Madras High Court
K.Gomathpushan vs State Of Tamil Nadu Rep. By on 20 February, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.02.2014 CORAM: THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P.No.30296 of 2012 1. K.Gomathpushan 2. M.Gafoorkhan 3. R.Maria Stanley 4. C.Santhosekumar : Petitioners Vs. 1. State of Tamil Nadu rep. by Secretary Public Works Department Fort St. George, Chennai. 2. Enginer-in-Chief Buildings & Water Resources Department Public Works Department Chepauk Chennai 5 3. Chief Engineer Water Resources Department Public Works Department Chepauk, Chennai. 4. The Superintending Engineer Water Resources Department Pennaiyar Basin Circle Thiruvannamalai 5. Executive Engineer Water Resources Department Lower Pennaiyar Basin Division Villupuram 6. The Assistant Engineer Water Resources Department Lower Pennaiyar Basin Division Tirukoilur, Villupuram District. : Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the order in the Letter No.1172/2012/K2, dated 31.08.2012 passed by the fourth respondent herein and quash the same and further direct the respondents to regularize the services of the petitioners. *** For Petitioners : Mr.K.Vasudevan For Respondents : Mr.V.Subbiah Special Government Pleader O R D E R
The petitioners filed the present Writ of Certiorarified Mandamus for passing of an order by this Court in calling for the records relating to the order in the Letter No.1172/2012/K2, dated 31.08.2012 passed by the fourth respondent herein and quash the same. Further they have sought for passing of an order by this Court in directing the respondents to regularise their services.
2. At the outset, it is to be pointed out that the Learned counsel for the petitioners has made an endorsement in the typed set of papers of the writ petition to the effect that 'the petitioners 1, 3 and 4 alone may be permitted to withdraw the writ petition'.
3. The Learned counsel for the second petitioner submits that the second petitioner joined as Musdoor Grade I in the six respondent's Department on 01.06.2000 and that he made representation to the respondents requesting to regularise his service. Hover, based on the ban order, his service was not regularized and he was not made permanent. The first respondent had taken a policy decision to regularise the service of the NMRs who had completed more than 10 years of service. In obedience to the order of the first respondent, the second respondent written a letter on 25.08.2011 to the third respondent to send the particulars of the NMRs for the purpose of regularization. Accordingly, the sixth respondent sent a proposal through proper channel for the purpose of regularising the services of NMRs working under him.
4. As per the order of the second respondent, the sixth respondent is bound to submit the proposal on or before 2.09.2011. However, the sixth respondent submitted the proposals on 29.02.2012, which is a mistake committed by the said respondent.
5. The Fourth Respondent after receiving all the particulars passed the impugned order, dated 21.08.2012 by refusing to forward the proposal of regularisation to the first respondent and returned the proposal sent by the sixth respondent for regularization.
6. The Learned counsel for the second petitioner submits that the petitioner joined the service on 01.06.2000 and at the time of his joining he was 18 years old and he joined as a daily wage worker as Musdoor Grade I and he had completed 10 years of service as on 31.05.2010 and as such, he is entitled to be regularized by the sixth respondent.
7. The Learned counsel for the petitioner contents that the petitioner had worked more than 10 years now and still continues to work in the same capacity as on date with a fond hope that one day or other, his service would be regularised and made permanent. Unfortunately, the respondents have not regularized the services of the second petitioner and in this regard, the impugned order of the fourth respondent, dated 31.08.2012 is contrary to law and the same is an illegal one. As such, in the interest of justice and law of equity, the Respondents 2 to 6 may be directed to submit the proposal to the first respondent. Ultimately, the claim of the second petitioner is that the impugned order in Letter No.1172/2012/K2, dated 31.08.2012 is to be set aside by this Court.
