Madras High Court
The Secretary To Government Of Tamil ... vs K.Chinnusamy on 29 January, 2018
Author: Huluvadi G.Ramesh
Bench: Huluvadi G.Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2018
CORAM:
THE HON'BLE MR.JUSTICE HULUVADI G.RAMESH
and
THE HON'BLE MR.JUSTICE RMT.TEEKAA RAMAN
W.A.Nos.1598 to 1603/2012, 2282/2012, 1811/2013,
1812/2013, 1813/2013, 1877/2013,
1964/2012 and 1965/2012
and
M.P.No.1 of 2012 (8 Nos)
and
M.P.No.2 of 2012 (6 Nos)
1. The Secretary to Government of Tamil Nadu,
Highways Department,
Secretariat, Chennai - 600 009.
2. The Chief Engineer,
Highways & Rural Works,
Chepauk, Chennai - 600 005.
3. The Divisional Engineer,
Highways Division,
Namakkal. ... Appellants in W.A.No.1598/2012
.. Vs ..
1. K.Chinnusamy
2. C.Subramaniam
3. M.Vadivel
4. R.Madhesh
5. T.Selvakumar
6. K.Vadivel
7. C.Kandasamy
8. N.Kuppusamy
9. M.Gowri
10. R.Mohandas ... Respondents in W.A.No.1598/2012
Prayer in W.A.No.1598/2012 : Writ Appeal filed under Clause 15 of Letters Patent, against the order passed by this Court in W.P.No.11226 of 2012 dated 20.04.2012.
For Appellants : Mr.S.T.S.Murthy,
in all W.As. Additional Advocate General
Assisted by
Mr.P.S.Sivashanmuga Sundaram,
Special Government Pleader
For Respondents in
W.A.Nos.1598
to 1603/2012 : Mr.R.Rengaramanujam
For Respondents in
W.A.No.2282/2012,
W.A.Nos.1811 to 1813/2013
& W.A.No.1877/2013 : Mr.G.Punniyakotti
For Respondent in
W.A.No.1964/2012 : Mr.AR.L.Sundaresan, Senior Counsel
for Mr.S.Packiaraj
For Respondents in
W.A.No.1965/2012 : Mr.AR.L.Sundaresan, Senior Counsel
for Mr.G.Punniyakotti
- - - - -
COMMON JUDGMENT
(Common Judgment of the Court was delivered by HULUVADI G.RAMESH,J.,) These set of writ appeals have been filed by the Government as against the orders of the learned Single Judge dated 20.04.2012 passed in W.P.Nos.11226 to 11231 of 2012, dated 26.07.2012 passed in W.P.No.19959 of 2012, dated 12.06.2013 passed in W.P.No.15514 of 2013, dated 12.06.2013 passed in W.P.No.15594 of 2013, dated 25.06.2013 passed in W.P.No.17102 of 2013, dated 17.07.2013 passed in W.P.No.19470 of 2013 and dated 18.07.2012 passed in W.P.Nos.17900 and 17878 of 2012 respectively.
2. The learned Single Judge of this Court, by a common order dated 20.04.2012, in the group of writ petitions in W.P.Nos.11226 to 11231 of 2012 and on 26.07.2012 in W.P.No.19959 of 2012, on 12.06.2013 in W.P.No.15514 of 2013, on 12.06.2013 in W.P.No.15594 of 2013, on 25.06.2013 in W.P.No.17102 of 2013, on 17.07.2013 in W.P.No.19470 of 2013, and on 18.07.2012 in W.P.Nos.17900 and 17878 of 2012, issued a writ of mandamus directing the respondents therein/appellants herein to appoint the writ petitioners/respondents herein as Gang Mazdoors in the existing or future vacancies, within a period of three months from the date of receipt of copy of that orders.
3. These writ appeals are arising out of the above writ petitions filed by the writ petitioners, who are employed as Gang Mazdoors, under the third respondent in the aforesaid writ petitions and having served for several years, the writ petitioners/respondents herein were engaged in the work of maintaining the road. According to the writ petitioners, they have got minimum prescribed qualifications and they are residing in the nearby villages, but they were not provided with any employment. Referring to G.O.Ms.No.371, Highways (HM2) Department, dated 19.08.1997, the Government created about 9813 posts of Gang Mazdoor. Though the writ petitioners and others were having requisite educational qualifications, they were not appointed in the said posts. Further, referring to G.O.Ms.No.184, Highways (HM2) Department, dated 29.05.1997, the Government created 764 posts of Gang Mazdoor to absorb the existing N.M.Rs. During the pendency of the above writ petitions, similarly placed persons have filed a writ petition in W.P.No.36623 of 2004, seeking to absorb them as N.M.Rs. and to regularise their services and the said writ petition was disposed of by the learned single Judge of this Court on 09.12.2005, directing the respondents therein to regularise the services of those applicants, who have been working for three years and more as N.M.Rs. with short breaks in their posts. Especially, it is being noted that even if there is a gap of more than three months between the period of termination and re-appointment, that period has to be excluded in computing the three years period and thereby, directed to identify the persons, who have been working for three years and more as N.M.Rs. with short breaks and depending upon the needs, those casual workers/N.M.Rs., who have been working for less than three years, shall continue to be engaged, according to the seniority and eligibility, till their services are regularised in a phased manner and they have to be continued depending upon the financial constraints.
