Madras High Court
Dr. N.Devanathan vs State Of Tamil Nadu on 8 August, 2022
Author: S.M. Subramaniam
Bench: S.M.Subramaniam
W.P.No.17487 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.17487 of 2015
and
M.P.No.1 of 2015 & W.M.P.No.3171 of 2016
1.Dr. N.Devanathan
2.Dr. Gowri Ramesh
3.Dr. N.Kayalvizhi
4.Dr. A.Vijayalakshmi Ramalingam
5.G.Jayagowry
6.R.Thangaramani
7.R.Santhi
8.C.Rajalakshmi ... Petitioners
Vs.
1.State of Tamil Nadu,
Rep. by its Secretary,
Department of Law,
Chennai – 600 009.
2.The Director of Legal Studies,
Kilpauk,
Chennai – 600 010. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, directing the
Respondents to regularize the service of the Petitioners from their date of
entry into service instead of 22.07.2008 for all purposes under Old Pension
Scheme under the Tamil Nadu Pension Rules, 1978 and thereby further
direct the Respondents to refund the amount being deducted from the
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W.P.No.17487 of 2015
salary of the Petitioners towards the contribution under New Pension
Scheme and also direct the Respondents to pay the arrears of difference in
pay and allowances.
For Petitioners : Mr.R.Malaichamy
For Respondents : Mr.V.Arun
Additional Advocate General
Assisted by
Mrs.S.Anitha
Special Government Pleader
[For R1 and R2]
ORDER
The relief sought for in the present writ petition is to direct the Respondents to regularize the service of the Petitioners from their date of entry into service instead of 22.07.2008 for all purposes under Old Pension Scheme under the Tamil Nadu Pension Rules, 1978 and thereby further direct the Respondents to refund the amount being deducted from the salary of the Petitioners towards the contribution under New Pension Scheme and also direct the Respondents to pay the arrears of difference in pay and allowances.
2. The petitioners state that they were selected and appointed as Lecturers on contract basis. The petitioners state that though they were appointed as contract Lecturers, they were selected through the Selection https://www.mhc.tn.gov.in/judis Page 2 of 28 W.P.No.17487 of 2015 Committee and there were several sanctioned posts and were also available during the relevant point of time. The petitioners state that they were fully qualified for appointment to the post of Lecturers (Senior Scale) now re- designated as Assistant Professor (Senior Scale). The petitioners 2, 3, 6 and 7 were appointed on 21.08.1997 and petitioners 1, 4, 5 and 8 were appointed on 04.12.1998. The petitioners are now working in Government Law College across the State of Tamil Nadu.
3. The respondents had not taken any action to fill up the sanctioned posts of Lecturers (Senior Scale) now re-designated as Assistant Professor (Senior Scale) in the Government Law Colleges during the relevant point of time. From the year 1988, Lecturers were appointed only on contract basis with regular pay scale. The petitioners state that there was an enormous delay in taking steps to regularise the services of the contract Lecturers, who were otherwise appointed through the selection process.
4. It is contended that all the petitioners were appointed in a regular sanctioned vacant post and by conducting the process of selection by the competent Selection Committee. The petitioners and the similarly placed contract Lecturers filed writ petitions in W.P.Nos.34923 to 34929 and 34931 of 2003 for a direction to regularise the services of the writ https://www.mhc.tn.gov.in/judis Page 3 of 28 W.P.No.17487 of 2015 petitioners therein from initial date of appointment. Meanwhile, the respondents had initiated actions to regularise the services of 1997-1998 batches of Lecturers. It was stated before the Court that the Government is considering the cases of the writ petitioners. Thus, the writ petitions were disposed of on 16.02.2008 with a liberty to approach the Court if the petitioners are further aggrieved in the matter of regularisation. Thereafter, the Teachers Recruitment Board conducted interview and thereby the services were regularised with effect from the date of issue of order in G.O.Ms.No.170 Department of Law (Education) dated 22.07.2008 instead of the date of initial appointments. The petitioners thereafter made representations to regularise the services from the date of initial appointments. Further request was made by the petitioners to brought them under the Old Pension Scheme i.e., under the Tamil Nadu Pension Rules, 1978 for all purposes as their services were regularised after 01.04.2003 and they were brought under the New Contribution Pension Scheme.
