Madras High Court
Secretary Assembly Secretariat vs S. Mathivanan on 1 April, 2019
Bench: K.K.Sasidharan, P.D.Audikesavalu
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.04.2019
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
W.A.No.1169 of 2019
1 SECRETARY ASSEMBLY SECRETARIAT
PUDUCHERRY LEGISLATIVE ASSEMBLY
PUDUCHERRY.
2 THE SECRETARY TO GOVERNMENT
DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE
REFORMS
CHIEF SECRETARIAT PUDUCHERRY. ... appellants
Vs
1 S. MATHIVANAN
WORKING AT DAILY RATED CLERK ASSEMBLY
SECRETARIAT PONDICHERRY LEGISLATIVE
ASSEMBLY PUDUCHERRY.
2 E. PERUMAL
3 S. MANOHARAN
4 R. PERUMAL
5 G. MOUROUGANE
6 R. AROMOUGAME
7 P. MATHIVANNE
8 R. SADAYANTI
9 P. SRINIVASA PERUMAL
10 G. ANANDANE
Appeal filed against the order passed by this Court dated
16.02.2018 in WP No.11144/2016
For appellant : Mr.Syed Mustafa, A.G.P. (Puducherry)
http://www.judis.nic.inFor Respondents : Mr.J.Srinivasa Mohan
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JUDGMENT
(made by K.K.SASIDHARAN, J.) The respondents entered the Legislative Assembly Service, Puducherry, through backdoor and managed to continue in spite of their appointment on co-terminus basis coming to an end long back. The Writ Petitions filed by the respondent to condone the artificial break and regularize their services were allowed by the learned Single Judge by order dated 16 February 2008. The appellants without challenging the said order, complied with the direction, by creating posts and accommodating the respondents. The respondents thereafter filed a contempt petition in C.P.No.895 of 2015, claiming retrospective regularization and back wages. The appellants immediately filed these intra court appeals challenging the very order dated 16 February 2008 in W.P.No.11144 of 1996 and directing regularization.
2. The intra court appeal was filed with a miscellaneous petition to condone the delay. The learned counsel for the respondents entered appearance in the miscellaneous petitions and filed an affidavit that the respondents would not claim back wages and their request is only to count the past service for calculating the total service for pension. We, therefore, with the consent of the respondents condoned the delay and directed the Registry to register the intra court appeal. The appeal http://www.judis.nic.in is on board today.
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3. The learned Special Government Pleader appearing on behalf of the appellants contended that even though the initial appointment was not through a fair and transparent process, still the Government implemented the order passed by the learned Single Judge by creating sufficient number of posts of Lower Division Clerk. According to the learned Special Government Pleader, there is no question of either giving the benefit of the earlier service or back wages to the respondents. Similarly, they are not entitled to count the earlier service for the purpose of pension. It was further contended that the respondents are not entitled for pension in view of the order regularizing their service after the cut off date.
4. The learned counsel for the respondents on the other hand submitted that the respondents have already filed an affidavit forgoing the back wages. The learned counsel contended that only few employees are in service today and they would be satisfied in case the earlier service is taken only for the purpose of fixing the pension.
5. When it was pointed out as to how larger relief could be claimed, the learned counsel for the respondents submitted that the intra court appeal could be disposed of by recording the submission on behalf of the respondents that they would not claim back wages or any other relief and they would be satisfied in case liberty is given to http://www.judis.nic.in submit a comprehensive representation for counting the earlier service -4- for fixing the pension.
6. The respondents were all appointed on daily rated basis in the Puducherry Legislative Assembly Secretariat. The appointments were not against sanctioned posts. The appointments were all made treating it as co-terminus. Even though the appointees have no right to continue after the term of the Ministers who made the appointments on co-terminus basis, the fact remains that the respondents and similarly placed other employees continued even after the expiry of the term of the Minister concerned and the life of the Legislative Assembly.
7. The writ court, taking into account the service rendered by the respondents, directed the appellants to regularize their services.
8. The Government of Puducherry created 11 posts of Lower Division Clerk in the Legislative Assembly Secretariat, and by order dated 23 June 2014 accommodated the respondents. The respondents were appointed prospectively without giving them the benefit of the earlier service. The respondents thereafter, filed the Contempt Petition in C.P.No.895 of 2015.
