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2019 DIGILAW 311 (MAD)

A. Narayanasamy v. Secretary to Government, Personnel and Administrative Reforms Department

2019-01-30

S.MANIKUMAR, SUBRAMONIUM PRASAD

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JUDGMENT : S. Manikumar, J. 1. Challenging the order, dated 4/12/2017, passed in W.P. No. 29628 of 2010, appellants/writ petitioners have filed the instant writ appeal. 2. Case of the appellants is that they were employed in respect of certain schemes introduced by Government of India, Human Resource Development Department, to uplift the poor people, residing in rural places. They were appointed, as alternative education innovative motivators, under the said scheme, viz., Sarva Sishya Abhiyan Scheme (Education to all) called SSA Scheme, on a consolidated salary. Thereafter, they were appointed under "Arivoli Valarkalvi Thittam", as Organisers. They were employed during 2004-05 and thereafter, continued till 2012-13. Since the scheme was discontinued, their services came to be discharged. 3. Grievance of the appellants is that instead of reappointment, in any department, their services stood terminated. According to them, in similar circumstances, Government of Tamil Nadu passed orders, re-employing such employees and accommodated them in various departments, and such benefits, can also be granted to the appellants herein. 4. Appellants have filed W.P. No. 29628 of 2010, for issuance of a writ of mandamus, to direct the respondents, to accommodate and give postings to the appellants (erstwhile employees of Continuing Education Scheme), in any departments/state undertakings, based on the appellants qualifications, as done in the case of Census employees. After hearing the learned counsel, on either side, this Court, vide, order, dated 4/12/2017, dismissed the writ petition, as hereunder: "5. Although the learned counsel for the petitioners attempted to convince this Court that they were continuously employed for seven years and therefore, they are entitled to be considered along with other similarly placed persons, but the petitioners grievance cannot be answered in this writ petition for the reason that they are originally appointed only under the scheme. Once the schemes have been wound up, the question of accommodating them in any department does not arise at all. Moreover, the qualifications and other essential requirements for accommodating them in other Government Departments have to be looked into and the petitioners cannot straight away seek for their absorption in other Government departments regardless of the fact whether they have the required qualification for further employment or not." 5. Being aggrieved, the appellants have come forward with the instant writ appeal. 6. Mr. Being aggrieved, the appellants have come forward with the instant writ appeal. 6. Mr. A. Sivaji, learned counsel appearing for the appellants submitted that the appellants were continuously employed for more than seven years and therefore, they are entitled to be considered along with other similarly placed persons. 7. Mr. A. Sivaji, learned counsel appearing for the appellants further submitted that for direct recruitment to a post included in service for which the minimum qualification required, is not higher than the minimum general education qualification. The age limit prescribed shall be increased by five years, in respect of candidates, belonging to scheduled castes or scheduled tribes. In support of his submission, learned counsel for the appellants produced G.O. Ms. No. 8, Personnel and Administrative Reforms (Per-P) Department, dated 2/1/1980. 8. Placing reliance on the order, made in W.P. No. 28807 of 2005 (census batch), appellants have sought for employment, in any department, wherever, vacancy arises, depending upon the qualification. But the request was not considered. He has also placed reliance to the orders made in W.P. Nos. 20649 of 2010, 6144 of 2007, 27921 of 2015 and 32239 of 2018, dated 23/9/2010, 13/3/2013, 4/9/2015 and 6/12/2018, respectively. 9. Mr. P.S. Sivashanmuga Sundaram, leaned Special Government Pleader for the respondents submitted that initially, the appellants were appointed under the scheme. Once the scheme is wound up, question of accommodating them in any department does no arise at all. He also submitted that the appellants cannot seek for their absorption in other Government Departments. Heard Mr. A. Sivaji, learned counsel for the petitioner and Mr. P.S. Sivashanmugasundaram, Special Government Pleader for respondents. 