Madras High Court
The Superintending Engineer vs The Inspector Of Labour
W.P(MD).No.11854 of 2013
B E F O R E T H E MADU RAI B E N C H O F MADRA S HIGH C O U RT
DATED: 0 4 . 1 2 . 2 0 2 0
CORAM:
THE HONOURABLE MR. J U S T I C E S . M. S U B R AMA NIAM
W. P.(MD)N o. 1 1 8 5 4 o f 2 0 1 3
and
M. P(MD). N o. 1 o f 2 0 1 3
The Superintending Engineer,
Kanyakumari Electricity Distribution Circle,
Tamil Nadu Electricity Board,
Nagercoil, Kanyakumari District. ... Petitioner
Vs.
1.The Inspector of Labour,
Nagercoil,
Kanyakumari District.
2.The Circle Secretary,
Minkalaga Thozhilar Munnetra Sangam,
Nagercoil, Kanyakumari District.
3.Suresh
4.Jeyachandran
5.Jebaraj
6.Jebaseelan ...Respondents
P R AY E R : Writ Petition under Article 226 of the Constitution of India, to
issue a Writ of Certiorari, calling for the records pertaining to the order
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W.P(MD).No.11854 of 2013
passed by the 1st respondent in his proceedings in Na.Ka.No.1069/2009
dated 19.09.2011 and quash the same.
For Petitioner : Mr.Anand Gopalan
for M/s.T.S.Gopalan & Co.,
For R1 : Mr.P.Mahendran
Additional Government Pleader
For R3 to R6 : No appearance
O RD E R
The order passed by the first respondent under the Tamil Nadu
Industrial Establishments, (Conferment of Permanent Status to Workmen)
Act, 1984, is under challenge in the writ petition.
2.The first respondent competent authority allowed the claim of
the respondents 3 to 6/ workmen, on the ground that the respondents 3
to 6 served 480 days of service in two consecutive years and therefore,
they are entitled to be confirmed permanent status in the petitioner's
Board establishment.
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3.The learned counsel appearing for the petitioner made a
submission that the issue with reference to the validity of such orders
passed by the Inspector of Labour under the Tamil Nadu Industrial
Establishments, (Conferment of Permanent Status to Workmen) Act, had
already been adjudicated by this Court in a similar writ petition as well as
many such orders are passed and submitted one such order passed in the
case of T h e C h a i r m a n v s T h e I n s p e c t o r O f L a b o u r reported in
2020(1)LLJ718(Madras). Relying on the said judgment passed by this Court,
the learned counsel for the petitioner reiterated that the facts and
circumstances are also similar and all these workmen are not directly
engaged by the Board authorities and all those workmen were engaged
by the contractors and therefore, they are not entitled to be absorbed on
regular basis.
4.The respondents 3 to 6 were engaged by the Board authorities
and therefore, those workmen are the contract employees of the Tamil
Nadu Electricity Board. The competent authority, under the Tamil Nadu
Industrial Establishments, (Conferment of Permanent Status to Workmen)
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W.P(MD).No.11854 of 2013
Act, considered various factors including the number of years on service
and other documents to establish the employment and passed an award
and therefore, there is no infirmity or perversity, in respect of the award
passed by the first respondent under the provision of the Tamil Nadu
Industrial Establishments, (Conferment of Permanent Status to Workmen)
Act.
5.Further, as per Section 3 of the said Act, if any workmen
completed 480 days of service in two consecutive years then Conferment
of Permanent Status is an automatic one and therefore, applying the said
provisions and the benefit of Conferment of Permanent Status is granted
by the first respondent. Thus, the writ petition is to be dismissed. The
petitioner has not established that the respondents 3 to 6 were not
engaged by the competent authorities or not completed 480 days of
service. Contrarily the respondents 3 to 6 established the same before the
authorities concerned.
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W.P(MD).No.11854 of 2013
6.A perusal of the order reveals that the Petty Cash Book, Service
Certificate issued by the section officer were also considered by the first
respondent. However, the first respondent/competent authority has not
considered regarding the application of the Statute in respect of the
labourers engaged by the contractors as well as the Board authorities.
The vital question to be decided is that the application of the Statute is in
consonance with the Tamil Nadu Electricity Board Service Regulations in
force and under the Tamil Nadu Industrial Establishments, (Conferment of
Permanent Status to Workmen) Act. Even in cases where, an workman
completed 480 days of service, question arises whether the provisions of
the Conferment of Permanent Status Act, would be applicable. Tamil
Nadu Electricity Board is an organization of Government of Tamil Nadu
and therefore, the legal aspects in this regard is also to be considered.
