The State Of Tamil Nadu vs M.Jeyaraj on 30 November, 2010

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Madras High Court

The State Of Tamil Nadu vs M.Jeyaraj on 30 November, 2010

These Writ Appeals arise out of the order of single Judge dated 11.8.2008 made in W.P.Nos.8912 and 8913 of 2007 and 762 of 2008 quashing G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 insofar as the respondents/employees are concerned and holding that the respondents/employees are eligible for all the benefits from their initial date of appointment.

2. In G.O.(D) No.736 Rural Development & Panchayat Raj (E5) Department dated 14.12.2006, Government issued orders according permission to District Collectors to fill up the 182 vacancies for the post of drivers in the Rural Development & Panchayat Raj (in short, "RD & PR) Department directing to fill up the vacancies by direct recruitment through Tamil Nadu Ex-Servicemen Corporation Limited (in short, "TEXCO"). Insofar as Ramnad District, by D.O.Letter No.31347/E5/2006-3 dated 21.12.2006, the Secretary to Government, RD & PR Department permitted the District Collector, Ramnad to fill up 4 driver posts through TEXCO along with consultation of Managing Director, TEXCO. The Assistant Manager, TEXCO, Madurai has sent a list of four candidates i.e., petitioners in W.P.(MD) No.762 of 2008 and they have been appointed subject to the conditions contained in the contract agreement. The General Manager, TEXCO, Madurai had entered into a contract agreement with the District Collector, Ramnad containing 16 clauses of terms and conditions for the supply of drivers. The said contract was for a period of one year from 17.3.2007 to 16.3.2008. The Government examined the difficulties in appointment of drivers through TEXCO and in supersession of G.O.(D) No.736 Rural Development & Panchayat Raj (E5) Department dated 14.12.2006, G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 was issued by the Government to fill up vacancies for the post of drivers by getting the list of candidates from Employment Exchange in the ratio of 1:20. The District Collector, Ramnad issued notices to the 4 TEXCO drivers marking a copy to Manager, TEXCO, Chennai stating that the period of contract is over on 16.3.2008 and that they are to be relieved from duty within a week on receipt of the notice. It was also informed to the Manager, TEXCO that the drivers sent by the TEXCO were appointed purely on contract basis as per the agreement. Challenging the said G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007, the respondents have filed W.P.(MD) No.762 of 2008 seeking to quash the said G.O., and consequently to direct the respondents to regularise the respondents services as drivers with all attendant benefits.

3. Insofar as Kanyakumari district, Assistant Manager, TEXCO, Tirunelveli has been addressed to send list of candidates for the selection of 4 jeep drivers in Kanyakumari District and accordingly, list of 4 jeep drivers were sponsored. Interview and skill test were conducted on 8.2.2007 and the Writ Petitioners in W.P.Nos.8912 and 8913 of 2007 were appointed as temporary jeep drivers. After passing of G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007, the services of the drivers appointed through TEXCO were terminated by proceedings dated 26.10.2007. The Writ Petitioners are said to have refused to receive orders, but their services were terminated as early as 26.10.2007 and the interim stay order granted could not be given effect to. Challenging the same G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007, the respondents in W.A.Nos.569 and 570 of 2010 have filed W.P.Nos.8912 and 8913 of 2007 to quash the said Government Order and consequently direct the District Collector, Kanyakumari to regularise them with all attendant benefits. The Government resisted the Writ Petitions contending that there are practical difficulties involved in employing TEXCO drivers for RD & PR Department since the services of the drivers are required in rural areas, especially in remote ends and therefore in supersession of the Government Order in G.O.(D) No.736 Rural Development & Panchayat Raj (E5) Department dated 14.12.2006, Government issued fresh Government Order to fill up 182 driver posts by direct recruitment through Employment Exchange. According to the Government, the TEXCO drivers, having been appointed pursuant to a contract employment, cannot challenge the Government Order and seek regularisation.

