Madras High Court
The Tamil Nadu Civil Supplies vs Raniammal on 10 September, 2012
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/09/2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.983 of 2006 The Tamil Nadu Civil Supplies Corporation Limited Rep.by its Regional Manager V.O.C.District Region C/42-44, SIPCOT Complex .. Petitioner Vs. 1.Raniammal 2.The Presiding Officer, Labour Court, Tirunelveli. .. Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India, praying for a Writ of Certiorari, calling for the records of the second respondent relating to the award passed by the second respondent in I.D.No.72 of 1997 dated 24.08.2005 and quash the same. !For Petitioner ... Mrs.Jessi Jeeva Priya ^For 1st Respondent... Mr.G.Thalaimutharasu :ORDER
Being aggrieved by the Award of the Labour Court, Tirunelveli in I.D.No.72 of 1997 dated 24.08.2005, directing reinstatement of the 1st respondent with continuity of service and backwages, the Corporation has filed the present writ petition.
2.Assailing the correctness of the award, Mrs.Jessi Jeeva Priya, learned counsel for the Corporation submitted that the 1st respondent was engaged to clean the office premises and to fetch drinking water to the staff at the Regional Office, Tuticorin, and that the working hours were hardly few hours. According to the learned counsel, the 1st respondent was not appointed by the Corporation nor any specific order of appointment was issued. However, she was paid under the head "Office Expenditure", normally fixed by the District Collector and as per the orders issued from time to time for such of those casual labourers engaged in Government offices. She also submitted that there was no sanctioned post of Sweeper in the Corporation.
3.Learned counsel for the Corporation further submitted that one Mr.Sadai Gopal employed as an Assistant in the Corporation died in harness. Therefore, adhering to the policy of providing employment assistance on compassionate grounds, and as per the orders of the Head Office on 10.04.1996, Mrs.Sankaravadivu was appointed as a Sweeper on full time basis. Consequent to the above appointment, the services of the 1st respondent as Casual Labour was no more required and therefore, she had to be disengaged. According to the learned counsel for the Corporation, merely because the 1st respondent had worked for 480 days with limited working hours, that does not ipsa facto entitle her to seek for any permanency or regularisation. It is her further contention that the 1st respondent was paid only from contingency fund and that therefore not entitled to seek for any permanency or continuity in the Corporation. As the services were engaged only on part time basis, it would not clothe any right to the 1st respondent to seek for regularisation and that it is always open to the Corporation to disengage the services of the 1st respondent.
4.To substantiate that the 1st respondent was paid only from the contingent amount, proceedings of the then District Collector, Chithambaranar District, (now Tuticorin) dated 26.10.1988 have been produced. During the course of hearing, learned counsel for the Corporation admitted that the 1st respondent had been engaged from August 1978 continuously. In support of the above contentions that the 1st respondent is not entitled to seek for regularisation, she relied on the following decisions:-
i)Secretary, State of Karnataka and others Vs. Umadevi and others, reported in 2006(4)SCC 01;
ii)Accounts Officer (A&I), AP SRTC and others Vs. K.V.Ramana and others, reported in 2007(2)SCC 324;
iii)Hindustan Aeronautics Ltd., Vs. Dan Bahadur Singh and others, reported in 2007 (6) SCC 207; and
iv)unreported decision made in W.P.No.34636 of 2006 and O.A.No.2769 of 1998 dated 30.09.2009 (M.Kannan and others Vs. The State of Tamil Nadu, rep.by Secretary to Government, Animal Husbandary Department and others).
5.For the reasons stated supra, learned counsel for the Corporation prayed to set aside the award.
