Madras High Court
N. Kumaresan vs The State Of Tamil Nadu on 20 June, 2012
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 20.06.2012
Coram
The Honourable Mr. Justice M. VENUGOPAL
W.P. No.37024 of 2006
and
M.P. No.2 of 2006
1. N. Kumaresan
2. N. Robinson
3. G. Ramesh
4. S. Jaya
5. T. Subash
6. S. Usha Freeda
7. T. Hepsy
8. P. Senthil Kumar
9. N. Prasad
10. J. John Durai Singh
11. M. Rasalraj
12. N. Rajakumar ... Petitioners
..Vs..
1. The State of Tamil Nadu,
rep. by the Secretary,
Public Works Department,
Fort St. George, Chennai 9.
2. The Chief Engineer (General) and
Engineer-in-Chief,
Chepauk, Chennai 5.
3. The Chief Engineer (Buildings),
Public Works Department,
Chepauk, Chennai 5.
4. The Chief Engineer Regional,
Madurai Region, Madurai 2.
5. The Superintending Engineer,
Public Works Department,
(Electrical Circle), Thallakulam,
Madurai 2.
6. The Superintending Engineer,
Public Works Department,
Palayamkottai. ... Respondents
Writ Petition filed under Article 226 of the Constitution of India, seeking to issue a writ of mandamus, directing the respondents to regularize the services of the petitioners herein on and after completion of 5/10 years of services on the basis of the representation dated 22.2.2006 and followed by the reminder dated 15.5.2006 as per the Government Orders and within a time to be stipulated by this Court.
For Petitioner : Mr. L. Chandrakumar
For Respondents : Mr. R. Vijayakumar,
Addl. Govt. Pleader
`
O R D E R
The petitioners have filed the present writ of mandamus praying for issuance of an order by this Court in directing the respondents to regularize their services on and after completion of 5/10 years of services on the basis of the representation dated 22.2.2006 and followed by a reminder dated 15.5.2006 as per the Government Orders and within a time to be stipulated by this Court.
2. According to the petitioners, they were appointed on casual labour basis with effect from the respective dates and they are continued to work with regular fictional breaks. Their date of first appointment runs as follows:-
1. N. KUMARESAN JANUARY, 1987
2. N. ROBINSON DECEMBER, 1990
3. G. RAMESH MARCH, 1990
4. S. JAYA AUGUST, 1992
5. T. SUBASH DECEMBER, 1994
6. S. USHA FREEDA MARCH, 1995
7. T. HEPSY APRIL, 1996
8. P. SENTHIL KUMAR OCTOBER, 1996
9. N. PRASAD MARCH, 2000
10. J. JOHN DURAI SINGH MARCH, 2000
11. M. RASALRAJ MAY, 2001
12. N. RAJAKUMAR OCTOBER, 2003
3. As per the Government Orders and instructions, service registers of individual were opened to those who completed four years of casual labour services. It enable them to be considered appropriately, as per the Policy of the State Government, which prescribes regularisation of services of the personnel on completion of ten years of casual labour services. According to the petitioners, the Hon'ble Chief Minister of Tamil Nadu had announced in the floor of the Assembly that daily wages employees working in all Government departments and who had put in ten years of service as on 1.1.2006 was to be regularized by appointing them in the time scale of pay in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. Hence a representation was made through the registered recognised association as regards the claim of the petitioners for regularisation of their services, followed by reminders.
4. The plea of the petitioners is that the prolonged uninterrupted continuance of the petitioners without any right of permanency would result in Damocles sword hanging over the head resulting in the denial of right of livelihood as per the Article 21 of the Constitution of India. Therefore, the petitioners have filed the present writ petition praying for issuance of direction by this Court to the respondents to regularise their services on and after completion of 5/10 years of services.
5. The Respondents Nos.1, 2, 4 and 6 in their counter have averred that out of 12 petitioners, only five worked as Mazdoors in Thamirabarani Basin Circle. (1) G. Ramesh (3rd petitioner), (2) T.Subash (5th petitioner), (3) D. Hepsy (7th petitioner), (4) N. Prasad (9th petitioner) and (5) J. John Duraisingh (10th petitioner). They were engaged under Nominal Muster Roll. However, no petitioner worked as Mazdoor under NMR for ninety days continuously for a spell and not worked for 240 days in a calendar year or 480 days in two years as NMR Mazdoor.
