Madras High Court
Dr.J.Vijayalakshmi vs The State Of Tamilnadu on 23 January, 2024
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
W.P.No.7035 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2024
CORAM:
THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN
W.P.No.7035 of 2017 &
W.M.P.Nos.7667 and 24877 of 2017
1. Dr.J.Vijayalakshmi
Assistant Professor,
Dr.Ambedkar Government Law College
Chennai – 600 104
2. C.Usha
Assistant Professor,
Dr.Ambedkar Government Law College,
Chennai – 600 104
3. M.Chirstu Jothi
Assistant Professor,
Government Law Collge,
Tirunelveli ... Petitioners
Vs.
1. The State of Tamilnadu
Rep. By its Secretary to Government,
Law Department,
Secretariat, Fort St. George,
Chennai – 600 009
2. Director of Legal Studies,
198, Purasawalkam High Road,
Pava Puri Colony, Lumbini Square,
Purasawalkam,
Chennai – 600 010 ... Respondents
Prayer:
Writ Petition filed under Article 226 of the Constitution of India for
https://www.mhc.tn.gov.in/judis
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W.P.No.7035 of 2017
issuance of a Writ of Mandamus directing the respondents to regularise the
service of the petitioners in the post of Lecturer (senior scale) now re-
designated as Assistant Professor from the date of entry into service,
instead of 22.07.2008, with all consequential and other attendant benefits
including arrears of salary from the date of initial appointment as well as by
conferring the benefits under Tamil Nadu Pension Rules 1978, by
considering the representation submitted by the petitioners dated
13.02.2009, 24.01.2011, followed by reminders and last representation
dated 17.07.2015, within a time frame to be fixed by the Court.
For Petitioners : Mr.G.Sankaran
Senior Counsel for
Mr.S.Nedunchezhiyan
For Respondents : Mr.V.Arun – Additional Advocate General
Assisted by
Mr.T.M.Rajangam for R1 and R2
Government Advocate
ORDER
The present Writ Petition has been filed for an issuance of a Writ of Mandamus directing the respondents to regularise the service of the petitioners in the post of Lecturer (senior scale) now re-designated as Assistant Professor from the date of entry into service, instead of 22.07.2008, with all consequential and other attendant benefits including arrears of salary from the date of initial appointment as well as by conferring https://www.mhc.tn.gov.in/judis 2/13 W.P.No.7035 of 2017 the benefits under Tamil Nadu Pension Rules 1978, by considering the representation submitted by the petitioners dated 13.02.2009, 24.01.2011, followed by reminders and last representation dated 17.07.2015, within a time frame to be fixed by the Court.
2. The brief facts of the case are as follows:-
(i) The petitioners were initially appointed as Lecturers (senior scale) on contract basis in Government Law Colleges in the year 1997 and the selection was made by selection committee as per G.O.Ms.No.443 Law Department dated 18.08.1997. The post of Lecturer (senior scale) is now re-designated as Assistant Professor. The previous batch of lecturers appointed in the year 1988-1990 were brought into regular establishment with regularisation of service from the date of entry into service, as per G.O.Ms.No.90 Law Department dated 12.01.2001.
(ii) In respect of regular establishment of petitioners and others, the Government issued G.O.Ms.No.165 Law Department dated 05.07.2007 to the Teachers Recruitment Board to conduct a special test in the form of interview and after conclusion of the same, the Government issued G.O.Ms.No.170 dated 22.07.2008 to regularise the service of the petitioners and others [who were appointed in the year 1997 and 1998] in the post of Lecturer (Senior Scale) only from the date of passing the said order.
https://www.mhc.tn.gov.in/judis 3/13 W.P.No.7035 of 2017 However, in respect of previous batch of lecturers, orders were passed by the State Government by regularising the service from the date of initial appointment as per G.O.Ms.No.9 dated 12.01.2001.