4. In the said earlier order passed on 09.12.2005 in W.P.No.36623 of 2004, the learned single Judge noted that there shall not be any new recruitment of N.M.Rs. till the services of the aforesaid applicants are regularised. It is also noted that such benefits are being extended from time to time by issuing Government Order to the Transport Department. Further, as against the said order passed by the learned Single Judge in W.P.No.36623 of 2004, the Government has preferred an appeal in W.A.No.1260 of 2008, and the same was dismissed by the Division Bench of this Court, by an order dated 11.12.2009, confirming the order passed by the learned single Judge and thereafter, the Government has approached the Apex Court by way of Special Leave Petition and the Apex Court has refused to entertain the said Special Leave Petition and granted time to the Government to give effect to the orders of the learned single Judge till 31st March 2011. The dismissal of the Special Leave Petition filed by the Government was brought to the notice of the learned single Judge. It was thus referring to the fact that the order of the learned single Judge passed on 09.12.2005 has been confirmed and thereafter, the Special Leave Petition filed by the Government also came to be dismissed and therefore, the learned single Judge has allowed the above said writ petitions, thereby, directed the Government to appoint the writ petitioners as Gang Mazdoors in the existing or future vacancies, within a period of three months from the date of receipt of copy of that orders. The orders of the learned single Judge are dated 20.04.2012, 26.07.2012, 12.06.2013, 12.06.2013, 25.06.2013, 17.07.2013 and dated 18.07.2012 respectively. As against the said orders, the above writ appeals are filed by the State on various grounds.
5. The stand taken by the State, de-hors not filing of the counter, is that the writ petitions came to be allowed at the admission stage itself and it is also stated that the orders passed are in violation of principles of natural justice. Stating that the order passed in W.P.No.36623 of 2004 dated 09.12.2005 has not been taken note of, but the factual situation is different from the cases which were pending before the learned single Judge, it is alleged that the writ petitions were allowed directing the appellant/Government to appoint the respondents herein as Gang Mazdoors in the existing or future vacancies, within a period of three months. It is to be noted that without considering whether they are qualified or not, such direction was issued, which is erroneous, as most of the respondents/writ petitioners were not in service after 1990.
6. Further, the writ petitions were bereft of particulars. Though it is stated that the respondents herein/writ petitioners have put in several years of service, without providing exact details and also the details with regard to break in service, only on the vague averments made, the writ petitions were entertained.
7. It is specifically noted that the case of those persons referred to in the order of the learned single Judge, was not referred to in G.O.Ms.No.184, Highways (HM2) Department, dated 29.05.1997 and G.O.Ms.No.371, Highways (HM2) Department, dated 19.08.1997. The order of regularisation or appointment has been passed without taking note of the delay and laches. Some of the respondents herein/writ petitioners were engaged only between August 1981 to December 1990 and not beyond that and therefore, there is no continuation of service and that they had misled the learned single Judge. Some of the respondents herein/writ petitioners had not been engaged at all. Nominal Muster Roll (NMR) labourers are not covered under any Service Rules. By G.O.Ms.No.51, Finance (F.R.II) Department, dated 14.01.1977, recruitment of personnel under the Scheme has been stopped stating that most of them have not worked for full year and they do not fall under any category of a Government Servant to claim their service protection.
8. The respondents herein/writ petitioners were not in the zone of consideration for absorption in permanent establishment, much less regularisation, as except few of them who are eligible, as the services of others either were discontinued or were not engaged beyond the year 1990 and that only the persons, who have put in more than ten years of service as on 01.01.2006 alone can be regularised and since the respondents herein/writ petitioners have not complied with the requirements, the single Judge ought not to have ordered for regularisation of service, particularly on the basis of bald avements without there being any particulars. The learned single Judge, having taken note of the fact that there is a ban on filling up the vacancies of Gang Mazdoors in G.O.Ms.No.815, Public Works (HM2) Department, dated 05.06.1992, ought not to have issued such a direction.
9. The learned single Judge, without taking note of the fact that the respondents herein/writ petitioners had not been referred by Employment Exchange for engagement nor communal roster system was followed, as required under Rule 10A and Rule 22 of the Tamil Nau State & Subordinate Service Rules, passed blanket orders which are illegal and therefore, the same have to be set aside.
