IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/08/2004
CORAM
THE HONOURABLE MR.JUSTICE P.K. MISRA
AND
THE HONOURABLE MRS.JUSTICE R. BANUMATHI
W.P NO.29806 OF 2003
and
WPMP.NO.36359 OF 2003
and
WVMP.NO.2200 OF 2003
1. State Agricultural Marketing Board,
Rep. by its Chief Executive Officer,
TNCS Commercial Complex,
Anna Nagar West, Chennai 40.
Now having office at CIPET Road,
Thiru Vi Ka Industrial Estate,
Guindy, Chennai 32.
2. The Executive Engineer,
State Agricultural Marketing Board,
TNCS Commercial Complex,
Anna Nagar West, Chennai 40.
Now having office at CIPET Road,
Thiru Vi Ka Industrial Estate,
Guindy, Chennai 32.
3. The Asst. Executive Engineer,
State Agricultural Marketing Board,
Vellore Sub Division,
14, Lakshmi Nivas Nilayam,
New Shankaranapalayam Road,
Vellore 632 001. .. Petitioners
-Vs-
1. S. Jaganathan,
S/o. Sabapathy
Thippu Street, Kodakkal Post,
Sholingur 691 105.
North Arcot District.
2. The Registrar,
Central Administrative Tribunal,
Madras 104.
3. State of Tamilnadu,
Rep. by its Secretary,
Department of Agriculture,
Fort St. George,
Madras 9. .. Respondents
Petition filed under Article 226 of the Constitution of India for the
issuance of Writ of Certiorari as stated therein.
For Petitioner : Mr.D. Krishnakumar
For Respondent-1 : Mr.M. Palani
:J U D G M E N T
P.K. MISRA, J
This writ petition has been filed by the State Agricultural Marketing
Board and two subordinate officers, challenging the order dated 21 .3.2003,
passed by the Tamil Nadu Administrative Tribunal in O.A.No.1 010 of 1996,
directing the present writ petitioners to regularise the services of the
present Respondent No.1 in the regular time scale of pay.
2. The facts giving rise to the present writ petition are as follows
:-
The State Agricultural Marketing Board is established under Section 35
of the Tamil Nadu Agricultural Produce Marketing Act, 1987. The main function
of the Board is to co-ordinate the working of the Market Committees and other
affairs thereof, including programmes undertaken by the Market Committee for
development of markets and market areas and to supervise their functions. The
Board has an engineering cell with one Executive Engineer and two sub-
divisions at Vellore and Madurai. The primary function of the Engineering
cell is to execute the construction work for the Market Committees. After
completion of a particular construction, the same is handed over to the
concerned Market Committee. The Board employs Technical Assistants on daily
wage basis to supervise the construction. Junior Engineers/Assistant
Engineers are deputed to the Board from time to time. However, the Technical
assistants are employed temporarily on N.M.R basis.
The present Respondent No.1, who is a Diploma-holder in Engineering,
was sponsored by the Employment Exchange for being appointed as Technical
assistant and on being selected by the Board, he was appointed on temporary
basis as Technical Assistant under Nominal Muster Roll (N.M.R.) on daily wage
basis and posted at Vellore Sub-Division by order dated 5.11.1986. It was of
course indicated in the proceedings of the present Petitioner No.2 that such
appointment was purely temporary. Thereafter, the present Respondent No.1
continued in such capacity on daily wage basis with some artificial breaks
here and there. Subsequently, he filed W.P.No.9265 of 1995 before this Court,
claiming regularisation of his service under the Board. After the said writ
petition was admitted, a counter was filed on behalf of the present
petitioners, wherein it was indicated that the employees of the Board being
Government servants, the writ petition was not maintainable before this Court
and case should have been filed before the State Administrative Tribunal. On
the basis of the aforesaid stand of the present writ petitioners, a memo was
filed to withdraw the same, seeking to move the Tribunal and ultimately, by
order dated 2.2.1996, learned single Judge of this Court, while dismissing the
writ petition as not maintainable, gave liberty to the present Respondent No.1
to move the State Administrative Tribunal.
Thereafter, O.A.No.1010 of 1996 was filed before the Tribunal praying
for a direction to regularise the services of the applicant ( present
Respondent No.1) as per G.O.Ms.No.107, dated 5.2.1987.
3. A counter was filed on behalf of the present writ
petitioners, who were respondents 2 to 4 before the Tribunal. In the said
counter, while not disputing the fact that the present respondent No.1 had
been sponsored by the Employment Exchange and had been selected and posted as
Technical Assistant on N.M.R basis, it was indicated that G.O. Ms.No.107 was
not applicable, as the appointment was on N.M.R basis and the applicant was
not a contingent staff, but a Nominal Muster Roll worker. It was indicated
that G.O.Ms.No.107 dated 5.2.1987 was applicable only to contingent staff and
not applicable to a Nominal Muster Roll appointee. It was further indicated
that payment of wages to the applicant was made for the number of days he had
worked and not for all the days in a month and payment of such wages will
depend upon the availability of petty supervision charges at the rate of 2=%
on the value of work actually done.