7.The application of the Act and its implications were elaborately
considered by this Court in the case of T h e C h a i r m a n v s T h e
I n s p e c t o r O f L a b o u r ( cited supra) and the relevant paragraphs are
extracted hereunder:
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“..........
4. The learned counsel appearing on behalf of the writ
petitioners/Board stated that for grant of permanent
absorption, the Tamil Nadu Electricity Board is bound by
their own service regulations, which will prevail over the
general laws. The legal principles to be followed is that,
whenever there is a special enactment regarding the service
regulations or rules of a “State”, then the said service
regulations will prevail over the general laws. The service
regulations of the Tamil Nadu Electricity Board confirmed
under Section 79 of the Electricity Supply Act, 1948 will hold
goods in respect of the grant of benefits to the employees
of the Tamil Nadu Electricity Board and the said regulations
will prevail over all other general laws. Thus, the very
application of the Conferment of Permanent Status Act,
made by the workmen are untenable. The provisions of the
Conferment of Permanent Status Act would not be
applicable in such cases, where the special enactments are in
force.
5. In the present case, the service conditions were in
W.P.No.25419 of 2012 formulated by the Board by virtue of
the powers conferred under Section 79 of the Electricity
Supply Act, 1948. Therefore, the service regulations framed
under the special statute will prevail over the general laws
and therefore, this Court is of the considered opinion that
the provisions of the Tamil Nadu Industrial Establishments
(Conferment of Permanent Status to Workmen Act, 1981) is
not applicable in respect of the employees, who all are
claiming to be the servants of the Tamil Nadu Electricity
Board.
6. The Scheme of the Service Regulations issued by
the Tamil Nadu Electricity Board is akin to that of the service
condition formulated by the Government of Tamil Nadu to
its employees. It is pertinent to note that the reservation in
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W.P(MD).No.11854 of 2013
appointments are provided in the service regulation, which is
a constitutional mandate. The mode of recruitment and the
communal rotations, rosters are also contemplated under
the service regulations. In the event of granting such
permanent absorption without reference to the Rules &
Regulations, the same would be in violation of the
constitutional mandates and its provisions. The benefit of
regularization or permanent absorption are ought to be
granted strictly in accordance with the recruitment Rules in
force. The Regulations are constituted by in W.P.No.25419 of
2012 virtue of the powers conferred to the Competent
Authorities under the Electricity Act. The service regulation,
which all are in force, are akin to that of the service rules as
applicable to the Government employees in the Government
of Tamil Nadu. The Tamil Nadu Electricity Board being an
instrumentality of a State, are following the service
regulations framed under the statute and therefore, the said
service regulations will prevail over the general laws and the
regulations are to be applied for the purpose of grant of
regulation on permanent absorption.
7. It is relevant to cite the judgements of the Division Bench
of this Court in the case of “L.Justine Vs. Registrar of Co-
operative Societies” reported in “2003 (1) L.L.N. 315”. The
Division Bench framed the Issue No. (ii) as follows :-
“13. The Permanency Act of 1981 is also an Act enacted by
the State and received the President's assent. Section 3 of
the Act contains non obstante clause and provides
protection to workmen, who are in continuous service for a
continuous period of 480 days in a period of 24 calendar
months in an industrial establishment, thus conferring a
status of permanency. 'Industrial establishment' is defined in
subSection (3) of Section 2 of the Act and in clause in
W.P.No.25419 of 2012
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W.P(MD).No.11854 of 2013
(e) thereof, an ' establishment' as defined in clause 2 (6) of
the Tamil Nadu Shops and Establishments Act, 1947, is
defined to be an industrial establishment. If we go to Section
2(6) of the Tamil Nadu Shops and Establishments Act, it is
clear that the word 'establishment' therein takes in
cooperative society also. As such, there cannot be any doubt
regarding the applicability of the Permanency Act of 1981.
The word, 'industry' defined in Section 2 (j) (q) under the
Industrial Disputes Act, 1947 also makes the cooperative
societies susceptible to the Act of 1947. Thus, all such
workmen belonging to a class and are afforded protection,
are entitled for the benefits of the Permanency Act of 1981
as also the Industrial Disputes Act of 1947.”
