{"id":128634,"date":"2004-08-04T00:00:00","date_gmt":"2004-08-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-agricultural-marketing-vs-s-jaganathan-on-4-august-2004"},"modified":"2017-07-13T02:42:16","modified_gmt":"2017-07-12T21:12:16","slug":"state-agricultural-marketing-vs-s-jaganathan-on-4-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-agricultural-marketing-vs-s-jaganathan-on-4-august-2004","title":{"rendered":"State Agricultural Marketing … vs S. Jaganathan on 4 August, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
State Agricultural Marketing … vs S. Jaganathan on 4 August, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 04\/08\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE P.K. MISRA\nAND\nTHE HONOURABLE MRS.JUSTICE R. BANUMATHI\n\n\nW.P NO.29806 OF 2003\nand\nWPMP.NO.36359 OF 2003\nand\nWVMP.NO.2200 OF 2003\n\n1. State Agricultural Marketing Board,\n   Rep. by its Chief Executive Officer,\n   TNCS Commercial Complex,\n   Anna Nagar West, Chennai 40.\n\n   Now having office at CIPET Road,\n   Thiru Vi Ka Industrial Estate,\n   Guindy, Chennai 32.\n\n2. The Executive Engineer,\n   State Agricultural Marketing Board,\n   TNCS Commercial Complex,\n   Anna Nagar West, Chennai 40.\n\n   Now having office at CIPET Road,\n   Thiru Vi Ka Industrial Estate,\n   Guindy, Chennai 32.\n\n3. The Asst. Executive Engineer,\n   State Agricultural Marketing Board,\n   Vellore Sub Division,\n   14, Lakshmi Nivas Nilayam,\n   New Shankaranapalayam Road,\n   Vellore 632 001.                          ..  Petitioners\n\n-Vs-\n1. S. Jaganathan,\n   S\/o. Sabapathy\n   Thippu Street, Kodakkal Post,\n   Sholingur 691 105.\n   North Arcot District.\n\n2. The Registrar,\n   Central Administrative Tribunal,\n   Madras  104.\n\n3. State of Tamilnadu,\n   Rep. by its Secretary,\n   Department of Agriculture,\n   Fort St. George,\n   Madras 9.                         ..  Respondents\n\n        Petition filed under Article 226 of the Constitution of India for  the\nissuance of Writ of Certiorari as stated therein.\n\nFor Petitioner :  Mr.D.  Krishnakumar\n\nFor Respondent-1 :  Mr.M.  Palani\n\n\n:J U D G M E N T\n<\/pre>\n
P.K.  MISRA, J<\/p>\n
        This  writ petition has been filed by the State Agricultural Marketing
\nBoard and two subordinate officers, challenging the order  dated  21  .3.2003,
\npassed  by  the  Tamil  Nadu  Administrative Tribunal in O.A.No.1 010 of 1996,
\ndirecting the present writ petitioners  to  regularise  the  services  of  the
\npresent Respondent No.1 in the regular time scale of pay.\n<\/p>\n
        2.   The facts giving rise to the present writ petition are as follows
\n:-\n<\/p>\n
        The State Agricultural Marketing Board is established under Section 35
\nof the Tamil Nadu Agricultural Produce Marketing Act, 1987.  The main function
\nof the Board is to co-ordinate the working of the Market Committees and  other
\naffairs  thereof,  including programmes undertaken by the Market Committee for
\ndevelopment of markets and market areas and to supervise their functions.  The
\nBoard has an engineering  cell  with  one  Executive  Engineer  and  two  sub-
\ndivisions at  Vellore  and  Madurai.   The primary function of the Engineering
\ncell is to execute the construction work for the  Market  Committees.    After
\ncompletion  of  a  particular  construction,  the  same  is handed over to the
\nconcerned Market Committee.  The Board employs Technical Assistants  on  daily
\nwage basis   to   supervise  the  construction.    Junior  Engineers\/Assistant
\nEngineers are deputed to the Board from time to time.  However, the  Technical
\nassistants are employed temporarily on N.M.R basis.\n<\/p>\n
        The  present  Respondent No.1, who is a Diploma-holder in Engineering,
\nwas sponsored by the Employment Exchange  for  being  appointed  as  Technical
\nassistant  and  on  being selected by the Board, he was appointed on temporary
\nbasis as Technical Assistant under Nominal Muster Roll (N.M.R.) on daily  wage
\nbasis and  posted at Vellore Sub-Division by order dated 5.11.1986.  It was of
\ncourse indicated in the proceedings of the present Petitioner No.2  that  such
\nappointment was  purely  temporary.    Thereafter, the present Respondent No.1
\ncontinued in such capacity on daily wage basis  with  some  artificial  breaks
\nhere and there.  Subsequently, he filed W.P.No.9265 of 1995 before this Court,
\nclaiming regularisation  of  his service under the Board.  After the said writ
\npetition  was  admitted,  a  counter  was  filed  on  behalf  of  the  present
\npetitioners,  wherein  it  was indicated that the employees of the Board being
\nGovernment servants, the writ petition was not maintainable before this  Court
\nand case  should have been filed before the State Administrative Tribunal.  On
\nthe basis of the aforesaid stand of the present writ petitioners, a  memo  was
\nfiled  to  withdraw  the same, seeking to move the Tribunal and ultimately, by
\norder dated 2.2.1996, learned single Judge of this Court, while dismissing the