5. The petitioners state that two batch of contract Lecturers were appointed in Government Law Colleges across the State during the years 1988-1990 and 1997-1998. Out of two batches of contract Lecturers https://www.mhc.tn.gov.in/judis Page 4 of 28 W.P.No.17487 of 2015 appointed, the first batch appointed during the years 1988-1990 received the retrospective benefits and their services were also regularised from the date of initial appointments, but there was no action on the part of the respondents.
6. The similarly placed Lecturer one Mr.D.Purushothaman, who was appointed along with the petitioners in the year 1997-1998, filed a writ petition in W.P.No.639 of 2012 and the said writ petition was dismissed, against which, a writ appeal was filed in W.A.No.429 of 2012 and the same was allowed by the Hon'ble Division Bench of this Court by an order dated 16.10.2012 and the State preferred the S.L.P in C.C.No.7454 of 2013, which was dismissed on 03.05.2013. Thus, the Government implemented the orders of the Hon'ble Division Bench by issuing G.O.Ms.No.516, Department of Law dated 26.11.2013. The order was implemented and therefore, the petitioners state that their cases also to be considered for regularisation.
7. The learned counsel for the petitioners mainly contended that the petitioners though appointed on contract basis, their services were regularised from the date of issuance of the Government order on 22.07.2008. The case of the similarly placed person one https://www.mhc.tn.gov.in/judis Page 5 of 28 W.P.No.17487 of 2015 Mr.D.Purushothaman was considered based on the orders of the Court and the petitioners are also entitled for the similar benefit. It is contended that the petitioners were selected through the Selection Committee and they were fully qualified for appointment. Therefore, they are entitled for retrospective regularisation.
8. The learned counsel for the petitioners contended that even under Rule 14 of the Tamil Nadu Pension Rules, the contract services rendered by the petitioners should be taken into consideration for the purpose of reckoning the qualifying service. In similar circumstances, the High Court of Himachal Pradesh considered the issues in the case of Smt. Sheela Devi Vs. State of Himachal Pradesh and Others in CWPOA No.195 of 2019 dated 26.12.2019. The Rule 17 of the Central Civil Services (Pension) Rules, 1972 was considered by the High Court of Himachal Pradesh and the benefit of regularisation was extended in respect of the contingence services of the employees. The learned counsel for the petitioners made a submission that the principles laid down in the said judgment would be applicable to the present case. However, the learned counsel for the petitioners fairly made a submission that the said judgment was taken by way of an appeal by the State of Himachal Pradesh SLP(C) No.10399 of https://www.mhc.tn.gov.in/judis Page 6 of 28 W.P.No.17487 of 2015 2020 and now sub-judice before the Hon'ble Supreme Court of India. Therefore, this Court is of the considered opinion that the case on hand is to be considered with reference to the Tamil Nadu Pension Rules, 1978.
9. The petitioners have referred to an another judgment of the High Court of the Himachal Pradesh in CWP No.2411 of 2019 dated 18.12.2019. In the said case also the High Court of Himachal Pradesh has extended the benefit of the service rendered in work-charged establishment for the purpose of calculating the qualifying service for grant of pensionary benefits.
10. Relying on the above judgments, the learned counsel for the petitioners is of an opinion that in the present case, the petitioners were appointed through the Selection Committee, as per the notification issued by the respondents. Thus, their contract appointment was made by following selection procedure and therefore, the said services are to be calculated for the purpose of reckoning the qualifying services for grant of pensionary benefits.
11. The petitioners have contended that though they were appointed https://www.mhc.tn.gov.in/judis Page 7 of 28 W.P.No.17487 of 2015 on contract basis for a period of one year they were allowed to continue in service and thereafter, the Government considered the proposal for regularisation of their services. Since, the petitioners continued in services as contract Lecturers and finally, their services are regularised, the period of contract services are also to be taken into consideration for the purpose of calculating the qualifying services and the petitioners must be brought under the Old Pension Scheme under the Tamil Nadu Pension Rules, 1978.
