Madras High Court
K.Chinnasamy vs The State Of Tamil Nadu on 18 June, 2019
Author: V.Parthiban
Bench: V.Parthiban
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 18.06.2019
Coram
The Hon'ble Mr.Justice V.PARTHIBAN
W.P.No.17572 of 2018
and
W.M.P.No.20853 of 2018
K.Chinnasamy .... Petitioner
vs.
1.The State of Tamil Nadu,
rep.by its Principal Secretary,
Higher Education (B2) Department,
Fort St.George,
Chennai-600 009
2.The Director of Sugar Mills,
No.690, Anna Salai,
Nandanam,
Chennai-600 035
3.The Commissioner of Technical Education,
Chennai-600 025
4.Dharmapuri District Co-operative
Sugar Mills Private Limited,
rep.by its President,
Palakode
http://www.judis.nic.in
2
5.The Principal,
Dharmapuri District Co-operative
Sugar Mills Polytechnic College,
Now Government Polytechnic College,
Palakode-636 808 .... Respondents
Petition filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus directing the respondents to
absorb the petitioner in service as Lecturer (Computer Engineering) of
the Dharmapuri District Co-operative Sugar Mills Polytechnic College
converted as Government Polytechnic College vide G.O.(D) No.26,
dated 30.01.2018, Department of Higher Education (B2), Tamil Nadu.
For Petitioner .. Mr.V.Prakash,Sr.Counsel,
for Mr.M.Kaviveerappan
For Respondents .. Mr.V.Kathirvelu,Spl.G.P.
for R1 & R3
Mr.L.P.Shanmughasundaram,
Spl.G.P.for R2, R4 and R5
ORDER
The petitioner joined the services of the 5th respondent College as Lecturer (Computer Engineering) on 07.02.2005, on a consolidated pay. The 5th respondent College was self-financed http://www.judis.nic.in 3 Polytechnic College, run by the 4th respondent Dharmapuri District Co- operative Sugar Mills Private Limited. The College was founded in 1984, after obtaining due permission from the Government. The College though was functioning effectively, it was going through financial crisis over the years. The College management, at a particular point of time had requested the Government to take over the institution as a Government institution.
2.The proposal was evaluated and finally accepted by the Government and the Government issued order, vide G.O.Ms.No.26, Higher Education (B2) Department, dated 30.01.2018. After the issuance of the G.O., the status of the 5th respondent College has been changed into a Government Polytechnic Institution. In fact, during the period of conversion, the Board of Directors have resolved that the employees, who were all paid on consolidated basis and who were all working as temporary employees for many years, would be made permanent when the College is taken over and converted into Government Polytechnic College. The resolution adopted by the Board of Directors was also forwarded to the Government. In fact, when the conversion took place, a Merger Committee was constituted for absorption of the regular staff of the College run by the Society and http://www.judis.nic.in 4 the Committee shall decide the terms and conditions of their absorption.
3.The petitioner, who was regularly selected by subjecting him to the selection process at the time of his appointment in 2005, was hoping that he would also be considered for regularisation, after Government taking over the College in 2018. According to the petitioner, as a Lecturer (Computer Engineering) he was taking classes from 9.15 a.m. to 4.45 p.m. and was governed by the Rules and Regulations applicable to all the regular employees. Although, after the Government took over the institution, several teaching and non- teaching staff were given the status of Government employees, but the petitioner and few others were left out from such consideration and they were continued to be treated as employees of consolidated pay. In this regard, the petitioner submitted a representation to the third respondent for his absorption, however, the representation has not evoked any response. Hence, the petitioner is before this Court seeking issue of writ of mandamus directing the respondents to absorb him in service as Lecturer (Computer Engineering). http://www.judis.nic.in 5
4.Shri.V.Prakash, the learned Senior counsel appearing for the petitioner would submit that for all practical purposes, the petitioner was treated as a regular Lecturer and the very fact that he was continuously employed since 2015 till date would amply show that the post in which he is functioning is sanctioned as 'regular' and there is a requirement of Lecturer (Computer Engineering) in the institution.
5.According to the learned Senior counsel, the factum of the employment of the petitioner is not in dispute at all, since the fifth respondent institution has given a certificate of his continuous employment. He would draw the attention of this Court to the documents filed along with the typed set of papers to vouch the said fact. Moreover, the learned Senior counsel would also submit that the staff details have been notified by the College on 30.04.2014, in which, the name of the petitioner figures as the 'Lecturer in Computer Science and Engineering' along with other teaching staff in various other Engineering subjects. The learned Senior counsel would also draw the attention of this Court to a letter issued by the second respondent recommending the case of absorption of Lecturers, who were employed on consolidated basis. In fact, the learned Senior http://www.judis.nic.in 6 counsel would also draw the attention of this Court to the case of one Lecturer, viz., K.Anitha and would submit that she was also employed on consolidated basis and subsequently made as a 'regular staff'. The seniority list showing her appointment as a 'regular staff' is enclosed along with the letter of the second respondent dated October 2017. The learned Senior Counsel would, therefore, submit that leaving out the petitioner from the benefit of absorption is per se discriminatory, arbitrary and in violation of Articles 14 and 16 of the Constitution of India.
6.According to the learned Senior counsel, the petitioner is fully qualified and only on the basis of his qualification, he was selected for appointment and he has been continued for 14 years. The College having extracted work from the petitioner in the interest of the students, cannot continue the petitioner on consolidated basis and also leave him in continuous state of uncertainty of his career. The learned Senior counsel would therefore urge this Court to allow the writ petition.