4. Before the learned single Judge, the Additional Advocate General produced G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002 and stated that as per the said G.O., there is a reservation of 5 percent of vacancies for Ex-servicemen in Group 'C' posts and if the jeep drivers fall within that 5 percent as and when they are due for direct recruitment though Employment Exchange, they can be accommodated. Before the single Judge, the learned Advocate General is said to have made a statement that if the TEXCO drivers give undertaking foregoing service tax and service charges and if they come within the purview of the 5 percent reserved for Ex-Servicemen, their case can be considered. The learned single Judge allowed the Writ Petition observing as under:

"8. In view of the said submission made by the learned Additional advocate General appearing for the official respondents, basing on the above said Government Order, which will safeguard the interest of the Ex-Servicemen, which is extended as a welfare measure to them, the impugned Government Order is upheld and so far as it relates to other reasons are concerned, in view of the undertaking given by the learned Additional advocate General for the respondents today, the respondents are directed to fill up 10% of vacancies that exist in the post of drivers in the respondents department by the ex-servicemen. The learned Additional Advocate General has also produced another letter dated 06.12.2007 issued in Letter (Ms) No.255, Personnel and Administrative Reforms (P) Department. As per the said Government letter also, the appointment through TEXCO will be made, wherever it is possible. In view of this, the impugned order is quashed and the petitioners are eligible for all the benefits from their initial date of appointment."

5. Since the learned single Judge has directed to fill up 10 percent vacancies, which is contrary to G.O.Ms.No.762, Public (Ex-Servicemen) Department dated 29.8.2002, which provides for only 5 percent and also stating that the statement of Additional advocate General was not properly reflected in the order, review applications were filed by the Government in Review Application Nos.10 to 12 of 2009 and the Review Applications were closed on 10.9.2009 by making it clear that the percentage of reservation for Ex-Servicemen for appointment through Employment Exchange as per G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002 is only 5 percent. However, while closing the review applications, the learned single Judge observed that the reduction in percentage will not have the effect of disturbing the appointment of the respondents/employees.

6. Being aggrieved by the order of learned single judge, the Government preferred this appeal. The learned Additional Advocate General Ms.V.Chellammal submitted that the learned single Judge ought to have considered that the appointment orders were issued by the Collector of Ramnad only pursuant to the agreement and the said agreement was only for a period of one year from 17.3.2007 to 16.3.2008. It was further submitted that as per the terms and conditions of the agreement, one month prior notice was issued by the Collector of Ramnad in his letter dated 10.1.2008 informing the respondents that the contract was over on 16.3.2008 and that they would be relieved from duty and the respondents, being appointed pursuant to the said contract, cannot seek for regularisation.

7. Mr.Veera Kathiravan, learned counsel for the employees/respondents in W.A.Nos.569 and 570 of 2010 submitted that appointment of drivers through TEXCO is based upon the guidelines of Union of India and as per the scheme framed by the Union of India for re-settlement of the Ex.Servicemen in the Central and State Governments. It was further submitted that even though the names of respondents were sponsored by TEXCO and TEXCO has entered into contract with the District Collector, Ramnad, their services of the respondents cannot be terminated. The learned counsel would further submit that termination of the services of TEXCO drivers is in contravention of the welfare scheme framed by the Union of India and therefore G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 was rightly quashed by the learned single judge insofar as the respondents are concerned.

8. The learned counsel for the respondents contended that having passed G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002 to recruit 182 TEXCO drivers, it is not open to the Government to supersede the same and pass G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 to recruit drivers through Employment Exchange. It was further argued that the appellants must be directed to retain the respondents - drivers already appointed notwithstanding G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007.

9. As pointed out earlier, pursuant to the earlier G.O.(D) No.736 Rural Development & Panchayat Raj (E5) Department dated 14.12.2006, in consultation with Manager, TEXCO, Chennai, the District Collector, Ramnad, the respondents 1 to 4 in W.A.No.685 of 2010 were appointed as drivers. General Manager, TEXCO, Chennai had entered into a contract agreement with District Collector for supply of 4 drivers and one security guard. The respondents in W.A.No.685 of 2010 were appointed pursuant to the said contract. The period of contract was for one year i.e., from 17.3.2007 to 16.3.2008. As per the terms and conditions of the contract, the wages payable to the TEXCO drivers and security guards are payable only to the TEXCO as seen from clauses 7 and 9, which read as under:

"7. The D C (Panjayat Raj), Ramnad, shall pay to TEXCO the wages as approved by the Govt. of Tamilnadu vide Lr.No.56532/2001-3 Public (Ex-Ser) Dept dt.07.08.2002 and effected rates specified for each calendar/accounting month along with Service Charges of 12% & Service tax of 12.24% which includes 2% of Educational cess on 12% of Service Tax on gross bill w.e.f. 18.04.2006 onwards:-

......