12. The respondents objected the said contentions raised by the petitioners by stating that during the Academic Year 1997-1998, 13 persons were appointed on contract basis as Lecturers (Senior Scale). All of them were appointed on contract basis for the Academic Year 1997- 1998. Their services were terminated on the last working day of the academic year in accordance with the terms of the contract. The Lecturers were again re-employed on contract basis for the next Academic Year after obtaining permission from the Government. Amongst the 13 Lecturers, another batch of 9 Lecturers (Senior Scale) including the petitioners 1, 4, 5 and 8 were appointed on contract basis for the Academic Year 1998-1999 only. The contract Lecturers filed O.A.Nos.2768 of 1999, 2769 of 1999, https://www.mhc.tn.gov.in/judis Page 8 of 28 W.P.No.17487 of 2015 2496 to 2504 of 1999 and 2805 to 2812 of 1999 before the Tamil Nadu Administrative Tribunal to restrain the respondents from terminating their services at the end of the Academic Year 1988-1999. The Tamil Nadu Administrative Tribunal granted an interim direction to the respondents not to terminate the services of the contract Lecturers (Senior Scale). The Original Applications were subsequently dismissed by the Tamil Nadu Administrative Tribunal dated 29.08.2003 with the following observations:
“So, regular appointment can be done only by the Teachers Recruitment Board and previously it was being done through the Tamil Nadu Public Service Commission. These persons who have been temporarily appointed pending regular selection and appointment cannot ask to be regularized just like that. No doubt, when regular vacancies are notified and applications are called, these applicants also can participate in the selection by applying if they got all the necessary qualification. By way of interim orders, the respondents have been restrained from terminating the services and these persons are continuing to serve as Lecturers till date. Some of them might have exceeded the age limit for regular appointment. In those cases, if necessary, the Government shall give them relaxation irrespective of age limit of the temporary hands viz., the applicants may be permitted to participate in the selection, but these applicants cannot be regularized and their appointment is purely temporary. In fact, they themselves have executed agreement for 1997-98 and another agreement for 1998-
99. Thereafter, apprehending termination, they come with these https://www.mhc.tn.gov.in/judis Page 9 of 28 W.P.No.17487 of 2015 applications and by virtue of the interim orders, they are clinging on to their posts. This does not give them permanency or regular appointment. They may be allowed to continue to work till regular candidates are selected. The respondents shall take action expeditiously for regular selection by causing the necessary notification. The temporary arrangement need not stand in the way of the regular selection and appointment. The applications are all dismissed subject to the observation made above.”
13. Other similarly placed Lecturers (Senior Scale) filed W.P.Nos.34913 to 34921 of 2003, 34923 to 34929 of 2003 and W.P.No.34931 of 2003 before the High Court with a prayer to quash the above mentioned order of the Tamil Nadu Administrative Tribunal and to direct the respondents to regularise their services in the post of Lecturers (Senior Scale). In the meantime, the Lecturers (Senior Scale) who were appointed on contract basis, including the petitioners submitted representations to the Government to regularise their services. The Government also decided to regularise the services of the 15 Lecturers (Senior Scale), who were appointed on contract basis in the Academic Year 1997-1998 and 1998-1999 and sent their list to the Teachers Recruitment Board in G.O.Ms.No.165 Law (LS) Department, dated 05.07.2007 for conducting interview to assign rank on the basis of the marks to be obtained by them during the interview and adopting the rule of https://www.mhc.tn.gov.in/judis Page 10 of 28 W.P.No.17487 of 2015 reservation. The writ petitions in W.P.Nos.34913 to 34921 of 2003, 34923 to 34929 to 2003 and W.P.No.34931 of 2003 were dismissed by the High Court on 16.02.2008 and 18.02.2008 as steps had already been taken by the Government to regularise the services of the contract Lecturers (Senior Scale).
14. The Government issued G.O.Ms.No.170, Law (LS) Department, dated 22.07.2008, regularising the services of 15 Lecturers (Senior Scale) including the petitioners, who were appointed on contract basis during the Academic Year 1997-1998 and 1998-1999 with effect from 22.07.2008. The Government issued G.O.Ms.No.9, Law (LS) Department, dated 12.01.2001, regularising the services of 30 Lecturers (Senior Scale) who were appointed on contract basis during the Academic Year 1997-1998 and 1988-1990 with effect from 26.03.1993 i.e., the date from which the contract Lecturers working in the Department of Collegiate Education were regularised, but not from their initial dates of appointments on contract basis.