8. With reference to the above issue, the Division
Bench made an observation that “The provisions of either
the Permanency Act of 1981 or of the Industrial Disputes
Act, 1947, cannot also be pressed into service when the
appointments are ipso facto illegal and unauthorized. We
cannot accede to the contention that even if the
appointment is illegal and unauthorized, merely on the
passage of time and completion of the stipulated period of
480 days under the Permanency Act, 1981 or 240 days under
the Industrial Disputes Act, in W.P.No.25419 of 2012 1947 an
indefeasible right accrues to an employee. Such an
argument is clearly untenable.
9. In paragraph No.16 of the said judgement, the
Division Bench made an observation that “There is a lot of
difference between the irregularity and illegality. The
appointments here are not irregular but illegal. Irregular is
something which is done in an authorized manner but while
doing so, there is some procedural irregularity. Illegality is
altogether different. An action is illegal if it is contrary to
law. The law in the instant case is so clear that the
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W.P(MD).No.11854 of 2013
appointments cannot be beyond the permissible cadre
strength.”
10. This Court would like to consider the legal
principles settled by the Constitution Bench of the Hon'ble
Supreme Court in the case of “Secretary, State of Karnataka
and others Vs. Umadevi and others” reported in “(2006) 4
SCC 1”. The Constitution Bench also reiterated that the
benefit of regularization or permanent absorption cannot be
granted in violation of the recruitment Rules in force.
11. Let us look into the spirit of the judgement little
later. In W.P.No.25419 of 2012 Coming back to the
judgement of the Division Bench in the case of “L.Justine Vs.
Registrar of Co-operative Societies” is that the matter went
to the Apex Court and in the case of “Uma Rani Vs. Registrar
of Co-operative Societies” reported in “(2004) 7 SCC 112”,
the Apex Court also confirmed the views of the Division
Bench in the case of “L.Justine Vs. Registrar of Co-operative
Societies” and more specifically in paragraph Nos.24 to 41
are extracted hereunder :-
“24. Let us now consider the extent to which the
provisions of the 1981 Act would apply to the
fact of the present case.
25. The 1981 Act applies only to industrial
establishments. Industrial Establishment has inter
alia been defined to mean "an establishment as
defined in clause (6) of Section 2 of the Tamil
Nadu Shops and Establishments Act, 1947 (Tamil
Nadu Act 36 of 1947)".
26. Establishment has been defined in Section
2(6) of the Tamil Nadu Shops and Establishments
Act, 1947 as under:
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"2. (6) 'Establishment' means a shop, commercial
establishment, restaurant, eating house,
residential hotel, theater or any place of public
amusement or entertainment and includes such
in W.P.No.25419 of 2012 establishment as the
State Government may by notification declare to
be an establishment for the purpose of this Act."
27. Mr. Balakrishnan urged that the cooperative
societies are Commercial Establishments.
28.Whether a Cooperative Society would be a
commercial establishment or not would
essentially be a question of fact. It cannot be said
keeping in view the legislative intent that all
cooperative societies would be 'commercial
establishments' within the meaning of the Tamil
Nadu Shops and Establishments Act, 1947. It,
therefore, appears that the impugned
Government Order has been issued by the State
without proper application of mind. It has
furthermore not been stated in the impugned
Government Order that all the cooperative
societies are commercial establishments within
the meaning of Section 2(6) of the Tamil Nadu
Shops and Establishments Act, 1947.
29. The Cooperative Societies and the Land
Development Banks are governed by the statutes
under which they have been created as also the
Rules and bye laws framed thereunder. The
cooperative societies are obligated to follow the
cooperative principles as laid down in the Act
and the Rules framed thereunder.
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W.P(MD).No.11854 of 2013
30. The State had framed rules in exercise of its
power conferred upon it under Section 180 of
the 1983 in W.P.No.25419 of 2012 Act in the year
1988. Rule 149 of the 1988 Rules provides for a
complete code as regard the mode and manner
in which appointments were required to be
made and the process of appointments is
required to be carried out. In terms of the said
Rule, requirements to possess educational
qualification and other qualifications had been
laid down. One of the essential qualifications laid
down for holding certain posts is 'undergoing
cooperative training and previous experience'.
31. At this juncture, we may notice some of the
provisions contained in Rule 149 of the 1988
Rules.