\nwrit petition as not maintainable, gave liberty to the present Respondent No.1
\nto move the State Administrative Tribunal.\n<\/p>\n
        Thereafter, O.A.No.1010 of 1996 was filed before the Tribunal  praying
\nfor  a  direction  to  regularise  the  services  of  the  applicant ( present
\nRespondent No.1) as per G.O.Ms.No.107, dated 5.2.1987.\n<\/p>\n
                3.  A  counter  was  filed  on  behalf  of  the  present  writ
\npetitioners, who  were  respondents  2  to 4 before the Tribunal.  In the said
\ncounter, while not disputing the fact that the  present  respondent  No.1  had
\nbeen  sponsored by the Employment Exchange and had been selected and posted as
\nTechnical Assistant on N.M.R basis, it was indicated that G.O.  Ms.No.107  was
\nnot  applicable,  as  the appointment was on N.M.R basis and the applicant was
\nnot a contingent staff, but a Nominal Muster Roll worker.   It  was  indicated
\nthat  G.O.Ms.No.107 dated 5.2.1987 was applicable only to contingent staff and
\nnot applicable to a Nominal Muster Roll appointee.  It was  further  indicated
\nthat  payment of wages to the applicant was made for the number of days he had
\nworked and not for all the days in a month and  payment  of  such  wages  will
\ndepend upon the availability of petty supervision charges at the rate of 2=%
\non the value of work actually done.\n<\/p>\n
                4.   The  Tribunal,  on  considering  the  rival  submissions,
\ndirected the Board to regularise the services of the applicant, by taking into
\nconsideration the long service of his employment as N.M.R and provide him with
\nsuitable vacancy with regular time scale of pay.  The Tribunal  mainly  relied
\nupon G.O.Ms.No.107 and observed :-\n<\/p>\n
         …  5.    There  is  no  distinction between a N.M.R.  worker and a
\nworker paid out of contingent funds.  Even in respect of this  applicant,  the
\npayment must have been made from out of contingent amount and a N.M.R Register
\nis  maintained  for  the  purpose  of  attendance  and  paid  the daily wages.
\nTherefore, on the specious plea that applicant is  only  a  N.M.R  and  not  a
\ncontingent worker,  the  benefits  given under G.O.  Ms.No.107 cannot be taken
\naway.  The benefits are intended only for persons who  have  been  working  on
\ndaily  wages  for more than five years and this also was passed only after the
\nHigh Courts and Supreme Court have repeatedly given directions  to  the  State
\nand  State Agencies to regularise the daily wage earners who have been working
\nfor long period.<\/p>\n
                5.  Learned counsel for the Board has challenged the aforesaid
\ndirection  of  the  Administrative  Tribunal  mainly  on   the   ground   that
\nG.O.Ms.No.107  was  not applicable to N.M.R employees, as such persons are not
\npaid from contingencies.  It is also pointed out that  in  the  absence  of  a
\nsanctioned post,  there could not be any direction for regularisation.  It has
\nbeen also contended in this context that there is no requirement of appointing
\na technical assistant on permanent basis.\n<\/p>\n
                6.  In course  of  hearing  of  this  writ  petition,  learned
\ncounsel for the Board has produced the Nominal Muster Roll details relating to
\nthe  present  Respondent  No.1  and  has contended that the observation of the
\nTribunal that employment was for a continuous  period  of  10  years  was  not
\ncorrect.   It  is  of course true that N.M.R Details in respect of the present
\nRespondent No.1 to some extent support the contention of the petitioner in the
\nsense that the employment seems to be on daily wage basis and  not  throughout
\nthe month,  but  with breaks here and there.  However, it is apparent from the
\nsaid N.M.R.  details that except for a gap of few days  here  and  there,  the
\npresent  Respondent  No.1  was  engaged at different places in connection with
\nvarious works, such  as  construction  of  compound  wall,  Office-cum-T.Shed,
\nOffice building,  etc.    The  said  details further indicate that the present
\nRespondent No.1 was being posted at different  places.    From  the  aforesaid
\ndetails,  a  reasonable  conclusion can be inferred to the effect that for all
\nthese years, there has been a constant requirement for  engaging  the  present
\nRespondent No.1,  even  though  there has been some breaks here and there.  In
\nthe aforesaid background, the main contention of the petitioner to the  effect
\nthat  there is no requirement for permanent appointment, does not appear to be
\njustified.\n<\/p>\n
                7.   It  is  of  course  contended  that  G.O.Ms.No.107  dated
\n5.2.1987  is not applicable, as the payment is not made from the contingencies
\nand the person cannot be described as a contingent worker.  The Tribunal has
\nnegatived such a contention by observing There is no distinction  between  an
\nN.M.R.   worker  and  a  worker  paid out of contingent funds. Even though by
\napplying hair-splitting logic that the observation may  not  be  found  to  be
\ncorrect,  we  are  not  persuaded to interfere with the order of the Tribunal.
