Madras High Court
The State Of Tamil Nadu vs E.Seetha on 27 March, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.403 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.03.2025
CORAM:
THE HONOURABLE MRS.JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.403 of 2024
and
C.M.P.(MD)No.3548 of 2024
1.The State of Tamil Nadu,
Represented by its Secretary,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Kanyakumari District,
Nagercoil-629 001.
4.The District Educational Officer,
Thuckalay,
Kanyakumari District. ... Appellants
Vs.
1.E.Seetha
2.The Secretary,
Devaswom High School,
Thirparappu-629 161,
Kanyakumari District. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the order
of this Court in W.P.(MD)No.18118 of 2019, dated 25.08.2023.
1/21
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W.A.(MD)No.403 of 2024
For Appellants :Mr.J.Ashok
Additional Government Pleader
For R1 :Mr.S.Xavier Rajini
For R2 :Mr.R.Shankar Ganesh
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
This writ appeal is filed by the respondents 1 to 4 in the writ petition
challenging the order dated 25.08.2023 passed in W.P.(MD)No.18118 of 2019.
2. The writ petition was filed for issuance of a Writ of Mandamus, to direct
the respondents to regularize the petitioner’s service as Sweeper in the time scale
of pay from the date of completion of ten years of service, i.e. on 09.01.1999, in
the 5th respondent school and disburse all monetary benefits to the petitioner.
3. The brief facts as stated in the writ petition are that initially the writ
petitioner was appointed as Sweeper (part time) on 10.01.1989 in Devaswom
High School, Kuzhithurai, Kanyakumari District and the appointment was made
as per employment seniority and after conducting proper selection process.
Thereafter, the said school was closed, then the writ petitioner was transferred on
19.12.2015 to the 2nd respondent herein / 5th respondent therein school namely
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Devaswom High School, Thirparappu which is a recognized aided private
school. The government regularized the service of various temporary employees
on completion of ten years of service as per G.O.Ms.No.22, Personnel and
Administrative Reforms (F) Department, dated 28.02.2006. The writ petitioner
requested the appellants to regularize her service from 09.01.1999 which is after
completion of ten years but no orders were passed. The writ petitioner repeatedly
submitted representations to the respondent school and the school had also
submitted a proposal in January 2019. But the official respondents did not take
any action. Hence, the writ petition was filed.
4. The District Educational Officer had filed counter affidavit wherein it is
stated that the writ petitioner was appointed as part time Sweeper and the work is
only for two hours per day. Since the writ petitioner was not engaged in any full-
time employment, she is not entitled to regularization as per terms in G.O.Ms.No.
22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006.
5. The contention of the writ petitioner is that she was appointed in a
sanctioned post through appointment order, dated 17.01.1989. Even though the
writ petitioner was appointed as part time Sweeper, her services were utilized for
all other services from morning to evening like regular employees. Further, the
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respondents had regularized 12 other part time employees in the time scale of pay
and had disbursed monetary benefits, vide G.O.(3D)No.33, School Education
(R1) Department, dated 20.03.2012. Further, 618 part time employees were
regularized vide G.O.Ms.No.111, School Education (R1) Department, dated
09.05.2012, from the date of completion of ten years of service. Hence, if it is
declined to writ petitioner, the same would amount to discrimination. Further,
G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department, dated
27.06.2013, was issued indicating that the services of those who completed 10
years of service on or after 01.01.2006 will not be regularized. Further it was
contended by the writ petitioner that the said government order was not
implemented to the persons working in the schools, hence the respondents have a
misconception that G.O.Ms.No.74, Personnel and Administrative Reforms (F)
Department, dated 27.06.2013, imposed a condition that no person should be
regularized. Hence the appellants did not consider the writ petitioner’s claim and
the same is erroneous.
6. The Writ Court has recorded the objection of the government that part-
time employees are not entitled to regularization under G.O.Ms.No.22, Personnel
and Administrative Reforms (F) Department, dated 28.02.2006 and the full-time
daily wages employees alone were regularized against the regular vacancy against
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the sanctioned cadre strength. Since the writ petitioner was appointed as part time
Sweeper, she is not entitled to regularization.