(9) All claim bills raised by TEXCO, on wages shall be paid by the D C (Panchayat Raj), Ramnad, within 7 days of receipt so that the wages are paid to the Security Guards within 7 days from the END OF WAGE PERIOD, following the period of performance of duty based on the authroised attendance of the contracted personnel as per the Govt.Lr.No.56532/2001-3 Public (Ex-Ser) Dept dt.07.08.2002 in this regard."

As per Clause (14) of the agreement, the agreement shall be terminated by either parties by giving one month advance notice in writing or payment of one month contractual dues in lieu or terminated by TEXCO for non receipt of payment within 15 days due date.

10. In pursuance of the said contract, the respondents in W.A.No. 685 of 2010 were appointed only through TEXCO. It is clear from the above that all wages shall be paid to TEXCO, who in turn will pay the wages to the TEXCO drivers for the services and service charges of 12 percent and service tax at 12.24 percent are payable to TEXCO.

11. The agreement entered between the District Collector, Ramnad and General Manager, TEXCO was for a period of one year only i.e., from 17.3.2007 to 16.3.2008. As per clause 14 of the contract, one month prior notice was issued by the District Collector, Ramnad in his letter Na.Ka.No.4/74467/2007 dated 10.01.2008 informing the respondents that the contract is over on 16.3.2008 and that they will be relieved from duty. In the said letter dated 10.1.2008, it was made clear that the drivers were sent by TEXCO and they were appointed purely on contract basis as per agreement made between TEXCO and the Collector and not with the individual persons. The respondents, being appointed purely on contract basis, they have no lien to claim any right against the contract appointment. When the appointment is purely on contract basis pursuant to the agreement between TEXCO and the District Collector, the respondents cannot claim right to be retained.

12. Expressing that the Panchayat Raj and Rural Development Department has to work in rural areas, especially, in the remote ends and the Department was facing difficulties in employing the TEXCO drivers and implementing its schemes in rural areas and the drivers have to put in long hours day after day and examining the difficulties, in supersession of the earlier Government Order, the Government passed G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 to recruit the drivers by getting the list of candidates from Employment exchange and to conduct driving skill test and select the candidates for appointment as drivers. The respondents, who were appointed purely on contract basis, cannot challenge the same. The learned single Judge ought to have kept in view that the respondents were appointed purely on contract basis pursuant to the contract between the District Collector and TEXCO.

13. The learned Additional Advocate General Ms.Chellammal submitted that the order of learned single judge does not correctly reflect the statement made by the Additional Advocate General. As pointed out earlier, in G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002, reservation of 5 percent of vacancies for Ex.Servicemen in Group 'C' post included driver and such reservation shall be followed only when direct recruitment through Employment Exchange is made to the said post. The said reservation is not applicable to the case of respondents - drivers, who have been appointed by outsourcing through TEXCO, all of whom are Ex.Servicemen. It was submitted that before the learned single Judge the Additional Advocate General made a statement that the names of the respondents could be considered if they fall within the zone of consideration of 5 percent reservation provided as and when the respondents get seniority in the Employment Exchange. As pointed out earlier, while referring to G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002, the learned single judge has referred the reservation as 10 percent, which was later corrected in the review order as 5 percent.

14. As pointed out earlier, for employing drivers through TEXCO, the service charges at 12 percent and service tax at 12.24 percent are payable to TEXCO. The order of learned single judge refers to a statement of the counsel for the respondents stating that the respondents are prepared to give undertaking that the service charges and service taxes could be deducted from their salary and that they are prepared to forego overtime allowance. The order of learned single Judge refers to the statement of Additional Advocate General, which reads as under:

"6. The learned additional Advocate General appearing for the respondents has submitted that in the event of the petitioners giving such an undertaking, the official respondents do not have any grievance with their continuance in service."