\nEven assuming that such a G.O., was not strictly  applicable,  the  spirit  of
\nsuch G.O.    can  be  applied in view of the basic fact that there seems to be
\nperennial need for the post and the present Respondent No.1 has worked  for  a
\nconsiderable  length  of  time,  even  though with some artificial breaks, his
\napplication for regularisation had been rightly allowed by the Tribunal.\n<\/p>\n
                8.   Apart  from  G.O.Ms.No.107,  the  policy   reflected   in
\nG.O.Ms.No.257   dated   4.4.1995,   regarding  regularisation  of  the  N.M.R.
\nTechnical Assistants, who had completed 10 years of service under Public Works
\nDepartment, cannot be lost sight of, even though  such  a  G.O.,  may  not  be
\nstrictly applicable  to  the  N.M.R.    employees under the State Agricultural
\nMarketing Board.\n<\/p>\n
                9.  Keeping in view the basic facts to  the  effect  that  the
\npresent  Respondent No.1 had been continuously engaged with certain artificial
\nbreaks here and there, the direction for regularisation can be said  to  be  a
\njust and  equitable  direction.    It  is  also to be noticed that the initial
\nappointment of the Respondent No.1 was not by any backdoor method, but was  on
\nthe  basis  of the selection after being sponsored by the Employment Exchange.
\nEven though the initial entry was through the front door, the Respondent  No.1
\nhas been treated as a mere door-mat.\n<\/p>\n
                10.   Learned  counsel  for the Board has placed reliance upon
\nseveral decisions of the Supreme Court and contended that  the  direction  for
\nregularisation should  not  have been made.  The first decision relied upon by
\nthe learned counsel is 1997 (2) SCC 1(ASHWANI KUMAR &  OTHERS  v.    STATE  OF
\nBIHAR &  OTHERS).    In  the  aforesaid  case,  numerous  candidates  had been
\nappointed in an unauthorised manner and  against  nonexistent  vacancies.    A
\nCommittee  had  enquired  into  the matter and found that initial appointments
\nwere in gross violation of the Government instructions and, therefore, illegal
\nand such appointments have been subsequently cancelled.  The High Court upheld
\nthe action of the Government and ultimately, the Supreme Court  observed  that
\nwhen  the  initial  appointments  were illegal and void, the question of their
\nregularisation did not arise.\n<\/p>\n
                11.  Similarly, the learned counsel for  the  petitioners  has
\nplaced  reliance  upon  the  decision  reported in 2003 (3) SCC 485 (Dr.(Mrs.)
\nCHANCHAL GOYAL v.  STATE OF RAJASTHAN).  In the<\/a> said case, a Doctor  had  been
\nappointed  under a Municipal Council, purely on temporary basis for six months
\nor till the candidate selected by Public Service Commission is available.  The
\nemployee in question, even though subsequently selected by the Public  Service
\nCommission,  did not join, but continued on the basis of an order of extension
\nissued by the Department.  Ultimately, her services  were  terminated  on  the
\nground  that  the  candidate  selected  by  the  Public Service Commission was
\navailable.  Even though she had succeeded before the learned single Judge, the
\nDivision Bench reversed the decision  and  dismissed  the  writ  petition,  by
\nobserving  that she had continued merely as a temporary employee without being
\nselected by Public Service Commission and therefore, she has no right to  hold
\nthe post.   Such view of the Division Bench was affirmed by the Supreme Court.