8. Per contra, the Learned Special Government Pleader appearing for the Respondents submits that the second respondent had not completed 10 years of service as on 01.01.2006 as per G.O.Ms.No. 22 P & R AR (F) Department, dated 28.02.2006 and in fact, the Government have directed that the services of the daily wages employees working in all Government Department who have rendered 10 years of service as 01.01.2006 be regularised by appointing them in the time scale of pay. The reference to the details of service particulars of the second petitioner which are as follows:-
Name Year NMR As contractor's Labour K.Gomathpushan S/o. Krishnan Avadyarpattu and Post, Vilupuram District 1996 139 1997 225 1998 335 1999 335 2000 252 2001 194 2004 209 2005 136 2006 118 2007 169 2008 79 2009 178 2010 183 2011 74
9. It is the plea of the Respondents that the engagement of Casual Labourers even for considerably long duration did not confer any legal right on them for seeking Mandamus for relaxation of necessary rules. Further, this Court in W.P.No. 41594 of 2006 filed by Bridget Genova S.Sasikumar and S.Sudha respectively in a batch cases, observed the following:
"The Supreme Court in Secretary, State of Karnatak Vs. Umadevi (3) and other reported in (2006) 4 SCC 1 has held that regularization cannot be a method of recruitment unless the petitioner has the case for absorption. As per the orders of the Government, in the Original Application (Later converted in to the Writ Petition) the relief claimed by the petitioner cannot be countenanced by this Court. Hence, the Writ Petition stands dismissed."
10. Therefore, it is submitted on behalf of the Respondents that regularisation of causal labourers service is not a matter of right and also that the petitioner has been engaged as both NMR and as contract Labourers.
11. According to the second petitioner, he joined the service on 01.06.2000 as Muzdoor Grade I on 01.06.2000 and till date he continues to serve in that capacity and in fact as early as on 31.05.2010, he had completed 10 years of service and therefore, during the year 2010, he was to be regularized, but till date he has not yet been regularised the service by the Respondents.
12. A daily wage earner is a ' workman'. Further a 'casual worker' is also the workman. It is to be noted that unless the employee is recruited at a temporary basis against a sanctioned post, the issue of regularising his services may not arise. Also that NMR workers would not be regularised, but they would get compensation on closure as per decision of Hon'ble Supreme Court the Management of Danda Karunya Project, Koreput v. Workmen through Rehabilitation Employee Union AIR 1997 SC 852.
13. As far as the present case is concerned, the second petitioner had only challenged the impugned order, dated 31.08.2012 of the fourth respondent on the ground that the fourth respondent has committed an illegality in not sending the proposal to the Government and has returned the proposal to the sixth respondent, which act cannot be countenanced in the eye of law.
14. In view of the fact that the second petitioner had completed 10 years of service as on 31.05.2010 and he had joined the service as early as on 01.06.2000 as per the details submitted by the sixth respondent ( in so far as the second petitioner is concerned), this Court on the basis of fair, play, equity, justice and good conscience, directs the Sixth Respondent to consider the case of second petitioner in regard to sending of proposal (in so far as he is concerned) to the fourth respondent by taking into account his date of joining as early as on 01.06.2000 and also bearing in mind another important fact that till date, he is continuing to serve in that capacity and to pass a reasoned speaking order on merits (of-course specifying an outline of process of reasoning) within a period of eight weeks from the date of receipt of a copy of this order. (By providing necessary opportunities to the second respondent by adhering to the principles of natural justice).
15. With the aforesaid observations and directions, the Writ Petition stands disposed of.
16. In so far as the petitioners 1, 3 and 4 are concerned, in view of the endorsement made by the learned counsel for the petitioners that he may be permitted to withdraw the writ Petition on behalf of the petitioners, 1, 3 and 4.
17. This Court recording the same and endorsement so made to the effect in the writ petition typed set of papers, the Writ Petition is dismissed as withdrawn in so far as the petitioners 1, 3 and 4 are concerned.
20.02.2014 Index: Yes/No Internet: Yes/No vsg To
1. The Secretary Public Works Department Fort St. George, Chennai.
2. Enginer-in-Chief Buildings & Water Resources Department Public Works Department Chepauk Chennai 5
3. Chief Engineer Water Resources Department Public Works Department Chepauk, Chennai.
4. The Superintending Engineer Water Resources Department Pennaiyar Basin Circle Thiruvannamalai
5. Executive Engineer Water Resources Department Lower Pennaiyar Basin Division Villupuram
6. The Assistant Engineer Water Resources Department Lower Pennaiyar Basin Division Tirukoilur, Villupuram District.
M.VENUGOPAL, J.
vsg W.P.No.30296 of 2012 20.02.2014