6. The service particulars of the five Mazdoors referred to supra are as follows:-
1. T. Subash, S/o. Thanupillai, Perunchelavavilai, Aloor P.O. MONTH NO. OF DAYS ENGAGED CB. Vr. No. 6/95 24 36 T/8-95 7/95 31 65 T/8-95 8/95 28 123 T/9-95 12/95 36 31 T/2-96 1/96 31 65 T/3-96 2/96 29 100 T/3-96 5/96 31 27 T/9-96 6/96 28 28 T/9-96 7/96 31 99 T/9-96 10/96 30 43 T/12-96 1/97 31 22 T/3-97 2/97 28 42 T/3-97 3/97 30 53 T/6-97 3/99 25 41 D1/3-99 4/99 25 11 T/5-99 5/99 28 6 T/6-99
2. T.N. Prasad, S/o. N. Nessian, Keezhapulipuram, Kattuthurai P.O. MONTH NO. OF DAYS ENGAGED CB. Vr. NO.
7/2000 26 27 T/8-00 8/2000 26 14 T/9-00 9/2000 26 48 T/10-00 10/2001 26 3 T/3-02 11/2001 25 76 T/6-02 12/2001 25 77 T/6-02 1/2002 11 78 T/6-02 2/2003 25 9 T/3-03 3/2003 26 90 T/3-03 4/2003 25 19 T/6-03
3. J. Jhon Durai Singh, S/o. Jebagnanam, 13, 165 A, Meelaperuvillai, Asaripallam P.O., Kanyakumar Dist.
MONTH NO. OF DAYS ENGAGED CB. Vr. NO.
1/2003 27 84 PB/2-03 2/2003 23 28 PB/3-03 4/2003 30 7 PB/5-03
4. D. Hepsy, W/o. S. Nesamaony, Srilaxmipuram, Variyoor P.O. K.K. District.
MONTH NO. OF DAYS ENGAGED CB. Vr. NO.
3/9816 27 PB/6-98 4/98 26 28 PB/6-98 5/98 28 34 PB/6-98 6/98 10 53 PB/6-98 7/98 27 47 PB/9-98 8/98 27 5 PB/9-98 9/98 30 95 PB/10-98 3/99 29 295 PB/3-99 4/99 29 23 PB/5-99 5/99 30 29 PB/5-99 6/99 30 16 PB/7-99 9/99 27 73 PB/9-99 1/2000 31 22 PB/2-2000 2/2000 27 8 PB/3-2000 5/2000 30 125 PB/6-2000 6/2000 30 20 DL/7-2000 2/2001 28 4 PB/3-01 3/2001 29 289 PB/3-01 7/2002 31 150 PB/10-02 5/2003 31 22 PB/6-03
(b) Anti sea Erosion Division, Nagercoil (Then KSPL Division, Nagercoil)
5. G. Ramesh, S/o. V. Gandhi, 40 Kaniyalan North Street, Vadasery. MONTH NO. OF DAYS ENGAGED CB. Vr. NO.
4/9328 96 DL/5-93 5/93 26 70 DL/6-93 6/93 27 70 DL/7-93
7. Further, the petitioners were engaged for urgent works alone and as per G.O.Ms.No.49 (P & AR) dated 14.5.2002, the Mazdoors are to be engaged under contract basis and now there is no requirement of NMR Mazdoors, in as muh as there is no sufficient work for them. The petitioners had not submitted any application dated 22.2.2006 and 15.5.2010 to the sixth respondent's office. As per G.O.Ms.No.22 P & AR (F) dated 28.2.2006, the Mazdoors, who had completed ten years of service alone are eligible for regularization.
8. In the counter filed by the fifth respondent, it is mentioned that P. Senthilkumar (8th petitioner) and N. Rajakumar (12th petitioner) were engaged in Electrical Sub Division, Nagercoil under the control of Electrical Division, Tirunelveli as N.M.R. Helpers to Wireman i.e. Casual Labours on daily wages as per the schedule of rates of the year fixed by the Engineer-in-chief during the following period:-
I. Thiru. P. Senthilkumar, 01.10.1998 to 30.11.1998 - Total 61 days II. Thiru N. Rajakumar 01.10.2003 to 30.11.2003 - 61 days 01.05.2004 to 28.06.2004 - 59 days 01.07.2004 to 31.07.2004 - 31 days 01.03.2005 to 29.03.2005 - 29 days 01.06.2005 to 28.06.2005 - 28 days 01.07.2005 to 28.08.2005 - 59 days 01.11.2005 to 28.11.2005 - 28 days 01.01.2006 to 31.01.2006 - 31 days 01.03.2006 to 31.03.2006 - 31 days
----------------
Total - 357 days ----------------
9. Since the 8th petitioner P. Senthilkumar and 12th petitioner N. Rajakumar were engaged only for 61 days and 357 days respectively with break in service, they had not completed five/ten years of service. They had not completed even one year of service. Therefore, they are not entitled to be regularized. The Government in principle accepted the policy that the service of those who have been continuously engaged as NMR roll for more ten years were to be regularized. This principle was accepted in many Tribunal cases viz. O.A. No.2706 of 1996 on the file of the Tamil Nadu Administrative Tribunal.
