Madras High Court
N.Dinakaran vs Government Of Tamil Nadu on 22 August, 2022
Author: S.M. Subramaniam
Bench: S.M.Subramaniam
W.P.Nos.28668 to 28675 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.08.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.Nos.28668 to 28675 of 2015
and
M.P.Nos.1 of 2015 (8 M.Ps) and 2 of 2015 (8M.Ps)
W.P.No.28668 of 2015:
N.Dinakaran ... Petitioner
Vs.
1.Government of Tamil Nadu,
Rep by its Secretary,
Youth Welfare and Sports Development (S1 Department),
Chennai – 9.
2.Sports Development Authority of Tamil Nadu,
Rep by its Member Secretary,
Chennai 600 084. ...
Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, directing the respondents to
regularize the services of the petitioner from the date of initial appointment
with all attendant benefits.
For Petitioners : No Appearance
(in all W.Ps)
For R1 : Mrs.S.Anitha
Special Government Pleader
(in all W.Ps)
For R2 : Mr.S.Santhosh Kumar
For Mr.K.Azhagu Raman
https://www.mhc.tn.gov.in/judis (in all W.Ps)
Page 1 of 10
W.P.Nos.28668 to 28675 of 2015
COMMON ORDER
The writ petitions are filed seeking directions to the respondents to regularise the services of the writ petitioners from their date of initial appointments with all attended benefits.
2. The Government of Tamil Nadu constituted Sports Authority of Tamil Nadu with an object of development and to promote the sports activities in the State of Tamil Nadu. The 2 nd respondent is a Registered Society under the Tamil Nadu Societies Registration Act and the petitioners were appointed as Coach on contract basis. Admittedly, the petitioners have signed the agreement accepting the terms and conditions, more specifically, Clauses 25 and 29 of the terms and conditions relevant are extracted here under:
“25) The Coach under contract is to fully understand that his services engaged by the SDATN is only for the purpose of development of Talent and is not under the regular employment of the SDATN and that his services can be terminated without assigning any reasons by the SDATN.
29) The Coach shall not have any claim for regularisation of his or her services with the SDATN as he or she is engaged on a purely part time basis only and is free to take up any other business / employment of his / her choice. The coach is not eligible for any pension, bonus or gratuity in respect of his / her https://www.mhc.tn.gov.in/judis Page 2 of 10 W.P.Nos.28668 to 28675 of 2015 services with the SDATN.”
3. The petitioners have stated that they are continuing as contract Coaches for a considerable length of time and the period of contract was extended and therefore, they are entitled to be regularised in the post of Coach in the time scale of pay. The request of the petitioners in this regard is not considered by the respondents and therefore, the petitioners are constrained to move the present writ petition.
4. The learned counsel appearing on behalf of the 2nd respondent disputed the said contention by stating that admittedly, the petitioners were appointment on contract basis as coaches, they agreed terms and conditions and signed the agreement. The terms and conditions unambiguously stipulates that the petitioners were engaged purely on part time job and it is not even full time job. When the post of Coach is a part time job and the petitioners were engaged as contract coaches, the benefit of regularisation or permanent absorption cannot be granted in favour of the writ petitioners. It is contended that the petitioners are aware of the fact that they have signed the agreement to the effect that their services engaged by the 2nd respondent are purely part time based and with no claim for regularisation. The petitioners are also aware of the fact that they https://www.mhc.tn.gov.in/judis Page 3 of 10 W.P.Nos.28668 to 28675 of 2015 have full freedom and liberty to take up any full time assignment without compromising on Coach obligations. They are free to quit at any point of time by giving a months advance notice. Thus, the 2nd respondent is not obligated to regularisation of services to the writ petitioners.
5. The learned counsel for the 2nd respondent contended that the petitioners were not appointed by following the recruitment rules in force. They were not appointed through District Employment Exchange and they were appointed purely on contract basis and in a part time job and therefore, they are not entitled to be regularised in the sanctioned posts.