6.Per contra, M.G.Thalaimutharasu, learned counsel for the 1st respondent/workman submitted that the 1st respondent was engaged as a Sweeper from 1982 onwards in the office of the Tamil Nadu Civil Supplies Corporation, in the then Chidambaranar (now Tuticorin) District. He further submitted that she was paid monthly salary periodically, after getting her signature in the Pay Bill Register. It is his further contention that though the workman had not come to any adverse notice and discharged her duties satisfactorily, on 10.04.1996 her services were disengaged abruptly. According to him, the workman had served in Corporation for more than 10 years and as per the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, the 1st respondent ought to have been conferred with permanent status. According to him, the question as to whether a part time sweeper is entitled for regularisation is no more res integra, as this Court has considered and passed orders in several writ petitions, which have been upheld by the Hon'ble Division Bench.
7.He also submitted that when the Corporation itself has admitted continuity of service for more than 10 years, then the objections of the Corporation have been rightly overruled by the Labour Court. He submitted that the well considered award of the Labour Court does not require any interference. For the abovesaid reasons, he prayed for dismissal of the writ petition.
8.Heard the learned counsel for the petitioner and perused the materials available on record.
9.Pleadings disclose that the petitioner was engaged in Tamil Nadu Civil Supplies Corporation as a Sweeper. Though the 1st respondent has contended that she was engaged continuously from 1982, no document has been produced. Nevertheless, the learned counsel for the Corporation has fairly admitted that vouchers produced from 1987 onwards, which prove that the 1st respondent was engaged and paid salary. Exs.MW1 to 9, have been produced and upon perusal of the same, the Labour Court has found that the 1st respondent had been engaged for more than 480 days in 24 calendar months in the Corporation. The Labour Court upon perusal of Ex.MW1 has also found that orders have been issued by the Corporation vide proceedings dated 16.11.2000, regularising six workmen, who had completed more than 480 days in a period of 24 calendar months and regularised their services. Court documents Exs.C1 and C2 were also on the same lines. Upon perusal of the counter affidavit, the Labour Court has also found that there was no dispute regarding the number of days of engagement of the 1st respondent in the Corporation. Though the learned counsel for the Corporation has contended that a part time employee paid from contingent fund is not entitled to either conferment of permanent status or regularisation and placed reliance on the decisions cited supra, this Court is not inclined to countenance the contention, in view of the policy of the Government in regularising daily wage employees working in all Government departments, who have rendered ten years of service.
10.In W.P.(MD)Nos.872 of 2008 etc., batch of writ petitions, the contention of the petitioners therein was that as per G.O.Ms.No.528, Personnel and Administrative Reforms Department, dated 10.10.1988, and G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006, the petitioners therein who were working on part time basis were also eligible to be absorbed. After considering the rival submissions with reference to the above said Government Order, and taking note of the view expressed by this Court in W.P(MD)No.11707 of 2006 dated 22.12.2006, which arose in an identical situation, this Court in W.P(MD)Nos.872 etc., batch of writ petitions, at paragraph 11 held as follows:-
"11.From all the above, I am of the view that the petitioners in all these writ petitions, except in W.P.(MD)Nos.872 and 2231 of 2008, who have put in more than 10 years service in their respective departments, either as part time employees or as daily wagers are entitled for regularisation as per G.O.Ms.No.528 and G.O.Ms.No.22 referred to supra. In view of the above, except the above two writ petitions all the writ petitions are allowed and the respondents therein are directed to issue suitable orders absorbing those petitioners into regular time scale of pay, provided they satisfy seniority and other legal requirements".
11.Insofar as the petitioners in W.P(MD)Nos.872 and 2231 of 2008 are concerned, as they did not put in 10 years of service, their case was held to be not within the ambit of G.O.Ms.No.528, Personnel and Administrative Reforms Department, dated 10.10.1988, and G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006. Similar orders were also passed in W.P.No.6220 of 2008, dated 23.12.2008, wherein the petitioner therein, was working in Highways Department, as a part time sweeper from 20.08.1992 onwards, but then, he was not appointed through employment exchange. After considering the earlier decision in W.P.Nos.827 and 2231 of 2008 and G.O.Ms.Nos.528 and 22 stated supra, at paragraphs 5, a learned single Judge has ordered as follows:-
"5.In the result, the writ petition is allowed a direction to the respondents to extend the benefit of G.O.Ms.No.528 (P&A.R) Department, dated 10.10.1988 and G.O.Ms.No.22 (P&A.R) Department, dated 28.02.2006 to the petitioner to regularise his service. The respondents are directed to issue consequential orders for regularisation within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed".