10. In the case of work-charged establishment schemes, wages/emoluments would be paid from the allocation of funds for the project or scheme, as the case may be. Posts are not permanently sanctioned. No sooner, the project/scheme is wound up, allocation of funds is stopped. Judicial notice can be taken that even as per the Government Orders issued, those who have continuously worked for a period of 10 years, till 01.01.2006, were regularised. In the case on hand, the appellants have rendered services, for a period less than 10 years. We have come across Court orders and cases, wherein, policy of the Government has also been changed, not to regularise those, who had rendered service, on daily wage basis, after 01.01.2006. In the case on hand, the appellants have rendered services, for a period less than 10 years. We have come across Court orders and cases, wherein, policy of the Government has also been changed, not to regularise those, who had rendered service, on daily wage basis, after 01.01.2006. Such being the case, decisions relied on by the learned counsel for the appellants, would not lend any support to the facts of this case. 11. That apart, this Court would like to consider few. decisions on the aspect of regularisation of employees, worked under work-charged establishment. (i) In State of U.P. v. Ajay Kumar, reported in (1997) 4 SCC 88 : (AIR Online 1997 SC 20), the Hon'ble Supreme Court held that daily wage appointment will obviously be, in relation to contingent establishment, in which there cannot exist any post and it continues so long as the work exists. (ii) In State of H.P. v. Ashwani Kumar, reported in AIR 1997 SC 352 , the Hon'ble Supreme Court, at Paragraph 4, held as follows: "4. It is seen that when the project is completed and closed due to non-availability of funds, consequently, the employees have to go along with the closed project. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor directions be given to create posts by the State to a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them inspite of non-availability of the work." Same view has been adopted in the decision in State of H.P. v. Nodha Ram, reported in AIR 1997 SC 1445 . (iii) In Jawaharlal Nehru Krishi Vishwa Vidyalaya v. Bal Kishan Soni and others, reported in (1997) 5 SCC 86 : (AIR Online 1997 SC 251), the Hon'ble Supreme Court, at Paragraph 3, held as follows: "3. It is not in dispute that the Scheme is sponsored by Indian Council of Agricultural Research and, therefore, permanent posts cannot be created. The posts are coterminus with the scheme. On abolition of the Scheme, posts also necessarily stand abolished. It is not in dispute that the Scheme is sponsored by Indian Council of Agricultural Research and, therefore, permanent posts cannot be created. The posts are coterminus with the scheme. On abolition of the Scheme, posts also necessarily stand abolished. We are informed that the Scheme may continue to be in force; but it depends upon the Scheme being sponsored and the posts made available by the Indian Council of Agricultural Research. Therefore, the direction to regularise the services is violative of their right to posts." (iv) In Rafiq Ahmed v. State of Rajasthan, reported in 1999 (9) Supreme 221 , the Hon'ble Supreme Court, at Paragraph 12, held as follows: "12. In our opinion, when the posts temporarily created for fulfilling the needs of a particular project or scheme limited in its duration come to an end on account of the need for the project itself having come to an end either because the project was fulfilled or had to be abandoned wholly or partially for want of funds, the employer cannot by a writ of mandamus be directed to continue employing such employees as have been dislodged because such a direction would amount to requisition for creation of posts though not required by the employer and funding such posts though the employer did not have the funds available for the purpose. The decision taken by the respondent-State to abolish the posts was a bona fide decision taken after due application of mind by appointing an Expert Committee which went deep into all relevant considerations and made recommendations in the interest of rationalization. The decision is based on administrative and financial considerations. There is nothing wrong in the societies having acted on the policy decision of the State Government." (v) In MD, U.P. Land Development Corporation v. Amar Singh, reported in (2003) 5 SCC 388 : ( AIR 2003 SC 2357 ), the Hon'ble Supreme Court, at Paragraph 11, held as follows: "11. ......when the project comes to a close, the employees, who are working in the project will not get any vested right. In other words, once the project comes to an end, services of the employees also come to an end." 12. ......when the project comes to a close, the employees, who are working in the project will not get any vested right. In other words, once the project comes to an end, services of the employees also come to an end." 12. In view of the above discussion and going through the reasons assigned by the writ Court and decisions, which we considered, we are of the considered view that the appellants have made any valid grounds to interfere with the order impugned in the instant writ appeal. We hold that the appellants have made out a case for interference. 13. In the result, the writ appeal is dismissed. No costs.