Madras High Court
Nahomi Pathumaikani vs The Panchayat Union Middle School on 16 September, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.28351 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.28351 of 2017
Nahomi Pathumaikani ... Petitioner
Vs.
1. The Panchayat Union Middle School,
Nallakana Koththapalli,
Soolagiri Panchayat,
Krishnagiri District.
2. The District Elementary Educational Officer,
Krishnagiri District.
3. The Assistant Elementary Educational Officer,
Krishnagiri District. ... Respondents
Prayer : Writ Petition filed Under Article 226 of the Constitution of India, to
issue a writ of Mandamus, to direct the respondent herein to regularize the
services of the petitioner with effect from 12.01.2022, the date on which the
petitioner's juniors in the employment exchange were appointed to the post of
Secondary Grade Teacher for the purposes of seniority and pensioner benefits
alone in the light of judgments of the Hon'ble Court dated 06.04.2011 in
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W.P.No.28351 of 2017
W.P.No.13961 of 2009 and order dated 22.07.2011 in W.P.No.13155 of 2007,
W.P.No.11678 of 2015 dated 21.04.2015.
For Petitioner : M/s.Dakshayani Reddy
For Respondents : Mr.S.J.Mohamed Sathik
Government Advocate
ORDER
The relief sought for in the present writ petition is to direct the respondents to regularize the services of the writ petitioner with effect from 12.01.2002.
2. The petitioner states that she completed SSLC, +2 and Diploma in Teacher Education and registered her name in the District Employment Exchange in Tirunelveli District. She further states that she got married in the year 1998 and migrated to Hosur and transferred the employment registration to the District Employment Exchange, Krishnagiri.
3.The name of the writ petitioner was sponsored for appointment to the post of Secondary Grade Teacher. However, the registration was canceled with the Employment Exchange at Krishnagiri District on the ground that it was 2/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 fraudulently obtained. The petitioner challenged the cancellation of registration before this Court in W.P.No.10195 of 2022 and the said writ petition was disposed of with a direction to the respondent to proceed with the process of selection. The fact remains that the petitioner was not appointed on 12.01.2002, along with the other candidates who were sponsored through the District Employment Exchange.
4. The petitioner, after disposal of the above writ petition, was selected and appointed on 15.08.2004. Thus, the services of the writ petitioner was regularized by the competent authority with effect from date of initial appointment on 15.08.2004.
5. The grievance of the writ petitioner is that she was sponsored along with the other candidates in the year 2002 for selection and appointment to the post of Secondary Grade Teacher and the other persons who were sponsored were appointed on 12.01.2002 and therefore, her services are also to be regularized with effect from 12.01.2002.
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6.The learned counsel for the petitioner reiterated that the said period at least to be taken into consideration for the purpose of calculation of qualifying service for pensionary benefits. The period during which the petitioner had not served cannot be taken into consideration as qualifying service.
7. The learned counsel for the petitioner made a submission that this Court considered the case of other similarly placed persons and granted the relief of retrospective regularization with effect from 12.01.2002. Thus, the case of the petitioner is also to be considered along with other candidates who were conferred with the said benefit through an order dated 06.04.2011 in W.P.No.13931 of 2009.
8. This court is of the considered opinion that the benefit of regularization is to be conferred with effect from the date on which the employee was appointed. It is not in dispute that the petitioner was appointed and permitted to join duty on 15.08.2004. She is working in the post of Secondary Grade Teacher with effect from the said date on 15.08.2004. The petitioner was not at all selected nor appointed on 12.01.2002 and therefore, the question of granting retrospective regularization or counting of the period during which the petitioner was not in 4/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 service cannot be counted for the purpose of calculating the qualifying services for pensionary benefits.
9. It is needless to state that an employee who was not even appointed and not served in the department can not claim the benefit of regularization or calculation of the period for the purpose of pensionary benefits.
10. The petitioner was not at all an employee of the department on 12.01.2002. She became an employee of the department only with effect from 15.08.2004 and therefore, the service conditions is to be applied only from the date on which the employee was appointed and this being the principles to be followed, the earlier judgment of the year 2011 relied on by the petitioner cannot be considered for the purpose of granting retrospective regularization from 12.01.2002.