10. Also in O.A. No.2616 of 1993, the Tribunal accepted the position of engagement of workers as NMR and held that daily rated labourers are engaged against the requirement varying from time to time and normally the engagement cannot be regularized without any reference to the nature of work. No service book was opened for the petitioners since they were not engaged continuously. The request of the petitioners for regularisation of their services is untenable, since they were not employed by the Department continuously for more than ten years. Their service under electrical wing is normally within one year and their request for regularization therefore was to be totally rejected.
11. If individuals are engaged and continued for long number of years, those persons cannot be termed as casuals or temporary wagers, in the considered opinion of the Court. As a matter of fact, the employment of persons as casuals or daily wagers for long number of years will amount to an 'unfair labour practice'. If work is extracted from the daily wage earners/casual labourers for many number of years, requiring them to work continuously every year, this Court opines that the viable option for the employer/appointing Authority is to regularise their services in the manner known to law and in accordance with law.
12. In service jurisprudence, the term of regularisation has a certain meaning. Ordinarily, regularisation of services of persons ought to precede a legislative act or rules framed in terms of Proviso to Article 309 of the Constitution of India.
13. At this stage, this Court makes a useful reference to G.O.Ms.No.22 P & AR (F) Department dated 28.2.2006, which runs as follows:-
" The Hon'ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 8.2.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 1.1.2006 will be regularized.
2. Based on the announcement made by the Hon'ble Chief Minister on 8.2.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 1.1.2006 be regularized by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post.
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 1.1.2006 as ordered in para 2 above, in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government.
4. This order issues with the concurrence of Finance Department vide its U.O.No.985/FS/P/2006 dated 28.2.2006."
14. From the aforesaid ingredients of the Government Order, it is quite clear that the Departments/Secretariat were directed to pursue the action to regularise the services of the daily wages employees working in all Government Departments, who had rendered 10 years of service as on 1.1.2006, of course, in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules were required, proposal was directed to be sent to the Government.
15. In the case on hand, only five petitioners viz. G. Ramesh (3rd petitioner), T.Subash (5th petitioner), D. Hepsy (7th petitioner), N.Prasad (9th petitioner) and J. John Duraisingh (10th petitioner) are eligible to be considered for regularization of service. At this stage, learned Additional Government Pleader appearing for the respondents submits that one Rajakumar, 12th petitioner has been engaged as NMR for more than nine years and he is also entitled to avail the benefits of regularization as per G.O.Ms.No.22 P & AR (F) Department dated 28.2.2006. As such, the said Rajakumar (12th petitioner) is also eligible to be considered for regularisation.
16. It comes to be known during the course of the hearing of the writ petition that a proposal has been sent by the Executive Engineer, Water Resource Organisation, P.W.D., Kothaiyaru basin Circle, Nagercoild to the Superintending Engineer, Water Resource Organization, P.W.D., Department of Thamirabarani Circle, Tirunelveli to regularize the services of six persons.
17. It is also brought to the notice of this Court by the Learned counsel for the petitioners that even today, the aforesaid persons are continuing to work as NMR on daily wage basis (on casual labour). As such, this Court, in the interest of justice, equity, Fair play, good conscience and even as a matter of prudence, directs the respondents to regularize the services of the six persons viz. G. Ramesh (3rd petitioner), T.Subash (5th petitioner), D. Hepsy (7th petitioner), N.Prasad (9th petitioner), J. John Duraisingh (10th petitioner) and Rajakumar (12th petitioner) on and after completion of 5/10 years of service keeping in tune with G.O.Ms.No.22 P & AR (F) Department dated 28.2.2006 and based on other Government Orders if any, within a period of twelve weeks from the date of receipt of a copy of this order. In respect of the other petitioners, their claim for regularization of their services, stands rejected, since they do not satisfy the ingredients of G.O.Ms.No.22 P & AR (F) Department dated 28.2.2006. The writ petition stands disposed of in the above terms. Consequently, the connected M.P. is closed. However, there shall be no order as to costs.
20.06.2012 Index:- Yes.
Internet:- Yes.
ssa.
To
1. The Secretary, The State of Tamil Nadu, Public Works Department, Fort St. George, Chennai 9.
2. The Chief Engineer (General) and Engineer-in-Chief, Chepauk, Chennai 5.
3. The Chief Engineer (Buildings), Public Works Department, Chepauk, Chennai 5.
4. The Chief Engineer Regional, Madurai Region, Madurai 2.
5. The Superintending Engineer, Public Works Department, (Electrical Circle), Thallakulam, Madurai 2.
6. The Superintending Engineer, Public Works Department, Palayamkottai.
M. VENUGOPAL, J.
ssa.
W.P. No.37024 of 2006 and connected M.P. 20.06.2012