Madras High Court
Murugaiyan vs Union Of India on 1 April, 2019
Author: P.D. Audikesavalu
Bench: K.K. Sasidharan, P.D. Audikesavalu
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.04.2019
CORAM:
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
and
THE HONOURABLE MR. JUSTICE P.D. AUDIKESAVALU
W.A. No. 991 of 2019
Murugaiyan ... Appellant/Petitioner
-vs-
1. Union of India,
Represented by its Chief Secretary,
The Government of Puducherry,
Secretariat,
Pondicherry.
2. The Secretary to the Government,
Education Department,
Pondicherry.
3. The Director of School Education,
Directorate of School Education,
Pondicherry.
4. The Deputy Director,
Sports and Youth Services,
Pondicherry.
5. The Warden,
Youth Hostel,
Pondicherry. ... Respondents/Respondents
PRAYER:- Writ Appeal filed under Clause 15 of Letter Patent, praying to set
aside the order dated 27.07.2018 in W.P. No. 38430 of 2015.
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For Appellant : No appearance
For Respondents : Mr. Syed Mustafa,
Additional Government Pleader
(Pondicherry)
JUDGMENT
(Judgment of the Court was delivered by P.D. AUDIKESAVALU, J.) The intra-Court Appeal arises out of the order dated 27.07.2018 in W.P. No. 38430 of 2015 passed by the Learned Judge of this Court.
2. The Appellant in his representation dated 28.01.2013 to the Secretary to Government, Education Department, Union Territory of Puducherry sought to regularize his services with retrospective effect from 15.03.1993 in the Youth Hostel. The said representation was disposed by the Director of School Education, Government of Puducherry by order No. 262/DSE/LC/2013/41 dated 13.01.2014, stating as follows:-
"4. AND WHEREAS, Youth Hostels are 'Homes away from homes' and are not residential hostels. The Youth Hostels are run on the basic rules framed by the Government of India, Ministry of Youth Affairs and Sports in the form of 'Youth Hostel Manual'. They are looked after by a husband and wife team http://www.judis.nic.in 3 taken from the defence services and also retired Government Officers. They are retired Officers to take care of these Hostels out of their interest in the organisation and experience. Those Hostels are run on a NO PROFIT NO LOSS basis. As such the Youth Hostels are not Government Offices/Departments. The Wardens/Assistant Wardens are paid monthly honorarium/wages. The Youth Hostels are run with the funds received from State (grant received from the Government) and funds raised by the Hostel. Tvl. Murugaiyan, L. Durai, D. Deivasigamani, and P. Marimuthu have not been engaged in any Government Offices but they have been engaged in Youth Hostel which is not a Government Institution;
5. AND WHEREAS, Tvl. Murugaiyan, L. Durai, D. Deivasigamani, and P. Marimutu, were not recruited through the employment exchange. Also, the engagement was not made in pursuance of any notification issued in the Dailies. An advertisement to the effect of filling up the temporary vacancies, were notified in the Ad express, Puducherry and the same may not be construed as advertisement made in the http://www.judis.nic.in 4 dailies. Owing to non availability of recruitment rules a proper selection process has not been followed and consequently, no eligibility test/reservation policy, etc. had been followed while engaging the Petitioners;
6. AND WHEREAS, the Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009 of the DP & AR is not applicable to Tvl. Murugaiyan, L. Durai, D. Deivasigamani, and P. Marimuthu in as much as they have not been engaged in any of the Government Departments of the Union Territory of Puducherry. As per clause 3 of the said scheme, 'the scheme is applicable to all casual labourers, except those charged to specific works or schemes, working in departments of the Government of Puducherry and their attached subordinate officers, subject to their eligibility as per the provisions of the scheme'. In fact, the Petitioners have been engaged in the Youth Hostel which is funded by the Department of Youth Affairs and Sports, Government of India. It comes under the administrative control of this Government which in turn has nominated the Hostel Management Committee. http://www.judis.nic.in 5 Therefore, the Petitioners cannot seek regularisation under the Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009;
7. AND WHEREAS, as per chapter 5 of the Youth Hostel Manual, the staff are to be treated as Hostel employees and are to be governed by the rules and regulations framed by the Hostel Management Committee taking into consideration the relevant rules and regulations existing in the State/U.T. As such there exist no provision/rules for regularisation of the services of the staff of Youth Hostel. Also presently Hostel Management Committee is yet to be reconstituted and as such there is no scope for considering their claim for regularisation;
8. AND WHEREAS, Tvl. Murugaiyan, L. Durai, D. Deivasigamani, and P. Marimuthu, were engaged on the following terms and conditions in particular among others:-
"The appointment does not related to Central or State Government.
