Madras High Court
Orukinaintha Paguthinera Sirappu ... vs The State Of Tamil Nadu on 28 August, 2017
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 28.08.2017 Coram The Hon'ble Mr.Justice S.M.SUBRAMANIAM Writ Petition No.22209 of 2017 and W.M.P.Nos.23233 & 23234 of 2017 Orukinaintha Paguthinera Sirappu Asiriyargal Sangam Thiruvarur District Represented by its General Secretary S.Muthuselvi 1/94, Pitchankottagam Vadapathi Thiruthuraipoondi Taluk Thiruvarur District - 614 716. ...Petitioner Vs. 1. The State of Tamil Nadu Rep.by its Secretary to Government School Education Department Fort St. George Chennai - 600 009. 2. The Principal Secretary / State Project Director Sarva Shiksha Abhiyan EVK Sampath Building DPI Campus, College Road Chennai - 600 006. 3. The Director of School Education DPI Campus College Road Nungambakkam Chennai - 600 005. 4. The Chairman Teachers Recruitment Board EVK Sampath Building DPI Campus, College Road Chennai - 600 006. ...Respondents Writ Petition, filed under Article 226 of the Constitution of India, for issuance of Writ of Certiorarified Mandamus to call for records relating to the impugned notification 05 of 2017 dated 26.07.2017 issued by the 4th respondent and to quash the same and consequently direct the respondents 1 to 3 to regularize the services of the members of the petitioner association as special instructors by fixing regular time scale of pay. For Petitioner : Mr.S.Conscious Ilango for M/S.V.Kasinatha Bharathi For Respondents : Mr.M.Perumal Government Advocate for R1 to R3 Mr.K.Venkata Ramani Additional Advocate General - VII Assisted by Mr.K.Dhananjayan Special Government Pleader for R4 O R D E R
The relief sought for in this writ petition is challenging the notification issued by the 4th respondent on 26.07.2017 in notification No.5/2017.
2. The notification relating to the recruitment for the post of Special Teachers, numbering 1325. The notification was issued by the Teacher's Recruitment Board and the rules and regulations relating to the selection is also prescribed in the notification.
3. The learned counsel appearing for the writ petitioner states that the writ petitioner-Sangam is a registered association in Sl.No.62/2017 dated 05.07.2017 under the Tamilnadu Societies Registration Act, 1975, and filed this writ petition on behalf of its members. The members of the writ petitioner association are working as part time Instructors in the School Education Department. The members of the writ petitioner association are the technical certificate holders in embroidery course and they are in possession of technical teachers certificate also. The members of the petitioner-Sangam have registered their names in the respective employment exchange and accordingly, received call letters for recruitment to the post of part time Instructors.
4. The Government issued G.O.(MS) No.177, School Education (C2) Department, on 11.11.2011, for the purpose of filling up of 16549 part time Instructors to Government schools, standard VI to VIII. The Government Order states that the Principal Secretary / Project Director (SSA) has stated in the project proceeding board held for appointing the supplementary annual work plan 2010-2011, in the context of Right to Children free and compulsory education (RTE) proceedings, 16549 part time Instructors have been sanctioned for Tamil Nadu. Out of these posts, 5253 part time Instructor posts for art education, 5392 posts for health and physical education and 5904 posts for work education, have been sanctioned for standard VI to VIII in Government schools, where admission of children is more than one hundred. The principal Secretary / State Project Director (SSA) has submitted proposals for filling up of 16549 part time Instructors to Government school for standard VI to VIII. On examination of proposals of the Principal Secretary/State Project Director (SSA) the Government approved the recruitment process for the appointment of 16549 part time Instructor to Government Schools for standard VI to VIII. The guidelines for recruitment was issued in the said Government Order. The learned counsel urged this Court by stating that the applications for the part time teachers to be called, as per the Government Order, which stipulates as follows:
"Applications for the part time teachers to be called for through dailies, media by making wide publicity and also from Employment Exchange and also further it is stated that the salary of the part-time Instructors will be Rs.5000/- per month. The selection of candidates is to be made based on an interview conducted by the Committee. Certain other conditions also stated in the said Government Order. Paragraph 2 stipulates, informations to be recorded in the appointment orders. Paragraph 3 deals with utilization of the services of selected incumbents in schools as part time Instructors. Paragraph 4 states that the Director of School Education and Director of Elementary Education are directed to take necessary action in this regard."
5. Pursuant to the said G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011, the members of the petitioner association submitted their respective applications and participated in the selection process and the committee conducted an interview, selected candidates and they are appointed. Accordingly they are working in the post of part time Instructor for the past about five years.
