Madras High Court
M.Thagir Nisha vs State Rep. By The Director on 9 April, 2014
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.04.2014
CORAM
THE HON'BLE Ms. JUSTICE K.B.K.VASUKI
Writ Petition No.5743 of 2007
(O.A.No.4444 of 2002)
M.Thagir Nisha ... Petitioner
vs.
1.State rep. by the Director,
School Education, DPI Compound,
Chennai 600 006.
2.The District Educational Officer,
Thiruvarur.
3.The Head Master,
Government High School, Kattimedu,
Thiruthuraipoondi Taluk,
Thiruvarur District- 614 716. ... Respondents
Writ petition, having been transferred from the file of the Tamil Nadu Administrative Tribunal in O.A.No.4444 of 2002, is filed to call for the records pertaining to the order in Na.Ka.No.313A/2002 dated 7.2.2002 issued by the Head Master, Government High School, Kattimedu, Thiruthuraipoondi Taluk, Thiruvarur District, the 3rd respondent herein and to quash the same and to direct the respondents 1 to 3 to reinstate the petitioner in service as sweeper, Government High School, Kattimedu, Thiruthuraipoondi Taluk, Thiruvarur District, with all concomitant service and monetary benefits and to direct the respondents 1 to 3 to pay the salary for the period from 1.9.2000 till 7.2.2002.
For Petitioner : Mrs.S.Jothivani
For Respondents : Mr.S.Navaneethan, AGP (R1 & R2)
O R D E R
The writ petition is filed for quashing the impugned order passed by the third respondent and to direct the respondents to reinstate the petitioner in service with all service and monetary benefits and to pay the salary for the period from 1.9.2000 till 7.2.2002.
2.The petitioner was appointed as part time Sweeper on 1.9.1986 in Government High School, Kattimedu, Thiruthuraipoondi, having the third respondent as its Headmaster, in the resigned vacancy. The petitioner was paid the consolidated pay of Rs.485/- per month and she served in such capacity for nearly 16 years in the third respondent school till 7.2.2002, the date on which the impugned order came to be passed, in and under which, the third respondent terminated the petitioner from service on the ground that her appointment was not in accordance with the Rules, as she has not been appointed through employment exchange. Aggrieved against the same, the petitioner approached the Tamil Nadu Administrative Tribunal by way of O.A.No.4444/2002 and the same was subsequently transferred to this court by way of the present writ petition.
3.According to the learned counsel for the petitioner, the petitioner, having fulfilled all the requirements such as age, educational qualification etc., was appointed by the third respondent to meet the exigencies of day today requirements and her appointment was as against the regular vacancy. Though she was named as part time sweeper, she was compelled to do all kinds of maid work from 7.00am to 3.00pm daily without any adverse remarks and without any warning or reprimand and she has been terminated from service without any show cause notice, enquiry and due opportunity of being heard and the same is hence illegal, arbitrary, contrary to law and in violation of the principles of natural justice.
4.The relief sought for herein is seriously opposed by the learned counsel appearing for the respondents 1 and 2 and third respondent Headmaster. In the reply filed by the third respondent, Head Master for himself as well as on behalf of the respondents 1 and 2/Director of School Education, Chennai and the District Collector, Thiruvarur it is stated the petitioner had been working in the school as part time sweeper temporarily and the monthly wages for the part time sweeper were drawn and paid as per the allotment made annually by the proceedings of the Finance Controller of the Directorate of School Education, Chennai under the contingent Head of 2202-02-02-109AA-02 wages. It is further stated therein that in the course of annual inspection held on 11.7.2001, it was found that the petitioner's appointment was not through employment exchange and the second respondent refused to accept her appointment and ordered that the wages should not be paid to her, as such, salary was not paid to her from the finance allotment made by the Government. In view of the same, the third respondent Headmaster was compelled to ask her consent to continue to get her wages from the Parent and Teachers Association and as there was no response from the petitioner and as there was no order of his superior authority, the third respondent Headmaster has not extracted her service and instructed her to refrain from service and issued the impugned letter dated 7.2.2002, thereby, refraining her from service on 9.2.2002. The third respondent has in the same counter denied the nature of and duration of her work daily in the school. It is their specific case that the petitioner did only sweeping the office room and 7 class rooms without furniture in the morning hours that too before 9am and she did not come to school during school hours. The third respondent has also admitted non payment of salary for the period mentioned in the writ petition, as due to the instructions of the second respondent District Educational Officer, Thiruvarur not to pay her from the Government allotment.
5.Heard the rival submissions made on both sides.
6.From the facts made available herein, the short point that arises for consideration herein is whether the petitioner, who was appointed as part time sweeper, is entitled to be regularised in service as sweeper.