11. Regarding the claim of equality under Article 14 of Constitution of India, it is relevant to place reliance on the judgment of the Hon'ble Division Bench of this Court in the case of Director of Sericulture Department vs. 5/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 K.Kumar, reported in 2015 (4) CTC 241, wherein the following observations are made:
34. It is true that constituency helps the parties to a litigation to know where they stand. But, when it is brought to the notice of the Court that on most of the earlier occasions, several similarly placed employees obtained Orders at the stage of admission, on the ground that the issue is already covered by a decision of this Court and that it was only in this manner that several employees got a benefit that was not legitimately due to them, the Court cannot shut its eyes and choose to prefer maintenance of discipline rather than upholding public interests.
35. As a matter of fact, the greatness of the Court lies only in its courage and ability to correct its mistakes. Justice is more precious than discipline. This was the principle that the Supreme Court highlighted in A.R.Antulay Vs. R.S.Nayak, AIR 1988 SC 1531.
It was observed in the said decision that “in rectifying an error, no personal inhibitions should debar the Court because no person should suffer by reason of any mistake of the Court”. The Supreme Court focused on the elementary rule of justice that no party should suffer due to the mistake of the Court. Therefore, this Court should not feel shackled either by the rules of procedure or by the principles of propriety, when it is so glaring that a gross injustice has been done to the State (1) by Writ Petitions getting allowed at the stage of 6/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 admission, and (2) by getting those Orders implemented under threat of contempt. This is especially so when the earliest decision that was followed in all other cases, did not decide the Scale of Pay to be granted for Selection and Special Grades. Hence, the Second Contention of the Writ Petitioners is also liable to be rejected. .
.
41. In Union of India v. Kartick Chandra Mondal, 2010 (1) LLN 687 (SC) : 2010 (2) SCC 422, the Supreme Court, relying upon its previous decisions in various cases including the one in State of Bihar v Upendra Narayan Singh, 2009 (2) LLN 754 (SC) : 2009 (5) SCC 69, held that Article 14 is a positive concept and that it cannot be enforced in a negative manner. The Court further held that if an illegality or irregularity has been committed in favour of any individual or a group of individuals or a Wrong Order has been passed by a Judicial Forum, others cannot invoke the jurisdiction of the higher or superior Court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. Interestingly, the decision of the Supreme Court in Kartick Chandra Mondal was subsequent to the decision in Maharaj Krishan Bhatt and the decision in Maharaj Krishan Bhatt is also referred to in Kartick Chandra Mondal.
12. The Hon'ble Supreme Court in BasaWaraj and another vs. Special 7/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 Land Acquisition Officer reported in 2013 14 SCC 81 held as follows:
8.It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh, Anand Buttons Ltd. v. State of Haryana, K.K.Bhalla v. State of M.P. 8/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 and Flujit Kaur vs. State of Punjab.)
13. The courts have consistently held that Article 14 of the Constitution of India is not meant to perpetuate illegality. The provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order.
14. This Court is of the considered opinion that the benefit of regularization as per the rules is to be granted from the date of appointment. The question arises, the benefit of regularization whether can be granted to an employee who was not 9/12 https://www.mhc.tn.gov.in/judis W.P.No.28351 of 2017 even appointed and who was not even working in the department. The common answer would be that an employee who has not even entered into Government Service nor appointed cannot claim any of the benefits and are to be considered only from the date of appointment and more so, from the date of regularization of the services.
15. This being the rules in force, the benefit of retrospective regularization can be granted only in cases where a person was appointed and served in the department.
16. In the present case, the writ petitioner was admittedly appointed on 15.08.2004 and her services were regularized with effect from the said date and therefore, the claim of retrospective regularization from the date on which the other persons were appointed cannot be considered for the purpose of calculating the qualifying services for grant of pensionary benefits. Therefore, this writ petition is devoid of merits.
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17. Accordingly, this writ petition stands dismissed. No cost.
16.09.2022 Index : Yes Speaking order rgm/ssr To
1. The Panchayat Union Middle School, Nallakana Koththapalli, Soolagiri Panchayat, Krishnagiri District.
2. The District Elementary Educational Officer, Krishnagiri District.
3. The Assistant Elementary Educational Officer, Krishnagiri District.
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