In the High Court of Madras
MANU/TN/1101/2019
Petitioner
S.Marimuthu
Respondent
The State of Tamil Nadu
Date of Judgement
14th March 2019
Bench
Hon’ble Justice S.M. Subramaniam
Facts
It was alleged that all the writ petitioners were engaged as daily rated/casual employees and serving in the Department for the past of many years. In view of the fact that they are serving continuously, they are entitled to be regularized in the sanctioned post. The said writ petitioners’ appointment was irregular in nature, rather than being appointed in the regular manner.
The relief sought for in the present writ petition is to quash the order of lower court dated 12.04.2018 against the petitioners and to direct the first respondent to regularize the service of the petitioner(s) on completion of 10 years of service and to extend all benefits which fall within the ambit of regularization.
Issues Raised and Arguments Advanced
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Issue |
Petitioner |
Respondent |
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1. Whether grant of regularization and permanent absorption must be made? |
The learned counsel for the writ petitioners’ states that all the writ petitioners were engaged in the Department for more than 10 years. The Government issued various schemes to regularize the service of these daily rated/casual employees on completion of 10 years of service. Hence, they must be regularized.
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Respondents rejected the claim of the writ petitioners for grant of regularization and permanent absorption on the ground that even as per the special scheme to grant regularization on completion of 10 years of service, the writ petitioners were found not eligible as they had not completed 240 days of working.
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2. Whether the appointment under the provisions of paragraph 290 of T.N.PWA Code was sanctioned and therefore subject to future regularization? |
Similar cases were already considered and some employees from the same Department had been extended with the benefit of regularization. Such being the factum, the case of the writ petitioners are also to be considered on par with the other categories, whose services were already regularized.
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As the writ petitioners were engaged as casual labourers for a specified work and that necessity for engagement of such casual labour virtually stopped as and when the work is completed. The engagement was not made on daily wage basis or not made on any Service Rules. Thus, the question of regularization of petitioners’ NMR services do not arise.
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3. Whether the Petitioners have completed ten years of service? |
Counsel for the petitioners state that petitioners were engaged in the Department for more than 10 years. Thus regularization of service of the writ petitioners should be done. |
The writ petitioners in these writ petitions have not completed 10 years of service as on 1.1.2006 by daily wage basis. The Government Orders issued with regard to the regularization of Contingent Staff to regular servants are only on completion of 10 years of continuous service as contingent servants. Thus, the question of regularization of service of the writ petitioners does not arise.
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4. Nature of Appointment & Nature of Work |
Nature of Appointment- The writ petitioners though admit the fact that their appointment was irregular, contended that their appointments are not illegal and therefore their services ought to have been regularized in view of the judgment of the Hon’ble Supreme Court of India.
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Nature of Work- The writ petitioners were engaged as casual labour for a specified work and that necessity for engagement of such casual labour virtually stopped as and when the work is completed. The writ petitioners have not been accommodated in any sanctioned posts. The writ petitioners cannot claim any right for this casual labour work.
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5. Maintainability |
The case of the writ petitioners were rejected by the Lower Court. Challenging the said order, the present writ petition is filed. |
The learned Additional Government Pleader further submitted that as per Code Rules, G.O.Ms.No.12, Public Works (C2) Department dated 20.1.2009, G.O.Ms.No.338, Finance (Pay Cell) Department, dated 26.8.2010, etc. the claim of the writ petitioners cannot be considered. |
Cases Cited
State of Karnataka v Umadevi– (2006) 4 SCC 1
SC held that regularization cannot be a method of recruitment unless the petitioner has the case for absorption.
State of Rajasthan and Ors v Dayal Lal– [AIR 2011 SC 1193] held-
The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts.
Decision of the Court-
1. The appellants, neither in law nor in equity were entitled to be reinstated in service.
2. The Court is of the opinion that ultimately the legal principle settled in the Constitution Bench in the “Umadevi Case” is binding over the subject and the same is to be followed scrupulously by all the Courts across the country and the same becomes the law of the land in the matter of regularization, permanent absorption and appointment.
3. Government has no authority to issue any orders granting regularization, permanent absorption or appointment in violation of the Constitutional schemes and in violation of the recruitment rules in force.
4. This Court has to place on record that the State is bound to over see the appointments made in this regard illegally or irregularly by the competent authorities. The State shall be vigilant in this regard. No leniency can be shown by the State in this regard.
5. The special law in the field of appointment of regularization and permanent absorption and rules will prevail over the general law and the special rules in force are to be applied in the relevant case.
6. Equality is a positive concept. Therefore, it cannot be invoked where any illegality has been committed or where no legal right is established.
7. According to the appellant the respondent having completed 240 days, does not fulfill the requisite criteria. A disputed question of fact has been raised. The High Court did not come to a positive finding that petitioners had worked for more than 240 days in a year.
8. The Court is of the opinion that the writ petitioners are not entitled for any relief of permanent absorption as such sought for in this writ petition.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
