IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18 / 03 / 2011
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NO.16381 OF 2009
N.Ravichandran ... Petitioner
Versus
1.The Government of Tamil Nadu
Rep. By the Secretary to Government
Tamil Nadu Legislative Assembly Department
Fort St. George, Chennai 600 009.
2.The Secretary to Government
Finance Department
Fort St. George,
Chennai 600 009. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Certiorarified Mandamus, to calling for the concerned records from the 1st respondent, quash the order of the 1st respondent dated 09.07.2009 bearing Seyalaga (Nilai) Order No.118, Legislative Assembly Department and denial of employment to the petitioner as illegal, arbitrary and violation of principles of natural justice and consequently direct the respondents to reinstate the petitioner with full backwages, continuity of service and all other attendant benefit by regularising his services as Office Attendant.
For Petitioner : Mr.Balan Haridas
For Respondents : Mrs.Lita Srinivasan
Government Advocate
O R D E R
The petitioner has come up with the present writ petition seeking to quash the order dated 09.07.2009 passed in Seyalaga (Nilai) Order No.118 by the Tamil Nadu Legislative Assembly Department, the first respondent herein, refusing to regularise/absorb the petitioner as Office Assistant and for a consequential direction to reinstate him in service with full backwages, continuity of service and all other attendant benefits.
2.The facts leading to the filing of the writ petition are as follows:
(a) The petitioner studied upto VIII standard. He was continuously engaged as Office Assistant, by the Tamil Nadu Legislative Assembly Department from 1989 onwards, during Assembly Sessions. The nature of work was to do all the sundry jobs like serving letters to all the Ministers, Secretaries of all the Departments, Members of the Legislative Assembly and also to attend their daily needs. The works carried out by the Office Assistants appointed during Assembly Sessionss and the other Office Assistants are one and the same. The nature of duties are same and identical. Apart from the petitioner, some others were also appointed as Office Assistants during Assembly Sessions.
(b) The grievance of the petitioner was that while the persons appointed subsequent to him during Assembly Sessions were absorbed as Office Assistants or in other posts, by the first respondent, the petitioner was not given the similar treatment. Hence, he made repeated requests to the first respondent. But his request for absorption was rejected continuously by the first respondent, by orders dated 03.03.1997, 02.05.1997, 16.11.2001, 26.04.2002, 28.08.2002, 29.11.2002 and 25.02.2003 respectively. Therefore, he resorted to various remedies available under law.
(c) Hence the petitioner filed a writ petition in W.P.No.9194 of 2004 seeking to quash the last order dated 25.02.2003 of the first respondent refusing to absorb him as regular Office Assistant.
(d) According to the petitioner, after filing of the above said writ petition, he was not given even the little employment that was given during the Assembly Sessions.
(e) Therefore, the petitioner was constrained to file a miscellaneous petition in W.P.M.P.No.10730 of 2004 in W.P.No.9194 of 2004 seeking an interim direction to the respondents to provide him employment during Assembly Sessions pending disposal of the aforesaid writ petition. Accordingly, an interim order dated 19.03.2005 was passed by this Court directing the first respondent to continue to provide employment to the petitioner during Assembly Sessions as assured in their letter dated 29.11.2002, pending disposal of the writ petition.
(f) In the letter dated 29.11.2002, while the first respondent refused to absorb the petitioner as regular Office Assistant, the first respondent assured the petitioner to provide employment as Office Assistant during Assembly Sessions.
(g) The writ petition in W.P.No.9194 of 2004 was disposed of on 21.04.2009 directing the petitioner to submit a representation to the first respondent, with regard to the relief sought for in that writ petition, within fifteen days from the date of the order and on such representation being made, the first respondent was directed to dispose of the same on merits and in accordance with law, within a period of twelve weeks thereafter.
(h) Accordingly, the petitioner made a representation dated 02.05.2009 to the first respondent, requesting to absorb him as Office Assistant on regular basis. He pleaded that his juniors who were appointed along with him during Assembly Sessions were absorbed. He gave the names of some his juniors, who were appointed on regular basis. The petitioner also gave a list of persons, who were directly absorbed as Office Assistants, without reference to any procedure of selection. Therefore, he requested the first respondent to consider him for absorption as Office Assistant, as he rendered continuous service from 1989 onwards i.e., for the past about 20 years.