32. Sub-rule (3) of Rule 149 read as under:
"149. (3)(a) No appointment by direct
recruitment to any post shall be made except by
calling for from the societies applications from
their employees who possess the qualifications
for the post and unless the Government have
accorded special sanction for recruitment by
advertisement in dailies, by also calling for a list
of eligible candidates from the Employment
Exchange.
(b) Where the Employment Exchange issues a
non-availability certificate or the Government
have accorded special sanction for recruitment
by advertisement in dailies, the society shall
invite applications from candidates including
those working in other societies by
advertisements in one English daily in W.P.No.
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W.P(MD).No.11854 of 2013
25419 of 2012 and two Tamil dailies having
circulation within the area of operations of the
society approved by the Government for the
purposes of issue of Government advertisements.
(c) Every appointment by direct
recruitment shall be made by
holding written
examination and interview or by holding only
interview as decided by the board and on the
basis of the rank given with reference to the
marks obtained in the written examination, if
any, and the marks awarded in the interview:
Provided that nothing contained in this sub- rule
shall apply to any of the posts for the
recruitment of which a Recruitment Bureau has
been constituted under section 74 or in respect
of which common cadre of service has been
constituted under section 75;
Provided further that nothing contained in this
sub- rule shall apply to appointments of
dependents of the employees of any society who
died or medically invalidated while in service."
33. Sub-rule (4) of Rule 149 mandates that no
person shall be appointed to the service of a
society if he has on the date on which he joins
the post, attained the age of thirty years and in
the case of persons belonging to Scheduled
Castes and Scheduled Tribes thirty-five years.
34. Sub-rule (25) of Rule 149 provides that the in
W.P.No.25419 of 2012 principle of reservation of
appointment for Scheduled Castes/ Scheduled
Tribes and Backward Classes followed by the
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W.P(MD).No.11854 of 2013
Government of Tamil Nadu for recruitment to
the State shall apply.
35. No appointment, therefore, can be made in
deviation of or departure from the procedures
laid down in the said statutory rules.
36. The terms and conditions of services are also
laid down in the said rules.
37. The 1983 Act was furthermore amended in
the year 1995 providing for cadre strength which
is directly relatable to the income of the
cooperative societies.
38.Provisions of the Act and the Rules framed
thereunder reflect the legislative recruitment
policy. The said provisions are, thus, mandatory
in nature.
39. Regularisation, in our considered opinion, is
not and cannot be the 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 thereunder. It is also now well-
settled that an appointment made in violation of
the mandatory provisions of the Statute and in
particular ignoring the minimum educational
qualification and other essential qualification
would be wholly illegal. Such illegality cannot be
cured by taking recourse to regularisation. (See
State of H.P. Vs. in W.P.No.25419 of 2012 Suresh
Kumar Verma and Another, (1996) 7 SCC 562).
40. It is equally well-settled that those who come
by backdoor should go through that door. (See
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W.P(MD).No.11854 of 2013
State of U.P. and Others Vs. U.P. State Law
Officers Association & Others, (1994) 2 SCC 204)
41. Regularisation furthermore cannot give
permanence to an employee whose services are
ad-hoc in nature.”
12. In the case of “Secretary, State of Karnataka and
others Vs. Umadevi and others” [hereinafter referred to as
“Umadevi case”] the Constitution Bench also reiterated by
holding that equal opportunity, being a constitutional
mandate, the irregular or illegal appointments cannot be
confirmed. The persons entered into public services through
back door, must be allowed to go from the door which
through they have entered into. Contrarily, mere length of
service cannot be taken as a ground for granting the benefit
of regularization of permanent absorption. Thus, engaging
an employee in an illegal or irregular manner by some
authorities or the engagement is through some contractors
then they cannot claim permanent status in service by virtue
of the general Act viz., the in W.P.No.25419 of 2012
Conferment of Permanent Status to Workmen Act, 1981 and
such a claim cannot be considered by the authorities
concerned as well as by the High Court. In such
circumstances, the entire constitutional scheme is violated.
13. The Constitutional scheme of appointments ought
to be followed scrupulously by the authorities competent,
while undertaking the process of selection and appointment.
In the event of engaging persons on temporary or casual
basis, thereafter, granting the benefit of confirmation in
violation of the service regulation, undoubtedly is in
violation of the Constitutional scheme of appointments and
such a situation would amount to an unconstitutional act
and therefore, the Court cannot consider such benefit of
regularization on regularization or permanent absorption,
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W.P(MD).No.11854 of 2013
merely on the ground that they have completed 480 days of
service or for a considerable length of time.