4. The Tribunal, on considering the rival submissions,
directed the Board to regularise the services of the applicant, by taking into
consideration the long service of his employment as N.M.R and provide him with
suitable vacancy with regular time scale of pay. The Tribunal mainly relied
upon G.O.Ms.No.107 and observed :-
… 5. There is no distinction between a N.M.R. worker and a
worker paid out of contingent funds. Even in respect of this applicant, the
payment must have been made from out of contingent amount and a N.M.R Register
is maintained for the purpose of attendance and paid the daily wages.
Therefore, on the specious plea that applicant is only a N.M.R and not a
contingent worker, the benefits given under G.O. Ms.No.107 cannot be taken
away. The benefits are intended only for persons who have been working on
daily wages for more than five years and this also was passed only after the
High Courts and Supreme Court have repeatedly given directions to the State
and State Agencies to regularise the daily wage earners who have been working
for long period.
5. Learned counsel for the Board has challenged the aforesaid
direction of the Administrative Tribunal mainly on the ground that
G.O.Ms.No.107 was not applicable to N.M.R employees, as such persons are not
paid from contingencies. It is also pointed out that in the absence of a
sanctioned post, there could not be any direction for regularisation. It has
been also contended in this context that there is no requirement of appointing
a technical assistant on permanent basis.
6. In course of hearing of this writ petition, learned
counsel for the Board has produced the Nominal Muster Roll details relating to
the present Respondent No.1 and has contended that the observation of the
Tribunal that employment was for a continuous period of 10 years was not
correct. It is of course true that N.M.R Details in respect of the present
Respondent No.1 to some extent support the contention of the petitioner in the
sense that the employment seems to be on daily wage basis and not throughout
the month, but with breaks here and there. However, it is apparent from the
said N.M.R. details that except for a gap of few days here and there, the
present Respondent No.1 was engaged at different places in connection with
various works, such as construction of compound wall, Office-cum-T.Shed,
Office building, etc. The said details further indicate that the present
Respondent No.1 was being posted at different places. From the aforesaid
details, a reasonable conclusion can be inferred to the effect that for all
these years, there has been a constant requirement for engaging the present
Respondent No.1, even though there has been some breaks here and there. In
the aforesaid background, the main contention of the petitioner to the effect
that there is no requirement for permanent appointment, does not appear to be
justified.
7. It is of course contended that G.O.Ms.No.107 dated
5.2.1987 is not applicable, as the payment is not made from the contingencies
and the person cannot be described as a contingent worker. The Tribunal has
negatived such a contention by observing There is no distinction between an
N.M.R. worker and a worker paid out of contingent funds. Even though by
applying hair-splitting logic that the observation may not be found to be
correct, we are not persuaded to interfere with the order of the Tribunal.
Even assuming that such a G.O., was not strictly applicable, the spirit of
such G.O. can be applied in view of the basic fact that there seems to be
perennial need for the post and the present Respondent No.1 has worked for a
considerable length of time, even though with some artificial breaks, his
application for regularisation had been rightly allowed by the Tribunal.
8. Apart from G.O.Ms.No.107, the policy reflected in
G.O.Ms.No.257 dated 4.4.1995, regarding regularisation of the N.M.R.
Technical Assistants, who had completed 10 years of service under Public Works
Department, cannot be lost sight of, even though such a G.O., may not be
strictly applicable to the N.M.R. employees under the State Agricultural
Marketing Board.
9. Keeping in view the basic facts to the effect that the
present Respondent No.1 had been continuously engaged with certain artificial
breaks here and there, the direction for regularisation can be said to be a
just and equitable direction. It is also to be noticed that the initial
appointment of the Respondent No.1 was not by any backdoor method, but was on
the basis of the selection after being sponsored by the Employment Exchange.
Even though the initial entry was through the front door, the Respondent No.1
has been treated as a mere door-mat.
10. Learned counsel for the Board has placed reliance upon
several decisions of the Supreme Court and contended that the direction for
regularisation should not have been made. The first decision relied upon by
the learned counsel is 1997 (2) SCC 1(ASHWANI KUMAR & OTHERS v. STATE OF
BIHAR & OTHERS). In the aforesaid case, numerous candidates had been
appointed in an unauthorised manner and against nonexistent vacancies. A
Committee had enquired into the matter and found that initial appointments
were in gross violation of the Government instructions and, therefore, illegal
and such appointments have been subsequently cancelled. The High Court upheld
the action of the Government and ultimately, the Supreme Court observed that
when the initial appointments were illegal and void, the question of their
regularisation did not arise.