(i) The first respondent passed the impugned order dated 09.07.2009 rejecting the representation and refused to absorb him as regular Office Assistant. Challenging the same, the present writ petition is filed.
3.The first respondent filed a detailed counter affidavit. It is averred that the petitioner was engaged as temporary Office Assistant under Lumpsum provision on daily wages basis during the Legislative Assembly meeting days and this is a customary practice being followed in the Assembly Secretariat, during Assembly meeting days. He was engaged as Office Assistant due to the extra pressure and increased work load during the Assembly meeting days. He was not appointed as Office Assistant on regular basis in any of the regular vacancies. Certain posts are temporarily created only during Assembly meeting days and the candidates are appointed on lumpsum basis. The petitioner was one among them. The individuals so appointed purely on temporary basis would be discharged from duties at the end of Assembly Sessions. The petitioner was also discharged from duty as soon as the Assembly Sessions was over for which he was engaged. Repeated engagements differ from continuous appointment and therefore, the contention of the petitioner is not correct that he was continuously engaged. It is admitted that the nature of work entrusted to the petitioner as well as to the other Office Assistants appointed on lumpsum basis are similar to the Office Assistants appointed on regular basis. But it could not be construed that the Office Assistants on lumpsum basis are on regular service. The individuals engaged on lumpsum basis in any category might or might not be engaged subsequently depending upon the requirements of the Secretariat. That is, the persons appointed during one Assembly Sessions need not be engaged during the other Assembly Sessions. The petitioner has no right to claim absorption on regular basis and the first respondent cannot be compelled to appoint him on regular basis.
4.It is further averred in the counter affidavit that instead of giving representation to consider him for appointment on regular basis, the petitioner adhered to the practice of giving malafide and defamatory interviews to the press claiming as if he has right to absorption as regular Office Assistant. Even in the representation given pursuant to the direction issued by this Court in W.P.No.9194 of 2004, he claimed appointment as a matter of right, which does not exist. He could not equate himself with candidates appointed on regular basis. The petitioner has no right to intervene in the discretionary powers of the appointing authority.
5.It is reiterated by the first respondent at more than one place in the counter affidavit that the petitioner cannot intervene in the discretionary powers of the appointing authority relating to appointing persons on regular basis. While the first respondent was willing to consider his representation, as ordered by this Court in W.P.No.9194 of 2004, he again represented claiming service rights which does not exist. That apart, it is alleged that the petitioner instead of requesting for appointment stating his merits, he made several allegations against the first respondent questioning the discretionary powers. Even after the order of this Court in W.P.No.9194 of 2004, there seems to be no change in the attitude of the petitioner to make application on his own. It is also represented at more than one place in the counter affidavit that the petitioner resorted to giving interviews against the modesty of the first respondent and the Honourable Speaker relating to the appointments made in the first respondent institution. Hence, he was not considered even for the temporary appointment as he incurred disqualification under Rule 8(a) of the Tamil Nadu Legislative Assembly Secretariat Service Rules (Shortly “the Rules”). The regular appointment would be made under the Rules framed under Article 187(3) of the Constitution, but the petitioner is not the person regularly appointed under the aforesaid rule.
6.Heard the submissions made by Mr.Balan Haridas, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents.
7.The learned counsel for the petitioner submitted that the petitioner was engaged as Office Assistant on temporary basis during Assembly Sessions right from the year 1989 continuously without any break. He made repeated representations pointing out that his juniors were absorbed, but he was not given the similar treatment by absorbing him as regular Office Assistant. Unfortunately, his representations were rejected without taking into account that his juniors were absorbed. It was pointed out in those rejection orders that there is no provision in the Rules for absorption of temporary Office Assistants on regular basis or it was stated that there was no permanent vacancies in the first respondent institution. He pointed out that the same yardstick was not adopted for his juniors. Hence, the action of the first respondent is highly arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution. He pointed out that while the petitioner categorically pointed out in his representation dated 02.05.2009 and also repeated the same facts in his affidavit giving the names of his juniors, who were absorbed and pleading discrimination, the same was not denied by the first respondent in the counter affidavit.