12.Aggrieved by the order made in W.P.No.6220 of 2008, dated 23.12.2008, the State has preferred an appeal in W.A.(MD)No.398 of 2010. After considering the landmark judgment in Secretary, State of Karnataka and others Vs.Umadevi and others, reported in 2006 (4) SCC 01, a Division Bench of this Court has held as follows:-
"4.In his further submission before the learned single Judge, he has relied upon the judgment of State of Karnataka and others Vs.Umadevi and others (2006 4 SCC 1), wherein the Apex Court has held that if employees are allowed to continue for more than 10 years, but without the intervention of orders of the Courts or of Tribunals, particularly, if any qualified persons are allowed to continue in the sanctioned post, the regularisation of service of such employees, may have to be considered on merits in the light of the principles laid down by the Apex Court in the cases of S.V.Sarayanappa, R.N.Nanjundappa and B.N.Nagarajan, as referred in the paragraph 15 of the said judgment. In that context, the Apex Court has held that the Union of India, the State Government and their instrumentalities should take steps to regularise as a one time measure, the service of such irregularly appointed who have worked for ten years or more in duly sanctioned posts, but not under cover of orders of the Courts or of tribunals.
5.The learned single Judge, by answering contention raised by the appellant, held that G.O.Ms.No.528 (P&AR) Department, dated 10.10.1988 and G.O.Ms.No.22 (P&AR) Department, dated 28.02.2006 are applicable even in respect of part time temporary employees on the basis of the order passed by this Court in a batch of writ petitions in W.P.Nos.827 and 2231 of 2008.
6.Admittedly, when the judgment in Umadevi's case was passed, the respondent herein has completed 10 years of service in the year 2006. As of today, admittedly, he has completed 18 years of service. Therefore, the observation made by the Apex Court in Umadevi's case is squarely applicable to the case of the respondent herein".
13.In W.P.No.5539 of 2000, the order dated 03.09.1999 of the District Collector, Kanyakumari District, rejecting the request of the petitioner for regularisation was put to challenge. Consequently, the petitioner therein has prayed for regularisation as Water Supply Assistant/Attender from 29.03.1993, in the time scale of pay. The petitioner has relied on G.O.Ms.No.107, Personnel and Administrative Department, dated 05.02.1987, wherein the Government have issued instructions to all the departments to bring in contingent employees as regular establishments on completion of five years of service, and ordered creation of posts for absorption of contingent staff. The respondents therein objected to the relief sought for. Overruling the said objections and after considering the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, a learned single Judge allowed the writ petition. While doing so, he has considered an earlier order of this Court passed in W.P.No.15827 of 1996 dated 03.12.2004. The said decision was taken on appeal in W.A.No.334 of 2006. While affirming the directions issued for regularisation, the Division Bench has passed the following orders:-
"This writ appeal is directed against the order of the learned single Judge in allowing the writ petition. This writ petition is filed to direct the respondents to regularise the services of the petitioner as Pump Operator from 01.09.1980 with all attendant benefits or absorb him as a basic servant in the third respondent union with all benefits from 01.09.1980. The writ petitioner was working from the year 1980 continuously, was admitted in the counter affidavit. The dispute is with regard to regularisation whether by the Village Panchayat or by the Panchayat Union. The learned single Judge, on consideration of the facts and circumstances of the case and following the authorities relied on by the writ petitioner, granted the relief. It is not in dispute that the petitioner was in continuous service in the abovesaid organisation fro about 20 years. Therefore, on consideration of the above, if the learned single Judge directed the respondents to regularise the services of the petitioner, we see no reason to interfere with the order of the learned single Judge. Accordingly, the writ appeal is dismissed. No costs".