(iii) The petitioners and others have given representation jointly seeking regularisation of service from the date of entry into service in the year 2009 and in the subsequent years continuously. On earlier occasion, a writ petition came to be filed, viz., W.P.No.639 of 2012 by the similarly placed person, viz., Purushothaman, who got retired in the year 2010 and the relief sought by the said Purushothaman was dismissed and the same was challenged by the said Purushothaman in W.A.No.429 of 2012, the Hon'ble Division Bench of this Court by an order dated 16.10.2012 held that the appellant therein, was entitled to be regularised in service from the date of initial appointment and the same has been upheld by the Hon'ble Supreme Court in S.L.P.No. 7454 of 2013 dated 16.10.2012. Consequently, the Government issued orders in G.O.Ms.No.516 dated 26.11.2012 and G.O.Ms.No.530 dated 27.12.2013 granting regularisation of service with relevant benefits including arrears of pay and allowances and sanctioned pensionary benefits in favour of the said Purushothaman. Inspite of order being passed by this Court and upheld by the Hon'ble Division Bench as well as Hon'ble Apex Court and granted benefits to the similarly placed persons like that of the petitioners, the present petitioners are not https://www.mhc.tn.gov.in/judis 4/13 W.P.No.7035 of 2017 granted the same reliefs / benefits, hence this petition.
3. The learned counsel for the petitioners reiterated the contents filed in the affidavit filed in support of this petition and pleaded to allow the present petition. The learned counsel for the petitioners in support of his contention relied on the following judgments:-
(i) Judgment of Hon'ble Apex Court in SLP (C) No.7454 of 2013 [State of Tamilnadu and Another Vs. Purushothaman]
(ii) Judgment of Hon'ble Apex Court in SLP (C) No.7898 of 2020 [Raman Kumar & Ors. Vs. Union of India & Ors]
(iii) Judgment passed by the Hon'ble Division Bench of this Court in W.A.No.754 of 2011 [C.Ravichandran and another Vs. The State of Tamilnadu, Chennai and others]
(iv) Common Judgment passed by the Hon'ble Division Bench of this Court in W.A.Nos.529 to 532 of 2011 [Sheela Mercy Devadoss and others Vs. The State of Tamilnadu, Chennai and others]
(v) Judgment passed by the Hon'ble Division Bench of this Court in W.A.No.1499 of 2011 [G.Ramapandian Vs. The State of Tamilnadu, Chennai and others].
4. Per contra, a detailed counter affidavit has been filed by the respondents, wherein it is stated that regular appointments to the post of https://www.mhc.tn.gov.in/judis 5/13 W.P.No.7035 of 2017 Lecturer (senior scale) in the Government Law Colleges were earlier made through the Tamilnadu Public Service Commission. Subsequently, the selection process of the post of Lecturer (Senior Scale) was brought under the purview of the Teachers Recruitment Board. Hence the regular appointment to the post of Lecturer (senior scale) has to be made only through the Teachers Recruitment Board. Therefore, the petitioners herein, who were initially appointed on contract basis, cannot claim that their initial appointment was a regular appointment.
5. Further, the learned Additional Advocate General appearing on behalf of the respondents also contended that the petitioners cannot compare themselves with the said Purushothaman since all the petitioners have many years of service and all of them are entitled to the service and pensionary benefits under the Contribution Pension scheme, whereas D.Purushothaman had put in a regular service of only 2 years, 4 months and 8 days and therefore, he was not entitled to any pensionary benefits and only on that ground, the Hon'ble Division Bench of this Court in its Judgment dated 16.10.2012 in W.A.No.429 of 2012 granted retrospective regularisation to him.
6. The learned Additional Advocate General appearing for the https://www.mhc.tn.gov.in/judis 6/13 W.P.No.7035 of 2017 respondents would also contend that the Hon'ble Supreme Court of India in Veer Kunwar Singh University Adhoc Teachers Association and Others Vs. Bihar State University (CC) Service Commission and Others reported in 2007 (4) SC 376 has held that creation of sanctioned post is sine qua non for recruitment to the post of Lecturer. The petitioners herein were appointed only on contract basis and not against any sanctioned post, for being regularised in government service from the date of their initial appointment. The petitioners having been applied for and accepted employment / engagement on contract basis, were bound by the terms of the contract which stipulated that they cannot have any claim for regularisation of their services, fixation of seniority and other service and pensionary benefits, thereby pleaded to dismiss the present Writ Petition. Further, the learned Additional Government Pleader relied on the following Judgments to substantiate his case:
(i) Judgment of the Hon'ble Supreme Court reported in (2011) 2 Supreme Court Cases 429 [ State of Rajasthan and Others Vs. Dayalal and Others]
(ii) Judgment of Hon'ble Division Bench of this Court in W.A.No.2288 of 2022 [Dr.N.Devanathan and others Vs. The State of Tamilnadu and Others] https://www.mhc.tn.gov.in/judis 7/13 W.P.No.7035 of 2017
7. Heard the learned counsel for the petitioners and the learned Additional Advocate General appearing for the respondents and perused the documents placed on record.