The appointment is on consolidated pay. The appointment is on contract basis for one year each till your services are required."
http://www.judis.nic.in 6 Having accepted the above terms and conditions, the Petitioners had taken up the engagements for which they had been selected. They are therefore estopped from raising any claim for regularisation at this stage, when there is no regular post/recruitment rules available for the post;
9. Now therefore, the Department having considered the representation of the Petitioners in depth, is of the view that the Petitioners have not been engaged against any regular vacancy or in pursuance of any valid Recruitment Rules and hence the claim of the Petitioners for regularisation does not merit consideration and their representation is disposed of accordingly."
The Appellant challenged the said order of rejection of his representation in W.P. No. 38430 of 2015 before this Court, which was dismissed by order dated 27.07.2018 relying on the decision of the Constitution Bench of the Hon'ble Supreme Court of India in Secretary, State of Karnataka -vs- Umadevi [(2006) 4 SCC 1]. Aggrieved thereby, the Appellant has preferred this appeal.
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3. There is no appearance for the Appellant, when the matter was called today. We have heard Mr. Y. Syed Mustafa, Learned Additional Government Pleader appearing on behalf of the Respondents and perused the materials placed on record, apart from the pleadings of the parties.
4. The Constitution Bench of the Hon'ble Supreme Court of India in the authoritative pronouncement in Secretary, State of Karnataka -vs- Umadevi [(2006) 4 SCC 1] has exhaustively dealt with the issue of regularisation in public services and the legal principles laid down therein can be succinctly culled out as follows :-
(i) The words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. When rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. This distinction, therefore, has http://www.judis.nic.in 8 to be kept in mind and it has to be proceeded on the basis that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
(ii) When appointments were made in contravention of mandatory provisions of the Act and statutory rules framed there under and by ignoring essential qualifications, the appointments would be illegal and cannot be regularized by the State. The State could not invoke its power under Article 162 of the Constitution to regularize such appointments. Regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed there under. Regularization furthermore cannot give permanence to an employee whose services are ad hoc in nature. The fact that some persons had been working for a long time would not mean that they had acquired a right for regularization.
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(iii) The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the Rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity.
(iv) When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot http://www.judis.nic.in 10 invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
(v) Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming http://www.judis.nic.in 11 equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. They cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules.
(vi) It has been clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what has been held therein, will stand denuded of their status as precedents.
5. In the light of the aforesaid authoritative pronouncement of the Highest Court of the land holding the field, we are of the considered view http://www.judis.nic.in 12 that having due regard to the nature of employment of the Appellant, the cogent reasons assigned in the order impugned in the Writ Petition for declining the regularization in service of the Appellant deserve acceptance and that the dismissal of the Writ Petition by the Writ Court has to be upheld.
6. Accordingly, the order dated 27.07.2018 passed in W.P. No. 38430 of 2015 is upheld and the Writ Appeal is dismissed. No cots.
(K.K. SASIDHARAN, J.) (P.D. AUDIKESAVALU, J.) 01.04.2019 vjt Index: Yes Note: Issue order copy by 10.04.2019.
To
1. The Chief Secretary to the Government of India, The Government of Puducherry, Secretariat, Pondicherry.
2. The Secretary to the Government, Education Department, Pondicherry.
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3. The Director of School Education, Directorate of School Education, Pondicherry.
4. The Deputy Director, Sports and Youth Services, Pondicherry.
5. The Warden, Youth Hostel, Pondicherry.
http://www.judis.nic.in 14 K.K. SASIDHARAN, J.
and P.D. AUDIKESAVALU, J.
vjt W.A. No. 991 of 2019 01.04.2019 http://www.judis.nic.in