8.The learned counsel for the petitioner strenuously questioned the discretionary powers of the appointing authority in the matter of absorbing a temporary Office Assistant as regular Office Assistant. The learned counsel also brought to the notice of this Court the objection taken by the first respondent relating to the press interviews. He submitted that when the petitioner approached the Court of law, the press came to know about the unjust treatment meted out to the petitioner in a discriminatory manner and approached him and they published the news items and hence, the petitioner should not be blamed for the news items being published in the press. He is after all a temporary Office Assistant and he has no control over the press. In any event that could not be cited by the first respondent to deny absorption.
9.The learned counsel for the petitioner further submitted that the petitioner has no intention to abuse or malign the majesty of the first respondent institution. Since he was not absorbed even after 20 years, while his juniors were absorbed, he approached this Court and the press interviewed so many persons including the petitioner and the petitioner could not be found fault for the same. The learned counsel further gave an undertaking that the petitioner could not meet the press at all and willing to give any sort of such undertaking on his regular absorption. Further, it is not the case of the petitioner that he was given regular employment as Office Assistant. He did not dispute that he was a temporary Office Assistant. His main plea is that he alone was treated differently and discriminated in the matter of absorption.
10.The learned counsel for the petitioner heavily relied on the judgments of the Honourable Apex Court in K.ALEX VS. DELHI STATE MINERAL DEVELOPMENT CORPORATION reported in 2008 (9) SCC 456 and UTTAR PRADESH STATE ELECTRICITY BOARD VS. POORAN CHANDRA PANDEY AND OTHERS reported in 2008 (1) L.L.N 965 for the proposition that the discriminatory action of the first respondent is illegal and violative of Articles 14 and 16 of the Constitution.
11.On the other hand, the learned Government Advocate submitted that the petitioner did not seek absorption on merits and instead, he questioned the discretionary powers of the appointing authority. The discretionary powers of the appointing authority in absorbing the juniors of petitioner could not be questioned by the petitioner. The learned Government Advocate harped mainly on the attitude of the petitioner in giving interviews to the press maligning the majesty of the first respondent institution. She produced the xerox copies of the press interviews given by the petitioner and others.
12.The learned Government Advocate relied on a Division Bench judgment of this Court in THE SECRETARY VS. A.SIVASANKARAN in W.A.No.1194 of 2006 (decided on 23.03.2009) and submitted that the temporary Office Assistant could not seek for permanent absorption.
13.I have considered the submissions made on either side and perused the materials available on record.
14.It is not in dispute that the petitioner was engaged as Office Assistant on temporary basis during Assembly Sessions for a long period. The petitioner was employed from 1989 onwards and the same is not disputed. The petitioner also enclosed various appointment orders issued to him during Assembly Sessions. The conduct certificate dated 27.05.1998 issued by the Under Secretary to the first respondent states that the petitioner has been employed as Office Assistant under lumpsum provision in connection with the meetings of the Legislative Assembly up to April 1998. He also enclosed various letters that were issued after 1998 appointing him during Assembly Sessions. The grievance of the petitioner is that his juniors were absorbed on regular basis i.e., the persons who were appointed as temporary Office Assistant subsequent to him during Assembly Sessions were absorbed as regular Office Assistants. But his representations were rejected continuously either on the ground that the Rules do not provide for regular absorption of temporary employees or on the ground that there was no vacancy.
15.Under the aforesaid circumstances, the petitioner approached this Court. It also seems that he approached other forums such as Consumer Courts during 2003. Since the matter is relating to absorption and appointment of employees in the Assembly Secretariat, when some cases are filed either in Consumer Court or before this Court in W.P.No.9194 of 2004, the press gave big coverage and interviewed various persons including the petitioner.
