Madras High Court
G.Sampath Kumar vs State Of Tamil Nadu on 15 February, 2013
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.02.2013
CORAM:
THE HONBLE MR. JUSTICE K.CHANDRU
W.P.Nos.29193 to 29199 of 2012
& M.P.Nos.1 to 3 of 2012
G.Sampath Kumar .. Petitioner in W.P.NO.29193/2012
S.Rajendran .. Petitioner in W.P.NO.29194/2012
V.Jagadesan .. Petitioner in W.P.NO.29195/2012
R.Devakrishnan .. Petitioner in W.P.NO.29196/2012
R.Ananthavel .. Petitioner in W.P.NO.29197/2012
G.Karthikeyan .. Petitioner in W.P.NO.29198/2012
S.Mansamy .. Petitioner in W.P.NO.29199/2012
Vs.
1. State of Tamil Nadu,
rep.by the Secretary
Department of Tourism and Culture
Secretariat,
Chennai-9
2. The Principal Secretary and Commissioner
Directorate of Art and Culture
Tamil Development campus
Egmore,
Chennai 8
3. The General Manager,
Tamil Nadu Ex-Servicemen's Corporation Ltd.,
Major Parameswaran PVC Memorial building
2E West Mada Street
Srinagar Colony
Saidapet, Chennai 15 .. Respondents 1, 2 and 4 in
all Writ Petitions
4. The Headmaster
District Government Music School
Tiruvnnamalai .. 3rd respondent in W.P.29193/2012
5. The Headmaster
District Government Music School
Kanchipuram .. 3rd respondent in W.P.29194/2012
6. The Headmaster
District Government Music School
Krishnagiri 635 001 .. 3rd respondent in W.P.29195/2012
7. The Headmaster
District Government Music School
Sirkali .. 3rd respondent in W.P.29196/2012
8. The Headmaster
District Government Music School
No.14, Aranmanai Street
Ramanathapuram 623 501 .. 3rd respondent in W.P.29197/2012
9. The Headmaster
District Government Music School
Sivagangai .. 3rd respondent in W.P.29198/2012
10. The Headmaster
District Government Music School
Erode .. 3rd respondent in W.P.29199/2012
Prayer in all Writ Petitions: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records in the order bearing No.Na.Ka.823/Aaa2/2010-1 dated 18.9.2012 passed by 2nd respondent and quashing the same and directing respondent No.1 to consider the petitioners for regularisation of their service as Junior Assistant.
For Petitioner
in all Writ Petitions :: Mr.M.Radhakrishnan
For Respondents
in all Writ Petitions :: Mr.K.Karthikeyan, GA.
COMMON ORDER
All these Writ Petitions are filed by the petitioners seeking to challenge an order dated 18.9.2012 issued by the Principal Secretary and Commissioner, Directorate of Art and Culture, Chennai. By the impugned orders, the petitioners were informed that approval was granted to the Government Music School in Tiruvannamalai, Kancheepuram, Sirkazhi, Ramanathapuram, Sivagangai and Erode. The appointments were made on the basis of an agreement entered into with the TEXCO ( Tamil Nadu Ex-servicemen Recruitment Corporation) and the time scale of pay for the post of Junior Assistant was fixed. Since the post was coming within the purview of the Tamil Nadu Public Service Commission, any appointment to the post of Junior Assistant in Government service is to be made only on the basis of selection made by the Tamil Nadu Public Service Commission. In the light of the above, the appointment made in favour of the petitioners through TEXCO was cancelled by the 2nd respondent. Challenging the said order, these Writ Petitions were filed by the petitioners. The prayer made by the petitioners was to set aside the identical orders dated 18.9.2012 passed by the 2nd respondent and after setting aside the same, seeks for a direction to consider the petitioners for regularization of their service in the post of Junior Assistant.
2. When the Writ Petitions came up on 25.10.2012, the matter was directed to be posted on 29.10.2012 with permission to the petitioners to serve the learned Government Advocate. On 29.10.2012, this Court granted an interim stay for a period of two weeks. Aggrieved by the grant of interim stay, the respondents State has filed a vacate stay application in M.P.No.3 of 2012 together with supporting counter affidavit dated 27.11.2012.
3. The case of the petitioners, as set out in the affidavit was that by G.O.Ms.No.72, Tourism and Culture Department dated 24.4.2012, as amended by G.O.Ms.No.176, Tourism and Culture Department dated 21.8.2012, 7 posts were sanctioned in 7 Districts. The Government Order says that seven posts of Junior Assistant in seven Districts Government Music Schools sanctioned for being filled up amongst the ex-servicemen through TEXCO shall be converted into regular post carrying regular time scale of pay applicable to the post of Junior Assistant. The Government Order never stated that incumbents are to be terminated from service. Instead of changing the post from Junior Assistant on contract basis into Junior Assistant on temporary, the impugned order of termination came to be issued.