6. The learned counsel for the 2nd respondent made a submission that the Government issued orders in G.O.Ms.No.131, Personnel and Administrative Reforms (F) Department, dated 28.11.2020 stating that the benefit of regularisation and permanent absorption cannot be granted in violation of the principles laid down by the Constitution Bench of the Hon’ble Supreme Court of India in the case of State of Karnataka Vs. Uma Devi reported in [2006 (4) SCC 1]. Thus, the regularisation or permanent absorption are to be granted strictly in accordance with the Recruitment Rules in force. It is contended that the Department is taking steps to appoint regular Coaches and the petitioners are also at liberty to https://www.mhc.tn.gov.in/judis Page 4 of 10 W.P.Nos.28668 to 28675 of 2015 participate in the process of recruitment in accordance with the rules in force. However, they are not entitled for regularisation based on their part time employment as Coaches, more so on contract basis.
7. Regularisation or permanent absorption can never be claimed as a matter of right. Regularisations are to be granted strictly in accordance with the Recruitment Rules in force. All appointments are to be made strictly in accordance with the rules and by affording opportunity to the candidates, who all are eligible and aspiring to secure public employment through open competitive process. Equal opportunity in public employment is a Constitutional mandate. The Equality Clause enunciated is to be scrupulously followed and in the event of granting regularisation in violation of Recruitment Rules, the Fundamental Rights of the meritorious and eligible candidates are infringed. Thus, regularisation or permanent absorption cannot be granted in respect of the contract appointment made in a part time job in violation of the Service Rules in force.
8. Regarding the part time employment, the Hon’ble Supreme Court of India in the case of Secretary to Government, School Education Department, Chennai Vs. R.Govindaswamy and Others reported in [(2014) 4 SCC 769], held as follows:
https://www.mhc.tn.gov.in/judis Page 5 of 10 W.P.Nos.28668 to 28675 of 2015 “8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
https://www.mhc.tn.gov.in/judis Page 6 of 10 W.P.Nos.28668 to 28675 of 2015
(iii) Even where a scheme is formulated for regularisation with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government- run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” (Emphasis added).
9. In the present case, the terms and conditions of the agreement on contract reveals that the petitioners were engaged as part time Coaches https://www.mhc.tn.gov.in/judis Page 7 of 10 W.P.Nos.28668 to 28675 of 2015 on a consolidated pay and they are continuing in the said post only based on the interim orders passed by this Court. The litigious employment or its continuance cannot provide any right on the candidate to seek the benefit of regularisation, merely on the ground that they are continuing in service. The Constitution Bench of the Hon’ble Supreme Court of India in the Uma Devi’s case (cited supra) more specifically, in paragraph 34 held as that litigious employment is not a ground to claim regularisation or permanent absorption. In paragraph 54 of the Uma Devi’s case (cited supra), it is reiterated that any decision of the Government or judgments running counter to the principles laid down in the Uma Devi’s case denuded to lose its status as precedent. Thus, the litigious employment or its continuance for considerable length of time would not confer any right to claim the benefit of regularisation or permanent absorption.
10. In the present case, the petitioners were admittedly appointed as part time Coaches on contract basis and they have signed the agreement and therefore, they are aware of the terms and conditions and accepting the said terms and conditions joined in the post of part time coaches. That apart, they were given full liberty to accept any full time job, even during their employment as part time Coaches in the 2nd respondent / Sports Development Authority of Tamil Nadu. This being the scope of terms and https://www.mhc.tn.gov.in/judis Page 8 of 10 W.P.Nos.28668 to 28675 of 2015 conditions of the contract appointments, the petitioners are not entitled for the relief of regularisation or permanent absorption.
11. Accordingly, the Writ Petitions stand dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
22.08.2022 Jeni Index : Yes Speaking order : Yes To
1.The Secretary, Government of Tamil Nadu, Youth Welfare and Sports Development (S1 Department), Chennai – 9.
2.The Member Secretary, Sports Development Authority of Tamil Nadu, Chennai 600 084.
https://www.mhc.tn.gov.in/judis Page 9 of 10 W.P.Nos.28668 to 28675 of 2015 S.M. SUBRAMANIAM, J.
Jeni W.P.Nos.28668 to 28675 of 2015 22.08.2022 https://www.mhc.tn.gov.in/judis Page 10 of 10