Madras High Court
D.Rani vs The District Collector on 30 September, 2021
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, A.A.Nakkiran
Writ Appeal No.2477 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Writ Appeal No.2477 of 2021
D.Rani ... Appellant
vs.
1. The District Collector,
Thiruvannamalai District,
Thiruvannamalai.
2. The District Elementary Educational Officer,
Thiruvannamalai District,
Thiruvannamalai.
3. The Assistant Elementary Educational Officer,
Kalasapakkam,
Thiruvannamalai District.
4. The Commissioner for Panchayat Union,
Office of the Panchayat Union,
Kalasapakkam,
Thiruvannamalai District.
5. The Head Master,
Panchayat Union Middle School,
Pattiyendal Village,
Kalasapakkam Taluk,
Thiruvannamalai District. ... Respondents
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https://www.mhc.tn.gov.in/judis/
Writ Appeal No.2477 of 2021
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 29.03.2019 passed by this Court in W.P.No.27707 of 2018.
For Appellant : Mr.G.Ilamurugu
For Respondents : Mr.K.V.Sajeev Kumar,
Government Advocate
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.) Aggrieved by the order dated 29.03.2019 passed by the learned Single Judge in W.P.No.27707 of 2019, the Writ Petitioner has come up with the present Writ Appeal.
2. According to the Appellant/Writ Petitioner, she was appointed as a Sweeper by the Village Educational Committee in the 5th Respondent School with effect from 10.12.2010 and is continuously working in the School in the said post. It is stated by the Appellant/Writ Petitioner that, her appointment order has been forwarded by the 3rd Respondent to the 4th Respondent vide communication dated 21.11.2011, for suitable orders ratifying her appointment and to disburse salary. Page No.2 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021
3. Learned counsel for the Appellant/Writ Petitioner contended that, the learned Single Judge failed to consider that, the post of Sweeper comes within the category of basic employment and there is no necessity to call for Applications from the public, as the Village Educational Committee is competent to make appointments in respect of basic employees. He pointed out that, the Appellant/Writ Petitioner has rendered service in the 5 th Respondent School for more than eight years without any break and by virtue of her long service, her services in the 5th Respondent School may be regularized. Learned counsel drew the attention of this Court to G.O.Ms.No.47, School Education Department, dated 02.03.2012, relevant portion of which, reads as under:
“Whereby 5000 sweepers and allied non-teaching staff were sought to be recruited in the Schools for a considerable period, had made a representation to consider them for regularization of their services. When the appointments under G.O.Ms.No.47 was sought to be made, the Government in certain cases had rejected the claim of these ad hoc appointees stating that, they were not properly appointed and that, the caste reservation and age criteria were not taken into consideration at the time of ad hoc appointments, etc.”
4. According to the learned counsel for the Appellant, when cases of similarly placed persons were considered by the Government and the Page No.3 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 benefit of regularization had already been extended, similar benefit may also be extended to the Appellant/Writ Petitioner.
5. In reply, learned Government Advocate appearing for the Respondents submitted that, pursuant to the said Government order, the Government had already appointed 1495 Watchman and 2213 Sweepers on 23.11.2012 and the remaining 506 vacancies of Night Watchman and 786 Sweepers are yet to be filled up and that, the vacancies will be filled up after getting appropriate orders from the Government.
6. The learned Single Judge observed that, regularization or permanent absorption cannot be granted in violation of the Recruitment Rules in force and that, all appointments are to be made strictly in accordance with the procedures as contemplated in the Rules. In respect of irregular and illegal appointments, the benefit of regularization or permanent absorption cannot be given in view of the legal principles settled by the Constitutional Bench of the Apex Court in the case of State of Karnataka vs. Umadevi reported in 2006 (4) SCC 1.
7. In view of the said decision, the learned Single Judge held that, the Writ Petitioner is not entitled for regularization or permanent absorption Page No.4 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 and in the event of any recruitment Notification, the Writ Petitioner is at liberty to participate in the process of selection, if she is otherwise eligible and qualified in accordance with law, for the purpose of securing permanent appointment. However, the learned Single Judge directed to pay the salary due to the Writ Petitioner. Further, the learned Single Judge directed the Writ Petitioner to submit a representation to the Respondents and in the event of submitting any such representation, directed the Respondents to consider the same and pass orders only with reference to the salary arrears to be paid to the Writ Petitioner.
8. Heard the learned counsel on either side and perused the material documents available on record.
9. In the case on hand, though the Appellant/Writ Petitioner has put in eight years of service as a Sweeper in the 5 th Respondent School without any break, and is continuing to work in the said post till date, she cannot, as a matter of right, claim regularization of service. Admittedly, the 3rd Respondent herein has forwarded a communication dated 21.11.2011 to the 4th Respondent for suitable orders ratifying the Writ Petitioner's appointment and to disburse salary.