15. It is stated that all the contract Lecturers, who were working under the Director of Collegiate Education were also regularised only from https://www.mhc.tn.gov.in/judis Page 11 of 28 W.P.No.17487 of 2015 the date of issue of the order of regularisation i.e., on 26.03.1993 vide G.O.Ms.No.310, Education Department, dated 26.03.1993, though they were initially appointed during the Academic Year 1988-1989.
16. The contract appointments were made on certain terms and conditions and for a period of one year initially. It was made clear that the contract appointments are made till such time the regular appointments are made through the Teachers Recruitment Board. The procedures adopted for contract appointments are not akin to that of the procedures to be adopted for regular appointments through the Teachers Recruitment Board. Thus, the contract appointments would not provide any right on the petitioners to claim regularisation or permanent absorption. The regular appointments to the post of Lecturer (Senior Scale) in the Government Law Colleges were previously made through Tamil Nadu Public Service Commission (TNPSC) and currently through the Teachers Recruitment Board. Thus, procedures for contract appointment through notification and conducting interview by the committee cannot be considered as the procedure to be adopted for regular appointments. The notification issued by the respondents would reveal that it is only for contract appointments. Thus, the initial appointment of the writ petitioners were not made as https://www.mhc.tn.gov.in/judis Page 12 of 28 W.P.No.17487 of 2015 regular appointments and thus, they cannot contend that their initial appointments are regular and in accordance with the rules.
17. The terms and conditions of the contract appointments clearly indicates that the contract appointees are not entitled for regularisation or permanent absorption in the sanctioned post of Lecturer (Senior Scale). They are not entitled for fixation of seniority or sanction of increment etc. Thus, the contract appointees are not eligible for the benefit of pension or regarding any claim for bonus or gratuity. Thus, the petitioners were aware of the terms and conditions and agreed for the same. Thus, the subsequent regularisation by way of policy decision by the Government itself is a concession extended to the petitioners.
18. The respondents have stated that the said Mr.D.Purushothaman not even qualified for pension and he has served for about 2 years, 4 months and 8 days and the Government order issued in G.O.Ms.No.516 also states clearly that the said order shall not be cited as a precedent in any other case.
19. It is not in dispute that the petitioners were appointed to continue in service pursuant to the interim order granted by the Tamil https://www.mhc.tn.gov.in/judis Page 13 of 28 W.P.No.17487 of 2015 Nadu Administrative Tribunal. Such litigious employment or its continuance cannot be a ground for claiming regularisation or permanent absorption. Even, services of the contract Lecturers (Senior Scale) appointed from the year 1988-1989 and 1989-1990 were not regularised from their initial date of appointment as contract Lecturers. But, from the date on which the contract Lecturers, who were working under the Directorate of Collegiate Education were regularised, which was taken as policy decision by the Government. The services of the contract Teachers working under the Directorate of Collegiate Education were regularised with effect from the date of issuance of the Government order i.e. 26.03.1993 vide G.O.(Ms).No.310, Education Department dated 26.03.1993.
20. The respondents have relied on the judgment of the Hon'ble Supreme Court of India in the case of Official Liquidator Vs. Dayanand and Others reported in [(2008) 10 SCC 1], while reversing the orders of the Calcutta and Delhi High Courts, whereby direction was issued to absorb the persons employed by the Official Liquidators attached to those High Courts under Rule 308 of the Companies (Court) Rules, 1959 against the posts sanctioned by the Government of India, Department of Company https://www.mhc.tn.gov.in/judis Page 14 of 28 W.P.No.17487 of 2015 Affairs, has observed as follows:
“in our opinion, after having applied for and accepted employment / engagement as company paid staff with fixed tenure superimposed by a stipulation that they will have no right to continue in service are to be absorbed in the regular cadres, the respondents are estopped from seeking a direction for their absorption against the posts sanctioned by the Government of India and High Courts committed a serious error in granting their prayer”.
