on
exploitative forms and also observing that the decision of the Hon'ble
Supreme Court in Secretary, State of Karnataka and others Vs. Umadevi
and others reported in (2006) 4 SCC 1 cannot be used only to deny the
benefits of regularisation, held that the appointment of the respondents
could either be regular or irregular, but no means it could be illegal.
Arriving at such a conclusion, the writ court have extended the benefits
covered under G.O.(Ms.)No.22, Personnel and Administrative Reforms (F)
Department, dated 28.02.2006 and had directed the appellants to regularise
the services of the respondents from the date of their initial appointment.
Assailing the impugned order, this intra-court appeal is preferred.
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4. Mr.D.Ravichander, learned Special Government Pleader for the
appellants mainly contended that even though the first respondent was
sponsored through the Employment Exchange, respondents 2 to 5 have not
been recruited through the Employment Exchange and they have not
undergone the regular selection process to claim regularisation. He further
contended that their services were not continuous and they had been given a
break in service once a year for 5 days.
5. It is his vehement contention that since the respondents have
not completed 10 years of service as on 01.01.2006, the benefits under
G.O.(Ms.)No.22, Personnel and Administrative Reforms (F) Department,
dated 28.02.2006 and G.O.(Ms.)No.74, Personnel and Administrative
Reforms (F) Department, dated 27.06.2013, cannot be extended to them.
6. In support of his contentions, the learned Special Government
Pleader relied on the decisions in Secretary, State of Karnataka and others
Vs. Umadevi and others reported in (2006) 4 SCC 1 and Secretary to
Government Vs. Thiru.R.Govindaswamy and Others (Civil Appeal
Nos.2726-2729 of 2014 dated 21.02.2014) and contended that the order
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directing regularisation of services of the respondents cannot be sustained
and sought for indulgence of this Court.
7. Ms.R.T.Sundari, learned counsel for the respondents argued
that the respondents who have been working from 1999, 2003, 2002, 1995
and 2008 respectively have nearly put in 2 decades of service and when
similarly placed employees throughout the State have been regularised, the
respondents alone are given a differential treatment.
8. The learned counsel further contended that the respondents are
working in the posts that are enumerated under the Tamil Nadu Basic
Service and when they are permanent posts, the appellants cannot extract
work from the respondents for decades together by simply keeping them as
temporary employees.
9. Heard the rival submissions and perused the materials available
on record.
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10. Admittedly, the first respondent was sponsored through the
Employment Exchange and was appointed as Sweeper on 11.01.1999 and is
working on a daily wage basis in the third appellant institution. The
respondents 2 and 3 were appointed in January 2003 and October 2002 in
the third respondent institution and are working as Office Assistants. The
respondents 4 and 5 were appointed as Gardeners on a daily wage basis in
the years 1995 and 2008 respectively. As such, all the respondents had
rendered more than 10 years of service in the third appellant institution.
11. The Government had issued G.O.(Ms.)No.22, Personnel and
Administrative Reforms (F) Department, dated 28.02.2006, wherein the
daily wage employees, who had completed 10 years of service as on
01.01.2006, were sought to be regularised. Further, another order was issued
in G.O.(Ms.)No.74, Personnel and Administrative Reforms (F) Department,
dated 27.06.2013, in respect of the regularisation of the services of the full
time daily wage employees working in all Government Departments.
12. The respondents, by placing reliance on these Government
Orders, had sought for regularisation of their services. However, it is the
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contention of the respondents that they have not been continuously in
service, but every year they have been given a break of 5 days. Further, even
though the third appellant institution has sanctioned posts in the category of
Office Assistant, the respondents were not appointed through the
Employment Exchange. Insofar as the first respondent is concerned, even
though he has been appointed through the Employment Exchange, it is the
stand of the appellants that there is no sanctioned post of Sweeper. Further,
the main reason for the appellants to deny the claim of the respondents is
that they have not completed 10 years of service as on 28.02.2006.
13. The issue regarding the completion of 10 years of service as on
28.02.2006 has been considered by a Division Bench of this Court in
M.Mahalingam Vs. The Engineer in Chief, Water Resources Department,
Public Works Department and others [W.A.Nos.606 & 2830 of 2019 &
W.A.Nos.416, 871 to 883 of 2018 dated 16.08.2023] and has held that if the
employees had completed 10 years of service as on 27.06.2013, they are
entitled for the services to be regularised.
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14. Insofar as the objections that some of the respondents were not
appointed through the Employment Exchange and therefore their
appointments being irregular cannot be regularised is no longer res integra.
