Madras High Court
M.Kalyanasundaram vs The Commissioner Of Municipal ... on 24 June, 2022
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.No.15681 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.06.2022
Coram
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.15681 of 2022
and WMP No. 14931 of 2022
1. M.Kalyanasundaram
2. B.Saravanan
3. S.Udayakumar
4. N.Mani
5. R.Kasinathan
6. S.Baskaran .... Petitioners
Vs.
1. The Commissioner of Municipal Administration,
Chepauk, Chennai-5.
2. The Commissioner,
Chidambaram Municipality,
Chidambaram. ...Respondents
Prayer : This writ petition has been filed under Article 226 of the
Constitution of India to issue a Writ of Certiorarified Mandamus,
calling for the records connected with proceedings issued in Na.Ka.No.
743/2012/E1 dated 29.11.2019 passed by the second respondent
(individual copy issued to all the petitioners) and quash the same and
consequently, direct the respondents to appoint them in the regular
vacancies as sweepers and regularise their services in the same post.
Page 1 of 10
https://www.mhc.tn.gov.in/judis
W.P.No.15681 of 2022
For Petitioner : Mr.S.Ilamvaludhi
For Respondents : Mr. E.Veda Bagath Singh,
Spl.Govt. Pleader
ORDER
This petition has been filed to issue a Writ of Certiorarifed Mandamus, quashing the impugned order dated 29.11.2019 passed by the second respondent and consequently, direct the respondents to appoint the petitioners in the regular vacancies as sweepers and regularise their services in the same post.
2. By consent of counsels for both the parties, this writ petition is disposed of at the admission stage itself.
3. The petitioners have served long years as NMR workers in Chidambaram Municipality from 1983 and 1984 and they had been paid consolidated pay of Rs.2,000/- per month. The petitioners gave representations to appoint them as regular employees, but it was not considered. Howver, Orders was issued to by the Commissioner on Page 2 of 10 https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 20.02.2008 to appoint 30 persons as NMS, without accommodating the petitioners as NMS. Hence, the petitioners filed W.P.13949 of 2008 and this Court vide order dated 06.08.2010, has directed the respondents to consider the petitioners for regularisation on humanitarian grounds. However, the second respondent vide order 15.09.2010 has rejected the petitioners claim. Challenging the same, the petitioners filed W.P.10424 of 2011. This Court vide order dated 07.08.2019 has passed a very elaborate order, by specifically noted that as on particular date i.e. 01.10.1996, as per G.O.Ms.No.125 MAWS department dated 27.051999, the petitioners were not at all in service, however, the length of service from 1983 to till date, cannot be ignored by the respondents. Pursuant to the above order, the second respondent in a routine manner, has rejected the claim of the petitioners, vide proceedings dated 29.11.2019, without taking into consideration the petitioners' length of service. Hence this writ petition.
4. The learned counsel appearing for the petitioners submitted that, this Court in W.P.No.10424 of 2011 has held that appointment should be made in the existing vacancies by considering the petitioners' Page 3 of 10 https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 length of service. Further, similarly placed persons have been considered for absorption and hence, the rejection order passed by the second respondent, without considering the petitioners' length of service, is illegal.
5. The learned Special Government Pleader appearing for the respondents submitted that the petitioners are daily rated employees and they are working in non-statutory posts and therefore, they are not entitled to seek absorption as regular employees in the respondent Municipality.
6. It is an admitted fact that the petitioners were appointed as Sweepers in the respondent Municipality on consolidated pay. The petitioners have also stated that they have served long years from 1983 and 1984 in the Municipality and similarly placed persons were considered for absorption and hence, they may be appointed in the regular vacancies as sweepers and regularised their service in the same post.
Page 4 of 10https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022
7. At this juncture, it is relevant to rely upon the decision of the Hon'ble Supreme Court in the case of Secretary to Government, School Education Department, Chennai vs. R.Govindaswamy and others [(2014) 4 SCC 769] wherein in Paragraph No.7, the Apex Court has observed as follows:
“7. This Court in State of Rajasthan & Ors. vs. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
“8(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii) Mere continuation of service by a temporary or adhoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be “litigious employment”. Even temporary, ad hoc or daily-
wage service for a long number of years, let alone service for one or Page 5 of 10 https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii) Even where a scheme is formulated for regularisation with a cut- off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.
(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute.” (Emphasis added)
8. Further, the Hon'ble Supreme Court in the case of State of Karnataka and others Vs. Uma Devi and others reported in AIR 2006 SC 1806, at paragraph No.36 and 38, has observed as follows.
Page 6 of 10https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022
36. While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to Page 7 of 10 https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
37. ...
38. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
9. Therefore, in the light of the decision of the Honourable Apex Court in the case of R.Govindaswamy and Uma Devi (cited supra), the petitioners have no legal right to ask for regularisation of their Page 8 of 10 https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 service. At this juncture, the learned counsel appearing for the petitioners submitted that considering the long service rendered by the petitioners, respondent Municipality can absorb the petitioners under " Special time scale of pay " and hence, liberty may be granted to the petitioners to approach the authorities concerned, seeking absorption of the petitioners as Sweepers under " Special time scale of pay".
10. Accordingly, this writ petition is dismissed with liberty to approach the authorities concerned for making fresh representation.
No costs. Consequently, connected writ miscellaneous petition is closed.
24.06.2022 (2/2) Index : Yes/No Internet: Yes/No mst To
1. The Commissioner of Municipal Administration, Chepauk, Chennai-5.
2. The Commissioner, Chidambaram Municipality, Chidambaram.
Page 9 of 10https://www.mhc.tn.gov.in/judis W.P.No.15681 of 2022 D.KRISHNAKUMAR, J.
mst W.P.No.15681 of 2022 24.06.2022 (2/2) Page 10 of 10 https://www.mhc.tn.gov.in/judis