14.In Hindustan Petroleum Corporation Ltd., Vs.The Presiding Officer, Central Government Labour Court cum Industrial Tribunal, reported in 2008(4) CTC 819, Hon'ble Mr.Justice K.Chandru, has considered the case of Sweepers, Scavengers, Cleaners, appointed in HPCL and as to whether the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981, would enure permanency of such workmen, if they had completed 480 days of service within 24 calendar months. In the said reported judgment, pending adjudication of the issue of regularisation, HPCL dispensed with the services of the workmen without getting prior approval. Dealing with the abovesaid aspects, the learned Judge, after considering Umadevi's case and Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs.Ram Gopal Sharma and others, reported in 2002(2) SCC 244, at paragraphs 51 and 52 held as follows:
"51.But while ordering the regularisation oly from the date of retrenchment, the CGIT did not keep in mind the relevant legal provisions, viz., the effect of the Tamil Nadu Act 46 of 1981, which guarantees permanency if a workman completes 480 days of service within a period of 24 calendar months. Pending the adjudication of the regularisation issue, the HPCL could not have dispenses with the service of the workmen without getting prior approval from the CGIT under Section 33(2)(b) of the I.D. Act. Such violation by the HPCL will clearly make their non employment void ab initio and the position of law in this regard has been well settled by a Constitution Bench judgment of the Supreme Courti n Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., Vs.Ram Gopal Sharma and others [2002 (2) SCC 244]. In that case, the Supreme Court has held in paragraph 14 that the workman need not challenge such a dispensation from service with any independent proceedings.
52.Therefore, the payment of salary for four months from 25.03.2004, viz., the date of receipt of the order of the Division Bench, cannot help the case of the HPCL. The Division Bench itself had stated that in the event of the workmen succeeding, the HPCL should abide by the Award. As held in the Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd., case (cited supra), any termination pending the adjudication without approval under Section 33(2)(b) of the I.D Act will become void ab inito. Therefore, the CGIT was wrong in directing regularisation only from the date of the retrenchment, viz., July 2004, and it should be in accordance with the mandate of Tamil Nadu Act 46 of 1981, which is applicable to HPCL".
The Court held that the workmen therein were entitled to get regularisation from the date on which each of them had completed 480 days within a period of 24 calendar months together with 50% of the backwages ordered by CGIT.
15.In a recent decision of this Court in G.Saradha Vs. Director of School Education, Chennai-6 and others, reported in 2012(2) MLJ 389, the petitioner therein was appointed as a part time sweeper in Government High School, Pappanampatti, Dharmapuri District and rendered 26 years of service. She was not regularised and hence preferred an original application before the Tamil Nadu Administrative Tribunal, Chennai, which was subsequently transferred to this Court. Reliance was also placed on a judgment of this Court in W.P.No.48431 of 2006, dated 23.12.2009, confirmed by the Hon'ble Division Bench of this Court in W.A.No.230 of 2009, dated 03.08.2009. At paragraphs 4 and 5, in G.Saradha's case, Hon'ble Mr.Justice D.Hariparanthaman, has ordered as follows:
"4.In this case, there is no order declining to regularise the service of the petitioner. There is an inaction on the part of the petitioner. The petitioner has rendered service for more than two decades as stated above. Keeping the employees without regularising them for decades together, particularly when G.O.Ms.No.528, Personnel and Administrative Reforms (Per.F)Department, dated 10.10.1988 provides for regularisation of service of part time employees like the petitioner, is arbitrary and violative of Articles 14 and 21 of the Constitution of India.
5.In these circumstances, the respondents are directed to regularise the service of the petitioner as Full time Sweeper on completion of 10 years of service and to pay the consequential benefits within a period of eight weeks from the date of receipt of a copy of this order.
With the above direction, the writ petition is allowed. No costs".
