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2022 DIGILAW 1858 (MAD)

S. Annalakshmi v. Vice Chancellor, Pondicherry

2022-06-30

S.M.SUBRAMANIAM

body2022
JUDGMENT (Prayer: Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records relating to the order of the 2nd respondent in Ref.No.PU/Estt.NT5/2014-15/136 dated 07.08.2014 and quash the same and consequently direct the first respondent to regularize the service of the petitioner from 14.04.1990 with all attendant benefits.) 1. The order of rejection rejecting the claim of the writ petitioner for retrospective regularization from the date of initial appointment as Part time Sweeper with effect from 14.04.1990 is under challenge in the present writ petition. 2. The writ petitioner was initially appointed as Part time Sweeper on 14.04.1990. The petitioner was continuously working as part time employee and finally the respondents considered the case of the writ petitioner and granted the benefit of regularization of service with effect from 09.01.2008. Thereafter, the petitioner is allowed to continue as a regular employee in the time scale of pay. The petitioner submitted an application for retrospective regularization from the date of his initial appointment as Part time Sweeper, i.e. 14.04.1990. The said application was rejected by the respondents on the ground that as per the orders of the High Court dated 02.02.2009 in W.P.No.1939 of 2009 the representation submitted by the Contract employees were considered and examined with reference to the University Grants Commission Regulations. The UGC in letter dated 29.10.2001 directed that no Group D posts are to be filled up in the Universities. Thus the claim of the petitioner was not considered. However, the other benefits were granted to the employees on par with the regular employees. The said decision was communicated to the writ petitioner in proceedings dated 27.03.2009 itself. Thereafter, the present writ petition is filed after a lapse of six years from the date of communication of the letter dated 27.03.2009. Therefore, the issue regarding the retrospective regularization was considered by the University and reply was sent to the petitioner on 27.03.2009. 3. That apart, the petitioner was appointed as Part time Sweeper on 14.04.1990. Regularization or permanent absorption cannot be granted in violation of the Service Rules. In the present case, the services of the writ petitioner was regularized in the year 2008 by way of concession in view of the fact that the initial appointment was not in accordance with the recruitment Rules in force. Regularization or permanent absorption cannot be granted in violation of the Service Rules. In the present case, the services of the writ petitioner was regularized in the year 2008 by way of concession in view of the fact that the initial appointment was not in accordance with the recruitment Rules in force. Thus, the regularization granted in favour of he petitioner itself is a concession extended and regarding the part time services, the benefits of regularization cannot be granted in view of the judgment of the Hon'ble Supreme Court in the case of The State of Tamil Nadu. School Education Department, Chennai vs. R.Govindasamy reported in 2014 (4) SCC 769 . The Hon'ble Supreme Court of India made the following observations: 7. This Court in State of Rajasthan & Ors. v. 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 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. 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.” (Emphasis added) 4. In view of the fact that the Part time services cannot be regularised, this Court is of the opinion that there is no infirmity as such in respect of the order passed. Accordingly, the writ petition stands dismissed. However, it is made clear that the petitioner is eligible for the benefits on par with the other regular employees from the date of her regular appointment. No costs. Consequently connected miscellaneous petition is closed.