Madras High Court
S.Kumar vs State Of Tamil Nadu on 21 July, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.1869 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :21.07.2022
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
Writ Petition No.1869 of 2015
S.Kumar ... Petitioner
-Vs-
1. State of Tamil Nadu,
Rep by its Secretary,
Animal Husbandry Dairying and Fisheries (FS2) Department,
Fort St.Geoge, Chennai 600 009.
2. The Director of Fisheries
Office of Director of Fisheries,
Teynampet,
Chennai 600 006. ... Respondents
Prayer : Writ Petition 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 1st respondent in letter No.9758/Fs2/2011-26,
dated 22.12.2014 and quash the same and direct the 1st respondent to
regularize the service of the petitioner from the date of appointment
i.e.04.04.1977 and consequently revise the pension and pensionary
benefits and disburse the same to the petitioner.
For Petitioner : M/s.Dr.S.Swaminathan
For Respondents : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
https://www.mhc.tn.gov.in/judis
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W.P.No.1869 of 2015
ORDER
The Writ on hand has been filed to quash the order declining the request of the writ petitioner to grant retrospective regularisation from the date of his initial appointment.
2. The petitioner joined service as Fisheries Engineering Supervisor in Thanjavur District, Fish Farmers Development Agency on 04.04.1977. The said post was re-designated as Junior Engineer. The writ petitioner was allowed to retire from service on attaining the age of superannuation on 30.09.2010.
3. Admittedly, the initial appointment of the writ petitioner was made by the Fish Farmers Development Agency, which is a Society registered under The Tamil Nadu Societies Registration Act, 1975, functioning under the Chairmanship of the District Collector concerned. It was an independent body and a registered society. Thus, the writ petitioner was not appointed in a Government Department, but appointed by an agency.
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4. The Government issued G.O.(3D)No.4, under Animal Husbandry and Fisheries Department, dated 28.08.1992 and the temporary staff employed in the Fish Farmers Development Agency were regularised in the Fisheries Department by relaxing the necessary service rules. During the relevant point of time, the team of Fish Farmers Development Agency were functioning in the Districts of Thanjavur, Tiruchirappalli, Madurai, Dharmapuri, South Arcot District (Cuddalore), Chengai -Anna (Kancheepuram), Tirunelveli, Periyar (Erode), North Arcot Ambedkar (Vellore), Kanniyakumari (Nagercoil), Pudukottai, Kamarajar (Virudhunagar) and Dindigul Quaid-E-Milleth in Tamil Nadu. All the Fish Farmers Development Agencies were Centrally sponsored, but the staff expenditure was met from State funds. Considering the plight of those employees working in Fish Farmers Development Agencies, the Government granted the benefit of regularisation by relaxing the relevant Rules. Consequently, all those employees were absorbed as regular employees in the Fisheries Departments of the Government of Tamil Nadu.
5. Pursuant to the Government order dated 28.08.1992, the services of the writ petitioner were regularised. They served for a https://www.mhc.tn.gov.in/judis 3/14 W.P.No.1869 of 2015 considerable length of time and thereafter, submitted a representation to regularise their services from the date of their initial appointment in the year 1977. The petitioner also submitted a representation and thereafter filed a Writ Petition in WP.No.9346 of 2011. The relief sought for in the said Writ Petition filed by the petitioner was to direct the respondents to regularise the services of the petitioner from the date of the appointment, that is, 04.04.1977 and consequently revise the pension and pensionary benefits and disburse the same.
6. The writ petitioner admittedly retired from service on 30.09.2010. The first Writ Petition filed by him was in the year 2011, after his retirement. An employee seeking a relief of retrospective regularisation from the year 1977 by filing a Writ Petition in the year 2011 itself could not be entertained. The petitioner sent a representation to the first respondent on 02.02.2011. Thus, the first representation sent by the writ petitioner as per the Writ Petition filed by him was on 02.02.2011 after a lapse of about nineteen years from the regularisation of his services granted in G.O.(3D)No.4, dated 28.8.1992. https://www.mhc.tn.gov.in/judis 4/14 W.P.No.1869 of 2015
7. There is a growing practice amongst the litigants in sending a representation in a clandestine manner and file a Writ Petition with a prayer to dispose of the representation. Courts are also granting such relief and based on the representation, the authorities are passing a speaking order. Such an order has formed a cause for the filing of another Writ Petition to adjudicate the issues on merits. The modus operandi of the litigants in this regard is to restore the lapse or debt caused after several years. Such a practice of developing a litigation, at no circumstance be encouraged by the High Courts. An employee who is aggrieved, is expected to redress the grievances within the reasonable period of time. An employee slept over his right, cannot wake up one fine morning and knock the doors of the Court for grant of relief which cannot be entertained and is to be rejected on the ground of limitation and laches. The Courts have repeatedly held that cases cannot be adjudicated after a lapse of many years. In order to overcome the principles of laches, such representations are sent and a Writ Petition is filed with a prayer to consider the representation, and after obtaining order from the High Court to consider the representation, orders are passed by the authorities and thereafter fresh Writ Petitions are filed for adjudication on merits. Therefore, the point of arising of cause of action https://www.mhc.tn.gov.in/judis 5/14 W.P.No.1869 of 2015 is an important factor to be considered by the Courts while entertaining a Writ Petition.
