Madras High Court
Susheela vs The Corporation Of Chennai on 14 September, 2022
Author: S.M. Subramaniam
Bench: S.M. Subramaniam
W.P.No.21980 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.09.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM
W.P.No.21980 of 2017
Susheela ... Petitioner
Vs.
1.The Corporation of Chennai,
Represented by its Commissioner,
Rippon Building,
Chennai – 600 003.
2.The Superintending Engineer,
Solid Waste Management,
Corporation of Chennai,
Rippon Buildings,
Chennai – 600 003.
3.The Zonal Officer,
Zone IV, Corporation of Chennai,
Tondairpet,
Chennai – 600 081.
4.The Secretary to Government,
Municipal Administration,
Water Supply Department,
Government of Tamil Nadu,
Fort St. George, Chennai – 600 009. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.No.21980 of 2017
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records of
the proceedings Thi.Ka.Ma.Na.Ka.No.A9/776/ 2002 dt. 28.02.2006 issued
by the 2nd respondent and quash the same and for a consequential direction
directing the 1st respondent to regularize the service of the petitioner from
the date on 14.10.2002 with retrospective effect on which the petitioner
completed three years of consolidated service and to pay all the
consequential service and monetary benefits.
For Petitioner : M/s.N.Beulah John Selvaraj
For R1 to R3 : M/s.P.T.Rama Devi
For R4 : Mr.T.Srinivasan
Special Government Pleader
ORDER
The order, dated 28.02.2006, regularising the services of the writ petitioner in the sanctioned post in the Time Scale of Pay with effect from 28.02.2006, is under challenge in the present writ petition.
2.The petitioner states that she was appointed as a Sweeper in Chennai Corporation on daily wages basis from 15.10.1998 onwards. The Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017 initial appointment of the writ petitioner was made only for 89 days as daily wages employee and on expiry of the 89th day, an artificial break was given for 2 or 3 days and again, a fresh order of appointment was issued to the writ petitioner for a further period of 89 days. The temporary services of these daily wages employees were considered by the Government and an order was issued to grant the benefit of regular absorption in a sanctioned post in the Time Scale of Pay. Accordingly, the services of the writ petitioner was regularised with effect from 28.02.2006 in the sanctioned post in the Time Scale of Pay. The grievance of the writ petitioner is that her services ought to have been regularised from the initial date of appointment as daily wages employee in the year 1998 for all service benefits.
3.The learned counsel for the petitioner mainly contended that the claim of the similarly placed persons was considered and retrospective regularisation was granted, and therefore, the case of the writ petitioner is also to be considered for retrospective regularisation from the initial date of appointment as daily wages employee.
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4.It is not in dispute that the writ petitioner retired from service on 30.05.2017 and all the terminal and retirement benefits under the Contributory Pension Scheme have been settled in favour of the writ petitioner and she acknowledged the same. However, the claim of the writ petitioner is for retrospective regularisation from the date of initial appointment as daily wages employee and for pension under the old pension scheme.
5.Regularisation or permanent absorption cannot be granted in violation of the recruitment rules in force. Irregular or illegal appointments cannot be regularised with retrospective effect, so as to grant service benefits. The Constitution Bench of the Hon'ble Supreme Court of India, in the case of Secretary, State of Karnataka and others v. Umadevi and others [2006 (4) SCC Pg.1], has held that, irregular and illegal appointments cannot be regularised in violation of the recruitment rules in force.
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6.This Court, in an earlier occasion, in the case of K.M.Saradhadevi v. State of Tamil Nadu [W.P.Nos.30824 to 30836 of 2017, dated 07.09.2022], has held as follows :
“21.One of the grounds raised on behalf of the petitioners are that the similarly placed persons were granted the benefit of regularisation and therefore, the said benefit is to be extended to the writ petitioners.
22.In this regard, the Division Bench of the Madras High Court in the case of Director of Sericulture Department, Salem Vs. K.Kumar reported in [2015 (4) CTC 241], held as follows:
“34. It is true that consistency helps the parties to a litigation to know where they stand. But, when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interest.
35. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017 Court highlighted in A.R.Antulay vs. R.S.Nayak [AIR 1988 SC 1531]. It was observed in the said decision that "in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court." The Supreme Court focused on the elementary rule of justice that no party should suffer due to the mistake of the Court. Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by writ petitions getting allowed at the stage of admission and (2) by getting those orders implemented under threat of contempt.
This is especially so when the earliest decision that was followed in all other cases, did not decide the scale of pay to be granted for Selection and Special Grades. Hence, the second contention of the writ petitioners is also liable to be rejected.
41. In Union of India v. Kartick Chandra Mondal [(2010) (2) SCC 422], the Supreme Court, relying upon its previous decisions in various cases including the one in State of Bihar v. Upendra Narayan Singh [(2009) 5 SCC 69], held that Article 14 is a positive concept and that it cannot be enforced in a negative manner. The Court further held that if an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. Interestingly, the decision of the Supreme Court in Kartick Chandra Mondal was subsequent to the decision in Maharaj Krishan Bhatt and the decision in Maharaj Krishan Bhatt is also referred to in Kartick Chandra Mondal.” Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017
23.The Honourable Supreme Court of India in the case of Basawaraj and Another Vs. Special Land Acquisition Officer reported in [(2013) 14 SCC 81], held that “It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provisions does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief / benefits inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or Court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order”.
24.Let us consider the principles for grant of regularisation and permanent absorption. The issues are no more res integra as the Constitution Bench of the Honourable Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017 Supreme Court of India stated in the case of Secretary, State of Karnataka and Others Vs. Uma Devi and Others reported in [(2006) 4 SCC 1]. The Constitution Bench in unequivocal terms held that all appointments are to be made under the Constitutional scheme and by providing equal opportunity to all the candidates, who all are eligible and aspiring to secure public employment through open competitive process. Any selection conducted, if tainted with an allegation of corruption or mala fides, such selection or appointments would not confer any right on the candidates to seek regularisation or permanent absorption.
25.Equal opportunity in public employment is being a Constitutional mandate, the authorities are bound to follow the procedures scrupulously. That apart, the Constitution Bench reiterated that the contractual appointments, daily wage employments or casual employment on certain terms and conditions, which were agreed by the employees are binding on them and after putting few years of service on such terms and conditions, they cannot turn around and claim the benefit of regularisation and permanent absorption as a matter of right. Once the person appointed, agreed the terms and conditions and the said conditions are binding on them and therefore, by virtue of length of services continued in such temporary capacity would not be a ground to grant regularisation of Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017 permanent absorption.
...
28.In the case of State of Rajasthan and Others Vs. Daya Lal and Others reported in [(2011) 2 SCC 429], the Honourable Supreme Court of India has considered the scope of regularisation of part time appointments and irregular appointments, which are not regularly made in the sanctioned post. “It is held that the High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization has been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularization of services of an employee which would be violative of 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 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized”.” Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017
7.In view of the fact that the services of the writ petitioner were regularised with effect from the year 2006 and she retired from service in the year 2017 and all the pensionary benefits have been settled under the Contributory Pension Scheme, there is no reason to consider the case of the writ petitioner for retrospective regularisation, since the benefit of regularisation itself was a concession extended to the writ petitioner, who was initially appointed in an irregular manner and not in accordance with the service rules in force. Thus, the said concession of regularisation granted by the respondents from the year 2006 cannot be granted with retrospective effect. Thus, the petitioner has not established any acceptable ground for the purpose of considering the relief as sought for in the present writ petition.
8.Accordingly, the writ petition stands dismissed. No costs.
14.09.2022 mkn Internet :Yes Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.21980 of 2017 Index : Yes / No Speaking order / Nonspeaking order To
1.The Commissioner, Corporation of Chennai, Rippon Building, Chennai – 600 003.
2.The Superintending Engineer, Solid Waste Management, Corporation of Chennai, Rippon Buildings, Chennai – 600 003.
3.The Zonal Officer, Zone IV, Corporation of Chennai, Tondiarpet, Chennai – 600 081.
4.The Secretary to Government, Municipal Administration, Water Supply Department, Government of Tamil Nadu, Fort St. George, Chennai – 600 009.
S.M. SUBRAMANIAM, J.
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