4. By G.O.Ms.No.72, Tourism and Culture Department dated 24.4.2012, the State Government accepting the recommendation of the Commissioner for Art and Culture Department hold that the posts, which are already sanctioned, to be filled up by TEXCO in the 7 Music Schools, should be cancelled. Instead of this, Seven TEXCO Junior Assistants should be brought under time scale of pay and filled up on temporary basis. In paragraph 4(b), initially the word used was that the Government is handing over 7 posts and in Tamil the word @xg;;gilg;g[@ was used. Subsequently, by G.O.Ms.No.176, Tourism and Culture Department dated 21.8.2012, the term @xg;gspg;g[@ was used, which means "approved" and therefore there was no guarantee that the persons who are recruited through TEXCO will be continued to be maintained as temporary Government servants. As rightly found in the impugned orders, the post of Junior Assistant comes within the purview of TNPSC and any recruitment to that post will have to be done only by the TNPSC as per the recruitment Rules and there is no scope for the petitioners who are total strangers to the Government servants, who get themselves absorbed by being recruited through the Tamil Nadu Public Service Commission.
5. In the counter affidavit filed it is stated that since the recruitment to the post of Junior Assistant for these Music Schools will take some time, the Government outsourced the recruitment to the TEXCO. It was also found that the persons appointed through TEXCO were not showing total involvement in the work and the Government decided to remedy the situation by directly appointing temporary Junior Assistants to these posts.
6. It is also stated that there are 17 District Government Music Schools functioning, in which 10 Music Schools were already sanctioned with regular Junior Assistants in time scale of pay. In respect of other 7 Music Schools, the Government wanted to bring an uniformity.
7. The appointment of the petitioners was made pursuant to an agreement which the Headmaster had entered with the TEXCO. With reference to the period of entrustment/contract, in the said agreement it is stated that the agreement is liable to be renewed on yearly basis and recruitment to the post of Junior Assistant shall be made only by TEXCO and the Music School is nowhere responsible for any dispute between the recruited persons in the TEXCO. It is also stated that TEXCO being a contract agency is responsible for all statutory Regulations and if any complaint is made by Music School, TEXCO will have to take appropriate action and if they are found guilty of the misconduct, TEXCO shall replace them. The wages as well as the service charges payable in respect of employment of such persons is set out in paragraph 5 of the agreement.
8. In the said circumstances, it was contended that the petitioners not being employees of the State Government, they have no right to challenge the order relieving them from service. The stand taken by the respondents is well founded. The petitioners being contract employees brought through TEXCO have no legal right to continue in service either de hors the TEXCO or claim that they are Government servants.
9. As rightly held in the impugned order, the post of Junior Assistant has to be filled up only by TNPSC as per the recruitment Rules and the petitioners in the guise of seeking regularisation cannot keep themselves designating as Government servants. Even otherwise, the Supreme Court has held that in the matter of relating to contract employees, the question of regularisation cannot be considered in a Writ Petition under Article 226 of the Constitution of India.
10.In this context, it is necessary to refer to the judgment of the Supreme Court in the Steel Authority of India Ltd. v. National Union Waterfront Workers,reported in (2001) 7 SCC 1, wherein the Supreme Court held as follows:
(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
11. Further, the Supreme Court in State of Karnataka vs. Umadevi (3) reported in (2006) 4 SCC 1 has held that the appointment has to be made only by recruitment Rules and not by any other method.
12. Under the circumstances, there is no case made out. Hence, all the Writ Petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed.
ajr To
1. State of Tamil Nadu, rep.by the Secretary Department of Tourism and Culture Secretariat, Chennai-9
2. The Principal Secretary and Commissioner Directorate of Art and Culture Tamil Development campus Egmore, Chennai 8
3. The General Manager, Tamil Nadu Ex-Servicemen's Corporation Ltd., Major Parameswaran PVC Memorial building 2E West Mada Street Srinagar Colony Saidapet, Chennai 15
4. The Headmaster District Government Music School Tiruvnnamalai
5. The Headmaster District Government Music School Kanchipuram
6. The Headmaster District Government Music School Krishnagiri 635 001
7. The Headmaster District Government Music School Sirkali
8. The Headmaster District Government Music School No.14, Aranmanai Street Ramanathapuram 623 501
9. The Headmaster District Government Music School Sivagangai
10. The Headmaster District Government Music School Erode