11. Similarly, the learned counsel for the petitioners has
placed reliance upon the decision reported in 2003 (3) SCC 485 (Dr.(Mrs.)
CHANCHAL GOYAL v. STATE OF RAJASTHAN). In the said case, a Doctor had been
appointed under a Municipal Council, purely on temporary basis for six months
or till the candidate selected by Public Service Commission is available. The
employee in question, even though subsequently selected by the Public Service
Commission, did not join, but continued on the basis of an order of extension
issued by the Department. Ultimately, her services were terminated on the
ground that the candidate selected by the Public Service Commission was
available. Even though she had succeeded before the learned single Judge, the
Division Bench reversed the decision and dismissed the writ petition, by
observing that she had continued merely as a temporary employee without being
selected by Public Service Commission and therefore, she has no right to hold
the post. Such view of the Division Bench was affirmed by the Supreme Court.
The Supreme Court emphasised the fact that appointment of a lady Doctor to the
Council was on temporary basis for a period of six months and therefore, there
was no scope for directing regularisation of service and ultimately, the
Supreme Court upheld the order of termination, as the person did not have any
legal right to hold the post.
12. The decision reported in 2003 (5) SCC 388 (MD.U.P. LAND
DEVELOPMENT CORPORATION AND ANOTHER v. AMAR SINGH AND OTHERS) is also not
applicable. In the said case, the employment was under Million Wells Scheme
and since the Corporation decided to discontinue the same, there was
consequential termination. In the aforesaid background, the Supreme Court
observed that there is no scope for regularisation.
13. The factual scenario in the present case being vastly
dissimilar. The ratio of the aforesaid decision is also not applicable to the
peculiar facts and circumstances of the present case.
14. On the other hand, we are of the opinion that the ratio
of the long line of decisions of the Supreme Court laying down the proposition
to the effect that where there is continuous engagement either on daily wage
basis or on temporary basis for a long period, it can be well assumed that the
need is perennial and instead of continuing such person on daily wage basis or
temporary basis, thereby exploiting the person concerned, an ideal employer
should absorb such person on temporary basis.
15. For the aforesaid purpose, reference can be made to the
decisions reported in 1990 (1) SCC 361 (BHAGWATI PRASAD v. DELHI STATE
MINERAL DEVELOPMENT CORPORATION), 1990 (2) SCC 396 (DHARWAD DISTT. P.W.D.,
LITERATE DAILY WAGE EMPLOYEES ASSOCIATION AND OTHERS v. STATE OF KARNATAKA
AND OTHERS), (1991) 1 SCC 28 (JACOB M. PUTHUPARAMBIL AND OTHERS v. KERALA
WATER AUTHORITY AND OTHERS), (1992) 4 SCC 118 (STATE OF HARYANA AND OTHERS v.
PIARA SINGH AND OTHERS) and (2004) 1 SCC 605 ( RADHA RAMAN SAMANTA v. BANK OF
INDIA AND OTHERS). It is not necessary to refer to all these decisions in
detail. Suffice it to say that many of the decisions have been referred to
and relied upon in the decision of the Supreme Court reported in (2004) 1 SCC
605 (cited supra). As a matter of fact, even in the decision reported in 2003
(3) SCC 48 5 (cited supra), many such decisions have been referred to, but it
has been observed that those cases are distinguishable on facts.
16. In view of the aforesaid principles, we do not find any
error of law apparent on the face of record in the order passed by the
Tribunal and since the order of the Tribunal is in aid of substantial justice,
we do not think it fit and proper to interfere with such order. The writ
petition is accordingly dismissed without any order as to costs. Connected
miscellaneous petitions are closed.
Index : Yes
Internet: Yes
dpk
To
1. State Agricultural Marketing Board,
Rep. by its Chief Executive Officer,
TNCS Commercial Complex,
Anna Nagar West, Chennai 40.
Now having office at CIPET Road,
Thiru Vi Ka Industrial Estate,
Guindy, Chennai 32.
2. The Executive Engineer,
State Agricultural Marketing Board,
TNCS Commercial Complex,
Anna Nagar West, Chennai 40.
Now having office at CIPET Road,
Thiru Vi Ka Industrial Estate,
Guindy, Chennai 32.
3. The Asst. Executive Engineer,
State Agricultural Marketing Board,
Vellore Sub Division,
14, Lakshmi Nivas Nilayam,
New Shankaranapalayam Road,Vellore 632 001.
4. The Registrar,
Central Administrative Tribunal,
Madras 104.
5. State of Tamilnadu,
Rep. by its Secretary,
Department of Agriculture,
Fort St. George, Madras 9.