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10. With reference to G.O.Ms.No.47, dated 02.03.2012, it is represented by the learned Government Advocate that, out of 5000 vacancies for the post of Watchman and allied Non-teaching staff, 1495 Watchman and 2213 Sweepers were appointed on 23.11.2012 and the remaining 506 vacancies of Watchman and 786 Sweepers are yet to be filled up and that, the vacancies will be filled up after getting appropriate orders from the Government. But, there is no iota of evidence as to whether the said candidates were appointed by the Government by following due process of law and without any violation of Rules. In case, those candidates have been appointed contrary to the Rules, there cannot be equality and legality.
11. In a decision rendered by this Court in W.P.Nos.14782 and 19961 of 2020, dated 03.02.2021, this Court has held that, appointments made therein are not illegal, but only irregular, and hence, directed regularization of service of the employees.
12. There may be cases where, for want of hands, even if there are no sanctioned posts, persons will be appointed. Unless otherwise, the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, is made applicable, seeking permanency or Page No.6 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 regularization is not permissible. In the case on hand, it is not the case that, the Appellant/Writ Petitioner had approached the Authority seeking regularization, but, she has knocked at the doors of this Court for regularization.
13. As regards competency of the Writ Petitioner's Appointing Authority, the learned Single Judge has held that, the Writ Petitioner was not appointed by the competent Authority by following the selection process as contemplated in the Recruitment Rules in force. Thus, according to the learned Single Judge, the initial appointment of the Writ Petitioner was irregular and not in consonance with the Recruitment Rules in force.
14. The learned Single Judge has rightly observed that, back door entry of candidates is not permissible and that, there should be equal treatment from the Government and the Government, being the model employer, cannot discriminate the citizens. It was further held by the learned Single Judge that, candidates, who entered through back door entry in public post, are repeatedly filing Writ Petitions in order to secure regularization through Courts, after few years. Though, the Courts grant some relief to persons who are in stress and strain on account of long period of service, the Page No.7 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 same cannot be cited as precedent. The contention of the Appellant that, in similar circumstances, candidates have been appointed, cannot be a ground to order regularization to persons employed on temporary basis.
15. It is very unfortunate that, the Government has given a go-by to Uma Devi's case (supra) and made more number of appointments, thereby flouting the orders of this Court, which is nothing but deliberate and wilful disobedience of the order of this Court by the Government Officials. Whether the Government has followed the Rules in the appointment of 1495 watchman and 2213 sweepers, is not gone into this Appeal, as it is not the subject matter of the Writ Petition. However, this Court makes it clear that, Officials who are responsible for appointments by means of back door entry, are to be proceeded with disciplinary action, in the light of the decision rendered by this Court in the case of S.Thangappan vs. The Government of Tamil Nadu, reported in 1986 TLNJ 153. Relevant portion of the said decision is extracted hereunder:
“ ...
If there had been any irregularity committed by the Appointing Authority, it is the Appointing Authority, who should be proceeded against. It is because of the failure of the concerned superior Authority in not taking a stern action against irregular Page No.8 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 appointment made by the Appointing Authorities, it results in innocent persons, who secures employment against considerable stress and odds and later on their services dispensed with as if the Appointing Authority, would at any time, arbitrarily terminate their services. The second Respondent, having found that, the third Respondent had appointed the petitioners contrary to the Rules, ought to have have taken disciplinary proceedings against the third Respondent. For errors and omissions committed by him, persons like that of the petitioners, who have secured the last grade post on permanent basis cannot be dealt with as if they could be dropped like hot cakes. Their future cannot be treated as light-heartedly. It is in this view, this Court, considering that even if the appointments had not been made through the Employment Exchange, or due to any other irregularity taking note of the difficulties to which the petitioners would be placed by throwing out of their employment arbitrarily, their Petitions are allowed; committed Authority could have exercised its powers of exempting the Rules which they do not satisfy. Such orders of exemption are not a rarity. Therefore, instead of taking action against the person who is responsible for passing orders, he had been allowed to arbitrarily and contrary to Rules terminate the services of the petitioners. ...”
16. In view of the ratio laid down by this Court, we are of the view that, unless otherwise, Law is stringent and enforceable, it will be very difficult to curtail illegal appointments.