21. The Hon'ble Supreme Court of India in the case of Veer Kunwar Singh University Adhoc Teachers Association and Others Vs. Bihar State University (CC) Service Commission and Others, reported in [2007 (4) SC 376] has held that creation of sanctioned post is sine qua non for recruitment to the post of Lecturer. The petitioners herein were appointed only on contract basis.
22. Regarding the arguments advanced with reference to Rule 14 of the Tamil Nadu Pension Rules, 1978, the said Rule speaks about the counting of service on contract. The said provision would not be applicable for the purpose of reckoning qualifying services under Rule 11 of the Tamil Nadu Pension Rules. The commencement of qualifying services are well enumerated under Rule 11 of the Tamil Nadu Pension Rules. Rule 11(2) https://www.mhc.tn.gov.in/judis Page 15 of 28 W.P.No.17487 of 2015 contemplates, half of the service paid from contingencies shall be allowed to count towards qualifying service for pension along with regular service conditions. The appointments and commencement of probation are defined in the General Rules applicable to the Government servants. The date of regularisation is to be taken into consideration for calculating qualifying service. Thus, counting of service on contract stipulated under Rule 14 is not applicable with reference to the facts and circumstances of the present case for the purpose of reckoning the qualifying services under Rule 11 and the submission made by the petitioners in this regard is based on incorrect interpretation.
23. That apart, the Tamil Nadu Pension Rules, 1978 perse is not applicable to the writ petitioners. Though they were appointed on contract basis, their services were regularised, only with effect from 22.07.2008, after implementation of the New Pension Scheme i.e., Contributory Pension Scheme. The application of the Tamil Nadu Pension Rules, 1978 is enumerated in Rule 2 of the said rules, which reads as under:
“2. Application – Save as otherwise provided in these rules, these rules shall apply to all Government Servants appointed to services and posts in connection with the affairs of the State which are borne on https://www.mhc.tn.gov.in/judis Page 16 of 28 W.P.No.17487 of 2015 pensionable establishments whether temporary or permanent, but shall not apply to-
(a) Persons in casual and daily rated employment;
(b) Persons paid from contingencies;
(c) Persons employed on contract except when the contract provides otherwise;
(d) Members of the All-India Services;
(e) Persons entitled to the benefit of a Contributory Provident Fund;
(f) Persons who are entitled to the benefits under the Factories Act, 1948 and the Employees' Provident Fund Act, 1952, excluding those who are governed by Statutory Service Rules and belong to pensionable service.”
24. As per Rule 2, the persons employed on contract are not entitled to claim the benefit of Tamil Nadu Pension Rules, 1978, as the said Rules are not applicable to the contract employees. When the rule itself is not applicable with reference to the date of contract appointment of the writ petitioners, invoking the provisions of the Tamil Nadu Pension Rules would not arise at all. Thus, it is unambiguous that the provisions of the Tamil Nadu Pension Rules, 1978 is not applicable to the contract employees and the petitioners admittedly, appointed on regular basis only with effect from 22.07.2008 and on the said date of regular appointment of the petitioners the New Pension Scheme was in force and therefore, the https://www.mhc.tn.gov.in/judis Page 17 of 28 W.P.No.17487 of 2015 petitioners are entitled to avail the benefit of Contributory Pension Scheme, which was implemented in respect of the employees appointed on or after 01.04.2003 (cut off date). Thus, the Tamil Nadu Pension Rules, 1978 has no application in respect of the case of the writ petitioners for the purpose of grant of retrospective regularisation or for the purpose of calculating the contract services as qualifying services under Rule 11 of the Tamil Nadu Pension Rules, 1978.
25. The petitioners were appointed admittedly on contract basis. The period of contract was one year. They were terminated at the end of the Academic Year. However, they continued in contract employment on account of the interim order granted by the Tamil Nadu Administrative Tribunal. Thus, the continuance of contract employment based on the interim order of the Court would not provide any right on the petitioners to seek retrospective regularisation. The Constitutional Bench of the Hon'ble Supreme Court in the case of Secretary, State of karnataka Vs. Uma Devi and Others reported in [(2006) 4 SCC 1], held that the litigious employment would not provide any ground for the persons to claim regularisation or permanent absorption. While so, retrospective regularisation cannot be claimed by the petitioners merely based on the https://www.mhc.tn.gov.in/judis Page 18 of 28 W.P.No.17487 of 2015 fact that they were continuing in contract services without any break, which is to be construed as litigious employment.
