IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 10..6..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. Nos. 15177 of 2001, 6331 to 6336 of 2004, 12031 of 2004 and 23887 of 2004 and W.M.P. Nos. 22519 and 22520 of 2001 in W.P.No.15177 of 2001, W.M.P. Nos. 7485, 7487, 7489, 7491, 7493 and 7495 of 2004 in W.P. Nos. 6331 to 6336 of 2004 and W.P.M.P. No.28979 of 2004 in W.P. No. 23887 of 2004 W.P. No. 15177 of 2001: 1. S. Jalajakumari 2. M. Mookayya ... Petitioners -vs- 1. The Personal Assistant (General) to the Collector Virudhunagar 2. D. Indira 3. V. Tamil Selvi 4. Arumugam 5. The Personal Assistant to the Collector (Panchayat Development) Virudhunagar District 6. State of Tamil Nadu Rep. by its Secretary Revenue Department, Chennai 9 7. The Registrar Tamil Nadu Administrative Tribunal Chennai ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records relating to the order dated 03.7.2001 passed by the Tribunal in O.A. No. 2031 of 1996 and quash the same and direct the respondents 1, 5 and 6 to regularise the service of the petitioners as Typist. For Petitioner : Mr. A. Rahul For Respondents 1,5&6: Mr. M. Dhandapani, Spl. GP COMMON ORDER K. CHANDRU, J.
Heard the arguments of the learned counsel for the parties and have perused the records.
2. Aggrieved by the common order dated 07.7.2002 made in O.A. Nos. 423 to 427 of 1997, 1112 of 1997, the State of Tamil Nadu has filed the present writ petitions.
3. In W.P. No. 15177 of 2001, the petitioners, viz., S.Jalajakumari and Mookkaya, are challenging the order of the Tamil Nadu Administrative Tribunal [for short, ‘Tribunal’] dated 03.7.2001 made in O.A. No. 2031 of 1996. In W.P. Nos. 5031 of 2004 and 23887 of 2004, the petitioner is the same person by name, one Ms. C. Sarasam, challenging the common order of the Tribunal dated 25.3.2004 made in O.A. Nos. 1277 of 1997 and 1905 of 1997.
4. The issue raised in all the writ petitions is that the private individuals who have been appointed to the post of Typists under Rule 10(a)(1) of the Tamil Nadu General Rules [for short, ‘Rules’], are eligible to be regularised in their service. The following is the details regarding the names of parties, their age, office in which they are working at present along with the dates of joining, numbers of the O.As. filed before the Tribunal, result of the O.As. as well as the status of the interim order in these writ petitions.
Sl. No.
W.P. No.
Name of the petitioner / Respondent & their age
Office in which working
Date of initial joining
O.A. No. And date of the order
Remarks, if any
1.
15177 / 2001 1. S. Jalajakumari 2. Mookayya (43 years) Collector Office, Virudhunagar Taluk Office, Tiruchirapalli 15.12.1988 2031/96 30.7.2001 Failed in TNPSC Special Examination O.A.dismissed continuing in service by order dated 08.10.2001 2. 6331 / 2004 R. Bhuvaneswari (R1) (45 Years) Steno, Collector's Office, Perambalur 09/4/1986 423/97 3. 6332 / 2004 G. Chandrika (R1) (39 Years) Panchayat Union Office Manapparai 18.11.1990 424/97 4. 6333 / 2004 K. Gowri (R1) (38 Years) Panchayat Union Office Tiruverumbur 12.11.1990 425/97 5. 6334 / 2004 S. Suganthy Baby Asnath (R) (41 Years) DRDA Perambalur 22.11.1990 426/97 6. 6335 / 2004 E. Lalitha (R1) (36 Years) DDO Office Karur 22.11.1990 427/97 7. 6336 / 2004 S. Srivalli (R1) (47 Years) DDO Office Musiri 08.11.1990 1112/97 O.As. Allowed by order dated 07.7.2002 Interim order sought by the State was refused. 8. 23887 / 2004 C. Sarasam (43 Years) Typist Madras Medical College 1998 1277/97 25.3.2004 Failed in TNPSC Examination 9. 12031 / 2004 -do- -do- -do- 1905/97 Interim injunction dated 23.8.2004 for 12 weeks 5. The admitted facts in these writ petitions are that the petitioners' names were initially sponsored by the Employment Exchange and they were appointed by the respective competent authorities. Their services were continued without any break. Subsequently, when similarly placed employees moved the Government, it conducted Special Qualifying Test in consultation with the Tamil Nadu Public Service Commission [for short, 'TNPSC']. The private individuals in these cases had participated in the Special Qualifying Test but were not successful. Therefore, when their services were sought to be terminated, they moved the Tribunal with various Original Applications. In this group of cases, while in one set of cases, the Tribunal granted relief directing their regularisation, in the other set of cases, the Tribunal refused to grant any relief.
