Madras High Court
P.Mohandas vs The State Of Tamil Nadu on 7 September, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
Order dated : 07.09.2022
Writ Petition Nos.8579 & 8580 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.09.2022
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
Writ Petition Nos. 8579 & 8580 of 2016
and
W.M.P. Nos. 7625 to 7628 of 2016
W.P. No. 8579 of 2016
1. P.Mohandas
2. K.Sujatha
3. K.Nalina Kumari
4. R.Vijayalakshmi
5. K.Salima Grace
6. S.Vency Mary
7. J.Sahaya Santhi
8. A.Joe Emalda
9. T.Nagarajan ... Petitioners
Vs.
1. The State of Tamil Nadu
Rep. by its Principal Secretary to Government
School Education Department,
Secretariat, Fort St. George
Chennai – 600 009.
2. The Director of Elementary Education,
DPI Campus, College Road
Chennai – 600 006.
3. The District Elementary Educational Officer,
DPI Campus, College Road,
Chennai – 600 006.
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Order dated : 07.09.2022
Writ Petition Nos.8579 & 8580 of 2016
4. The Assistant Elementary Educational Officer,
Periamet Range,
No.11, Davidson Street,
Chennai – 600 001.
5. The Assistant Elementary Educational Officer,
Adyar Range,
No.20, Bazaar Road,
Saidapet, Chennai – 600 015.
6. The Assistant Elementary Educational Officer,
T.Nagar Range,
DPI Campus, College Road,
Chennai – 600 006.
7. The Assistant Elementary Educational Officer,
Mylapore, Chennai – 600 004.
8. The Correspondent,
Thiruvalluvar Gurukulam Middle School,
579, Anna Salai,
Saidapet, Chennai – 600 015.
9. The Correspondent,
Saiva Middle School,
Chennai – 600 079.
10. The Correspondent,
St. Francis Xavier Middle School,
153, T.T.K. Road, Alwarpet,
Chennai – 600 018.
11. The Correspondent
Ramalinga Mission Middle School
Vadapalani
Chennai – 600 026. ... Respondents
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Order dated : 07.09.2022
Writ Petition Nos.8579 & 8580 of 2016
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 proceedings issued by the third respondent in Na.Ka.No.
2301/Aa4/2015 dated 30.12.2015 and quash the same and consequently direct
the respondents to regularize the services of the petitioners from the date of
initial appointment on consolidated pay as Junior Grade Teachers with regular
time scale of pay with arrears of salary and other benefits and by considering
similar orders passed in G.O. 3(D) No. 4 School Education (Nee..Pa.3)
Department dated 21.01.2015 within a time frame to be fixed by the Court.
For Petitioners : Mr.G.Sankaran
For Respondents : Mr.B.Vijay
Additional Government Pleader [R1 to R7]
No appearance [R8, R9 and R11]
Ms.A.Arul Mary [R10]
W.P. No. 8580 of 2016
1.K.Santha
2.D.Anbarasi
3.B.Subbulakshmi
4.J.Mary Beula
5.C.S.Durai
6.R.Murugaian ... Petitioners
Vs.
1. The State of Tamil Nadu
Rep. by its Principal Secretary to Government
School Education Department
Secretariat, Fort St. George
Chennai – 600 009.
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Writ Petition Nos.8579 & 8580 of 2016
2. The Director of Elementary Education
DPI Campus, College Road
Chennai – 600 006.
3. The District Elementary Educational Officer
DPI Campus, College Road
Chennai – 600 006.
4. The Assistant Elementary Educational Officer
Adyar Range
No.20, Bazaar Road
Saidapet, Chennai – 600 015.
5. The Correspondent
Thiruvalluvar Gurukulam Middle School
579, Anna Salai
Saidapet, Chennai – 600 015. ... 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 proceedings issued by the Third Respondent in Na.Ka.No.
2301/Aa4/2015 dated 30.12.2015 and quash the same and consequently direct
the Respondents to regularize the services of the Petitioners from the date of
initial appointment on consolidated pay as Junior Grade Teachers with regular
time scale of pay with arrears of salary and other benefits and by considering
similar orders passed in G.O.3(D) No.4 School Education (Nee..Pa.3)
Department dated 21.01.2015 within a time frame to be fixed by the Court.
For Petitioners : Mr. G.Sankaran
For Respondents : Mr. B.Vijay
Additional Government Pleader [R1 to R4]
No appearance [R5]
*****
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Order dated : 07.09.2022
Writ Petition Nos.8579 & 8580 of 2016
COMMON ORDER
The order of rejection rejecting the claim of the petitioners for retrospective regularization is under challenge in the present writ petition.
2. The petitioners were appointed as B.T.Assistant / Secondary Grade Assistant on 01.06.2006 as Junior Grade B.T. Assistant and Junior Grade Secondary Grade Assistant. They were subsequently brought under the regular time scale of pay with effect from 01.06.2006.
3. The grievances of the petitioners are that the period of service rendered by them from the initial date of appointment on consolidated pay were not considered for grant of regularization. It is not in dispute that initially, the petitioners were appointed on consolidated pay salary and subsequently brought under the time scale of pay. The petitioners were filed writ petitions in W.P.Nos.30008 and 30009 of 2015. This Court passed orders on 23.09.2015 directing the respondents to consider the proposals submitted by the authorities in accordance with law and pass orders on merits within a period of eight weeks. Pursuant to the directions issued by this Court, the case of the petitioners was considered by the District Elementary Educational Officer, https://www.mhc.tn.gov.in/judis 5/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016 Chennai and the claim of the petitioners for retrospective regularization was rejected through the impugned proceedings dated 30.12.2015.