14. The learned counsel appearing on behalf of the
writ petitioners contended that the Tamil Nadu Electricity
Board is not an Industrial Establishment defined under the
provisions of the Act itself. Section 3 of the Tamil Nadu
Industrial Establishments (Conferment of Permanent Status
to Workmen) Act, 1981 states that the Act applies in W.P.No.
25419 of 2012 to every industrial establishment. The word
'Industrial Establishment' is defined in Section 2(3) of the Act
which reads as under :-
“(a) a factory as defined in clause (m) of section 2
of the Factories Act, 1948 (Central Act LXIII of 1948)
or any place which is deemed to be a factory under
sub-section (2) of section 85 of that Act; or
(b) a plantation as defined in clause (f) of section 2
of the Plantations Labour Act, 1951 (Central Act
LXIX of 1951); or
(c) a motor transport undertaking as defined in
clause
(g) of section 2 of the Motor Transport Workers
Act, 1961 (Central Act 27 of 1961); or
(d) a beedi industrial premises as defined in clause
(i) of section 2 of the Beedi and Cigar Workers
(Conditions of Employment) Act, 1966 (Central Act
32 of 1966); or
(e) an establishment as defined in clause (6) of
section of the Tamil Nadu Shops and Establishments
Act, 1947 (Tamil Nadu Act XXXVI of 1947); or
(f) a catering establishment as defined in clause (1)
of section 2 of the Tamil Nadu Catering
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W.P(MD).No.11854 of 2013
Establishments Act, 1958 (Tamil Nadu Act XIII of
1958); or
(g) any other establishment which the Government
may, by notification, declare to be an industrial
establishment for the purpose of this Act.”
15. Relying on the above provisions, the petitioners
state in W.P.No.25419 of 2012 that the Act itself is not
applicable in respect of the employees of the Tamil Nadu
Electricity Board Act. If they are working in an Industrial
Establishment, as defined under Section 2(3) of the Act, then
alone the Act would be applicable.
16. The benefit of regularization of these contract
labourers were earlier granted by the Tamil Nadu Electricity
Board, pursuant to the recommendations of Justice Khalid
Commission long back and subsequently, such confirmations
are granted strictly in accordance with the terms and
conditions of the 12(3) Settlement and not otherwise. This
being the procedures followed for grant of confirmation, the
Inspector of Labour are mechanically passing such order of
confirmation of permanent status without reference to the
legal grounds raised by the writ petitioners, even before the
Inspector of Labour.
17. All appointments by the 'State' must be made only
under the Constitutional scheme and by providing equal
opportunity to all the eligible candidates, who all are
aspiring to secure public employment through open
competitive process. It is not as if, the authorities can recruit
the persons at their whims and fancies or of in W.P.No.25419
of 2012 their choice and after allowing such employees to
work for a considerable length of time, then provide
confirmation, regularization or permanent absorption, which
is otherwise in violation of the service Rules of the Tamil
Nadu Electricity Board. Such a practice would amount to
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W.P(MD).No.11854 of 2013
unconstitutionality and further, the equality clause
enunciated in the Constitution is defeated. Lakh and lakh of
youth of this great Nation are burning their midnight lamp
for securing public employment by participating in the open
competitive process. The constitutional right of all these
eligible candidates cannot be denied or deprived by the
State or its authorities. In the event of denial of such
constitutional rights of all eligible candidates, the entire
appointment becomes unconstitutional and in violation of
the Constitutional mandate.
18. This being the view to be adopted, this Court is of
an opinion that it is not as if the employees can claim
confirmation merely on the ground that they have served
for 480 days, which is otherwise in violation of the service
regulation constituted by virtue of the powers conferred
under the Electricity Act, which would prevail over the
general laws. The service regulations are constituted under
the Constitutional scheme more specifically by providing
Rules of in W.P.No.25419 of 2012 reservation, communal
rotations and other reservations for the priority categories.
In the event of granting confirmation in the routine manner
in respect of these employees, the Constitutional Right of all
other eligible candidates to participate in the recruitment
process is not only defeated but their rights are infringed.
Thus, the orders of the Inspector of Labour are in violation
of the constitutional scheme of appointment as well as in
violation of the service regulations issued by the Tamil Nadu
Electricity Board by virtue of the powers conferred under
the Electricity Act and such service regulations are
apparently on par with the service regulations of the
Government employees of the Government of Tamil Nadu.