6. Pending the writ petitions, this Court has granted interim orders in favour of the present individuals. By virtue of the same, they are continuing in service and in this process, they had put in nearly two decades of service.
7. When the matter came up for final hearing, we directed the State of Tamil Nadu to consider whether in the case of these individuals the power of exemption under Rule 48 can be invoked by the State. However, the individuals were informed by the concerned Department that it was not permissible for them to invoke the power of exemption.
8. In the light of this backdrop, the matters were heard at length and a common order is being passed.
9. On behalf of the State, it was submitted that though the appointment of the individuals were not through any backdoor and their names were sponsored by respective Employment Exchanges, but nevertheless, their appointments were specifically made under Rule 10(a)(1) of the Rules which clearly states that when a permanent incumbent enters service, they should vacate the post which they were holding. The learned Special Government Pleader also submitted that having a sympathetic attitude towards such ad hoc appointees, the Government persuaded the TNPSC to conduct a Special Qualifying Test and unfortunately, the individuals before this Court have failed. Therefore, no further relief can be given to them. He had also submitted that in the light of the judgment of the Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi (3) [2006 (4) SCC 1], any backdoor entrant can have no right to get their services regularised and, therefore, he pleaded for rejecting the claims of the private individuals.
10.1. Per contra, the learned counsels for the private individuals submitted that in none of the cases, the initial appointment can be said to be a backdoor entry and it is the admitted case of the parties that the names of the individuals were sponsored by the respective Employment Exchanges and they were appointed by the competent authority. For a long time, the State of Tamil Nadu had imposed ban on fresh recruitment to State service and, therefore, it suited them to continue their services over a long period even though the appointment was on ad hoc basis. It presupposes the existence of posts and they were qualified to hold such posts. They also submitted that the private individuals were not successful in the Special Qualifying Test due to their advanced age and also family commitment since most of them are women candidates, they had family commitments. The fact that they had put in more than two decades of service without any blemish will show that they were not unqualified for holding the post. They also submitted that it is not as if the State Government had no power to regularise their service by invoking Rule 48 of the Tamil Nadu General Rules. They had earlier invoked such power of exemption in favour of those candidates who had undergone the Special Qualifying Test.
10.2. There were also instances where the State had regularised the services of many candidates without going through the process of any test. Most of the individuals have already crossed 40 years of age and at this stage, they cannot seek any fresh employment in any service more so, in Government service and if they are sent out at this advanced age, not only the individuals but also their families will be put to grave hardship. They also submitted that it is not as if that the judgment in Umadevi (3)’s case (cited supra) referred to by the State as the said judgment itself came to be distinguished by a subsequent pronouncement of the Supreme Court.
