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2014 DIGILAW 4384 (MAD)

S. Girija v. S. Girija

2014-11-21

K.K.SASIDHARAN, SATISH K.AGNIHOTRI

body2014
ORDER : 1. The petitioners are stated to be working as Typists pursuant to the appointment orders dated 30.7.2009, 09.12.2009, 13.04.2010, 27.07.2010 and 31.8.2010 issued by the second respondent. The case of the petitioners before this Court is that they were appointed as Typist on the basis of the interview conducted by the second respondent. The names of the petitioners were duly sponsored by the District Employment Office and the petitioners have been selected properly in accordance with the rules for appointment temporarily in the post of Typists. 2. Mr. T. Muruganantham, learned counsel appearing for the petitioners would submit that the petitioners, thereafter, have continued to work uninterruptedly without any break and have discharged their duties satisfactorily and as such, the petitioners are entitled to be regularized. The petitioners rely on G.O. Ms.No.61, Personnel and Administrative Reforms Department, dated 22.05.2009, wherein, in paragraph 4(2)(c), it is clearly stated that persons appointed temporarily shall be replaced as soon as possible by a member of a service or an approved candidate qualified to hold the post under the rules and in any case, he shall not be continued for the period of one year from the date of his temporary appointment. Since no steps were taken to remove the petitioners after completion of one year and they were allowed to continue for more than three years thereafter, the respondents be directed to regularize the services of the petitioners as Typists from the date of appointment with consequential back-wages. 3. On the other hand, Mr. V. Ayyadurai, learned counsel appearing for the respondents would submit that continuation in the post of temporary service for more than one year does not confer any right on the petitioners for regularisation. The subsequent Government letter (Ms)No.86/P/2013, Personnel and Administrative Department, dated 8.7.2013 clearly mandates that all temporary Typists, who are continuing in service, have to be disengaged immediately on the afternoon of 10.7.2013 and thereafter, after break, they may be appointed again on temporary basis. 4. The petitioners have referred to several Government Orders which are not relevant to the present controversy. 5. Heard the learned counsel for the parties and perused the pleadings and documents appended to the writ petition. 6. 4. The petitioners have referred to several Government Orders which are not relevant to the present controversy. 5. Heard the learned counsel for the parties and perused the pleadings and documents appended to the writ petition. 6. The second respondent, exercising his power under Rule 16 of the Tamil Nadu Judicial Ministerial Service Rules ("the Rules" for short) appointed the petitioners in the post of Typist to meet out the exigency. Rule 16 provides for temporary appointment in public interest owing to an emergency which has arisen to fill immediately, a vacancy in the post and on account of undue delay in making regular appointment in accordance with the rules. Sub-rule (c) of Rule 16 requires that a person appointed under Sub-rule (a) of Rule 16 be replaced as soon as possible, by a member of the service or an approved candidate qualified to hold the post under the Rules. Sub-rule (e) of Rule 16 provides that the services of such a person in the post shall be liable to be terminated by the appointing authority, at any time, without any notice and without any reason being assigned. Thus, it is evident that the appointment of the petitioners was not a regular appointment, in accordance with the Rules. Besides, Rule 13 of the Rules prescribes the method of appointment by direct recruitment as per Annexure II of the said Rules. Annexure II, inter alia, provides that appointment to the posts, including Typists, is to be done by the Tamil Nadu Public Service Commission, after preparing a select list. Thus, it can safely be held that the appointment of the petitioners was temporary, not conferring on them, any right for regularisation and the same was only a stop-gap arrangement till regularly appointed persons by the Tamil Nadu Public Service Commission, are available. 7. The second question that arises for consideration is as to whether such appointment on the basis of list sponsored by the Employment Exchange is a legal appointment. The Supreme Court, while considering this issue in State of Orissa and Another Vs. Mamata Mohanty, (2011) 3 SCC 436 , held as under: 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. The Supreme Court, while considering this issue in State of Orissa and Another Vs. Mamata Mohanty, (2011) 3 SCC 436 , held as under: 36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment exchange or putting a note on the notice board, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered. A person employed in violation of these provisions is not entitled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open advertisement as to enable all eligible persons to compete on merit. The above said judgment has been quoted with approval by the Supreme Court in Renu and Others Vs. District and Sessions Judge, Tis Hazari and Another, AIR 2014 SC 2175 vide judgment dated 12.02.2014. 8. The orders of appointment dated 30.7.2009, 09.12.2009, 13.04.2010, 27.07.2010 and 31.8.2010 clearly indicate that the petitioners were appointed temporarily against the vacancy, which was to be filled up on selection by the Tamil Nadu Public Service Commission. The appointment of petitioners on the basis of the list made by the employment exchange cannot be held as in accordance with constitutional scheme of employment. The constitutional scheme of employment requires public notification, inviting applications from all eligible candidates including candidates referred to by the employment exchange. Thus, it cannot be held that their appointment was in accordance with the constitutional scheme of employment. 9. The Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 held as under : "44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. Umadevi and Others, (2006) 4 SCC 1 held as under : "44. The concept of "equal pay for equal work" is different from the concept of conferring permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no process of selection as envisaged by the rules. This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle. The decisions are rested on the concept of equality enshrined in our Constitution in the light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due procedure established by law, be deemed permanent or issue directions to treat them as permanent. Doing so, would be negation of the principle of equality of opportunity. The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used for giving the go-by to the procedure established by law in the matter of public employment. Take the situation arising in the cases before us from the State of Karnataka. Therein, after Dharwad decision the Government had issued repeated directions and mandatory orders that no temporary or ad hoc employment or engagement be given. Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment, specifically interdicted by the orders issued by the executive. Some of the appointing officers have even been punished for their defiance. It would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements. Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which would amount to perpetuating an illegality. 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. 45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned 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 open eyes. It may be true that he is not in a position to bargain-not at arm's 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 succour 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. 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 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. 47. 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 recognised 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 cases concerned, 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. 54. 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." 10. The Supreme Court in State of Rajasthan and Others Vs. Daya Lal and Others, (2011) 2 SCC 429 , held as under : "12. The Supreme Court in State of Rajasthan and Others Vs. Daya Lal and Others, (2011) 2 SCC 429 , held as under : "12. We may at the outset refer to the following well-settled principles relating to regularisation and parity in pay, relevant in the context of these appeals: (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 ad hoc 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 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." 11. In view of the well settled provisions of law as discussed hereinabove and the factual matrix involved in the case on hand, no direction can be issued to regularise the services of the petitioners and continue them on the basis of their continuity of service in the past, after their appointment till date. 12. In view of the foregoing, the writ petition is dismissed. No costs.