Madras High Court
V.Dhandapani vs The Secretary To Government on 8 November, 2017
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.11.2017
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P. No.730 of 2014 &
M.P.No. 1 of 2014
1. V.Dhandapani
2. T. Seetharaman
3. M.Murugaiyan
4. N.Amudha
5. M.Mani
6. M.Ranjani ... Petitioners
Vs
1. The Secretary to Government
Commercial Taxes and Registration Department
Government of Tamil Nadu
Fort St. George, Chennai-600 009.
2. The Inspector General of Registration,
The Inspector General of Registration Office,
Santhome High Road,
Chennai-600 028.
3. The District Registrar,
The District Registrar Office,
No.12-A, chairman Chidambaram Street,
Villupuram District-605 602. ...Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue of Writ of certiorarified mandamus, to call for the records on the file of the 1st respondent in G.O.(Ms.) No. 84, Commercial Tax and Registration (M2) Department, dated 18.06.2012, in so far as mentioned in 'paragraph 9', that restricts the regularization of petitioner's services from the date of the order alone and the consequential order passed by the 2nd and 3rd respondents in their proceedings No.18655/BA1/A3/2011 dated 02.07.2012 and No. 3213/A1/2012-1, dated 05.07.2012 respectively and quash the same, consequently direct the respondents to regularize the petitioner's service on completion of 10 years i.e. from January 2008 & March 2009 on wards and pay other service and monetary benefits.
For Petitioners : Mr.R.Ganesh Babu
For Respondents : Mr.R.Vijayakumar
Additional Government Pleader
O R D E R
The relief sought for in this Writ petition is call for the records pursuant to the orders passed by the first respondent in G.O.(Ms).84, Commercial Tax, Registration (M2) Department 18.06.2012. Insofar as mentioned in the 'paragraph 9' restricts the regularisation of the petitioners from service from the date of the order alone and the consequential order passed by the respondents 2 and 3 in proceeding dated 02.07.2012 and 05.07.2012 respectively and quash the same and direct the respondents to regularise the services of the petitioner on completion of ten years of service from January 2008 and March 2009 onwards and pay all other benefits.
2. The learned Counsel appearing for the writ petitioner made a submission that the writ petitioners were temporarily appointed as part time Masalji in Villupuram Registration District, Registration department on 12.01.1998, 20.01.1998 and 12.03.1999 respectively. The claim of the writ petitioners are that the Government issued G.O.Ms.No.22, Personal and Administrative Reforms Department dated 28.02.2006 to regularise the services of the Temporary and daily wages employees on completion of ten years of service. However the benefits has not been extended to the writ petitioners, subsequently the writ petitioners filed W.P.No.11266 of 2011 and thereafter this court has passed an order on 14.07.2011 to consider the case of the writ petitioners. Accordingly, the Government issued G.O.Ms.No.84, Commercial Tax and Registration Department dated 18.06.2012 and the services of the writ petitioner were regularised only with effect from the date of the Government order i.e., 02.07.2012. Thus, the writ petitioners are constrained to move this writ petition seeking retrospective regularisation from the date on, which they have completed ten years of service as part time Masalji.
3. This court is of the view that retrospective regularisation in respect of part time appointees or irregular appointment cannot be granted. The persons appointed in violation of recruitment rules in force to be considered as irregular appointees and such irregular appointments cannot be regularised in contravention with the service rules in force. All appointment to public post to be done only under the Constitutional Schemes and by following the recruitment rules in force. The persons who were appointed not in accordance with service rules cannot seek any permanent absorption or regularisation.
4. However, in respect of the petitioners, Government itself has given some concession and accordingly regularised their services in G.O.Ms.No.84 dated 02.07.2012. Thus the regularisation granted to the writ petitioner itself is a concession and therefore they cannot seek any further concession so as to get retrospective regularisation with effect from date of completion of ten years of service.
5.In respect of appointment, regularisation and permanent absorption, the Constitutional Bench of Honble Supreme Court of India in the case of State of Karnatake vs Uma Devi 2006 4 SCC page 1 elaborately settled the legal Principles and the relevant paragraphs are extracted hereunder;
....5. Let these matters be placed before Hon'ble the Chief Justice for appropriate orders."
We are, therefore, called upon to resolve this issue here. We have to lay down the law. We have to approach the question as a constitutional court should.