7. The Writ Court held even though the writ petitioner was appointed as
part time Sweeper from 10.01.1989, the writ petitioner has completed 30 years of
service until her superannuation and G.O.Ms.No.22, Personnel and Administrative
Reforms (F) Department, dated 28.02.2006, is applicable to part time employees
also. The appointment was also approved by the education authorities. In the
judgment rendered in W.A.(MD)No.93 of 2018, dated 27.03.2018 in the case of
Director of Elementary Education and Others vs. Rani, it is held that in a
sanctioned post, there cannot be any temporary employment without approval.
Hence, there cannot be any part time employees and all along it was treated as full
time employment and she had sufficient work for the whole day. In the case of
Secretary to Government, Commercial Taxes and Registration Department,
Secretariat and Another Vs. A.Singamuthu reported in AIR 2017 SC 1304, it
was held that the part time employees will not entitled to any regularization
particularly when they have not worked in sanctioned posts. Therefore, the Writ
Court held if the writ petitioner is appointed against sanctioned post, she cannot
be treated as part time employment. Therefore, the Writ Court directed to
regularize from date of completion of ten years, i.e., 09.01.1999 and to disburse
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the benefits. Aggrieved over the same, the present appeal is preferred by the
government.
8. Heard Mr.J.Ashok, the learned Additional Government Pleader,
Mr.S.Xavier Rajini, the learned Counsel appearing for the 1st respondent and
Mr.R.Shankar Ganesh, the learned Counsel appearing for the 2nd respondent and
perused the records.
9. The 1st contention of the appellants is that G.O.Ms.No.22, Personnel and
Administrative Reforms (F) Department, dated 28.02.2006, is not applicable to
part time employees. This is clarified by the subsequent G.O.Ms.No.74, Personnel
and Administrative Reforms (F) Department, dated 27.06.2013, wherein it is
clarified that G.O.Ms.No.22, Personnel and Administrative Reforms (F)
Department, dated 28.02.2006 is issued only for full time employees. Therefore,
the writ petitioner / 1st respondent herein cannot claim regularization being a part
time employee. The G.O.Ms.No.22 is extracted hereunder:
“ABSTRACT Public Services Employees working on daily wages-
Bringing into regular establishment on completion of ten years of
service as on 01.01.2006-Orders issued.
G.O. Ms. No.22 Personnel and Administrative Reforms (F) Department
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dated 28.02.2006
ORDER:
The Hon’ble Chief Minister had announced during the Tamil Nadu
Government Officials Union and Government Servants and Teachers
Associations General Conference held on 08.02.2006, that the services
of employees working in various Government Departments on daily
wages basis who have completed more than 10 years of service as on
01.01.2006 will be regularized.
2. Based on the announcement made by the Hon’ble Chief Minister on
08.02.2006, the Government direct that the services of the daily wages
employees working in all Government Departments who have rendered
10 years of service as on 01.01.2006 be regularized by appointing them
in the time scale of pay of the post in accordance with the service
conditions prescribed for the post concerned, subject to their being
otherwise qualified for the post.
3. The Departments of Secretariat may therefore, be directed to pursue
action to regularize the services of the daily wages employees working
in all Government Departments, who have rendered 10 years of service
as on 01.01.2006 as ordered in para 2 above in consultation with the
respective Heads of Departments wherever necessary. In special cases
wherein relaxation of rules is required proposal shall be sent to
Government.
4. This order issues with the concurrence of Finance Department vide its
U.O. No.985/FS/P/2006 dated 28.02.2006.”
10. On perusal of G.O.Ms.No.22, Personnel and Administrative Reforms
(F) Department, dated 28.02.2006, it is seen that there is no word as “part time or
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full-time employment”. However, when the part time employees started claiming
regularization and obtained Court orders, under the fear of contempt petitions, the
government regularized some of the part time employees and issued government
orders. The government realized the mistake and rectified the same in G.O.Ms.No.
74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013 and
the relevant portion of the said G.O. is culled out hereunder:
'”6) In supersession of the orders issued in the Government Order read
above, the Government now issue revised orders on regularization of
services of full-time daily wage employees working in all Government
departments as detailed below:
(i) This Order shall be deemed to have been come into force with
retrospective effect from 01.01.2006.
(ii) The services of the 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 complete 10 (ten) years of service as on 01.01.2006 shall be
regularized against regular vacancies in the sanctioned cadre strength.
