BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/11/2010
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.2456 of 2010
W.P.(MD)No.2457 of 2010
W.P.(MD)No.2458 of 2010
W.P.(MD)No.2459 of 2010
W.P.(MD)No.2460 of 2010
W.P.(MD)No.2461 of 2010
W.P.(MD)No.2541 of 2010
&
W.P.(MD)No.2697 of 2010
W.P.(MD)No.2456 of 2010:
M.R.Muthulakshmi ... Petitioner
Vs.
1.The Government of Tamil Nadu,
Rep. through its Chief Secretary,
Fort St. George,
Chennai - 600 009.
2.The Personnel and Administrative Reforms
(Placements) Department,
Rep. thro its Secretary,
Fort St. George,
Chennai - 600 009.
3.The District Collector,
Tuticorin District,
Tuticorin. ... Respondents
Prayer in W.P.(MD)No.2456 of 2010
Writ Petition is filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus to call for the records of the second respondent in foj
vz;.324/g;gp/2010-1 dated 18.01.2010 and quash the same and direct the
respondents to regularise the petitioner’s service by providing employment to
her based on her earlier service with the third respondent.
!For Petitioner … Mr.A.Haja Mohideen
^For Respondents… Mr.S.C.Herold Singh
Government Advocate
:COMMON ORDER
The petitioners have filed the present Writ petitions, seeking to
challenge the order dated 18.01.2010, passed by the second respondent namely,
the Secretary to Government, Personnel and Administrative Reforms (Placements)
Department, Government of Tamil Nadu.
2.By the impugned order dated 18.01.2010, the petitioners were informed
that since they have never participated in the Special Competitive Examination
held in the year 1995, they cannot get the benefit of G.O.Ms.No.124 Personnel
and Administrative Reforms (Placements) Department dated 12.09.2009 and the
question of re-employing them will not arise.
3.The persons who did not come out successful in 1995 Special Competitive
Examination conducted by the Tamil Nadu Public Service Commission, had
approached the Court and got a successful order in their favour. It was only to
give effective to that order, the said Government Order came to be passed.
Since the petitioners had failed in the Special Competitive Examination in the
year 1995, their request cannot be considered. Aggrieved by the said impugned
order, the petitioners have filed the present Writ petitions.
4.All these Writ petitions were admitted on 03.03.2010. Today, when the
matter came up, the learned counsel for the petitioners also produced an
additional typed set in support of his contention, containing several documents.
It is seen from the records that the petitioners have worked as Typists in
various departments with various spells of employment as set out in paragraph
4(ii) of the affidavit. Subsequent to the petitioners’ employment under various
spells, the Government had issued G.O.Ms.No.433 dated 14.12.1993 wherein and by
which, TNPSC was directed to conduct a special qualifying Examination. The
TNPSC vide advertisement No.18/94 had conducted a special test. But, the
petitioners, who are holding the post under Rule 10-A(1) had also participated
in the said test and they were not come successful. In the meanwhile, the
candidates who were selected by the TNPSC came to occupy those posts. The
petitioners were not reemployed thereafter.
5.However, there were certain other candidates, who are similarly placed
have approached the Tamil Nadu Administrative Tribunal and obtained a stay order
and the same was continued for several years. In some cases, the Tribunal
allowed the petition in favour of those candidates which finally came to be
challenged before a Division Bench of this Court. By that process nearly two
decades had elapsed. The Division Bench of this Court in S.Jalajakumari and
another Vs. Personal Assistant (General) to the Collector and others reported in
(2008) 5 MLJ 1073 presided by P.K.Mishra.J., having found that the candidates
were in service right from the year 1988 and had worked under the strength of
stay order by the Tribunal for over 20 years and therefore, recommended the case
for their regularisation.
6.Though the Supreme Court’s decision in Secretary, State of Karnataka Vs.
Uma Devi reported in (2006) 4 SCC 1, the Court held that since the Government
had implemented the earlier orders of the Tribunal in identical circumstances,
the case projected by S.Jalajakumari and others (cited supra) cannot stand on a
different footing. Therefore, this Court directed the Government to issue
appropriate orders.
7.It is pursuant to the direction issued by this Court, the State
Government issued G.O.Ms.No.124, Personnel and Administrative Reforms (P)
Department dated 12.09.2009. In that order the reference No.6 relates to
S.Jalajakumari’s case referred to above. The State Government after referring
to this case in several other cases including that of the Tribunal finally in
paragraphs 4 and 5 directed as follows:
“4. The Government after detailed examination, have decided to implement the
orders of the High Court, Madras referred to at 4th, 5th, 6th, 7th and 8th read
above in the connected writ petitions. Government accordingly, direct the
respondents (viz0 the Secretaries to Government of the Departments of
Secretariat/Heads of Department/District Collectors as the case may be to
implement the orders of High Court (i.e) to regularise the services of Typists /
Steno-Typists / Junior Assistants who were appointed temporarily and who had
failed in the special Qualifying Examination conducted for them in the year 1995
from the date of their initial appointment with service benefits only.
5.The Government also direct that the services of similarly placed temporary
Typist / Steno-Typists / Junior Assistant who have failed in the Special
Qualifying Examination 1995 and who have obtained orders favourable to them from
the High Court of Madras shall also be regularised by the authorities concerned
with effect from the date of their initial appointment with service benefits
only.”
The case of the petitioners neither come under the paragraph 4 nor paragraph 5.
In respect of paragraph 4 referred to above relates to candidates, who had
succeeded before this Court and paragraph 5 relates to candidates, who have
succeeded in getting their regularisation order by this Court. In the present
case subsequent to the failure in 1995 examination, it is the stand of the
petitioners that they are not even in service. In this case the anxiety in
which, this Court ordered regularisation of several other candidates, who are
still continued over two decades cannot have any application to the case of the
petitioners. On the other hand, having lost their employment 15 years ago.
They cannot come and ask for a regularisation as already held by the Supreme
Court in Umadevi’s case (cited supra). Regularisation cannot be a mode of
appointment and any candidate who has to be recruited to a state service must
come only by an appropriate recruitment rule and not otherwise. The
Jalajakumari’s case (cited supra) is an exception carved out by the Division
Bench and accepted by the State Government. The primary consideration by the
Division Bench was that the candidates were contigency in service. Therefore,
after putting a long service that the tail end of requirement they should not be
allowed from service.
8.In the facts circumstances that led this Court in passing such an order
accepted by the Government, does not ensure to the benefit of the petitioners.
Hence, there is no case made out. The Writ petitions are misconceived, bereft
of any legal reasons. Accordingly, the Writ petitions stand dismissed. No
costs.
ps/nbj
To
1.The Chief Secretary,
The Government of Tamil Nadu,
Fort St. George,
Chennai – 600 009.
2.The Secretary,
The Personnel and Administrative Reforms
(Placements) Department,
Fort St. George,
Chennai – 600 009.
3.The District Collector, Tuticorin District, Tuticorin.