16.Perusal of the proceedings dated 30.12.2011 of the Divisional Engineer(H), Trichirapalli, shows that the directions of this Court in W.P.No.6220 of 2008, dated 23.12.2008 stated supra, have been implemented and that the petitioner therein had been placed in the time scale of pay of Rs.1300- 300/- etc.,
17.I have also considered a similar case of a part time sweeper paid from contingencies and engaged in the Corporation Middle School for regularisation in W.P.No.34522 of 2006 dated 30.10.2009 (M.Muniammal Vs.The Commissioner Corporation of Chennai). In the said writ petition, the Corporation of Chennai contended that as per G.O.Ms.No.52, Finance (FR II) Department, dated 14.01.1977, only full time employees borne on contingent establishment were needed for the normal working of the Government and those who had completed five years of service, were brought into regular establishment in time scale of pay, increment, etc., on par with the Last Grade Government servants and that the abovesaid G.O., is not applicable to the petitioner therein, who was only a temporary part time menial sweeper. It was also contended that substitute sanitary workers were available and that they would be engaged, as and when the permanent staff go on leave or absent themselves and therefore, a temporary part time menial sweeper paid from contingency funds, as per the rates fixed by the Collector from time to time was not entitled for regularisation.
18.In that case, the petitioner therein was engaged as a part time menial sweeper on a fixed payment of Rs.15/- per month and thereafter, payment was made, as per the revised orders. Abruptly, her services were disengaged. The contentions of the rival parties as summarised in paragraph 12 in W.P.No.34522 of 2006 are extracted hereunder"-
"12.Perusal of the same would show that the Inspector of Municipalities was requested to send necessary draft amendments to the concerned Municipal Service Rules, consequent on regularisation of the staff. It is seen from the letter dated 17.07.1991, Tamil Nadu Government Service Family Benefit Fund Scheme, has been extended to Part time Employees also working on consolidated pay fixed by the District Collector and paid from contingent funds. The appointment order of the petitioner reads that she had been temporarily appointed as Sweeper under contingency in 1978 and continues to work on contingency basis and paid the revised wages as per the rate fixed by the District Collector. The contention that the petitioner is working since 1978, is not disputed in the counter affidavit. The objections inter alia are that she is not attending the school regularly, sweeps the class rooms and verandah and workso nly for one hour per day and that separate substitute sanitary workers are engaged in the place of permanent staff, whenever they go on leave or absent. It is also contended that Government Orders relied on by the petitioner are not applicable to the case of the petitioner. The nature of work performed by a sweeper, regular or temporary paid from the contingency, would normally be only in the morning hours, ie., before the classes are commenced. Their services can always be utilised even during the daytime, if required. This Court is unable to subscribe to the contentions that because a sweeper working only for one hour in the morning, no post can be created in the cadre strength or for that matter contingent staff cannot be regularised for that reason. It is not the case of the respondents that the petitioner has refused to work after the morning hours. Insofar as the petitioner is concerned, it is not the case of the respondents that some other permanent sanitary worker had discharged the said duties in the school, in which the petitioner has been working for nearly 31 years on consolidated pay, fixed by the District Collector.
19.At paragraph 15, this Court further observed as follows:-
"15.When the Government, by letter dated 17.06.1991, have extended the Tamil Nadu Government Service Family Benefit Fund Scheme to even those part time employees, working on contingent pay fixed by the District Collector and paid from contingency, this Court is of the considered view that in the absence of furnishing any proof or material documents to show that the petitioner was substituted by another worker, it should be construed that there is a continuous need for the post of sanitary worker. The contention that G.O.Ms.No.52, Finance (FR II) Department, dated 14.01.1977, is not applicable to the case of the petitioner, cannot be countenanced for the reason that the said Government Order has been made applicable to all the Heads of the Department. When there is a continuous need for a Sanitary worker, the respondents ought to have regularised the services of the petitioner, following the Government Orders stated supra. Even the orders, dated 22.11.1997 and 23.03.1998 of the respondent describe the petitioner only as a part time sanitary worker in Education Department. Though the first respondent has contended that the Government Orders relied on are not applicable, the impugned orders does not reflect the consideration of the Government orders referred to above, to the facts of the case".