....10. In addition to the equality clause represented by Article 14 of the Constitution, Article 16has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution,Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
....12. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
....13. During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining. Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders. The submission of learned counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court. The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality. While approaching the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment. The argument on behalf of some of the respondents is that this Court having once directed regularization in the Dharwad case (supra), all those appointed temporarily at any point of time would be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
....14. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:- "Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized.
Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that 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. This court emphasized that 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. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed 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.
....20. We may now consider, State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826]. There, the court was considering the sustainability of certain directions issued by the High Court in the light of various orders passed by the State for the absorption of its ad hoc or temporary employees and daily wagers or casual labour. This Court started by saying:
"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service"
This Court then referred to some of the earlier decisions of this Court while stating:
"The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16. It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above."
....43. Normally, what is sought for by such temporary employees when they approach the court, is the issue of a writ of mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Dr. Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College [(1962) Supp. 2 SCR 144]. That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
....44. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. NARAYANAPPA (supra), R.N. NANJUNDAPPA (supra), and B.N. NAGARAJAN (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further by-passing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme.
....45. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
....46. In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.
....47. Coming to Civil Appeal Nos. 1861-2063 of 2001, in view of our conclusion on the questions referred to, no relief can be granted, that too to an indeterminate number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.
....48. C.A. Nos. 3520-24 of 2002 have also to be allowed since the decision of the Zilla Parishads to make permanent the employees cannot be accepted as legal. Nor can the employees be directed to be treated as employees of the Government, in the circumstances. The direction of the High Court is found unsustainable.
....49. In the result, Civil Appeal Nos. 3595-3612 of 1999, Civil Appeal No. 3849 of 2001, Civil Appeal Nos. 3520-3524 of 2002 and Civil appeal arising out of Special Leave Petition (Civil) Nos. 9103-9105 of 2001 are allowed subject to the direction issued under Article 142 of the Constitution in paragraph 46 and the general directions contained in paragraph 44 of the judgment and Civil Appeal Nos. 1861-2063 of 2001 are dismissed. There will be no order as to costs.
6.Reiterating the legal principles settled by the Constitution bench of Honble Supreme Court of India once again in the case of Secretary to Government School Education Department Chennai versus R. Govindasamy and others reported in 2014 4SCC 769, the Supreme Court again held that the High Courts in exercising power under Article 226 of Constitution of India will not issue directions for regularisation, absorption or permanent continuous, unless the employees claiming regularisation had been appointed in pursuant to the regular recruitment in accordance with relevant rules and in an open competitive process, against the sanctioned vacant post. The equality class contains in the Article 14 and 16 should be scrupulously followed and the Court should not issue an direction for regularisation of the services of the employee which would be violation of the Constitutional scheme. Thus, this court is bound to follow the legal principles settled by the Honble Supreme Court of India in this regard as such the relief for retrospective regularisation sought for by this writ petitioners cannot be granted in this writ petition.
7. At this juncture the learned Counsel appearing for the petitioner made a submission that as per the amended rule 11 of the Tamil Nadu Pension Rule 1978, the temporary service of the writ petitioners to the extend of 50% shall be taken into account for the purpose of pensionery benefits. In this regard the writ petitioners are at liberty to submit their representation to the competent authorities claiming counting of 50% of their temporary service for the purpose of pensionery benefits and if any such representation is received, the competent authorities are bound to consider the same in accordance with rules and by verifying the service records of this writ petitioners in this regard. The Counting of 50% of the temporary services is for the purpose of calculating the qualifying service for grant of pension at the time of retirement.
8.In this view of the matter no further adjudication is required on the grounds raised in this writ petition. Accordingly, the writ petition stands dismissed.
08.11.2017
speaking/non speaking
Index : Yes/No
Internet : Yes/No
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To
1. The Secretary to Government
Commercial Taxes and Registration Department
Government of Tamil Nadu
Fort St. George, Chennai-600 009.
2. The Inspector General of Registration,
The Inspector General of Registration Office,
Santhome High Road,
Chennai-600 028.
3. The District Registrar,
The District Registrar Office,
No.12-A, chairman Chidambaram Street,
Villupuram District-605 602.
S.M.SUBRAMANIAM,J.
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W.P. No.730 of 2014 &
M.P.No. 1 of 2014
08.11.2017