26. Contract employees on acceptance of the terms and conditions of the contract, served in the establishment and thus, they cannot turn around and claim regularisation or permanent absorption, by merely filing a case before the Court of Law and continued in contract employment based on the interim order. Nature of the appointment and terms and conditions were agreed between the employer and employee. Thus, further right cannot be claimed or conferred, merely based on the interim order of the Court for permanent absorption, which is to be otherwise made in accordance with the Recruitment Rules in force.
27. The benefit of regularisation was granted based on the representation submitted by the contract employees and it was a concession given by way of a policy decision. While doing so, the Government has clearly stated that the contract employees are entitled to be regularised from the date of issuance of the Government order i.e. in G.O.(Ms.).No.170, Department of Law (Education) dated 22.07.2008. Pertinently, the contract appointments were made pursuant to the https://www.mhc.tn.gov.in/judis Page 19 of 28 W.P.No.17487 of 2015 notification issued for making contract appointment. Terms and conditions were stipulated. No doubt, the appointments were made by constituting a Selection Committee. However, the selection done for contract appointments cannot be compared with the selection to be made through the Teachers Recruitment Board in accordance with the Recruitment Rules in force. Many candidates would not prefer contract appointments for a period of one year, though they are eligible for the regular post. The rights of those candidates were deprived from participating in the process of selection. In other words, one cannot expect that all the eligible candidates would prefer contract appointments, that exactly is the reason why the contract appointees cannot claim regularisation or permanent absorption, which would infringe the Fundamental Rights of several other candidates, who all are aspiring to secure regular employment through open competitive process and by way of the Rule of Reservation. Equal opportunity in public employment being the Constitutional mandate, any violation in any form of the Equality Clause enunciated would result in infringement of the right of many youths of our great Nation. Thus, the contract appointees are bound by the terms and conditions of the contract. They cannot turn around and seek permanent absorption by depriving the rights of all other candidates, who were not afforded with an opportunity https://www.mhc.tn.gov.in/judis Page 20 of 28 W.P.No.17487 of 2015 to participate in the open competitive process as per the rules through the Teachers Recruitment Board.
28. With reference to the case of Mr.D.Purushothaman, his services were regularised with effect from 1997 and he was retired from service on 30.11.2010. He served about two years, four months and eight days. The Government order stipulates that the said order of Mr.D.Purushothaman, shall not be cited as precedent in any other case, since it was issued based on the Court order and to avoid contempt proceedings.
29. The respondents made it clear that 1988-1989, the contract appointees were not granted the benefit of regularisation with retrospective effect from the date of initial appointment as contract employees. The regularisation was granted only with effect from 26.03.1993 i.e. the date from which the contract Lecturers working in the Department of Collegiate Education were regularised. Thus, the Government has taken a policy decision for granting regularisation to the contract Lecturers (Senior Scale) appointed in Law Colleges. Therefore, the concession extended by regularising the service of these contract employees cannot claim further benefit of retrospective regularisation for which they are not legally https://www.mhc.tn.gov.in/judis Page 21 of 28 W.P.No.17487 of 2015 entitled.
30. The Government granted the benefit of regularisation to the writ petitioners through G.O.(Ms).No.170 Department of Law (Education) dated 22.07.2008. The petitioners accepted the said Government order and not challenged the same and accordingly, continuing in service. While so, after a lapse of about seven years from the date of issuance of the Government order in G.O.(Ms).No.170 dated 22.07.2008, the petitioners have chosen to file the present writ petition only based on the order passed in the case of Mr.D.Purushothaman, which cannot be followed as a precedent even as per the Government order. Thus, an enormous delay in pursuing the claim by the writ petitioners are wider as they had slept over the issue and woke up one fine morning and knocked the doors of this Court, merely by citing the case of Mr.D.Purushothaman. The petitioners were fence sitters and watching the proceedings of the said Mr.D.Purushothaman and thereafter, they filed the present writ petition in the year 2015. Thus, the writ petition is liable to be rejected on the ground of latches, in view of the principles laid down in the following judgments.