16.After filing the writ petition in W.P.No.9194 of 2004, the petitioner was denied the very little employment that was given during the Assembly Sessions. Hence, the petitioner moved a miscellaneous petition in W.P.M.P.No.10730 of 2004 in W.P.No.9194 of 2004 seeking for an interim direction to the respondents to give him employment on temporary basis during Assembly Sessions as per the assurance given in the letter dated 29.11.2002. Accordingly, on 19.03.2005, this Court gave an interim direction to the respondents to consider the engagement of the petitioner as has been suggested in the proceedings dated 29.11.2002 pending disposal of the writ petition. Based on the interim order, he was again given employment and the same was continued. However, it seems that after the writ petition in W.P.No.9194 of 2004 was disposed of on 21.04.2009, the employment on temporary basis during Assembly Sessions was discontinued, on the ground that the petitioner gave interviews and he incurred disqualification under Rule 8(a) of the Rules.
17.As per the order dated 21.04.2009 passed in W.P.No.9194 of 2004, the petitioner gave a representation dated 02.05.2009 to the first respondent. In the said representation, he categorically stated that his juniors were absorbed and he also gave the names of his juniors. The temporary appointment orders given to his juniors along with the petitioner are also enclosed in the typed set of papers filed in support of this writ petition. He also gave a list of persons, who were appointed on regular basis without following any process of selection. But the first respondent passed the impugned order dated 09.07.2009 rejecting his claim for absorption. Neither the impugned order nor the counter affidavit filed in support of the writ petition, deals with the main plea of the petitioner relating to the discrimination shown to him in the matter of absorption. The impugned order proceeds that the temporary employees appointed under the Rules could not claim permanent absorption and that they have no right under the Rules to seek permanent absorption. The other reason given is that the petitioner gave press interviews giving impression as if the temporary employees have right for permanency and thereby, he set a bad precedent. Hence, he is not entitled to absorption. Para 6 of the impugned order is the only para giving the reason for declining his request for absorption and the same is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED
18.As stated above, the impugned order nowhere dealt with the specific instances of absorption of his juniors cited by the petitioner in his representation as well as in the affidavit filed in support of the writ petition. In this regard, the relevant passage from the representation dated 02.05.2009 of the petitioner is extracted hereunder:
“When I am not being provided with the employment, following employees 1.Bagayaraj 2.Anuradha 3.Rajeswari 4.Venkataraman 5.Sathiyavathi 6.Rengasamy 7.Sivasakar 8.Rajesh 9.Balasubramaniam have been regularly appointed. These persons are far more juniors to me and who were also working like me during the Assembly Sessions. Apart from this I understand that 21 more persons have been appointed on regular basis. While so, I am being denied even the little employment. I further understand that many of the aforesaid employees have no required educational qualification. For example one Sathyavathi, who has been appointed as Telephone Operator, has no basic qualification for discharging the work of Telephone Operator viz., not having any educational background for discharging the work of Telephone Operator. Further many of the employee are either over qualified or under qualified and many are over aged. Only in this arbitrary manner appointments are being made, after denying employment to me. Under the rules one should have passed VIII Standard and also should know to ride bicycle. I have all the required qualification under the rules for being appointed as Office Assistant. It is submitted that following persons who were appointed like me, your goodself have appointed them on regular basis as Office Assistant and they are working.
1.G.Chandrasekaran
2.S.Karthikeyan
3.S.Gnanaseelan
4.V.Kannan
5.T.Anandhan
6.A.Udhayakumar
7.S.Somasundaram
8.V.Babu
9.S.Sivasankaran
10.D.Rengasamy
11.L.Devi
12.P.Saravanan
13.C.Krishnasamy
14.K.Bagyaraj
15.R.Venkataravana
16.G.Arunkumar
When the above persons who are junior to me, have been appointed to the regular post of Office Assistant initially on 10(a)(i) basis and now confirmed their services. While so, when I am similarly placed like the aforesaid persons and when I am senior to them, my services have not been absorbed. This only shows the gross discrimination in the matter of appointment. For the last 20 years, I have rendered sincere and efficient service. I cannot be deprived of the regular appointment, when my juniors have been taken into service on regular basis.”
19.The learned counsel for the petitioner made it very clear that no temporary employee has a vested right for absorption and that a temporary employee appointed under the Rules could not claim absorption as regular Office Assistant. But the claim of the petitioner for absorption is on the basis of absorption given to his juniors.