10. The respondents herein/writ petitioners, who were impleaded as respondents in these set of writ appeals, have filed several decisions of the Division Bench confirming the order of the single Judge regularising the services and the Apex Court dismissing all the Special Leave Petitions preferred by the Government, and contended that even beyond 2006, such orders have been passed by this Court by a Division Bench and that the Apex Court, while dismissing the Special Leave Petitions, ordered for the regularisation and therefore, the stand taken by the Government and also the appeals filed by the Government are not maintainable.
11. Referring to Division Bench judgments in W.A.No.1260 of 2008 dated 11.12.2009, Rev.A.Nos.30 to 37 of 2012 dated 21.06.2012 and W.A.Nos.685 to 687 of 2013 dated 25.03.2013, the writ petitioners sought to contend that the writ appeals filed by the State have to be dismissed in limine and to give effect to the orders of the learned single Judge to regularise their services.
12. Learned Additional Advocate General relied on a Constitution Bench judgment of the Apex Court in the case of Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors. reported in AIR 2006 Supreme Court 1806(1) and referring to Articles 14 and 16 of the Constitution of India, submitted that in public employment, appointment de-hors due process of selection envisaged by Constitutional scheme, confers no right on the appointee under regularisation of daily wager, temporary/contractual employees appointed in violation of Constitutional scheme and right of the Executive would not extend to direct the regularisation to be treated as permanence in service on the ground that the employee has continued for long, irrespective of even the principle of equal pay for equal work cannot also be applied for giving relief of permanency and doctrine of legitimate expectation cannot be invoked by such employees merely because in the past, the State had regularised similarly placed employees.
13. Simultaneously, in the case of Secretary to Government, Commercial Taxes and Registration Department, Secretariat and another Vs. A.Singamuthu in Civil Appeal No.3770 of 2017, with regard to extension of benefit from the date of initial appointment without temporary/ad hoc service or daily wages, the Apex Court set aside the impugned order of the Division Bench and affirming the order of the learned single Judge granting benefits of regularisation to the respondent therein from the date of completion of 10 years of service with salary and other benefits and the same would also adversely affect in a huge manner. Referring to the Government Orders in G.O.(Rt.) No.505 Finance (AA-2) Department, dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A.2) Department, dated 26.03.2010, the Apex Court has held that the benefit of G.O. Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006 should be extended only from the date of the Government Orders and not from the date of completion of ten years of service. In the above cited case, the Apex Court has observed that G.O. Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006, is applicable only to full-time daily wage employees, who have completed ten years of continuous service as on 01.01.2006 and not to part-time employees. It is further observed in the above cited case that as per G.O.(Rt.) No.84, dated 18.06.2012, the respondent is entitled to get the monetary benefits only from the date of issuance of Government Order regularising his service, that is on 18.06.2012 and set aside the impugned order of the Division Bench and affirming the order of the learned Single Judge granting benefits to the respondent from the date of completion of ten years of service.
14. In a catena of decisions, the Apex Court as well as this Court, even without considering the aspect of bereft of particulars in each of these cases and also the principles laid down in Umadevi's case (cited supra), A.Singamuthu's case (cited supra) and also the judgment of the Apex Court in the case of Secretary to Government, School Education Department, Chennai Vs. R.Govindaswamy and Ors. reported in (2014) 4 SCC 769, just because the orders passed by the learned single Judge have been confirmed by the Division Bench earlier, without looking into the particular circumstances and without carving out the details in each of the cases, the learned single Judge had issued a mandamus in the public employment in the matter of appointment and that judgments have been rendered from time to time. Especially, from 2006 onwards, except for the batch of persons who have completed ten years of service as full time employment, others were ordered to be regularised. With regard to such appointment on temporary or any other mode of appointment with regard to issuance of mandamus is concerned, it is alien to the public employment and every such order can be easily passed by the Government. Ultimately, in the Governance of system and the fiscal policy, unknowingly, such a burden is made to be borne by the State and it would lead to grant of economical imbalance. Might be, the persons, who are employed, shall not be exploited simultaneously for some work and their services being utilised either for project or on timely basic or issuing Government Order. As a matter of public policy of the State, taking into consideration the law laid down by the Apex Court and this Court, issuance of mandamus has to be balanced. Of course, in one or two cases, such order would have been passed for implementation of such directions and might be, at times, being afraid of consequences of the contempt proceedings that could have been implemented. In such circumstances, a negative equality cannot be pleaded.
15. Following the principles laid down by the Apex Court in Umadevi's case (cited supra) and this Court, as on 01.01.2006, those who have completed ten years of full time service, alone are entitled for permanence, that too from the date of the relevant Government Orders and not from the date of completion of their ten years of service. In general, in respect of the direction issued by the learned single Judge, on verification, it is found that more than 33 persons have not at all worked for a single day. Apart from that, even the persons, who have worked also have not completed three years of service for absorption. This exercise shall be done by the learned single Judge looking into the guidelines issued by the Apex Court from time to time with regard to the implementation of the Government Orders and also after taking note of the factual circumstances as to whether they are entitled or not, otherwise, such entitlement is being passed leading to confusion.