31. The Hon'ble Supreme Court of India in the case of State of Uttar Pradesh & Others Vs. Arvind Kumar Srivastava & Others reported https://www.mhc.tn.gov.in/judis Page 22 of 28 W.P.No.17487 of 2015 in [(2015) 1 SCC 347], enumerated the legal principles emerged from the earlier judgments of the Hon'ble Supreme Court India, held as follows:
“Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.” “The Respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court.”
32. In the case of Chairman / Managing Director, Uttar Pradesh Power Corporation Ltd. and Others Vs, Ram Gopal reported in [2020 SCC Online SC 101], by the three Bench Judges of the Hon'ble Supreme Court of India, held as follows:
“Whilst it is true that limitation does not strictly apply to proceedings under Articles 32 or 226 of the Constitution of https://www.mhc.tn.gov.in/judis Page 23 of 28 W.P.No.17487 of 2015 India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence- sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists. On multiple occasions, it has been restated that there are implicit limitations of time within which writ remedies can be enforced.
P.S. Sadasivaswamy versus State of Tamil Nadu, (1975) 1 SCC 152 held as follows:
“2. … One cannot sleep over the matter and come to the Court questioning that relaxation. In effect he wants to unscramble a scrambled egg. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters……” In SS Balu v. State of Kerala, (2009) 2 SCC 479 this Court observed thus:
“17. It is also well-settled principle of law that “delay defeats https://www.mhc.tn.gov.in/judis Page 24 of 28 W.P.No.17487 of 2015 equity”. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment.” In Vijay Kumar Kaul v. Union of India, (2012) 7 SCC 610 held as follows:
“27. …It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time.” It is also pertinent to mention that neither has it been pleaded nor is it apparent from the material on record that the Respondent was unable to approach the court-of-law in time on account of any social or financial disability. Had such been the case, he ought to have availed free legal aid and should have ventilated his grievances in a timely manner.''
33. Regularisation or permanent absorption cannot be granted in violation of the Recruitment Rules in force. Regularisation is to be granted only if the appointees were recruited based on the Recruitment Rules. The contract appointments cannot be compared with the regular appointments which is to be made by following the procedures as contemplated in the rules. As pointed out earlier, the regular appointments are to be made by https://www.mhc.tn.gov.in/judis Page 25 of 28 W.P.No.17487 of 2015 providing equal opportunity to all the eligible candidates, who all are aspiring to secure public employment. Many meritorious candidates may not participate for appointment on contract basis, though they are eligible for regular appointments. All these mitigating factors play pivotal role in adhering to the principles of equality enunciated under the Rule 14 of the Constitution of India. Thus, the appointment on contract basis cannot be a ground to grant regularisation. Regularisation granted by way of concession through a policy cannot provide further right to the employees to claim retrospective regularisation or to count the period of contractual services under the Old Pension Scheme, which is not applicable to the appointments made on or after 01.04.2003.
34. In view of the discussions made in the aforementioned paragraphs, this Court has no hesitation in forming an opinion that the petitioners have not established any right for the purpose of grant of retrospective regularisation or to count the period of contract services as qualifying service under the Tamil Nadu Pension Rules for the purpose of bringing the petitioners under the Old Pension Scheme. For all purposes, the petitioners were appointed on regular basis pursuant to the Government order issued in G.O.(Ms).No.170 dated 22.07.2008 and they https://www.mhc.tn.gov.in/judis Page 26 of 28 W.P.No.17487 of 2015 are entitled for the benefit of new pension scheme i.e. Contributory Pension Scheme.
35. Accordingly, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
08.08.2022 Jeni/Kak Index : Yes / No Speaking order : Yes / No To
1.The Secretary, State of Tamil Nadu, Department of Law, Chennai – 600 009.
2.The Director of Legal Studies, Kilpauk, Chennai – 600 010.
https://www.mhc.tn.gov.in/judis Page 27 of 28 W.P.No.17487 of 2015 S.M. SUBRAMANIAM, J.
Jeni W.P.No.17487 of 2015 08.08.2022 https://www.mhc.tn.gov.in/judis Page 28 of 28