19. The practice now prevailing in respect of grant of
permanent absorption in Government Departments as well
as in the Boards and Corporations are that the Contract
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Labourers / Temporary employees / Daily Wage employees,
on completion of 240 days of services or 480 days of
services, approaching the Inspectors of Labour, under the
provisions of the Conferment of Permanent Status Act. The
Inspector of Labour is also not considering the legal
implications and the principles settled by the Constitutional
Courts. They are routinely passing orders, granting
Conferment of Permanent in W.P.No.25419 of 2012 Status by
verification of certain service certificate or the Attendance
Registers. Few set of employees are directly filing writ
petitions before the High Court under Article 226 of the
Constitution of India. The High Courts also on some
occasions, issuing directions to consider their representation.
Such directions would do no service to the cause of Justice.
Those litigants are back again before the Court by way of
another writ petition. Ultimately, these back door appointees
were attempting to get regularization and permanent
absorption, one way or other in an irregular manner by
abusing the process of law or on extraneous considerations
before the authorities competent. Such a practice
undoubtedly would amount to violation of the Constitutional
mandates and further, infringed the rights of all other
eligible citizens, who all are aspiring to secure public
employment through open competitive process in
accordance with the recruitment rules in force.
20. Uniformity in appointments, more specifically, in
public services are to be scrupulously maintained by the
authorities competent. The prevailing situation is that the
authorities, at their whims and fancies and by way of
Favouritism and Nepotism, engaging such Contract
Labourers / Temporary employees and allowing them to
continue even after the expiry of the project or for a
considerable in W.P.No.25419 of 2012 length of time by
providing a false hope and those labourers are approaching
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W.P(MD).No.11854 of 2013
the Inspector of Labour or the High Courts or the
Government for regularisation and permanent absorption.
21. The Courts have repeatedly held that the terms
and conditions of the appointments as far as the
Government departments, Boards and Corporations are
concerned, it must be unambiguous and clear. Ambiguity
would create unnecessary issues and would result in
unconstitutionality. Thus, terms and conditions of
appointment, even if a temporary appointment or a Contract
appointment to fulfill the needs of the project or the
scheme, must be specific and the employee must understand
that he cannot claim any right, over and above the terms
and conditions, which he had accepted at the time of
appointment. This exactly the reason why the Constitution
Bench also reiterated that the Back door appointments must
be stopped at once. In paragraph 54 of the 'Umadevi Case',
the Constitution Bench in unequivocal terms, held that any
other judgment running counter to the principles laid down
in 'Umadevi Case' are denuded to loose its status as a
Precedent. Thus, those judgments rendered subsequently
can have no binding effect for the purpose of granting the
relief of regularisation or permanent absorption.
22. Large number of writ petitions are filed even
before the High Court based on the orders passed by the
Inspector of Labour under the provisions of the Conferment
of Permanent Status Act. Perusal of those orders reveal that
none of the legal grounds as well as the judgments of the
Constitutional Courts were considered by the Inspectors of
Labour. Contrarily, they are passing orders in a mechanical
manner and based on which, the Contract Labourers are
claiming permanent absorption. No doubt, the Courts
sometimes, may take a lenient view, considering the plight
of these Contract Labourers. Equally, the Courts are bound
to consider the Constitutional rights of all other young
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W.P(MD).No.11854 of 2013
people of this great Nation, whose rights are infringed.
Those young people of this great Nation will get frustrated.
If the appointments to the public services are not regulated
and, if back door appointments are allowed to be continued,
then the very constitutional scheme of appointments are
diluted and thereby, we are creating an unconstitutionality in
perpetuity; where young minds will lose their hope for their
future. Thus, this Court is of an opinion that such a practice
of granting confirmation of services must be stopped. All
appointments are to be regulated. Appointments are to be
made only under the constitutional schemes. Equal
opportunity in public in W.P.No.25419 of 2012 employment
is the Constitutional mandate. All eligible persons must be
provided with an opportunity to secure employment
through recruitment process. The appointments are to be
made by following the Rule of Reservations. As per the rules,
all these aspects are to be scrupulously followed, then only
the system of Constitutional scheme of appointments can be
restored in its entirety and all such irregularities, illegalities
in appointments can be stopped at once.