10.3. They also submitted that in case of one M. Umaiarupatham in O.A. No. 4590 of 1995, the Tribunal allowed the case and directed regularisation. Without filing any appeal, the Government issued G.O. Ms. no. 445 Finance (Co-op. Audit) Department dated 20.12.2005 implementing the said order and regularised the service of as many as 21 Junior Co-operative Auditors on the ground that those persons have put in 20 years of service even though they had failed in the test conducted by the TNPSC.
10.4. They also submitted that the Government had recently issued G.O. Ms. No. 22 Personnel & Administrative Reforms Department dated 28.02.2006 by directing the regularisation of employees working in various Government Department on daily wages and who have put in more than 10 years of service as on 01.01.2006 provided they were qualified to hold the post. Paragraphs 1 and 2 of the G.O. reads as follows:-
“The Hon’ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 8.2.2006, that the services of employees working in various Government Departments on daily wage basis who have completed more than 10 years of service as on 1.1.2006 will be regularised.
2. Based on the announcement made by the Hon’ble Chief Minister on 8.2.2006, 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 1.1.2006 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.”
11. When proposals were sent by the Director of Medical Education to regularise the case of Ms. C. Sarasam (petitioner in W.P. No. 23887 of 2004), the State by their letter Letter No. 36547/AA2/06-2 Health, dated 11.9.2006, informed the Director that the said issue cannot be considered in view of the pendency of this writ petition. Therefore, they pleaded that their services also should be regularised as ordered by the Tribunal in O.A. Nos. 423 to 427 of 1997 vide its order dated 07.7.2002.
12. In the light of the rival submissions made by both sides, it is necessary to decide whether the individuals before this Court are entitled for regularisation of their service.
13. In this context, it is necessary to refer to the earlier decision of the Division Bench of this Court in V. Radhakrishnan and others v. The Registrar, Central Administrative Tribunal, Madras Bench and others [2007 (3) CTC 672] dealing with the casual workmen engaged by the State Forest Department. In that case, the Division Bench analysed Umadevi (3)’s case and reached its conclusions in paragraphs 11 and 12 of the said judgment which may be usefully reproduced below:-
Para 11: “In the Uma Devi’s case (supra) relied on by the learned SCGSC, the Supreme Court has directed that the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked ten years or more, in duly sanctioned posts but not under cover of orders of the courts or of Tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being employed. But, in the instant case, the services of the petitioners have been necessitated in the College for over two decades continuously for its establishment, control and management and undisputedly, they have been accorded temporary status too. Of course, they have been given time scale of pay and their wages are on par with the regular employees but sans other benefits. Though the respondents 2 to 4 have consistently taken a stand that the petitioners will be absorbed after creation of Group D posts or as and when vacancies arise, the position which prevailed as on the date of the first direction of the Tribunal in the year 1992 is still prevailing as on date and there have been no fruitful efforts shown to be made in respect of creation of Group D posts. On the other hand, the petitioners had come across so much of hurdles and hardships all these years by putting in sincere and devoted service, but, without job security. If their work is of such a nature which has to be taken continuously, the consequent corollary is where the work taken is not for a short period or limited for a season or where work is not of a part-time nature, then, they should be conferred the permanent status.
Para 12: Of course, the Constitution Bench Supreme Court has categorically held in Uma Devi’s case that as a one-time measure, the services of irregularly appointed employees who have put in ten years of services should be regularised. But, in the case on hand, the petitioners have been accorded temporary status and have been put under time-scale of pay which is not so in the case referred to above. Further, in this case, the petitioners have been employed for more than two decades; yet, they have not been conferred permanent status despite repeated directions given by the Tribunal. That apart, it is also not the case of the College that the petitioners have been appointed dehors the rules or in other words, they have come through the back-door entry. When such is the case, if steps are not taken to regularise the services of the petitioners, the Governmental agency should not allow the petitioners to remain as temporary employees which amounts to sheer exploitation of labour as it is envisaged from the provisions of Section 2 (ra) of the Industrial Disputes Act. Therefore, in the peculiar circumstances of this case, though we are seized of the principle laid down in Uma Devi’s case in framing a scheme for regularisation, since the case of the petitioners is much worse than the employees in Uma Devi’s for the reasons already stated, taking cognizance of two decades of service rendered by the petitioners, temporary status and time-scale of pay offered to them and considering the fact that conferring on them permanent status would enable them to get retirement benefits, we are of the considered opinion that it will not be a wise policy to continue the services of the petitioners as temporary employees as done hitherto. Therefore, the continued exploitation should come to an end by creating a feeling of job security in the minds of the petitioners, at least by the fag end of their service. Though it is purely an administrative domain of the department to create posts, there must be a rational basis for keeping them under temporary status which is not there in this case.”