7.Mr.V.Kathirvelu, learned Special Government Pleader entered appearance for R1 and R3 and Mr.L.P.Shanmughasundaram, http://www.judis.nic.in 7 learned Special Government Pleader entered appearance for R2, R4 and R5.
8.The learned counsel appearing for the fourth respondent would submit that the petitioner himself has given an undertaking on 23.09.2011 in a stamp paper that he would not claim any benefit on he being temporarily employed. According to him, by virtue of his undertaking, he has accepted to serve the institution on temporary basis and has given up all his claims towards absorption or other financial benefits.
9.The learned Special Government Pleader appearing for the third respondent would contend that the petitioner was employed only as a Guest Lecturer in Computer Engineering Department and according to him there are not enough students today, justifying the continuance of employment of the petitioner on consolidated pay, in Computer Engineering Department. According to the learned Special Government Pleader, the Merger Committee has recommended 27 regular and qualified teaching and non-teaching staff and submitted a proposal to that effect. According to him, the 5 th respondent College has not recommended the petitioner's name, as he was not a regular http://www.judis.nic.in 8 staff. Moreover, he would submit that the Computer Engineering course was not sanctioned in that college and therefore, the post of Lecturer, in which the petitioner was employed, was also not sanctioned. Therefore, according to the learned Special Government Pleader for the 3rd respondent, no relief ever be granted to the petitioner, since he is working in a post which is not sanctioned by the Government as on date. Unless there is a sanctioned post, the question of considering absorption of the petitioner would not arise at all.
10.Considered the submissions made by the learned Senior counsel appearing for the petitioner and also the counsels appearing for the respondents.
11.The fact of the petitioner being continuously employed, whether as a Guest Lecturer or a regular Lecturer since 2005, is not in dispute. The point for consideration before this Court is as to whether the petitioner is entitled to be absorbed in Government service as that of other Lecturers, on the basis of his continuous employment for 14 years or not.
http://www.judis.nic.in 9
12.No doubt, for staking a claim for absorption to a particular post, the person has to demonstrate that there is a sanctioned post and he is fully qualified to hold that post. In this case, according to the respondents, the post is not sanctioned. But at the same time, this Court cannot also ignore the very crucial fact that the petitioner, despite the non-sanctioning of the post, has been continuously employed in Computer Engineering from 2005 till date. It is not a small spell of employment where it can be ignored by this Court when such relief of absorption is prayed. But in this case, the petitioner has been employed for 14 years, which fact alone has to outweigh the other objections raised on behalf of the respondents.
13.The petitioner's continuous employment since 2005 would be a point in his favour that there exists requirement of Lecturer in Computer Engineering. If the post is not sanctioned, then it is open to the authorities concerned to submit a proposal and have it sanctioned. The petitioner cannot be continuously employed on a consolidated basis, as that would not subserve the interest of justice. The petitioner cannot be made to work on a consolidated pay for an indefinite period of time clouding his tenure in a perpetual state of uncertainty.
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14.After all, if a person is employed continuously for a period of 14 years, such person would hope that his services will be regularised one day and such hope cannot be allowed to be extinguished on technical objections. It is also a matter of fact that several teaching posts were sanctioned and absorption have taken place in respect of several teaching staff employed in the Society, after the Government took over the institution in 2018. When such benevolence is shown to several teaching staff by the Government, this Court trust that the same benevolence shall be shown to the petitioner as well, when the petitioner has discharged his duty as Lecturer (Computer Engineering) for the last 14 years.
15.The learned Senor counsel Mr.V.Prakash would also point out about the other teaching staff, viz., Mrs.Anitha, who was serving on consolidated basis, was subsequently absorbed and in which event, the Court finds that there cannot be any impediment to extend the same concession to this petitioner as well and give him parity of treatment in regard to the benefits conferred on the other similarly placed persons. Moreover, the contention regarding the undertaking given by the petitioner is too naive an argument to be http://www.judis.nic.in 11 accepted by any Court much less a Constitutional Court. Such argument is bound to be rejected outright. No citizen of this country can part away his Constitutional right by giving such undertaking and if any such undertaking is obtained and relied on, it must be discountenanced outright.
16.For the aforesaid reasons, this Court is of the considered view that the petitioner is entitled to the relief as prayed for. Accordingly, the writ petition is allowed and a direction is issued to respondents 1 to 3 to absorb the petitioner as Lecturer (Computer Engineering) on a regular basis and regularise his services in terms of the benefits as conferred on the other similarly placed employees of the 5th respondent College, in pursuance of G.O.(D) No.26, dated 30.01.2018, Department of Higher Education, (B2), Tamil Nadu. The petitioner is also entitled to the benefits as given to the other similarly placed persons on his absorption.
17.In case, the post is not available to accommodate the petitioner for his absorption, the first respondent is directed to sanction the post considering the fact that the petitioner has been continuously employed since his appointment on 07.02.2005. The http://www.judis.nic.in 12 Respondents 1 to 3 are directed to initiate and complete the entire exercise within a period of three months from the date of receipt of copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
18.06.2019 msk Index:Yes/No Internet:Yes To
1.The Principal Secretary, Higher Education (B2) Department, Fort St.George, Chennai-600 009
2.The Director of Sugar Mills, No.690, Anna Salai, Nandanam, Chennai-600 035
3.The Commissioner of Technical Education, Chennai-600 025 http://www.judis.nic.in 13 V.PARTHIBAN,J.
msk W.P.No.17572 of 2018 18.06.2019 http://www.judis.nic.in 14 http://www.judis.nic.in