20.Rule 17 of the Tamil Nadu Legislative Assembly Secretariat Service Rules framed under Article 187(3) of the Constitution provides for making temporary appointments by the appointing authority. The appointing authority for the post of Office Assistant is the Deputy Secretary. In this regard, Rule 17(a)(i) of the Rules is extracted hereunder:
“17.Temporary appointments and promotions: (a) (i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of the service and there would be undue delay or administrative inconvenience in making an appointment in accordance with these rules to fill up the vacancy, the appointing authority may appoint or promote temporarily any person, otherwise than in accordance with these rules.”
21.It is true that the petitioner was engaged as Office Assistant on temporary basis and his appointment could be traced only under Rule 17 of the Rules referred to above. Such employees could be terminated under Rule 17(f) without notice and without assigning any reason. Therefore, the person appointed under Rule 17(a)(i) of the Rules as temporary employee, could not claim regular employment. In fact, the learned counsel for the petitioner made it clear that the petitioner was appointed under Rule 17(a)(i) of the Rules and that he could not claim regular appointment as a matter of right. His main plea is that when others, who were appointed subsequent to him, under Rule 17(a)(i) of the Rules, and discharged the same duties as that of the petitioner as Office Assistant, the first respondent could not discriminate in giving regular employment to his juniors and denying the same to the petitioner. According to him, Rule 8(b) of the Rules read with Annexure III provides for the qualification for regular Office Assistant, while no such qualification is necessary for appointment made under Rule 17(a) of the Rules. Further Rule 8(c) provides for the age limit and according to the same, the persons appointed on regular basis should be less than 30 years and as far as Scheduled Caste candidates are considered, they should be less than 35 years.
22.According to the learned counsel for the petitioner, the qualification prescribed for the post of Office Assistant is a pass in VIII standard and to know cycling. The petitioner is fully qualified to hold the post of Office Assistant. The petitioner pointed out that even unqualified persons were appointed giving relaxation. He also pointed out that persons appointed beyond the age prescription, were also absorbed by giving necessary relaxation. This was done in the case of his juniors. He produced the order dated 09.10.2007 issued by the first respondent in Seyalaga (Nilai) Order No.177 Assembly Secretariat, permanently absorbing seven persons. According to the petitioner, all the seven persons were juniors to him and they were employed as temporary Office Assistants like him during Assembly Sessions. As already pointed out, the first respondent did not meet the averments made by the petitioner both in the representation and also in the affidavit filed in support of the writ petition that his juniors were given regular employment. The only answer given by the first respondent in the counter affidavit is that the petitioner could not question the discretionary powers of the appointing authority in the matter of giving regular employment.
23.In para 16 of the counter affidavit, it is stated that the petitioner has no right to intervene in the discretionary powers of the appointing authority. Likewise, in para 17 of the counter affidavit, it is stated that the petitioner cannot intervene in the discretionary powers of the first respondent in the selection of candidates. Paras 16 and 17 of the counter affidavit is extracted hereunder:
“16.With regard to the contentions made in para 12 of the petitioner’s affidavit, it is submitted that the petitioner has no right to intervene in the discretionary powers of the appointing authority. The question of seniority with the candidates appointed on regular basis does not arise.
17.With regard to the contentions made in para 13 of the petitioner’s affidavit, it is submitted that the petitioner had never been appointed on regular basis in any of the posts in regular vacancy and as such the question of seniority as contended by the petitioner does not arise. The petitioner cannot intervene in the discretionary powers of the first respondent in the selection of candidates. The petitioner has no right to compel to select him instead of any other candidates. It is submitted that candidates are appointed under lumpsum provisions during the Legislative Assembly meeting days to assist the regular staff of the Legislative Assembly Secretariat due to extra pressure and increased workload during the Assembly meeting days. Such persons are employed irrespective of their educational qualification, age etc., and without following the usual procedure of recruitment, Government Policy of Reservation and other qualifications prescribed for the posts under Tamil Nadu Legislative Assembly Secretariat Service Rules, which have been framed under Article 187(3) of the Constitution of India. The persons thus appointed on lumpsum provision get automatically discharged at the end of the Assembly Sessions. Such appointments do not confer any service rights. The petitioner was appointed on such lumpsum provision. The petitioner was also informed of the fact that he cannot claim any service rights as his appointment is not governed by the Service Rules of the Secretariat. The petitioner inspite of fully being aware of this fact preferred Writ Petition No.9194/2004 claiming appointment as a matter of right which does not exist. Further as ordered by the Hon’ble High Court in the above writ petition, while this Secretariat was willing to consider his representation, the petitioner again represented claiming service rights which do not exist. That apart, the petitioner instead of requesting for appointment stating his merits, if any, had made several allegations against the first respondent questioning the discretionary powers. His plea was illegal and therefore rejected vide this Secretariat S.O.Ms.No.118, LAS, dated 9.7.2009.”