15. It was submitted onbehalf of the appellants that the undertaking of Additional Advocate General was not correctly reflected in the order of learned single Judge. Be that as it may, it is not a question of mere payment of service tax or service charges. When the contract itself came to an end and as per the terms of the contract, the respondents were relieved from the Department, the respondents in W.A.No.685 of 2010 have no lien to claim the right to be retained.

16. Placing reliance upon the order of single judge in W.P.(MD) No. 2875 of 2006, which was confirmed in W.A.(MD) No.325 of 2006, the learned counsel Mr.Veera Kathiravan submitted that the Ex.Servicemen are employed only based upon the welfare scheme framed by the Union of India and any decision not to extend the agreement is totally arbitrary and illegal. In the said case 102 Ex.Servicemen were employed by the Madurai Corporation as drivers/security and in other services, Madurai Corporation resolved not to extend the contract agreement beyond 31.3.2006 on the ground that the Corporation has resolved to hire the services of private agencies by paying less amount. The resolution not to extend contract with TEXCO came to be challenged in W.P.No.2875 of 2006. The learned single Judge directed the Corporation to take minimum steps to renew the agreement and to continue to provide employment to the members of TEXCO. The Judgment of the learned single Judge was confirmed by the Division Bench in W.A.No.320 of 2006. Laying emphasis upon the said judgment, the learned counsel for the respondents Mr.Veerakadiravan strenuously contended that the act of the appellants not to extend the contract is arbitrary and therefore G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 is liable to be quashed. In the said case, before the learned single judge, the Ex.Servicemen appointed through TEXCO were in the service of Madurai Corporation for more than 13 years. Having regard to the length of service and the service rendered by them, the learned single Judge directed the Corporation to take minimum steps to renew the agreement. The case on hand stands entirely on a different footing. In the instant case, TEXCO drivers were appointed only in 2006-2007. Within short time, in supersession of the earlier G.O., subsequent G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 came to be passed. Based upon contract, they were engaged only for nearly one year. Therefore, the view taken in the above decision cannot be said to be applicable to the case on hand.

Kanyakumari District:

17. Insofar as the District of Kanyakumari, the learned Additional Advocate General submitted that the District Collector, Kanyakumari has omitted to enter into a contract with TEXCO and in any event the appointment of the respondents in Kanyakumari District is purely temporary and as such, they have no right to continue in service and their services were properly terminated. In support of her contention, learned Advocate General placed reliance upon decisions of this Court in M.SARAVANAKUMAR AND OTHERS VS. THE SECRETARY TO GOVERNMENT EDUCATION DEPARTMENT, CHENNAI, (2005(3) MLJ 538); STATE OF UTTAR PRADESH AND ANOTEHR VS. KAUSHAL KISHORE SHUKLA, ((1991) 1 SCC 691) and TRIVENI SHANKAR SAXENA VS. STATE OF U.P. AND OTHERS, (1992 SUPP (1) SCC 524).

18. Mr.Isaac Mohanlal, learned counsel appearing for respondents submitted that insofar as Kanyakumari District, the respondents are not TEXCO drivers and they are not working in the Department by virtue of any agreement with TEXCO. On the other hand, they were regularly employed drivers in the Department in Kanyakumari District and the role of TEXCO ended with the forwarding of their names to the Department.

19. As pointed out earlier, in pursuance of G.O.(D) No.736 Rural Development & Panchayat Raj (E5) Department dated 14.12.2006, wherever TEXCO drivers were appointed, they were appointed pursuant to the agreement entered by the District Collector with TEXCO and wages were paid through TEXCO. In the District of Kanyakumari, the District Collector omitted to enter into such agreement with TEXCO. On the names being sponsored by TEXCO, the respondents in W.A.Nos.569 and 570 were appointed on temporary basis as jeep drivers. Though they were appointed temporarily, they came to be appointed only because of outsourcing to TEXCO. After passing of G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007, since the respondents were appointed on temporary basis, they were terminated from service by the proceedings of the District Collector, Kanyakumari dated 26.10.2007.