8. In the present case, the petitioner was appointed by the year 1977 in the Agency. His services were regularised in the Government Department in the year 1992 through G.O.(3D) No.4, dated 28.08.1992. He served in the Department and retired from service in the year 2010. He filed a Writ Petition in the year 2011. This Court directed the authorities to consider the claim for retrospective regularisation based on his representation. The said representation was considered and the first respondent Government rejected the same through the impugned order dated 22.12.2014.
9. The reason stated in the impugned order is that the writ petitioner was appointed in the Fish Farmers Development Agency and therefore, he is not entitled for regularisation in respect of the period of services rendered by him prior to the period of regularisation of the services, vide order issued in G.O.(3D) No.4 by the Animal Husbandry, Dairying and Fisheries Department dated 28.08.1992. The services rendered by the petitioner in the Fish Farmers Development Agencies is https://www.mhc.tn.gov.in/judis 6/14 W.P.No.1869 of 2015 no way connected with the Government services. Therefore, the order impugned states that, even as per G.O.(MS).No.22, Personnel and Administrative Reforms Department, dated 28.02.2006 and amended in G.O.(MS).No.74. Personnel and Administrative Reforms Department dated 27.06.2013, the case of the writ petitioner cannot be considered for regularisation with effect from the initial date of appointment. It is contended that the temporary, ad-hoc or daily wage based service for a long number of years cannot be considered for regularisation, as the petitioner was not working in a sanctioned post in the Government Department.
10. The learned counsel for the petitioner reiterated that the cases of similarly placed persons were considered by the Government and the petitioner alone was discriminated, and thus, the Writ Petition is to be considered. The learned Additional Government Pleader has no clear answer for such submission, contrarily, he made a submission that the order passed by the Government is in consonance with the Government orders. Except that the learned Additional Government Pleader is unable to raise other grounds factually.
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11. Regularisation or permanent absorption can never be claimed as a matter of right. Regularisation is to be granted strictly in accordance with the Rules in force. All appointments are to be made in consonance with the recruitment Rules in force. Equal opportunities in public appointment is a Constitutional mandate. The equality clause enunciated must be scrupulously followed while undertaking the process of selection for appointment to the public services. Thus, the temporary services rendered cannot be a ground to regularise the services with retrospective effect. That apart, the petitioner was appointed in an agency which is not a Government Department. Thus, the Government by way of concession absorbed these agency employees in the Fisheries Department through G.O.(3D)No.4, dated 28.08.1992. A perusal of the Government Order reveals that the Service Rules concerned, were relaxed for the benefit of the employees who worked in the agencies. When the relevant Service Rules were relaxed and the benefit of regularisation and absorption was granted, the petitioner cannot seek any further concession by filing a Writ Petition before the Court. Thus, the benefit of permanent absorption granted to the petitioner itself was a concession, which was granted by relaxing the relevant Rules in exercise of the powers conferred on the Government under Rule 48 of the General Rules. Thus, the Court cannot https://www.mhc.tn.gov.in/judis 8/14 W.P.No.1869 of 2015 extend further concession by granting retrospective regularisation. Principles of equality cannot be complied in respect of an illegality. When the initial appointment were not made in accordance with Recruitment Rules, then there cannot be any equality in respect of grant of regularisation. Therefore, by citing an illegality or grant of relaxation as a special case, the High Court cannot extend the relief which is otherwise not in accordance with law in force.