6. The learned Additional Advocate General appearing on behalf of the 4th respondent submitted that the appointment itself is for the newly created post of part time Instructors and the terms and conditions of services are very well stipulated in the G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011. Thus, the members of the petitioner association are bound by the conditions stipulated in the said Government Order and in any event, they cannot go beyond the conditions stipulated and seek for regularization of services or challenge the notification issued for regular selection.
7. The petitioners were made known about the service conditions for the part-time Instructors and accepted the order of appointment and they are serving for about 5 years. Thus, now, they are estopped from claiming regularization of posts against which the regular notification issued by the Teachers Recruitment Board for recruiting regular candidates in accordance with the service rules.
8. This Court has shown anxious consideration with regard to the manner in which the members of the writ petitioner were appointed. The order of appointment is enclosed in page 13 of the typed set of papers, filed along with this writ petition. The conditions are stated as follows:-
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9. These conditions are very much available in G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011 also. The conditions are imposed by the Government and instructions were issued to the Director of School Education to incorporate the conditions while issuing appointment orders to the individuals. The conditions are available at paragraph 2 of the said Government Order. Condition No.7 stipulates that no increment or regular time scale of pay or regularization or any preference shall be claimed from and out of this appointment as part-time Instructors. Thus, it is very clear that accepting the conditions of service in the order of appointment, the members of the petitioner association had joined as part-time Instructors and serving for the past about 5 years.
10. This apart, the scheme issued by the Government in G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011, is also very clear that it is a scheme formulated for the purpose of fulfilling the conditions for providing right to children, free and compulsory education. Thus, it is a special scheme formulated in order to fill up 16549 posts of part-time Instructors for certain emergency purposes.
11. The learned counsel for the writ petitioner further stated that under the similar circumstances, the Government of NCT of New Delhi has issued certain schemes for regularization of guest teachers in the Directorate of Education for the year 2015-2016. Copy of the proposal is enclosed in page 29 of the typed set of papers. He further stated that a similar scheme can also be formulated by the Government of Tamilnadu, the State being a model employer. In view of the fact that the writ petitioner is fully qualified for recruitment to the post of Special Teachers and they are already in service as part-time Instructors for the past about 5 years, their service and experience can be utilized by appointing them as regular employees in the cadre of Special Teachers in Tamilnadu School Education Service.
12. The learned Additional Advocate General opposed the contention by stating that the very appointment is a conditional one under the special scheme. The members of the writ petitioner-Sangam have to participate in the regular recruitment process for appointment to the post of Special Teachers under the Tamilnadu School Education Service Rules. In this regard, the learned Additional Advocate General urged this Court to look into the conditions of appointment orders issued in favour of the petitioner-Sangam. No doubt, all the conditions are in clear terms and in terms of the appointment, the members of the writ petitioner-Sangam cannot seek regularization of their services in the permanent post of Special Teachers under the Tamilnadu School Education Services.
13. This Court is of the firm view that all the appointments to the public services should be made only under the constitutional schemes by following the recruitment rules in force. Equal opportunity of public employment is the constitutional mandate and all the citizens of this great nation to be provided with an opportunity to participate in the open competitive process. The equality clause enshrined in the Constitution of India, is to be followed scrupulously by the State, while undertaking appointment to public services. Any scheme or back door entry to the public appointments is to be condemned and the equality clause provided under the Constitution of India is to be followed scrupulously by the State. Thus, this Court is of the opinion that the notification issued to a particular post and the conditions of appointment issued for the said post are important to consider the case on hand.
14. The learned counsel for the writ petitioner made a submission that the notification issued in pursuant to the G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011, is to be considered as an open competitive process. No doubt, any process for appointment has to be conducted only through open competitive process by issuing notification in public media. That does not mean that an appointment made to an particular post will confer a right on the candidate to seek regularization of another permanent post. In other words, the recruitment notification issued in the year 2011 for recruiting the part-time Instructors cannot be or will not confer any right on the candidates to seek regularization by stating that, now the State has issued notification for recruitment to the permanent post of Special Teachers. In this regard, the learned Additional Advocate General also stated that, now in pursuant to the notification issued on 26.07.2017, written examination will be conducted and thereafter interview also will be conducted for recruiting the regular candidates to the permanent post of Special Teachers. Therefore, the process conducted for recruiting the part-time Instructors in the year 2011 are not akin to that of the present notification and selection.
15. However, the members of the writ petitioner-Sangam were appointed only as part-time Instructors on certain terms and conditions. Now, the question arises that, 'Whether the members of the writ petitioner-Sangam can claim regularization for the permanent post of Special Teachers, by stating that they are already in service for about 5 years as part-time Instructors ?'