(iii) In cases of relaxation of service rules, the service rule relating to the
educational qualification and mode of recruitment shall not be relaxed.
(iv) In cases, where relaxation of rules are involved, monetary benefit
shall be allowed with effect from the date of issue of orders as per Rule
23 (a)(ii) of the General Rules for Tamil Nadu State and Subordinate
Services;
(v) In cases where relaxation of rules are not involved, monetary benefit
shall be allowed with effect from the date of regularisation;
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(vi) The part-time and casual employees are not entitled to the
concession referred to at para (ii) above;
(vii) The services of the full time daily wage employees who have
completed 10 years of service after 01.01.2006 shall not be regularized;
(viii) All the appointing authorities should adhere to the above
instructions scrupulously in future. Failing which, it will be viewed
seriously and necessary disciplinary action will be initiated as per rules
against the person who is responsible for the said lapses. All the Heads
of Departments are directed to ensure that all the above said instructions
are followed without fail and lapses if any found, responsibility will be
fixed against them;
(ix) All the proposals for regularization of the services of full time daily
wage employees should be sent to the Government even in cases where
relaxation of rules are not involved. In G.O. Ms. No.74, it was thus,
made clear that the part-time employees are not entitled for
regularization and that full-time daily wage employees, who had
completed ten years of service as on 01.01.2006 shall be regularized
against regular vacancies in the sanctioned post. It was also made clear
that the services of daily wage employees who have completed ten years
of service after 01.01.2006 are not entitled for regularization.”
11. After perusing the G.O.Ms.No.74, this Court is of the considered
opinion that the Writ Court is incorrect in stating that G.O.Ms.No.22, Personnel
and Administrative Reforms (F) Department, dated 28.02.2006, is applicable to
part time employees also, since it has been categorically clarified in G.O.Ms.No.
74 that the full time employees alone is entitled to regularisation. The G.O. further
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states that even full time employees are not entitled to regularisation if they had
completed 10 years after 01.01.2006. It is pertinent to mention that the
G.O.Ms.No.74 states in more than one place that the part time employees are not
entitled to regularisation, to be specific under clause (vi) and (ix).
12. It is further seen that the G.O.Ms.No.74 states that the full-time
employees shall be appointed in the “regular vacancies in the sanctioned cadre
strength”. Therefore, it is necessary to see the cadre strength was sanctioned in the
said school. The non-teaching staffs are sanctioned to the schools through
G.O.Ms.No.583 School and Public Health Department dated 23.04.1966 and the
relevant portion of the G.O. is culled out hereunder:
Categories of Number Strength
Non-Teaching Below 250 More than More than 1000 More than
Staff 250 but but below 1500 1500
below 1000
Librarian or Nil 1 Nil Nil
Clerks for
Library
Office
Waterman - - - -
Gardener Cum - - - -
Sweeper
Gardener - - - -
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13. All these years the government was following the G.O.Ms.No.583 for
granting non-teaching posts and it is pertinent to state that the said G.O. was
issued as early as 1966. Even in the aforesaid G.O. the post of Waterman,
Gardener-Cum-Sweeper, Gardener posts are not granted to any schools as early as
1966 itself. The sweeper and scavengers were granted as part time only. The
2nd respondent school is a private aided non-minority school and the sanctioned
post of sweeper is only “part time” and there is no sanctioned post of full time
sweeper at all in the said school.
14. Further, nearly after 52 years the government had taken a policy
decision to modify the staff fixation for non-teaching staffs through G.O.Ms.No.
238 School Education Department dated 13.11.2018 wherein there is no post of
sweeper or scavenger since the same was directed to be out sourced. The non-
teaching staff strength for the schools from 13.11.2018 is detailed below:
Categories of Students Strength
Non-Teaching Until 250 From 251 to More than 1001 Remarks
Staff 1000
Junior Assistant Nil 1 2 Maximum 2
or Assistant or
Record Clerk
Office Assistant 1 2 Maximum 2
Watchman 1 Maximum 1
15. When the 2nd respondent school was granted sanctioned post of sweeper
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as part time and when the 1st respondent was appointed in the said part time
sanctioned post and when the appointment order issued to the 1st respondent also
states the appointment is only part time, then the 1st respondent is entitled to be
treated as part time only and not fully time employee. The school being an aided
school was permitted only to appoint the writ petitioner as part time employee. If
the school is aggrieved, then the school ought to have obtained clarification at the
time of appointment itself, but the school has failed to do so. Therefore, this Court
is of the considered opinion that the Writ Court had erred in coming to conclusion
that once it is sanctioned post, then the same ought to be full time only. At the cost
of repetition as per G.O.Ms.No.583 it can be confirmed that the said post is only
part time and not full time.