4. Learned counsel for the petitioners mainly contended that cases of similarly placed persons were considered by the authorities and the benefit of retrospective regularization was granted and thus, the case of the petitioners is also to be considered on the same lines.
5. Regarding the reference made by the petitioners for grant of retrospective regularization, this Court has to consider the principles in the matter of grant of similar benefits based on the orders passed by the Courts. In this regard, the principles are considered by the Division Bench of this Court in the case of The Director of Sericulture Department, Salem v. K.Kumar [2015 (4) CTC 241], wherein it has been 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 https://www.mhc.tn.gov.in/judis 6/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016 discipline. This was the principle that the Supreme 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."
6. The Supreme Court of India in the case of Basawaraj & another v. Special Land Acquisition Officer [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 provision does not envisage negative equality but has only a positive https://www.mhc.tn.gov.in/judis 7/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016 aspect. Thus, if some other similarly situated persons have been granted some relief/ benefit 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."
7. Let us now consider whether retrospective regularization granted to other persons can be construed as valid with reference to the facts that the initial appointment of the petitioners were not in accordance with the recruitment rules in force and they were appointed on consolidated pay salary.
8. The principles, in this regard, are settled by the Constitution Bench of the Supreme Court of India in Secretary, State of Karnataka Vs. Uma devi [ 2006 4 SCC 1]. Regularization or permanent absorption cannot be claimed as https://www.mhc.tn.gov.in/judis 8/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016 an absolute right and regularization is to be granted only in consonance with the recruitment rules, which are applicable to the particular post. Equal opportunity for public employment is a constitutional mandate. No authority can extend the benefit of retrospective regularisation in violation of rules, which would result in unconstitutionality infringing the rights of the eligible persons, who are all aspiring to secure public employment through open competition process. In all these cases, initial appointments were made irregularly and in violation of the recruitment rules in force.
9. In the present cases, the petitioners were appointed on consolidated pay salary on temporary basis. Thus, relaxation granted to the petitioners itself is a concession extended by the Government as one time measure for the purpose of bringing them into legal establishment. Even in some cases, relaxation of rules were granted. Such relaxation of rules was granted as one time measure for the benefit of individuals and therefore, such Government orders cannot be set as a precedent for the purpose of getting relaxation again and again in violation of the rules in force.
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10. The power of relaxation conferred on the Government is to be exercised in exceptional cases where there is a gross injustice or violation of equality. Thus, the power of relaxation cannot be exercised in a routine manner even by the Government. In the event of such exercise, the same would result in discrimination and unconstitutionality with reference to the service rules in force. Therefore, wherever the Government granted relaxation in favour of individuals on certain exceptional circumstances, Court cannot issue any direction under Article 226 of the Constitution of India to direct the authorities to grant relaxation to other set of employees. The power of relaxation is an exception and cannot be followed in all cases in a routine manner. Exceptions are to be exercised in exceptional cases and the power of relaxation cannot be utilized for the purpose of diluting the recruitment rules in force.
11. The principles in this regard are settled by the Constitution Bench. Any order passed by the Government or authorities or by the Courts which are all running counter to the principles laid down by the Constitution Bench have denuded to loose its status as precedent. Thus, those Government orders passed in violation of the principles cannot be followed as precedent. https://www.mhc.tn.gov.in/judis 10/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016
12. In the present case, the petitioners were appointed on consolidated pay salary on temporary basis and their initial appointments were irregular and not in accordance with the rules. Thus, the benefit of regularisation granted to these petitioners are concessions extended to them and such a concession cannot be further extended for the purpose of grant of retrospective regularisation from the date of their initial appointment as consolidated pay employees. That apart, even on earlier occasion, the petitioners filed writ petitions and this Court has not considered for grant of retrospective regularisation and directed the authorities to consider the proposal. Such a proposal was considered in the light of the principles and it was rejected. Therefore, this Court does not find any infirmity in respect of the decision taken by the respondents as well as reasons furnished in the order impugned.
Accordingly, these Writ Petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
07.09.2022 Index : Yes Speaking order Maya/gm https://www.mhc.tn.gov.in/judis 11/14 Order dated : 07.09.2022 Writ Petition Nos.8579 & 8580 of 2016 To
1. The Principal Secretary to Government, School Education Department, Secretariat, Fort St. George Chennai – 600 009.
2. The Director of Elementary Education, DPI Campus, College Road Chennai – 600 006.
3. The District Elementary Educational Officer, DPI Campus, College Road, Chennai – 600 006.
4. The Assistant Elementary Educational Officer, Periamet Range, No.11, Davidson Street, Chennai – 600 001.
5. The Assistant Elementary Educational Officer, Adyar Range, No.20, Bazaar Road, Saidapet, Chennai – 600 015.
6. The Assistant Elementary Educational Officer, T.Nagar Range, DPI Campus, College Road, Chennai – 600 006.
7. The Assistant Elementary Educational Officer, Mylapore, Chennai – 600 004.
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