16. The question of appointing the members of the writ petitioner-Sangam on permanent basis will not arise, in view of the fact that the initial appointment of the members of the petitioner-Sangam was based on certain conditions. The consolidated pay of Rs.5,000/- was initially paid and the same was enhanced to Rs.7,000/-. The appointment order has also stipulates the conditions in clear terms. The conditions stipulates that they cannot claim any priority or seeking regularization of service for permanent absorption and in fact, all appointment to a permanent basis has to be undertaken only by issuing a specific notification stating all these factors. Now, the impugned notification dated 27.07.2017 states about all these conditions and about the nature of the recruitment. Thus, it is left open to the members of the writ petitioner to submit application in pursuant to the notification dated 26.07.2017 and participate in the selection process.
17. The writ petitioner association cannot seek a regularization on the basis of the appointment issued earlier to them for the post of part-time Instructors on consolidated pay. If such a procedure is accepted, then it will pave way for thousands of employees working on temporary / part-time basis seeking regularization on permanent absorption for permanent posts. If such an order is passed by the Constitutional Courts, it will certainly affect the regular recruitment process and open competitive process left open to the public in general. Lakhs and lakhs of youths are waiting in this country for public appointment, preparing hardly to participate in the open competitive examinations. Thus, the Courts cannot give way to regularization of all the employees viz., part time/temporary, which will certainly have impacts on regular recruitment / open competitive process. Contrarily, if the members of the writ petitioner-Sangam can very well participate in the open competitive process and get themselves appointed by succeeding. Thus, this Court is of the firm opinion that such nature of seeking regularization of permanent absorption is certain a back door entry or it is to be construed as the other way of entry into the regular employment other than the constitutional schemes. Any constitutional scheme prescribed is to be of transparent in nature and must provide opportunity to all the citizens especially for public employment through open competitive process. Any method other than the transparent open competitive process method under the constitutional scheme to be construed as a back door entry for permanent absorption / regularization of services.
18. The constitutional Courts are to be cautious while issuing directions for permanent absorption in this regard. Because the same will be in violative of Articles 14 and 16 of the Constitution of India and also the Courts cannot deprive the prosperity of the large number of youths waiting for public appointment, by preparing themselves to participate in the open competitive process.
19. In the case on hand, it is unambiguous that the service conditions stipulated in the appointment order, that the members of the petitioner-Sangam cannot seek permanent absorption or regularization or priority in any future appointment. As a matter of fact, such being the terms and conditions stipulated in the order of appointment, there is no reason to go back and claim regularization / permanent absorption in the regular post notified for open competitive process by the respondents in the impugned notification dated 26.07.2017.
20. At this juncture, the learned counsel for the writ petitioner urged this Court that, certain preference may be given to the members of the petitioner association, in the regular recruitment process.
21. The learned Additional Advocate General also contended that in respect of employment seniority and in respect of all other conditions, the members of the writ petitioner-Sangam has to follow the open competitive process.
22. The learned counsel for the writ petitioner cited the judgment of the Hon'ble Supreme Court in the case of State of Gujarat and otehrs Vs. PWD employees union and others reported in (2013) 12 SCC. Paragraph 27 is extracted herein under:-
"The decisions in Umadevi and A.Umarani were regarding the question concerning regularization of employees entered by back door methor or those who were illegally appointed encouraging a political set up in violation of Articles 14 and 16 of the Constitution of India. We are of the opinion that both the aforesaid decisions are not applicable in the present case i.e., to the members of the respondent Employees' Union for the following reasons:
(i) The Secretary, Forest and Environment Department of the State of Gujarat by his order dated 3.5.2008 held that initially the entry of the daily wagers do not suffer from any illegality or irregularity but is in consonance with the provisions of Minimum Wages Act. Therefore, the question of regularization by removing the procedural defects does not arise.
(ii) The Gujarat High Court by its judgment dated 29.10.2010 passed in PWD Employees Union V. State of Gujarat while noticing the aforesaid stand taken by the State also held that the nature of work described in the order dated 3.5.2008 shows that the daily wage-workers are engaged in the work which is perennial in nature.
(iii) The case of A.Umarani related to regularization of services of irregular appointees. In the said case this Court held that :
"When appointments were made in contravention of mandatory provisions of the Act and statutory rules framed (therein) and in ignorance of essential qualifications, the same would be illegal and cannot be regularized by the State".
23. His lordship S.J.Mukhopadhaya, J. speaking for the Bench, made an observation that the legal principles settled in the case of Umadevi and A.Umarani cases are not applicable for the case before the Supreme Court. Thus, the judgment cited by the learned counsel for the writ petitioner is of no avail in respect of the facts and circumstances of the present case on hand.