9. Before the learned Single Judge, the petitioners, in support of their plea for initiating contempt proceedings, submitted that they have been transferred outside the Legislative Assembly Secretariat and the same would amount to non-compliance of the order passed by the writ court in W.P.Nos.11144 of 1996.
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10. We have perused the order passed by the learned Single Judge dated 16 February 2008 and the order dated 23 June 2014 in G.O.Ms.No.31, Confidential and Cabinet Department, Government of Puducherry. We are of the view that the appellants have complied with the order passed by the learned Single Judge in its letter and spirit. The fact that the Writ Petition was allowed as prayed for would not give a right to the respondents to claim the benefit of earlier service unless there is a specific direction for the said purpose. It is a matter of record that the earlier appointment was not against a sanctioned post and as such, no right would accrue to the appointees on account of the co-terminus service.
11. The respondents managed to enter the Legislative Assembly Service without there being a notification calling for applications from the open market. Even though unemployed graduates across the region in the Union Territory of Puducherry were waiting by registering their names in the employment exchange, the Departments like the Legislative Assembly Secretariat appointed employees without any regard to equality and equal opportunity in public employment guaranteed by the Constitution of India.
12. The temporary appointees and the appointees on co- terminus basis were all given the benefit of regularization subsequently by regularizing their services. The unemployed people who have registered their names in the employment exchange are still waiting http://www.judis.nic.in for public appointment. In case appointments are made in the manner -6- in which services of employees were regularized in the Legislative Assembly, we are of the view that the educated unemployed candidates in Puducherry would not get employment in near future in Government service.
13. The Government service should be open to all the people, irrespective of religion, region and caste. The Union Territory of Puducherry is a composite Union Territory consisting of four regions. There shall be equality of opportunity in the matter of public employment. It would not be correct on the part of the State to recruit personnel without following a transparent process.
14. There is no dispute with regard to the authority of the Ministers and other statutory functionaries to make appointments on co-terminus basis. Such appointees would have no right to continue in the post after the expiry of the term. Appointments of such nature are not against a sanctioned post. Employees appointed on co terminus basis must vacate the office, the moment the appointing authority relinquished the charge of his office. They are also not entitled to an order of regularization in view of the fact that the initial entry was not through the front door. We have come across several cases of this nature in the Union Territory of Puducherry. In fact, we have earlier passed orders restraining the Puducherry Engineering College from http://www.judis.nic.in recruiting personnel without issuing public notification. -7-
15. The Legislative Assembly Secretariat should be a model employer. The Legislature enacts law for compliance by others. It cannot be heard to say that they would not comply with the laws enacted by them. Laws are enacted for compliance and not for its non- compliance. Ministers and members of other Constitutional authorities who are empowered to make appointments on co-terminus basis must make it a point that the appointees quit the office immediately after the expiry of their tenure. We direct that henceforth, no appointment should be made in Puducherry Legislative Assembly Secretariat either on temporary or permanent basis unless the notification is issued in English as well as in vernacular dailies, calling for applications from open market. The vacancy should be notified to the employment exchange also. The Assembly Secretariat must adopt a transparent policy for recruitment. In case appointments are made on co-terminus basis, such appointments must come to an end on the expiry of the term of the concerned Minister or the statutory authority who made such appointments. There would be no right to such employees appointed on co-terminus basis for regularization.
16. We have already arrived at a conclusion that the appellants have complied with the order passed by the learned Single Judge, by appointing the respondents. The respondents have filed an affidavit indicating that they are not claiming back wages for the past service. http://www.judis.nic.in -8- K.K.SASIDHARAN, J.
and P.D.AUDIKESAVALU, J.
(tar)
17. We give liberty to the respondents to submit a comprehensive representation to the appellants for counting their earlier service for the purpose of pension. In case any such representation is given, the same shall be considered and disposed of by the authority concerned as early as possible and in any case, within a period of four months from the date of receipt of such representation.
18. The intra court appeal is disposed of with the above direction. No costs. Consequently, C.M.P.No.8220 of 2019 is closed.
(K.K.SASIDHARAN, J.) (P.D.AUDIKESAVALU, J.) 01.04.2019 Index: Yes/no tar Registry to note:-
Forward a copy of this judgment to the Chief Secretary to Government, Puducherry W.A.No.1169 of 2019 http://www.judis.nic.in