Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 721 (MAD)

N. Murugan v. State of Tamil Nadu, Rep. by its Secretary, Public Works Department, Chennai

2015-02-05

V.M.VELUMANI

body2015
Judgment :- Since common issues are involved in these writ petitions, they are heard together and disposed of by this common order. W.P.(MD) Nos.6775 & 6785 of 2011: 2. In W.P.(MD) Nos.6775 & 6785 of 2011, the petitioners seek regularisation of their services as per G.O.(Ms)No.134, Public Works Department, dated 07.05.2010 or other Government Order. 3. The petitioners in both the writ petitions were appointed as Mazdoor Grade-I on 26.12.1998 and 26.05.1998 respectively under NMR basis in Pazhayar Basin Sub Division, Nagercoil. They were appointed as Mazdoor Grade-I after they have completed S.S.L.C. They are working continuously from the year 1998. The first respondent, by G.O.(Ms) No.134, Public Works Department, dated 07.05.2010, decided to regularise the service of their employees working in the Public Works Department, who have rendered 10 years of service. As per G.O.(Ms)No.134, Public Works Department, dated 07.05.2010, the petitioners are entitled to be regularised and granted time scale of pay. The particulars of daily wage employees were sent to the respective Departments. The petitioners' names were not mentioned in the list. According to the petitioners, they have completed 10 years of service in the year 2008. The petitioners juniors were regularised in the year 2010, but they were not regularised. The petitioners made individual representations, both dated 29.03.2011 to the respondents requesting to regularise their services, but no action was taken. Therefore, the petitioners filed the present writ petitions for the relief stated supra. W.P.(MD) No.6776 of 2011: 4. The petitioner in W.P.(MD) No.6776 of 2011 seeks regularisation of his service as per G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006 or other Government Order. 5. The petitioner in W.P.(MD) No.6776 of 2011 was appointed as Mazdoor Grade-I on 01.12.1992 under NMR basis in Pazhayar Basin Sub Division, Nagercoil. Now, the petitioner is working as Irrigation Assistant in the sixth respondent's office. The State Government has issued G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, to regularise the services of the daily wage employees working in all the Government Departments, who have completed 10 years of service as on 01.01.2006 and appoint them in the time scale of pay, if they are otherwise qualified for the post. The petitioner has completed 10 years of service in the year 2004 and particulars were sent to the respective Departments. The petitioner's name was not mentioned in the list. The petitioner has completed 10 years of service in the year 2004 and particulars were sent to the respective Departments. The petitioner's name was not mentioned in the list. As per G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, the petitioner is entitled to be regularised. His name was not sent for regularisation. The petitioner's juniors were regularised in the year 2007. But the respondents have discriminated the petitioner. Therefore, the petitioner sent a representation on 30.03.2011 to the respondents requesting them to regularise his services. The respondents have not taken any action. Therefore, the petitioner has filed W.P.(MD) No.6776 of 2011, for the relief stated supra. 6. The respondents have filed counter affidavit in all the three Writ Petitions. It is stated that the petitioners were not appointed through Employment Exchange and they were not employed continuously as alleged by them. The petitioners were engaged as Mazdoor Grade-I under Nominal Muster Roll basis for few days in each year. Now, daily wages Labours are engaged through Contractors and they are getting wages from the Contractors. Their Service Registers were submitted to the second respondent through the respondents 4 and 3. But, the second respondent returned the same with certain remarks. The respondents have not discriminated the petitioners. The process of regularisation of their services is under progress. Now, the petitioners are engaged as Mazdoor under contract Labour. Therefore, they prayed for dismissal of the writ petitions. 7. Heard the learned counsel appearing for the parties. 8. I have carefully perused the materials on record and considered the arguments of the learned counsel appearing for the parties. 9. The issue of ordering regularisation of post is no more res integra. This issue had already been decided by the Hon'ble Apex Court in the Judgment reported in 2006 (4) SCC 1 [Secretary, State of Karnataka & Ors v. Umadevi & Ors.], wherein in paragraph 47, it was held as under: "47. .... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. ...." 10. The issue was again considered by the Hon'ble Apex Court in the Judgment reported in 2014 (4) SCC 769 [Secretary to Government, School Education Department vs. Thiru.R.Govindasamy and others], wherein it has been held that part time Sweepers were not entitled to regularisation even when they had put in long service, because they are not working against the sanctioned posts. 11. The Hon'ble Apex Court has also considered the earlier Judgment on this issue, especially, in the case of State of Rajasthan and Others. v. Daya Lal & Others. [ 2011 (2) SCC 429 ], wherein in paragraph 12, it has been held as follows:- "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. 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. (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." 12. A Division Bench of this Court in the Judgment reported in 2014 (4) LW 657 [State of Tamil Nadu, Rep. by the Secretary to Government, School Education Department, Chennai, Vs. M.Seeniammal and others, batch of cases [in which I was a party]], rejected the claim of part time employees for regularisation. 13. A Division Bench of this Court in the Judgment reported in 2014 (4) LW 657 [State of Tamil Nadu, Rep. by the Secretary to Government, School Education Department, Chennai, Vs. M.Seeniammal and others, batch of cases [in which I was a party]], rejected the claim of part time employees for regularisation. 13. It is well settled that the Courts cannot direct regularisation of employees even when they have put in long years of service and sympathy and sentiment cannot be valid grounds for regularisation of service in the absence of any right. 14. In view of the Judgments referred to above, I hold that the petitioners are not entitled to the relief sought for in the writ petitions. 15. In the result, the writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are also dismissed.