20.Ultimately, the impugned orders therein were set aside and directions were issued to consider the case of the petitioner therein, for regularisation taking into consideration of her continuous service from 1978 as a part time sweeper in Corporation of Chennai.
21.In W.P.(MD)Nos.4193 and 4194 of 2010, the petitioners therein have challenged an order passed by the Secretary to the Education Department, Chennai, dated 16.07.2009 and also the proceedings of the Chief Educational Officer, dated 19.08.2009, the respondents 1 and 3 therein respectively. Consequently, they have also sought for a direction to appoint them on regular vacancies as sweepers. The case of the petitioners therein was that they were appointed as part time sweepers in School Education Department and that they had served for more than 15 years in the said capacity and that they were not regularised. It has also been contended that their initial appointment to the post of part time sweepers was through Employment Exchange and by a competent authority.
22.On the basis of the counter affidavit, filed therein, learned Additional Government Pleader has contended that since the petitioners were appointed as part time sweepers, they are not entitled to any benefit and prayed for dismissal of the writ petitions.
23.The Hon'ble Judge while adverting to the rival contentions has taken note of an earlier order passed in W.P.(MD)Nos.6700 to 6705 of 2008 etc., dated 04.12.2008 wherein this Court has observed as follows:
"10.However, without noticing the said G.O.Ms.No.528, G.O.Ms.No.22 has been issued by the Government, wherein the Government has directed absorption of all the daily wagers, who have been working for more than 10 years in various Government Departments. When a question arose whether the said G.O.Ms.No.22 would take into its ambit the part-time employees appointed through Employment Exchange also or not, the Government has issued a clarification in the letter Na.Ka.No.34799/R.1/06-4, dated 26.04.2007, wherein the Government has stated that part-time employees, who were paid out of contingent fund, are not eligible for absorption as per G.O.Ms.No.22. The said G.O.Ms.No.22 has not superseded the earlier G.O.Ms.No.528. Therefore, both the G.Os. are to be read conjointly, along with the clarifications issued by the Government in the letters stated supra. If that is done, what emerges is that those part-time employees, who have been working for 10 years and more in various Government Departments, are eligible for absorption on time scale of pay. That is the view taken by this court in W.P.(MD)No.11707 of 2006, dated 22.12.2006. Further, when an identical situation arose out of a case under G.O.Ms.No. 528, this Court has issued a direction to the authorities to regularise the services of all the part-time workers in time scale of pay by order dated 22.12.2006. The writ appeal filed in W.A.(MD)No.391/2007 against the said order was also dismissed by a Division Bench of this Court on 25.10.2007. Further, when an appointment made as per G.O.Ms.No.528 was later on withdrawn on the ground that the appointments of the petitioners therein were made subsequent to the said G.O. 528, this Court by Order dated 01.02.2006 in W.P.No.32446/2005, set aside the order, whereby confirming the regularisation."
24.The Hon'ble Judge has also considered the case of the petitioners in W.P.(MD)Nos.4193 and 4194 of 2010 and taken note of an order passed in W.P.(MD)No.872 of 2008 etc. batch, dated 04.12.2008 and observed that even part time employees or daily wagers are entitled for regularisation as per G.O.Ms.No.528, Personnel and Administrative Reforms Department, dated 10.10.1998 and G.O.Ms.No.22 Personnel and Administrative Reforms Department, dated 28.02.2006. The order made in W.P.(MD)Nos.872 of 2008 etc., batch has been taken on appeal in W.A.(MD)Nos.69 and 70 of 2010 and that the Hon'ble Division Bench in the case of Commissioner and Director, Animal Husbandry and Veterinary Services, Chennai and others Vs.V.Karunakaran and another reported in 2011 (2) CWC 80, has held as follows:
"3.The case of the respondents/writ petitioners is that they have been working as part-time employees for more than ten years in the Appellants Department and based on the Government Order in G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, they are entitled for regularisation in time scale of pay".