12. The Constitutional Bench of the Honble Supreme Court of India now settled the principles regarding regularisation and permanent absorption in the case of The State of Karnataka Vs. Umadevi and others reported in (2006) 4 SCC 1. Subsequently, Hon'ble Supreme Court in the case of State of Tamil Nadu School Education Department vs. R.Govindswami and others reported in (2014) 4 SCC 769, reminded the case of State of Rajasthan and others vs. Daya Lal and others reported in 2011 (2) SCC 429, wherein the Apex court held that “the High Courts in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with the relevant rules in an open competitive process, against the sanctioned https://www.mhc.tn.gov.in/judis 9/14 W.P.No.1869 of 2015 vacant posts. The equality clause contained in Article 14 and 16 should be scrupulously followed and Court should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised”.
13. In the present case, the petitioner drew the attention of this Court that some other cases were considered. If so, it is for the petitioner to approach the Government and not the Courts. Courts at no circumstances be party to any such illegalities or irregularities, if at all committed by the Government and when the issues are placed before the High Court, it has to decide the same independently, strictly in accordance with the Constitutional scheme and applying the principles laid down by the Courts based on the Constitutional philosophies and ethos. Thus, it is not as if the High Court can adopt a mechanical approach in adopting a similarity of cases. Even while considering the similar cases, the facts circumstances and the law applicable ought to be considered independently by the High Court, otherwise the litigants will https://www.mhc.tn.gov.in/judis 10/14 W.P.No.1869 of 2015 make an attempt to abuse the judicial process and by getting such routine orders, certain benefits would be conferred, for which otherwise they are ineligible.
14. Thus, application of mind independently by the High Courts is of paramount importance in such cases where the concept of similarity is pleaded by the litigants. In the present case, the submission of the petitioners is that, similar cases are considered, and in this fashion the orders are obtained from the High Courts and such benefits are extended indiscriminately without following a rule of law and the principles settled by the Constitutional Bench of the Hon'ble Supreme Court of India. It is to be recorded by this Court that the Government Pleaders in this regard are also expected to defend the Government properly. The Government Pleaders are public servants, and they cannot compare themselves with the learned counsels appearing for the petitioners. They are holding a public office and their services towards the public is to be weighed and in all circumstances they should defend the Government and the interest of public and they cannot concede the cases in a routine manner without ascertaining the facts or similarities in facts and also the law which is in force. This exactly is the reason why the Hon'ble Supreme Court held https://www.mhc.tn.gov.in/judis 11/14 W.P.No.1869 of 2015 that the appointment of Government pleaders have to be regulated and women and men of integrity and honesty alone should be appointed as Government Pleaders in the interest of public. Political appointments are not appreciated by the Constitutional Courts. However, the prevailing factors are really a worrying one and deserves to be looked into by the Government.
15. As far as the present Writ Petition is concerned, one of the orders shown by the petitioner reveals that there was no adjudication of similarity and the law would prevail for grant of the benefit of the regularisation and permanent absorption with reference to the principles laid down by the Constitutional Bench of the Hon'ble Supreme Court of India. Such orders passed which all are rendering counter to the judgment of the Constitutional Bench, have deluded to lose their status as preceded. Such judgments which all are rendering counter cannot be followed at all. The Supreme Court has in unequivocal terms held the said principles in para 54 of the Constitutional Bench judgement in Umadevi's case. Therefore, it is not as if the respective learned counsels appearing can cite one judgement where there is no adjudication of law and get orders after orders granting benefit which will result in unjust https://www.mhc.tn.gov.in/judis 12/14 W.P.No.1869 of 2015 gains to the litigants and further create financial loss to the State Exchequer and result in unconstitutionality, and which will effect the interest of the tax payers of our great nation.
16. Considering the facts and circumstances, this Court is of the opinion that the writ petitioner was appointed in an agency and he retired in the year 2010. First time, he filed a writ petition in 2011 and the Government passed an order of rejection and now he seeks regularisation from the year 1977 regarding the appointment made by the agency. He was regularised pursuant to the Government Order issued in the year 1992 in the Government Department and such a regularisation and permanent absorption was a concession extended by the Government by relaxing the relevant Service Rules which was in force and therefore, this Court is not inclined to extend any further benefits which would be otherwise inconsistent with the Service Rules in force.
17. Accordingly this writ petition stands dismissed. No costs.
21.07.2022 Index: Yes Speaking order: Yes sha https://www.mhc.tn.gov.in/judis 13/14 W.P.No.1869 of 2015 S.M.SUBRAMANIAM, J.
sha To
1. The Secretary, State of Tamil Nadu, Animal Husbandry Dairying and Fisheries (FS2) Department, Fort St.Geoge, Chennai 600 009.
2. The Director of Fisheries Office of Director of Fisheries, Teynampet, Chennai 600 006.
W.P.No.1869 of 2015
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