7.The fact that the petitioner was employed as part time sweeper as against the resignation vacancy and served in such capacity for nearly 16 years is not denied. The specific case of the petitioner in her affidavit filed in support of this petition that she was appointed in the vacancy fell vacant on regular basis, since the regular holder of the post resigned from the same and she fulfilled all the requisite qualifications such as, age, educational qualification etc., on the date of her appointment, is also not seriously denied in the counter filed on the respondents' side. After the service of nearly 16 years, she was through the impugned order, advised to refrain from attending the service from 9.2.2002. The only ground on which the petitioner was asked to do so is that she was not appointed through employment exchange, which is the mode of recruitment during the relevant point of time.
8.Now the petitioner seeks to quash the impugned order mainly on the ground that the order refraining her from service, without notice, for enquiry and without due opportunity of being heard amounts to violation of principles of natural justice. The learned counsel for the petitioner also cited the unreported order of this Court in WP.3629/2007 dated 28.11.2001 (S.Murugesan v. the District Educational Officer, Thiruvarur and another), wherein the learned brother judge has directed the respondents therein to regularise the service of the petitioner therein on completion of 10 years with all monetary benefits as per G.O.Ms.No.22 dated 28.2.2006 within a period of 8 weeks. It is also brought to the notice of this court that the order made in WP No.3629/2007 was challenged by way of W.A.No.2146/2013 by the Educational authorities and the Division Bench of this court by order dated 28.10.2013 stayed the operation of the order.
9.Be that as it may, the learned counsel for the respondents would oppose the relief sought for herein mainly by relying on the principles laid down by the Hon'ble Supreme Court in Civil Appeal Nos. 2726 2729 of 2014, (Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others) wherein the Hon'ble Supreme Court decided the issue by following the earlier decision reported in AIR 2011 SC 1193 (State of Rajasthan & others v. Daya Lal and others), wherein, the Hon'ble Supreme Court has considered the scope of regularisation of irregular or part time appointments in all possible eventualities and laid down well settled principles relating to regularisation and parity in pay. For better appreciation, the principles laid down in State of Rajasthan v. Daya Lal case are extracted hereunder:
"8(i)The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii)Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, adhoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii)Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv) part time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part time temporary employees.
(v)part time temporary employees in Government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute".
10.The Hon'ble Apex Court in para 8 of its judgment in Secretary to Government v. R.Govindaswamy's case (cited supra) allowed the appeals filed by the Government against the order of the High court, regularising the services of part time sweepers, who are the respondents therein. While doing so, the Hon'ble Apex Court directed the regularisation of the services of the respondents therein, which stood already regularised, should not be affected. Though the learned counsel for the petitioner in support of her contention cited the following authorities of the Hon'ble Supreme Court reported in: (i)(1967) SCR page 128 (State of Mysore and another v. S.V.Narayanappa) (ii)(1972) 1 SCC 409 (R.N.Nanjundappa v. T.Thimmiah and another) and (iii)(1979) 4 SCC 507 (B.N.Nagarajan and others v. State of Karnataka and others), in my considered view, the issues involved in those decisions are different issues and are hence not applicable to the facts of the present case.
11.That being the legal position, this court is of the view that when the petitioner was admittedly appointed as part time sweeper by the third respondent Head Master, who is not the appointing authority, without reference to the actual mode of recruitment, the issue relating to regularisation of the petitioner's service is squarely covered by clauses (ii), (iv) and (v) of the aforesaid decision of the Hon'ble Apex Court judgment. Therefore, there is no irregularity in the order passed by the third respondent in refraining the petitioner from service. When her appointment was not in accordance with the rules framed for the recruitment and against sanctioned vacant post, the same would not confer upon her any right to absorb her in service by reason of mere continuity of service. The Hon'ble Supreme Court under identical circumstances, was of the view that sympathy and sentiment cannot be the grounds for passing any order of regularisation in the absence of a legal right. When there is no right to regularise the petitioner in the post, she would not be allowed to continue to work in service, as such, the question of directing the third respondent to permit her to continue in the said post, does not arise herein and the order of the third respondent thus warrants no interference by this Court. However, that by itself will not dis-entitle the petitioner to claim her salary for the period during which she served as part time sweeper in the third respondent school. The payment was denied to her on the ground that she was not entitled to get salary from the finance allotment made by the Government. This court is of the view that notwithstanding her mode of appointment, the petitioner is entitled to get her wages for the period during which she served in the school as before and this issue is accordingly decided in favour of the petitioner.
12.In the result, the writ petition is dismissed. However, a direction is issued to the respondents to pay the consolidated salary of the petitioner from 1.9.2000 to 7.2.2002 within 12 weeks from the date of receipt of the copy of this order. No costs.
rk
Index:Yes/No
Internet:Yes/No 09-04-2014
To
1.State rep. by the Director,
School Education, DPI Compound,
Chennai 600 006.
2.The District Educational Officer,
Thiruvarur.
3.The Head Master,
Government High School, Kattimedu,
Thiruthuraipoondi Taluk,
Thiruvarur District- 614 716.
K.B.K.VASUKI, J.
rk
W.P.No.5743 of 2007(T)
09.04.2014