25.Perusal of the common order made in W.P.(MD)Nos.4193 and 4194 of 2010, dated 24.01.2012 shows that the Hon'ble Judge has taken note of an earlier order passed in W.P.(MD)No.11707 of 2006, dated 22.12.2006, and confirmed by the Hon'ble Division Bench in W.A.(MD)No.391 of 2007, dated 25.10.2007 and the said order has also implemented by the Department on 30.11.2007. Further, the order in W.P.No.18126 of 2008, dated 29.07.2008, has also been confirmed on appeal in W.A.(MD)No.230 of 2009, dated 03.08.2009. Relevant paragraphs of the judgment of the Division Bench made in W.A.No.230 of 2009 are extracted hereunder:
"7.The main submission of the learned Government Advocate is that the proposals for regularisation of the part time employees are pending before the Government. When the proposals are pending under consideration before the Government, there is no need to give any direction to the Government to regularise the services of the respondent.
8.We do not find any force in the said submission made by the learned Government Advocate. On a perusal of the entire materials, it could be seen that the respondent was working for the past 13 years as a part time employee in a Higher Secondary School. Para 3 of G.O.Ms.No.2 P&AR(F) Department, dated 28.2.2006, reads as follows:
"3.The Departments of Secretariat may therefore be directed to pursue action to regularise the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 1.4.2006. ..."
9.Though in the letter dated 20.02.1995 it has been stated that the regularisation shall not apply to the appointment on daily wages employees, if any, made on or after 01.03.1993, in G.O.Ms.No.22 P&AR(F) Department, dated 28.02.2006, it was made clear by the Government to regularise the part time employees, who had completed 10 years of service. In fact, the services of some of the part time employees were regularised pursuant to the orders passed by this Court in the earlier writ petitions. Under those circumstances, we do not find any justification in delaying the regularisation of the services of the respondent by saying that the proposal for regularisation of part time employees is pending for consideration before the Government. On that ground, the respondent cannot be made to wait for a long period, especially when he had completed 13 years of service, which is more than that of the required service mentioned in G.O.Ms.No.22 dated 28.02.2006. Under such circumstances, we do not find any infirmity in the directions given by the learned single Judge. Hence, we are not inclined to entertain this appeal.
Accordingly, this appeal fails and is dismissed. No costs. Consequently, connected M.Ps are closed. A copy of the order shall be communicated to the State Government (Secretary), School Education Department, to issue the necessary orders in compliance with the order passed by the learned single Judge, within a period of two months from the date of receipt of a copy of this order."
26.The special leave petition in SLP No.1972/2009 filed against the said judgment has been dismissed by the Hon'ble Supreme Court, during March, 2010. The said order made in the writ petition has already been implemented. The other orders passed in W.P.No.13499 of 2009, dated 12.06.2008 has been confirmed on appeal in M.P.No.1 of 2008 in W.A.(SR)No.75291 of 2009, dated 07.10.2009, wherein the Division Bench has held as follows:
"3... We have also noted that even on merits, the first appellant Director of School Education does not have any case. The respondent herein was employed as a Part-Time Sweeper in a Government Girls High School and her appointment was approved by the Inspector of Girls School, Kancheepuram, way back on 19.12.1999. The respondent had prayed for regularization of her services by filing the writ petition. The learned single Judge has noted that there is a government order in G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.2.2006, which requires the Government Departments to regularize daily wage employees who have rendered ten years of service as on 1.1.2006. The respondent herein fully satisfied that requirement and had, therefore, prayed her regularization right from the initial date of her appointment. The learned single Judge has granted regularisation only after her completion of ten years of service, in tune with the above government order. This being so, in fact on merits, the first appellant-Director of School Education has no reason to have any grievance with the order passed by the learned single Judge, apart from the fact that he does not have any case."
27.Some of the decisions taken note of by this Court while allowing W.P.(MD)Nos.4193 and 4194 of 2010 are as follows:
"i)Common order in W.P(MD)No.9726 and 9727 of 2006 dated 24.06.2008, confirmed in W.A.(MD)No.151 and 225 of 2009,dated 23.06.2009. The special leave petition filed against the said order was dismissed by the Supreme Court on 11.02.2010. The said order was also implemented.