16. At this juncture, the learned Counsel appearing for the respondents
relied on the judgment rendered in W.A.(MD)No.93 of 2018, dated 27.03.2018, in
the case of Director of Elementary Education and Others vs. Rani, wherein the
Coordinate Bench has distinguished Singamuthu's case and had held that part
time employees in an unsanctioned post alone cannot claim regularization. This
Court is of the considered opinion that the said judgment is not helping the
respondents, since this Court had held there is no sanctioned post for full time
sweeper but there is sanctioned post for part time only as per G.O.Ms.No.583.
Then as per Rani’s case the “part time sanctioned post” is not entitled to seek
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regularisation and the Rani’s case is not helping the respondents.
17. The contention of the writ petitioner is that even though the writ
petitioner was appointed as part time employee, the writ petitioner was extracted
work for the whole day, hence she is entitled to regularisation. This is a mistake
committed by the school. If the school is extracting work for whole day, then the
writ petitioner ought to have preferred complaint to the educational authorities,
but no such complaint was preferred. Further it is seen prior to 1966 there was a
post namely “Gardener-cum-Sweeper”, from this it can be safely concluded that
the said post may be full time job but “Sweeper” alone cannot be stated as full-
time job.
18. The contention that G.O.Ms.No.74, Personnel and Administrative
Reforms (F) Department, dated 27.06.2013 is not implemented to the persons
working in the schools. Such contention is totally absurd. Since the G.O., is
passed by Personnel and Administrative Reforms Department, the same is
applicable to all departments including schools and aided schools. Infact the
G.O.Ms.No.22 was passed based on the announced by Hon’ble Chief Minister
during the Tamil Nadu Government Officials Union and Government Servants
and also Teachers Associations. Therefore, the claim of the respondents it is not
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applicable to schools is absurd, misleading. It is unknown from where such
misleading statements are being generated. Therefore, this Court is of the
considered opinion that G.O.Ms.No.74, Personnel and Administrative Reforms
(F) Department, dated 27.06.2013, is applicable to schools including private aided
schools both minority and non-minority schools.
19. From the above discussion it is evident that Sweeper and Scavenger
were sanctioned posts prior to 1966. Subsequently, the government took a policy
decision to convert the Sweeper and Scavenger as part time post, hence issued
G.O.Ms.No.583 and directed the schools to appoint as a part time employee.
Again, the government took a policy decision to outsource the work of Scavenger
and Sweeper and thereafter the government had banned any appointment to the
said posts by issuing G.O.Ms.No.238. But the schools taking advantage of the
sanctioned posts prior to 1966, is creating confusion which has led to series of
litigations. In Singamuthu's case, it has been clarified that there cannot be any
regularization for part time employees and it has not distinguished sanctioned post
or unsanctioned post. For argument sake, even if the Singamuthu’s case had
distinguished, the same is not helping the respondents, since this Court had
already held the sanctioned post is only part time post as per G.O.Ms.No.583.
20. Further in Singamuthu’s case the Hon’ble Supreme Court had laid down
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the principles of regularisation and absorption of employees and the same is
extracted hereunder:
“12. 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 a 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 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.
See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja
v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra
v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-
operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official
Liquidator v. Dayanand 2008 10 SCC 1. (emphasis added)
16. The learned Single Judge of the High Court, while allowing the writ
filed by the respondent extended the benefit of the said G.O. Ms. No.22
dated 28.02.2006 and directed the appellants to grant regularisation of
respondents service from the date of completion of ten years of service
with salary and other benefits. The learned Judge failed to take note of
the fact that as per G.O.Ms.No.22 dated 28.02.2006, the services of
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employees working in various government departments on full-time
daily wage basis, who have completed more than ten years of continuous
service as on 01.01.2006 will be regularised and not part-time
Masalchis like the respondent herein. In G.O.Ms.No.84 dated
18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated
28.02.2006 is applicable only to full- time daily wagers and not to part-
time daily wagers. Respondent was temporarily appointed part-time
worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and
his appointment was completely temporary. The respondent being
appointed as part-time Masalchi, cannot compare himself to full-time
daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The
Single Judge also failed to consider that the Government did not grant
regularisation of services of any part-time employee on completion of
ten years of his service as envisaged under the G.O.Ms. No.22 dated
28.02.2006.