14. Further, subsequent to Umadevi (3)’s case (supra), the Supreme Court considered the said case in U.P. State Electricity Board v. Pooran Chandra Pandey & others [2007 AIR SCW 6904] and paragraphs 11, 16 and 17 and 19 may be usefully extracted below:-
Para 11: “Learned counsel for the appellant has relied upon the decision of this Court in Secretary, State of Karnataka & Ors vs. Uma Devi (3) & Ors (2006) 4 SCC 1 and has urged that no direction for regularization can be given by the Court. In our opinion, the decision in Uma Devi’s case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution.”
Para 16: “We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devi’s case (supra) is being applied by Courts mechanically as if it were a Euclid’s formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd. (supra), a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision. Hence, in our opinion, Uma Devi’s case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devi’s case (supra) inapplicable to the facts of that case.
Para 17: In the present case the writ petitioners (respondents herein) only wish that they should not be discriminated against vis-`-vis the original employees of the Electricity Board since they have been taken over by the Electricity Board “in the same manner and position”. Thus, the writ petitioners have to be deemed to have been appointed in the service of the Electricity Board from the date of their original appointments in the Society. Since they were all appointed in the society before 4.5.1990 they cannot be denied the benefit of the decision of the Electricity Board dated 28.11.1996 permitting regularization of the employees of the Electricity Board who were working from before 4.5.1990. To take a contrary view would violate Article 14 of the Constitution. We have to read Uma Devi’s case (supra) in conformity with Article 14 of the Constitution, and we cannot read it in a manner which will make it in conflict with Article 14. The Constitution is the supreme law of the land, and any judgment, not even of the Supreme Court, can violate the Constitution.”
Para 19: “In the present case many of the writ petitioners have been working from 1985 i.e. they have put in about 22 years’ service and it will surely not be reasonable if their claim for regularization is denied even after such a long period of service. Hence apart from discrimination, Article 14 of the Constitution will also be violated on the ground of arbitrariness and unreasonableness if employees who have put in such a long service are denied the benefit of regularization and are made to face the same selection which fresh recruits have to face.”
15. In the light of the above legal pronouncements and also in view of the policy decision taken by the State in G.O. Ms. No. 22 Personnel & Administrative Reforms Department dated 28.02.2006 and considering the fact that the State itself had implemented the earlier orders of the Tribunal in identical situations and also the fact that under Rule 48, they have necessary power to grant relaxation and further the fact that the individuals have entered service on being sponsored by Employment Exchange and have put in more than two decades of service, we feel that it is a fit case that the order of the Tribunal challenged in W.P. No. 6331 to 6336 of 2004 must be affirmed though not for the reasons indicated therein.
16. Accordingly, W.P. Nos. 6331 to 6336 of 2004 will stand dismissed. The other writ petitions being W.P. No. 15177 of 2001 and W.P. Nos. 12031 and 23887 of 2004 will stand allowed. The State Government is directed to implement the
order of the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed.
gri
To
1. The Personal Assistant (General)
to the Collector
Virudhunagar
2. The Personal Assistant to the Collector
(Panchayat Development)
Virudhunagar District
3. State of Tamil Nadu
Rep. by its Secretary
Revenue Department
Chennai 9