24. The facts in the present case are slightly different, so as to say that the very appointment itself is a special scheme formulated by the State in G.O.(MS) No.177, School Education (C2) Department, dated 11.11.2011. Further, the appointment order stipulates condition in clear terms, therefore, the facts in that case is not akin to that of the present case. Hence, this Court is not inclined to consider the case of the petitioner based on the above judgment.
25. The legal principles with regard to the temporary appointment was very well settled by the Constitution bench of the Hon'ble Supreme Court in the case of State of Karnataka Vs. Umadevi reported in (2006) 4 SCC 1. Paragraphs 33 and 34 are extracted hereunder:-
33. In the earlier decision in Indra Sawhney Vs. Union of India [1992 Supp. (2) S.C.R. 454), B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant position of Articles 14 and 16 of the Constitution of India in the scheme of things. His Lordship stated:-
"6. The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18
7. Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power ---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state.."
(See paragraphs 6 and 7 at pages 544 and 545) These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.
34. While answering an objection to the locus standi of the Writ Petitioners in challenging the repeated issue of an ordinance by the Governor of Bihar, the exalted position of rule of law in the scheme of things was emphasized, Chief Justice Bhagwati, speaking on behalf of the Constitution Bench in Dr. D.C. Wadhwa & Ors. Vs. State of Bihar & Ors. (1987 (1) S.C.R. 798) stated:
"The rule of law constitutes the core of our Constitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice."
Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
26. The Constitution Bench judgment was followed by the Hon'ble Supreme Court by reiterating in the case of Secretary to Government Vs. R.Govindasamy and others reported in [(2014) 4 SCC 769] and its relevant extract in Paragraph No.8 is here under:-
8.this Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularization of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularization and parity in pay relevant in the context of the issues involved therein. The same are as under:
(i) 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 had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant post.
27. This Court of the opinion that the appointment of the members of the writ petitioner-Sangam are not illegal or irregular. So, it cannot be construed as back door entry. However, such factors are of any avail to grant any relief of permanent absorption. This Court is of the opinion that the appointment of the writ petitioners as part-time Instructors are not illegal / irregular / back door entry. However, if the relief of the regularization or permanent absorption is now given by setting aside the regular recruitment process, then, it will amount to back door entry, because, the constitutional schemes for regular appointment are entirely different than that of the part time/temporary employment. Certain part-time Instructors in the special scheme, in other words, recruitment made for the part-time post of Instructor under a special scheme through special Government Order cannot be a ground to claim regular appointment. Regular recruitment process is to be undertaken by providing equal opportunity to all the citizens of the country to participate in the open competitive process.
28. The learned counsel for the writ petitioner states that the members of the writ petitioner-Sangam were appointed only through open competition process. This Court is able to appreciate the contention, however, such a contention cannot be accepted for the purpose of granting the relief of regularization / permanent absorption.
29. Thus any appointment made for the post of Part-Time Instructor under the Special Scheme through Government Orders and by following the terms and conditions stipulated therein, cannot be a ground for a candidate appointed on temporary basis, to seek regularisation of services or permanent absorption for the post of Special Teachers under the Tamil Nadu School Education Services.
30. It is needless to state that permanent appointment is to be made only by following the open competitive process and by adhering to the recruitment rules in force. A mere continuance in temporary service, cannot be a ground to claim permanent absorption. Thus, the relief as such sought for in this writ petition deserves no merit consideration and it is left open to the members of the writ petitioner-Sangam to participate in the open competitive process by submitting an application responding to the impugned recruitment notification and succeed in the same. The members of the writ petitioner-Sangam cannot claim any immunity or privilege or concession based on their temporary/Part-Time service in the post of Instructor.
31. This Court cannot provide any weightage for the temporary/Part-Time services rendered by the members of the writ petitioner-Sangam and the same if granted will be in violation of the Constitutional Directives. However, this Court wishes all the members of the writ petitioner-Sangam and they should not be discouraged from and out of the order passed in this writ petition and all the members may put their efforts more vigorously and get success in all their attempts for securing a public employment.
32. With these observations, the writ petition stands dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
28.08.2017 jer/Svn Index : yes/no Internet : yes/no Speaking order/Non-speaking order To
1. The Secretary to Government The State of Tamil Nadu School Education Department Fort St. George, Chennai - 600 009.
2. The Principal Secretary / State Project Director Sarva Shiksha Abhiyan EVK Sampath Building DPI Campus, College Road Chennai - 600 006.
3. The Director of School Education DPI Campus, College Road Nungambakkam, Chennai - 600 005.
4. The Chairman Teachers Recruitment Board EVK Sampath Building DPI Campus, College Road Chennai - 600 006.
S.M.SUBRAMANIAM , J.
jer/Svn Writ Petition No.22209 of 2017 & W.M.P.Nos.23233 & 23234 of 2017 28.08.2017