\nThe Supreme Court emphasised the fact that appointment of a lady Doctor to the
\nCouncil was on temporary basis for a period of six months and therefore, there
\nwas no scope for directing  regularisation  of  service  and  ultimately,  the
\nSupreme  Court upheld the order of termination, as the person did not have any
\nlegal right to hold the post.\n<\/p>\n
                12.  The decision reported in 2003 (5) SCC 388 (MD.U.P.   LAND
\nDEVELOPMENT CORPORATION  AND  ANOTHER  v.   AMAR SINGH AND OTHERS)<\/a> is also not
\napplicable.  In the said case, the employment was under Million Wells Scheme
\nand  since  the  Corporation  decided  to  discontinue  the  same,  there  was
\nconsequential termination.    In  the  aforesaid background, the Supreme Court
\nobserved that there is no scope for regularisation.\n<\/p>\n
                13.  The factual scenario in the  present  case  being  vastly
\ndissimilar.  The ratio of the aforesaid decision is also not applicable to the
\npeculiar facts and circumstances of the present case.\n<\/p>\n
                14.   On  the other hand, we are of the opinion that the ratio
\nof the long line of decisions of the Supreme Court laying down the proposition
\nto the effect that where there is continuous engagement either on  daily  wage
\nbasis or on temporary basis for a long period, it can be well assumed that the
\nneed is perennial and instead of continuing such person on daily wage basis or
\ntemporary  basis,  thereby  exploiting the person concerned, an ideal employer
\nshould absorb such person on temporary basis.\n<\/p>\n
                15.  For the aforesaid purpose, reference can be made  to  the
\ndecisions reported  in  1990  (1)  SCC  361  (BHAGWATI  PRASAD v.  DELHI STATE
\nMINERAL DEVELOPMENT CORPORATION),<\/a> 1990 (2) SCC 396 (DHARWAD  DISTT.    P.W.D.,
\nLITERATE DAILY  WAGE  EMPLOYEES  ASSOCIATION AND OTHERS v.  STATE OF KARNATAKA
\nAND OTHERS),<\/a> (1991) 1 SCC 28 (JACOB M.  PUTHUPARAMBIL AND OTHERS  v.    KERALA
\nWATER  AUTHORITY AND OTHERS),<\/a> (1992) 4 SCC 118 (STATE OF HARYANA AND OTHERS v.
\nPIARA SINGH AND OTHERS) and (2004) 1 SCC 605 ( RADHA RAMAN SAMANTA v.  BANK OF
\nINDIA AND OTHERS).  It<\/a> is not necessary to refer to  all  these  decisions  in
\ndetail.   Suffice  it  to say that many of the decisions have been referred to
\nand relied upon in the decision of the Supreme Court reported in (2004) 1  SCC
\n605 (cited supra).  As a matter of fact, even in the decision reported in 2003
\n(3)  SCC 48 5 (cited supra), many such decisions have been referred to, but it
\nhas been observed that those cases are distinguishable on facts.\n<\/p>\n
                16.  In view of the aforesaid principles, we do not  find  any
\nerror  of  law  apparent  on  the  face  of  record in the order passed by the
\nTribunal and since the order of the Tribunal is in aid of substantial justice,
\nwe do not think it fit and proper to interfere with such order.  The writ
\npetition is accordingly dismissed without any order as to  costs.    Connected
\nmiscellaneous petitions are closed.\n<\/p>\n
Index :  Yes
\nInternet:  Yes
\ndpk<\/p>\n
To<\/p>\n
1.  State Agricultural Marketing Board,
\nRep.  by its Chief Executive Officer,
\nTNCS Commercial Complex,
\nAnna Nagar West, Chennai 40.\n<\/p>\n
Now having office at CIPET Road,
\nThiru Vi Ka Industrial Estate,
\nGuindy, Chennai 32.\n<\/p>\n
2.  The Executive Engineer,
\nState Agricultural Marketing Board,
\nTNCS Commercial Complex,
\nAnna Nagar West, Chennai 40.\n<\/p>\n
Now having office at CIPET Road,
\nThiru Vi Ka Industrial Estate,
\nGuindy, Chennai 32.\n<\/p>\n
3.  The Asst.  Executive Engineer,
\nState Agricultural Marketing Board,
\nVellore Sub Division,
\n14, Lakshmi Nivas Nilayam,
\nNew Shankaranapalayam Road,Vellore 632 001.\n<\/p>\n
4.  The Registrar,
\nCentral Administrative Tribunal,
\nMadras  104.\n<\/p>\n
5.  State of Tamilnadu,
\nRep.  by its Secretary,
\nDepartment of Agriculture,
\nFort St.  George, Madras 9.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court State Agricultural Marketing … vs S. Jaganathan on 4 August, 2004 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-128634","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nState Agricultural Marketing ... vs S. 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