24.As rightly contended by the learned counsel for the petitioner, the appointing authority could not claim any discretionary power in regularising the services of the juniors while overlooking the claim of the petitioner. The judgments relied on by the learned counsel for the petitioner squarely apply to the facts and circumstances of this case.
25.In the judgment of the Honourable Apex Court in K.ALEX VS. DELHI STATE MINERAL DEVELOPMENT CORPORATION reported in 2008 (9) SCC 456, the appellant therein was appointed as a Heavy Vehicle Driver by the respondent Corporation on temporary basis on 03.11.1987. In 1992, the Corporation retrenched some of its employees including the appellant therein on the ground of reduced activities of the Corporation. Later, a circular dated 27.08.1992 was issued with a list of retrenched employees to be redeployed in the Delhi Administration or any other undertakings/corporations under the control of the Delhi Administration. In the said list, the name of the appellant appeared at Serial No.48. While all others were redeployed, the appellant therein alone was discriminated and refused redeployment. He took up the matter before the Delhi High Court. The learned single Judge dismissed the writ petition on the ground that due to reduced activities and on abolition of posts, he was terminated and the appellant had no right to continue in service. The Division Bench also confirmed the same. When the matter came up before the Honourable Apex Court, the Apex Court held that the appellant alone could not be discriminated in the matter of redeployment and his case was not to continue in the same post. While 275 retrenched employees were redeployed, the appellant was not redeployed. Even though the appellant was the junior most, that could not be a ground to deny redeployment while the others were redeployed. In this regard, paras 16 and 17 of the said judgment are extracted hereunder:
“16. Out of the list of 275 retrenched employees, only the services of the appellant were terminated. Therefore, it is difficult to conceive how in the single case of the appellant only, his services could not be restored. This, in our view, is discriminatory in nature and violative of the right to equality. The explanation thus offered viz. that the appellant was junior most cannot find our approval and cannot be accepted. In any view of the matter and considering this long course of time, a single post has certainly fallen vacant where the appellant can very well be accommodated. Even if we hold that the closure of Bhatti Mines and reduction in the activities in Gujranwala Mines, as held by the learned Single Judge, forced the Corporation to terminate the services of the appellant, even then, the irresistible conclusion must be that out of the list of 275 retrenched employees, only the appellants services were terminated.
17. It is also seen that all the persons, whose names were mentioned in the list of retrenched employees to be redeployed, were absorbed either in Delhi Administration or any other undertakings/corporations under the control of Delhi Administration while some of them were retained in the Corporation itself. It is only the appellant who was left out. This action on the part of the Corporation, therefore, cannot be accepted and is accordingly, arbitrary and illegal.”
However, while ordering reinstatement, the Honourable Apex Court declined backwages.
26.The judgment of the Honourable Apex Court in UTTAR PARADESH STATE ELECTRICITY BOARD VS. POORAN CHANDRA PANDEY AND OTHERS reported in 2008 (1) L.L.N. 965 relates to the employees of Co-operative Electric Supply Society, Uttar Pradesh, who were subsequently absorbed in the Uttar Pradesh State Electricity Board on 03.04.1997. A decision was taken by the Electricity Board on 28.11.1996 to regularize the services of its employees working on daily wages basis from 04.05.1990 on the existing vacant posts. The employees absorbed in Electricity Board from the Society claimed benefit based on the aforesaid decision dated 28.11.1996 for the employees who were in service in the Society as of 04.05.1990. But the same was declined by the Electricity Board. They filed writ petition alleging discrimination. The learned single Judge held that there was no ground for discrimination between two sets of employees who are daily wagers and allowed their writ petition. The Division Bench also confirmed the same. When the matter reached the Honourable Apex Court, the Apex Court also held that there cannot be discrimination in regularising the services of daily wagers absorbed from the Society.