20. In so far as Kanyakumari District, the contention for the respondents is that they were not appointed pursuant to any contract, but were appointed temporarily in the time scale of pay and therefore they cannot be removed from service. It was further argued that even though in supersession of earlier G.O., the subsequent G.O. was passed, they were appointed in the time scale of pay, though temporarily and that they stand on different footing.

21. In so far as the District of Kanyakumari, no such contract was entered into by the District Collector. The learned Additional advocate General submitted that except in Kanyakumari District, in other Districts, the TEXCO drivers were appointed. District Collectors have entered into agreement with TEXCO and the wages were also paid only to TEXCO. In this regard, the Government has produced typed set of papers containing the State-wide abstract and also the mode of appointment and also the payment of salary. In the Districts of Ramnad, Thiruvallur, Salem, Tiruvannamalai, Dharmapuri, Nagapattinam, Tirunelveli and Virudhungar District, TEXCO drivers were appointed only through TEXCO and pursuant to the agreement the wages were paid only through TEXCO. It was stated that only TEXCO raised claim bills of wages and the TEXCO in turn would pay the wages to the employed persons. It is amply made clear that the appointments were purely on contract basis based upon the contract by the District Collectors with TEXCO.

22. The learned Additional Advocate General submitted that elsewhere in Tamilnadu, the drivers were appointed only by entering into contract with TEXCO and only in District of Kanyakumari, the District Collector omitted to enter into contract. As pointed out earlier, the respondents in W.A.Nos.569 and 570 of 2010 were temporarily appointed only because of outsourcing of services of drivers pursuant to G.O.Ms.No.762, Public (Ex.Servicemen) Department dated 29.8.2002, but for the G.O., the respondents would have to wait to get their turn for appointment through Employment Exchange within 5 percent reservation.

Even though they were appointed in the Scale of Pay, it was only temporary and pursuant to outsourcing. Having regard to the nature of hours of duty, which the drivers are required to perform in Panchayat Raj Department, when Government has decided to go in for recruitment through Employment Exchange, the respondents, who have been appointed temporarily cannot claim right to continue in the post.

23. Submitting that the appointment of the respondents in W.A.Nos.569 and 570 of 2010 are only temporary and that the respondents appointed on temporary basis have no right to continue in service, the learned Additional Advocate General placed reliance upon a decision of a Division Bench of this Court in M.SARAVANAKUMAR AND OTHERS VS. THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMETN, CHENNAI, (2005) 3 M.L.J. 538, wherein this Court has held as under:

"9.There is no rule of law that a temporary appointee has a right to continue till a regularly selected candidate is available. If that was the correct legal position then a person appointed on a temporary basis for even one month may claim to be entitled to continue for 20 years if there is no regular selection for 20 years. This is obviously not the correct legal position. The correct legal position is in fact just the reverse, namely, that a temporary appointee has no right to the post. In other words, he has no right to continue even for one day, far less having a right to continue till the regularly selected candidate is available. The service of a temporary appointee can be terminated at any time because he has no right to the post."

24. In so far as Kanyakumari district, in the order of appointment of respondents, it has been clearly stated that the appointment is purely temporary. Having been appointed temporarily, the respondents being temporary appointees, have no right to claim continuance in service. By G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007, having regard to the long hours of work of drivers involved in the Rural Development and Panchayat Raj Development, Government passed G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 for appointment of drivers calling the list from the Employment Exchange. We see no reason why the deserving persons should not be appointed. After all, in the Rural Development, Department, long hours of duty is required of the drivers. The respondents were clearly temporary appointees and have no right to the post. Therefore, the order of the learned single Judge dated 11.8.2008 made in W.P.Nos.8912 and 8913 of 2007 and 762 of 2008 quashing G.O.(D) No.586, Rural Development and Panchayat Raj (E5) Department dated 8.10.2007 cannot be sustained and is liable to be interfered with and accordingly the same is set aside.

25. In the result, all the Writ Appeals are allowed. However, there is no order as to costs.

usk To

1. The Secretary Department of Rural Development and Panchayat raj State of Tamil Nadu Fort St.George, Chennai- 09.

2. The Director or Rural Development and Panchayat Raj, Chennai - 15

3. The District Collector, Kanyakumari District Nagercoil

4. The Tamil Nadu Ex.Servicemen Corporation Limited Chennai, rep.by its Managing Director

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