23. In the present writ petition on hand, the Contract
labourers were engaged by the Private Contractors and the
Tamil Nadu Electricity Board entered into an agreement with
those Private Contractors. However, a one time measure was
taken to confirm the services of these Contract labourers,
who were engaged by Private Contractors. However, there is
no possibility of merit assessment. There is no possibility of
implementation of Rule of Reservation or other recruitment
rules. If large scale such appointments are made, then Rule
of Reservation is violated. Constitutional provisions are
violated and most importantly, the efficiency level in public
administration is compromised. Neutralizing the effective
public administration is unconstitutional. The Constitution
itself contemplates that efficiency level in public
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W.P(MD).No.11854 of 2013
administration must be maintained. Only in W.P.No.25419 of
2012 if the appointments are regulated in accordance with
the constitutional schemes, then alone, the efficiency level in
public administration can be maintained. Therefore, all such
back door appointments are to be stopped and grant of
Conferment or Permanent absorption now cannot be
granted in violation of the legal principles settled by the
Constitution Bench of the Apex Court of India.
24. This Court also reiterated in many number of
judgments that all such back door entries must not be
considered for the purpose of granting confirmation.
However, in respect of the Contract labourers of the
Electricity Board, Justice Khalid Commission has made certain
recommendations 28 years back. Those recommendations
were implemented and the eligible Contract Labourers were
granted with the benefit of Confirmation. Now, after a lapse
of more than 28 years, the same recommendations cannot
be continued for the purpose of granting confirmation of
services. Eligible candidates during the relevant point of time
were shortlisted and the benefit of confirmation was
extended and therefore, the said benefit cannot be extended
indefinitely even after a lapse of three Decades. Thus, this
Court is not inclined to grant any such relief of
regularization, permanent absorption or confirmation of
services as the in W.P.No.25419 of 2012 same is in violation
of the Constitutional principles as well as the legal Precedent
settled by the Constitution Bench of the Hon'ble Supreme
Court of India.
25. In the present case, the application is filed before
the Inspector of Labour and the grounds raised by the writ
petitioners in respect of the application of the Act as well as
the service regulations in force in the Tamil Nadu Electricity
Board were not considered and the Inspector of Labour has
passed the order without considering all these legal grounds
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W.P(MD).No.11854 of 2013
and thus, this Court has no hesitation in coming to the
conclusion that the order of the Inspector of Labour is
perverse and not in consonance with the legal principles
settled by the constitutional Courts across the country as
well as by the Apex Court of India.
26. However, it is made clear that the case of the writ
petitioners is also to be considered with reference to the
judgment of the Hon'ble Division Bench of this Court
rendered in the case of Superintending Engineer,
Nagapattinam Electricity Distribution Circle Vs. Inspector of
Labour, Pedari Koil Street, Thiruvarur, reported in 2009 (4)
MLJ 472 and the 12(3) Settlement dated in W.P.No.25419 of
2012 10.08.2007 and also in the light of B.P.(Chairman)No.9,
Administrative Branch, dated 09.01.2008. If the petitioners
are otherwise eligible and qualified with reference to the
terms and conditions of the 12(3) Settlement as well as the
Board proceedings, their cases are to be considered by
verifying the eligibility criteria and other requisite
qualifications as prescribed in the above orders.
27. Under these circumstances, the order passed by
the Inspector of Labour in proceedings
Na.Ka.No.E/1361/2011 dated 14.09.2011 is quashed and the
writ petition stands allowed. However, there shall be no
order as to costs. Consequently, connected miscellaneous
petition is closed.”
8.In view of the fact that the legal principles were elaborately
considered in the judgment cited supra, this writ petition also falls within
the ambit of the legal principles settled in the case and therefore, no
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W.P(MD).No.11854 of 2013
further consideration is required and accordingly, the impugned order
passed by the first respondent in in his proceedings in Na.Ka.No.
1069/2009 dated 19.09.2011 is quashed and this writ petition stands
allowed. No costs. Consequently, connected miscellaneous petition is
closed.
04.12.2020
Index:Yes/No
Internet:Yes/No
Ns
To
1.The Inspector of Labour,
Nagercoil,
Kanyakumari District.
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W.P(MD).No.11854 of 2013
S . M. S U B R AMA NIAM, J.
Ns W. P.(MD)N o. 1 1 8 5 4 o f 2 0 1 3 and M. P(MD). N o. 1 o f 2 0 1 3 0 4.1 2.2 0 2 0 24 http://www.judis.nic.in