17. The learned Single Judge erred in extending the benefit of
G.O.Ms.No.22 dated 28.02.2006 to the respondent that too
retrospectively from the date of completion of ten years of service of the
respondent. The respondent was appointed on 01.04.1989 and completed
ten years of service on 31.03.1999. As rightly contended by the learned
senior counsel for the appellants, if the respondent is to be given
monetary benefits from the date of completion of ten years of service,
that is from 01.04.1999 till the date of his regularization that is
18.06.2012, the financial commitment to the State would be around Rs.
10,85,113/- (approximately)towards back wages apart from pension
which will have a huge impact on the State exchequer. That apart, the
learned senior counsel for the appellant submitted that in respect of
Registration Department, about 172 persons were regularized under
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various G.Os. and if the impugned order is sustained, the Government
will have to pay the back wages to all those persons from the date of
completion of ten years in service and this will have a huge impact on
the State exchequer. Since the impugned order directing regularization
of the respondent from the date of completion of their ten years would
adversely affect the State exchequer in a huge manner, the impugned
order cannot be sustained on this score also.
18. It is pertinent to note that even the regularisation of services of part-
time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated
14.10.2009 and G.O.(2D) No.32 Finance (T.A.2)Department dated
26.03.2010 was effected by extending the benefit of G.O. dated
28.02.2006 only from the date of Government Orders and not from the
date of completion of their ten years of service. The Division Bench also
failed to take note that G.O.Ms.No.22 P &AR Dept. dated 28.02.2006 is
applicable only to full-time daily wage employees and who had
completed ten years of continuous service as on 01.01.2006 and not to
part-time employees. As per G.O.(Rt.) No.84 dated 18.06.2012, the
respondent is entitled to the monetary benefits only from the date of
issuance of Government Order regularizing his service that is
18.06.2012. The impugned order of the Division Bench affirming the
order of the Single Judge granting benefits to the respondent from the
date of completion of ten years of service is erroneous and the same is
liable to be set aside.”
21. In the Singamuthu’s case the Hon’ble Supreme Court had answered to
all the pleas that are being raised by the respondents. Especially held that
regularisation from the date of completed of 10 years is erroneous. If there is no
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scheme for regularisation and cut-off date is not prescribed, then the
regularisation is only from the date of issuance of government order. In the
present case there is no such scheme. Therefore, the Writ Court granting
regularisation without scheme from the date of completion of 10 years is
erroneous.
22. It is seen the writ petitioner would attain superannuation in 2027. At
this stage the writ petitioner cannot go for any other employment and she was
under false impression that her service would be regularised on some day. It is the
false hope prevailing in the society based on various orders that they would be
regularised someday. The employee need not suffer and at the same time the
government also need not be burdened with huge financial burden. Therefore, this
Court is directing the government to regularise the service of the writ petitioner
from 01.03 2003 and such regularisation is only for granting pensionary benefits
alone. It is made clear that the writ petitioner is not entitled to any salary for the
said period. And also, the writ petitioner is not entitled to calculate 50% of the
past service period, the reason is obvious the service is not full-time employment.
Further the school is strictly directed not to appoint any person in the said post of
sweeper after the retirement of the writ petitioner, since as per G.O.Ms.No.238,
the post of sweeper is not available in the “cadre strength” to the school.
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23. With the above said directions, the writ appeal is disposed of. No costs.
Consequently, connected miscellaneous petition is closed.
[J.N.B., J.] [S.S.Y., J.]
27.03.2025
Index : Yes / No (2/2)
Tmg
To
1.The Secretary,
Department of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
College Road, Chennai – 600 006.
3.The Chief Educational Officer,
Kanyakumari District,
Nagercoil-629 001.
4.The District Educational Officer,
Thuckalay,
Kanyakumari District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
27.03.2025
(2/2)
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