16. In the circumstances, in any of these cases, the writ of mandamus, which was issued by the learned single Judge ought to have been negatived on the ground that against public employment, no such mandamus can be issued. As such, we are of the view that it is a matter for reconsideration in the hands of the learned single Judge after seeking all the particulars and the work done by each of the candidates in pursuance of the Government Orders issued by the Government and the same may be considered by the learned single Judge and orders be passed in accordance with law.
17. Moreover, if the Government wants to take an exception to absorb them even on completion of three years, it is left open to the Government and the parties should do the needful in accordance with law. However, the same cannot be claimed as a matter of right and we are not happy with the way in which the mandamus has been issued to absorb the respondents herein/writ petitioners without the service particulars in respect of the concerned Government Order.
18. It appears that one Mr.C.Murugesan has filed a writ petition in W.P.No.2204 of 2007 seeking for a writ of mandamus, directing the respondents therein to appoint him in the existing or future vacancies as Gang Mazdoor in regular time scale of pay, in the light of the orders passed by this Court in W.P.No.36623 of 2004 which was upheld by the Division Bench of this Court in W.A.No.1260 of 2008 on 11.12.2009 and confirmed by the Apex Court in SLP (Civil) C.C.No.14093 of 2010. The learned single Judge of this Court has allowed the said writ petition in W.P.No.2204 of 2007 as prayed for on 21.12.2011. As against the said order, the Government has filed Review Application No.135 of 2012 seeking to review the order dated 21.12.2011 passed in W.P.No.2204 of 2007 and the said review application was dismissed by the learned single Judge by order dated 05.09.2012, pointing out that initially, a Division Bench of this Court has refused to give absorption to some of the Mazdoors in W.A.Nos.2559 to 2585 of 2010 in the order dated 23.08.2011. It is noted in the said order dated 05.09.2012 that Review Application Nos.30 to 37 of 2012, which were filed to review the order dated 23.08.2011 passed in W.A.Nos.2559 to 2585 of 2010, were allowed, following the order passed by a Division Bench of this Court in W.A.No.1260 of 2008. The learned single Judge has further observed in the order dated 05.09.2012 that it is quite pertinent to point out that the order passed by the Division Bench in W.A.No.1260 of 2008 was confirmed by the Apex Court. The appeal filed for reviewing the order has been dismissed by the learned single Judge. However, as against which, S.L.P. was filed and in the S.L.P. filed before the Apex Court in the case of State of Tamil Nadu and Ors. Vs. S.Perumal and Ors., by order dated 29.07.2013, the Apex Court declined to interfere with the orders passed by the High Court in the review. However, the learned single Judge would take note of all these cases, on behalf of both the parties and after taking note of all the particulars, can dispose of the writ petitions in accordance with law. However, the argument of the learned Additional Advocate General is that just because S.L.P. has been dismissed against the review order passed by this Court, it is not necessary to pass a similar order. It is further submitted that unless on completion of ten years of service as on 01.01.2006 as per the law laid down in Umadevi's case (cited supra), the respondents are not entitled for regularisation of their services. In view of the above submissions made by the learned counsel appearing for the appellants, we are of the view that the details of the judgments may be taken into consideration by the learned single Judge and appropriate orders be passed in accordance with law after seeking all the particulars.
19. With the above observations, all the Writ Appeals are allowed and the orders of the learned Single Judge dated 20.04.2012 passed in W.P.Nos.11226 to 11231 of 2012, dated 26.07.2012 passed in W.P.No.19959 of 2012, dated 12.06.2013 passed in W.P.No.15514 of 2013, dated 12.06.2013 passed in W.P.No.15594 of 2013, dated 25.06.2013 passed in W.P.No.17102 of 2013, dated 17.07.2013 passed in W.P.No.19470 of 2013 and dated 18.07.2012 passed in W.P.Nos.17900 and 17878 of 2012 are set aside and the matters are remitted back to the learned single Judge and after filing of counter by the State, the learned single Judge is required to deal with the matters in accordance with law. No costs. The connected miscellaneous petitions are closed.
[H.G.R.,J.] [T.K.R.,J.]
29.01.2018
Index : Yes/No
Internet: Yes
Speaking/Non-Speaking order
Jrl/Kpl
HULUVADI G.RAMESH,J.
AND
RMT.TEEKAA RAMAN,J.
JRL
W.A.Nos.1598 to 1603/2012, 2282/2012,
1811/2013,1812/2013, 1813/2013, 1877/2013,1964/2012 &1965/2012
29.01.2018