(ii) Order in W.P.No.20662 of 2010 dated 15.09.2010 implemented by the DEO, Perambalur on 04.11.2010.
(iii) Order in W.P.No.23080 of 2008, dated 23.12.2008 confirmed in Writ Appeal No. 2414 of 2010, dated 26.11.2010.
28.In W.A.No.(MD)No.453 of 2012, one K.Murugan appointed as an Helper on part time basis in Animal Husbandry Department, in various remote villages in Madurai District has been paid daily wages of Rs.2 per day and Rs.60/- per month and that he was not considered for regularisation. On the basis of the G.O.Ms.No.528, Personnel and Administrative Reforms (Per-F) Department, dated 10.10.1988 and G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, the petitioner therein has sought for regularisation. The writ Court ordered regularisation. An appeal has been preferred by the Government and others contending inter alia that the respondent therein has been engaged only for half an hour for fetching water and sweeping and that he cannot be treated as a full time worker and that therefore, not entitled to seek for regularisation.
29.In the above case, Learned Additional Government Pleader has submitted that as per G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006 only those persons who were continuously working as full time employees can be regularised and that the respondent therein being a part time employee would not come within the purview of the Government order and hence, cannot seek for regularisation. Though there was no representation on behalf of the petitioner, the Division Bench at paragraph 8 held as follows:
8. It is an admitted fact that the respondent is a part time employee who has discharged his service for more than 10 years in the Animal Husbandry Department. He has already forwarded representation to regularise his service as per G.O.Ms.No.22 Personal and Administrative Reforms (F) Department, dated 28.2.2006, and G.O.Ms.No.528, Personal and Administrative Reforms (Per-F) Department, dated 10.10.1988. As rightly pointed out by the learned single Judge, the main contention of the respondent is that the services of those persons who have been working on part time basis are also eligible to be absorbed irrespective of number of years of service, provided they were initially appointed through Employment Exchange and the respondent has been employed only through Employment Exchange. As per G.O.Ms.No.528, Personal and Administrative Reforms (Per-F) Department, dated 10.10.1988, the Government has directed that the services of the daily wages working in all the Government Departments who have rendered 10 years of service as on 1.1.2006 be regularised by appointing them in the Time Scale of Pay of the post in accordance with service conditions prescribed for the post concerned subject to the condition otherwise qualified for the post. Therefore, the learned single Judge, has correctly found that the above G.O.Ms.No.22 and 528 are applicable to regularise the service of the respondent. The specific ground taken in this appeal is that the respondent is engaged only for an approximate time of half an hour for fetching water and for sweeping and he cannot be treated as full time worker.
But the appointment order did not state so. The arguments of the learned Additional Government Pleader cannot be countenanced. There is no illegality or irregularity in the order under challenge in the Appeal.
30.Ultimately, the Hon'ble Division Bench has dismissed W.A(MD)No.453 of 201 vide order, dated 04.07.2012 filed by the State upholding the order of regularisation.
31.From the above, it could be seen that many writ petitions have been allowed directing the respondents therein to regularise part time sweepers and that the Special Leave Petition has also been dismissed.
32.Thus, there is a consistent view of this Court in the matter of regularisation of even part time employees paid from contingent basis. Material on record also shows that the petitioner had been in continuous employment at least from 1987 onwards and even as per the version of the learned counsel for the Corporation, vouchers to that effect have also been produced. There is no dispute in the counter affidavit regarding the continuous engagement of the petitioner for more than 480 days in a period of 24 calendar months. The petitioner is entitled to regularisation, even as per the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981.
33.In view of the above, the award of the Labour Court, Tirunelveli in I.D.No.72 of 1997, dated 24.08.2005, directing reinstatement of the 1st respondent with continuity of service and backwages, cannot be said to be manifestly illegal, warranting interference. Accordingly, this writ petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
nb To The Presiding Officer, Labour Court, Tirunelveli.