8. Admittedly, the petitioners were appointed on contract basis and their contract period was subsequently extended and they continued in contract employment. Thus, the continuance of contract employment would not provide any right on the petitioners to seek retrospective regularisation. The constitutional bench of the Hon'ble Apex Court in the case of Secretary, State of Karnataka Vs. Uma Devi and Others reported in [(2006) 4 SCC 1] held that the litigious employment would not provide any ground for the persons to claim regularisation or permanent absorption. While so, retrospective regularisation cannot be claimed by the petitioners merely based on the fact that they were continuing in contract services without any break, which is to be construed as litigious employment.
9. It cannot be forgotten that the contract employees on acceptance of the terms and conditions of the contract, served in the establishment and thus, they cannot turn around and claim regularisation or permanent absorption, by merely filing a case before the Court of Law. Further, the nature of appointment and terms and conditions were agreed between the https://www.mhc.tn.gov.in/judis 8/13 W.P.No.7035 of 2017 employee and employer, thus, further right cannot be claimed or conferred, merely based on the interim order of the court for permanent absorption, which is to be otherwise made in accordance with the Recruitment Rules in force.
10. That apart, the benefit of regularisation was granted and it was a concession given by way of a policy decision, while doing so, the Government has clearly stated that the contract employees are entitled to be regularised from the date of issuance of the Government order, i.e., G.O.Ms.No.170, Department of Law (Education) dated 22.07.2008. With reference to the case of D.Purushothaman, his services were regularised with effect from the year 1997 and he was retired from services on 30.11.2010 and the Government Order stipulates that the said order of D.Purushothaman, shall not be cited as precedent in any other case, since it was issued based on the court order and to avoid contempt proceedings.
11. In fact, the Government granted the benefit of regularisation to the Writ Petitioners through G.O.(Ms) No.170 Department of Law (Education) dated 22.07.2008. The petitioners accepted the said Government Order and not challenged the same and accordingly, contuining in service, while so, after a lapse of 9 years from the date of issuance of the said https://www.mhc.tn.gov.in/judis 9/13 W.P.No.7035 of 2017 Government Orders, the petitioners have chosen to file the present petition, only based on the order passed in the case of D.Purushothaman, which cannot be followed as a precedent, even as per the Government order itself. Hence the Writ petition is liable to be rejected on the ground of latches and in view of the principles laid down by the Hon'ble Supreme Court in the case of Uttar Pradesh & Others Vs. Arvind Srivastava & Others reported in (2015) 1 SCC 347 and in the case of Chairman / Managing Director, Uttar Pradesh Power Corporation Ltd., and Others Vs. Ram Gopal reported in [2020 SCC Online SC 101], which was already been followed by this Court to the similarly persons like that of the petitioners in W.P.No.17487 of 2015 dated 08.08.2022. That apart, regularisation or permanent absorption cannot be granted in violation of a recruitment rules in forces. The contract apointees cannot be compared with the regular appointments which is to be made by following the procedures as contemplated in the Rules.
12. Accordingly, this Court is of the view that the petitioners have not established any right for the purpose of grant of retrospective regularisation or to count the period of contract services as qualifying service under the Tamilnadu Pension Rules for the purpose of bringing the petitioners under old pension scheme.
https://www.mhc.tn.gov.in/judis 10/13 W.P.No.7035 of 2017 In view of the above, the Writ Petition stands dismissed. Consequently, connected miscellaneous petitions are closed. No costs.
23.01.2024 Index:Yes/No Internet:Yes/No Speaking / Nonspeaking order ssd To
1. The Director General of Police, No.1, Dr.Radhakrishnan Salai, Mylapore, Chennai – 600 004
2. The Deputy Inspector General of Police, Kancheepuram Range, Kancheepuram District – 631 501
3. The Superintendent of Police, Kancheepuram District https://www.mhc.tn.gov.in/judis 11/13 W.P.No.7035 of 2017 V.BHAVANI SUBBAROYAN J.
ssd https://www.mhc.tn.gov.in/judis 12/13 W.P.No.7035 of 2017 W.P.No.7035 of 2017 23 .01.2024 https://www.mhc.tn.gov.in/judis 13/13