27.Hence, I am of the considered view that the petitioner is entitled to the relief of absorption as Office Assistant like his juniors, based on the aforesaid judgments of the Honourable Apex Court.
28.The judgment of a Division Bench of this Court in THE SECRETARY VS. A.SIVASANKARAN in W.A.No.1194 of 2006 (decided on 23.03.2009) relied on by the learned Government Advocate is not applicable to the facts of this case. In that case, the respondent was a temporary employee like the petitioner, appointed in 2005 under Rule 17(a)(i) of the Rules. He was terminated on 30.06.2006. He hardly worked for 1 = years. He challenged the termination before this Court. The learned single Judge allowed the writ petition. The writ appeal filed by the first respondent was allowed stating that an employee under Rule 17(a)(i) of the Rules could be terminated by invoking Rule 17(f) of the Rules. Rule 17(f) provides for termination of employees appointed under Rule 17(a)(i) without notice and without assigning any reasons, as it was a temporary appointment. In my view, the said judgment has no application to the facts and circumstances of this case as that case is not relating to discriminatory treatment given to the appellant therein and on the other hand, the judgments of the Honourable Apex Court relied on by the learned counsel for the petitioner squarely apply to the facts of this case.
29.As stated above, the petitioner does not claim regularisation as a matter of right. His claim is that the same yardstick should be adopted by the first respondent and no discrimination should be shown to him. It is a different matter if he simply claims regularisation on the ground that he worked for number of years as a temporary employee. On the other hand, his plea is that he was discriminated and the same plea is not repudiated either in the impugned order or in the counter affidavit. Hence, the petitioner is entitled to succeed in the writ petition.
30.It is true that there are press interviews on 23.03.2003, 16.03.2005 and 14.01.2007 in Kumudham Reporter and Junior Vikatan based on the Court proceedings. Many persons were interviewed including the petitioner. Since the appointment is relating to the Assembly Secretariat, the press gave wide publicity about the appointments made in the Assembly Secretariat in a arbitrary and discriminatory fashion. When actually the discrimination is not disputed, the first respondent could not blame the petitioner. Further, the petitioner is a temporary Office Assistant. If the press published about the appointments made in the first respondent Secretariat, he could not be blamed.
31.At this juncture, the learned counsel for the petitioner submitted that the petitioner had no intention to go to the press and the press on knowing the matter being taken to Court, published interviews. Moreover, one of the Members of the Legislative Assembly took up the case of the petitioner and he wrote repeated letters and he also figured in the interviews. But the impugned order rejecting regular appointment is solely based on the press interviews of the petitioner. The counter affidavit also repeatedly states that the petitioner gave press interviews making malafide and defamatory interviews. The first respondent did not issue any notice to the press questioning the contents of the interviews. In any event, the petitioner could not be blamed for certain news items published in the press particularly when the matter was taken to the Court. The learned counsel for the petitioner stated that the petitioner would not go to press to give interview and he has no intention to make allegation against the first respondent. The learned counsel stated that when the press interviewed him, he stated the fact that he was discriminated and nothing more. But the press interviewed many persons and gave the details as to how appointments are made in arbitrary way in Assembly Secretariat.
32.For all the aforesaid reasons, this Court is inclined to set aside the impugned order. Accordingly, the impugned order dated 09.07.2009 bearing Seyalaga (Nilai) Order No.118, Legislative Assembly Department of the first respondent is set aside and the first respondent is directed to absorb the petitioner as regular Office Assistant by issuing appropriate orders, if necessary, giving relaxation as given to others, within a period of six weeks from the date of receipt of a copy of this order. However, it is made clear that, the petitioner is not entitled to any backwages.
33.The writ petition is allowed on the above terms. No costs.
TK
To
1.The Secretary to Government
Government of Tamil Nadu
Tamil Nadu Legislative Assembly Department
Fort St. George, Chennai 600 009.
2.The Secretary to Government
Finance Department
Fort St. George,
Chennai 600 009