17. One of us (SVNJ), in a decision rendered in the case of S.Thiyagarajan vs. State of Tamilnadu (W.P.Nos.16410, 16416, 24744 & 16421 of 2019, dated 03.03.2021) has held that, employees working in Page No.9 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 Public Works Department have to be regularized, where their services have been continuous for years together. Relevant portion of the said decision is extracted hereunder:
"10. The applicability of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 (in short, 'the 1981 Act) to Establishments and to the facts of this case, is not addressed in this Writ Petition. Even assuming for the sake of argument that, the 1981 Act is not applicable to the case on hand, this Court would like to draw inference that, the intention of the Government while legislating the Act was to ensure that, the employees are regularized on completion of 480 days in a period of 24 calender months, and that, the 1981 Act, received the assent of the President of India on 05.08.1981 and it came into effect from 01.01.1982, and it has a deeming provision. Except the extension of the provisions of the Act to Central Government Establishments viz. Southern Railways and Khadi Gramodyog, there appears to be no Notification extending the benefits of the Act to any other Industrial Establishment.
11. Umadevi's case (supra) may not be applicable to the facts and circumstances of this case, as, pursuant to the said decision, Petitioners herein should not have been appointed and continued in service. When the Respondents have given a go-by to the said decision every time, principles of the said decision cannot come handy. Respondents have watered down the principles laid down in Umadevi's case (supra) and they cannot shed crocodile tears after a decade. In the light of the decision rendered by this Court in the case of S.Thangappan vs. Government of Tamil Nadu, reported in 1986 T.N.L.J. 153, action needs to be taken against persons, who appointed the employees, and the Petitioners herein cannot be made as scapegoats.Page No.10 of 14
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12. In the case on hand, there is no back door employment of the Petitioners, so as to disentitle them from the benefit of regularization. Moreso, documents produced by the Petitioners have not been disputed or denied. Hence, this Court does not find any impediment in directing regularization of the services of the Petitioners. Accordingly, Respondents are directed to regularize the services of the Petitioners herein from the date of their entry into service. However, all the service benefits need to be calculated and payment due to the Petitioners shall be made with effect from 01.04.2021. It is made clear that, the Petitioners will not be entitled to any other backwages or monetary benefits, except that, wages need to be re- fixed notionally/retrospectively. Petitioners are entitled to permanent status, continuous and continuity of service, which shall be counted for pension and gratuity.
In fine, these Writ Petitions are allowed with the above direction."
18. The judgment dated 13.09.2019 passed by a Division Bench of this Court in Writ Appeal No.1258 of 2018, batch of cases, relied on by the learned counsel for the Appellant, may not be applicable to the facts of this case, as, in that case, the Division Bench has considered the arbitrariness in ignoring the case of some of the employees and considered the non- employment of some other employees. That principle can be applied, provided, persons who have already been appointed as regular candidates are eligible to be considered for regularization.
19. In the case on hand, when the appointment of the Appellant/Writ Page No.11 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 Petitioner itself is done by the Village Educational Committee, this Court cannot come to the conclusion that, the appointment itself is regular. Hence, we are of the view that the order of the learned Single Judge is perfect and it does not require any interference. In case, if there is any Notification calling for appointment of candidates and if the Writ Petitioner fulfills the qualification criteria, her case shall be given preference taking note of the Roster system and relaxation of age.
20. It is made clear that, if other vacancies are not filled up, it shall not be filled up, unless otherwise, it is in accordance with the Rules. Persons already working in the Department shall not be disturbed and the Government shall give preference in matters of regularization. This shall not preclude the Officials in taking action against persons, who appointed the Writ Petitioner herein.
21. In fine, the Writ Appeal stands dismissed with the above directions and observations. No costs. Consequently, connected C.M.P.No.16001 of 2021 is closed.
22. List the matter for 'reporting compliance' on 28.10.2021, as to Page No.12 of 14 https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 what action has been taken against the Officials, who have made illegal appointments. Particulars pertaining to the Officials, against whom Disciplinary Proceedings have been initiated, i.e. their names and designation, needs to be furnished.
[S.V.N.,J.] [A.A.N.,J.]
30.09.2021
Index : Yes/No
Speaking Order : Yes/No
(vm/aeb)
Note to Registry: Issue copy of this order on or before 07.10.2021 To:
1. The District Collector, Thiruvannamalai District, Thiruvannamalai.
2. The District Elementary Educational Officer, Thiruvannamalai District, Thiruvannamalai.
3. The Assistant Elementary Educational Officer, Kalasapakkam, Thiruvannamalai District.
4. The Commissioner for Panchayat Union, Office of the Panchayat Union, Kalasapakkam, Thiruvannamalai District.
5. The Head Master, Panchayat Union Middle School, Pattiyendal Village, Kalasapakkam Taluk, Thiruvannamalai District.Page No.13 of 14
https://www.mhc.tn.gov.in/judis/ Writ Appeal No.2477 of 2021 S.VAIDYANATHAN,J.
AND A.A.NAKKIRAN,J.
(aeb) Judgment in W.A.No.2477 of 2021 30.09.2021 Page No.14 of 14 https://www.mhc.tn.gov.in/judis/