The issue was considered by the Division Bench in which one of us
(G.Arul Murugan,J.) is a party in S.Jayalakshmi Vs. State and others
[W.A.No.825 of 2025 dated 20.02.2025] had allowed the claim for
regularisation, by following the decision of the Full Bench of this Court in
M.Sivappa Vs. The State of Tamil Nadu reported in 2024 (2) CTC 1,
wherein it is held that if the post is one enumerated in the Special Rules for
Tamil Nadu Basic Service, then dehors the nature of appointment, the
employee will be entitled to the benefits of regularisation as per
G.O.(Ms.)No.22 dated 28.02.2006 dehors G.O.(Ms.)No.74 dated
27.06.2013.
15. The relevant paragraph is extracted hereunder:-
“3. The Writ Court dismissed the writ petition on the ground
that the appellant was not appointed through the Employment
Exchange and her appointment being irregular, she cannot claim the
benefit of regularization. The issue relating to regularization is no
longer res integra. A Full Bench of this Court in M.Sivappa v. The
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State of Tamil Nadu, reported in 2024 (2) CTC 1, to which one of us
(R.Subramanian, J.) was a party, has held that if the post is one
enumerated in the Special Rules for Tamil Nadu Basic Service,
dehors the nature of appointment, the employee will be entitled to
the benefits of regularization as per G.O.Ms.No.22 dated 28.02.2006
dehors G.O. No.74 dated 27.06.2013.”
16. In the instant case, the admitted facts are that the first
respondent had been sponsored through the Employment Exchange on
11.01.1999 and is working as Sweeper in the third appellant institution. The
second respondent was appointed on 11.01.2003 initially as Cleaner and
later appointed as Lab Assistant and is now working as Office Assistant.
The third respondent was appointed on 10.10.2002 as Cleaner and is now
working as Office Assistant.
17. The fourth respondent was initially appointed in the Public
Works Department on compassionate ground and later absorbed by the third
appellant institution as Gardener in the year 1995. The fifth respondent was
initially appointed in the Public Works Department and subsequently was
absorbed in the third appellant institution as Gardener in the year 2008. It is
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also not in dispute that the salaries of these respondents have been paid by
the Institution from out of the funds provided by the Government.
18. When the respondents have been in service of the third
appellant institution continuously, their employment cannot be termed to be
seasonal and when they have been allowed to work for nearly 2 decades, the
appellants cannot deny to regularise their services by relying on the decision
in Umadevi's case.
19. In fact, the Hon'ble Supreme Court in the case of Shripal and
another Vs. Nagar Nigam, Ghaziabad reported in 2025 SCC OnLine SC
221 has held that Uma Devi cannot serve as a shield to justify exploitative
engagements persisting for years without the employer undertaking
legitimate recruitment. The Hon'ble Supreme Court by considering the
decision rendered in Jaggo Vs. Union of India reported in 2024 SCC
Online SC 3826, wherein the misuse of the word 'temporary' was noted as
'employees engaged for work that is essential, recurring and integral to the
functioning of an institution are often labelled as 'temporary' or 'contractual',
even when their roles mirror those of regular employees'. By noting so, the
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Hon'ble Supreme Court had directed the employer to regularise the services
of the workmen and even to create sanctioned vacancies for that purpose to
accommodate them.
20. The writ court, by taking note of the above aspects and also
considering the decision rendered by the Hon'ble Supreme Court in Sheo
Narain Nagar's case stated supra, had directed the appellants to regularise
the services of the respondents from the date of their initial appointment.
21. We find no error or infirmity in the decision arrived at by the
learned Judge, but however, we are only inclined to modify the order to the
extent that the respondents are entitled for regularisation of their services
only on completion of 10 years. The first respondent having been appointed
on 11.01.1999 will be entitled for regularisation of his service w.e.f.
10.01.2009; the second respondent having been appointed on 11.01.2003
will be entitled for regularisation of his service w.e.f. 10.01.2013; the third
respondent having been appointed on 10.10.2002 will be entitled for
regularisation of his service w.e.f. 09.10.2012; the fourth respondent having
been appointed in the year 1995 will be entitled for regularisation of his
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service from the year 2005; and the fifth respondent having been appointed
in the year 2008 will be entitled for regularisation of his service from the
year 2018.
22. The appellants shall pass appropriate orders in regularising the
services of the respondents from the dates as mentioned above with all
consequential benefits within a period of eight (8) weeks from the date of
receipt of a copy of this order.
23. With the above modification, this Writ Appeal stands disposed
of. There shall be no order as to costs. Consequently, connected
Miscellaneous Petition is closed.
[A.S.M.J.,] [G.A.M.J.,]
24.03.2025
Speaking order
Index : Yes
Neutral Citation : Yes
sri
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Dr. ANITA SUMANTH, J.
AND
G.ARUL MURUGAN, J.
sri
Pre-Delivery Judgment made in
24.03.2025
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