The Madras High Court dismissed a writ petition seeking retrospective regularization of services for temporary employees. Relying on settled Supreme Court principles, the court held that irregular appointments not made through open competitive processes cannot be regularized, even after ten years of service. The petition was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 14.11.2017
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
WP.No.725 of 2014 and MP.No.1 of 2014
1.D.Panneerselvam
2.S.Muthusamy
3.K.Thangavel
4.K.Shanthi ...Petitioners
Versus
1.The Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2.The Inspector General of Registration,
The Inspector General of Registration Office,
Santhome High Road, Chennai-600 028.
3.The District Registrar, The District Registrar Office, No.44. 3rd Cross Street, Indra Nagar, KNG Petrol Bunk Back Side, Virudhachalam District-6060 001. ...Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in G.O.(Ms) No.84, Commercial Tax and Registration (M2) Department, Dated 18.06.2012, in so far as mentioned in 'Paragraph 9', that restricts the regularisation of petitioner's services from the date of the order alone and the consequential order passed by the 2nd and 3rd respondents in their proceedings No.18655/BA/A3/2011 dated 02.07.2012 and No.2733/A1/2012, dated 09.07.2012, respectively and quash the same, consequently direct the respondents to regularize the petitioner's service on completion of 10 years i.e. from 21.01.2009 on wards and pay other service and monetary benefits.
For Petitioners : Mr.R.Ganesh Babu For Respondents : Mr.R.Vijayakumar, AGP
ORDER
The relief sought for in this writ petition is to call for the records in pursuant to the orders passed by the 1st respondent in G.O.(Ms) No.84, Commercial Tax and Registration (M2) Department, Dated 18.06.2012, in so far as mentioned in Paragraph 9 that restricts the regularization of petitioners services from the date of the order alone and the consequential order passed by the 2nd and 3rd respondents in proceedings dated 02.07.2012 and 19.07.2012 and quash these orders and direct the respondent to regularize the services of the petitioner with effect from the date on which they completed 10 years of service.
petitioner by stating that initially the appointment of the writ petitioners as part time Masalji are not in accordance with the recruitment rules in force during the relevant point of time. Further the regularization granted to these writ petitioners itself is a concession extended by the Government considering their length of services. Thus, the writ petitioners are not entitled to seek any further concession either from the Government or from this Court. The restrospective regularisation cannot be granted to these writ petitioners in view of the fact that the writ petitioners were not appointed in accordance with the service rules and the Courts have repeatedly held that these irregular appointments cannot be followed by granting retrospective regularization.
statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed.
adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions. In this context, we have also to bear in mind the exposition of law by a Constitution Bench in State of Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
be entitled to be regularized since otherwise it would be discrimination between those similarly situated and in that view, all appointments made on daily wages, temporarily or contractually, must be directed to be regularized. Acceptance of this argument would mean that appointments made otherwise than by a regular process of selection would become the order of the day completely jettisoning the constitutional scheme of appointment. This argument also highlights the need for this Court to formally lay down the law on the question and ensure certainty in dealings relating to public employment. The very divergence in approach in this Court, the so-called equitable approach made in some, as against those decisions which have insisted on the rules being followed, also justifies a firm decision by this Court one way or the other. It is necessary to put an end to uncertainty and clarify the legal position emerging from the constitutional scheme, leaving the High Courts to follow necessarily, the law thus laid down.
Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the
words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only 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 regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
"Ordinarily speaking, the creation and abolition of a post is the prerogative of the Executive. It is the Executive again that lays down the conditions of service subject, of course, to a law made by the appropriate legislature. This power to prescribe the conditions of service can be exercised either by making rules under the proviso to Article 309 of the Constitution or (in the absence of such rules) by issued rules/instructions in exercise of its executive power. The court comes into the picture only to ensure observance of fundamental rights, statutory provisions, rules and other instructions, if any governing the conditions of service"
This Court then referred to some of the earlier decisions of this Court while stating:
"The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16.
It also means that the State should not exploit its employees nor should it seek to take advantage of the helplessness and misery of either the unemployed persons or the employees, as the case may be. As is often said, the State must be a model employer. It is for this reason, it is held that equal pay must be given for equal work, which is indeed one of the directive principles of the Constitution. it is for this very reason it is held that a person should not be kept in a temporary or ad hoc status for long. Where a temporary or ad hoc appointment is continued for long the court presumes that there is need and warrant for a regular post and accordingly directs regularization. While all the situations in which the court may act to ensure fairness cannot be detailed here, it is sufficient to indicate that the guiding principles are the ones stated above."
This Court then concluded in paragraphs 45 to 50:
"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for
applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State "
With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the employees directing the government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.
High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in C.A. No. 3595-3612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them.
number of members of the association. These appointments or engagements were also made in the teeth of directions of the Government not to make such appointments and it is impermissible to recognize such appointments made in the teeth of directions issued by the Government in that regard. We have also held that they are not legally entitled to any such relief. Granting of the relief claimed would mean paying a premium for defiance and insubordination by those concerned who engaged these persons against the interdict in that behalf. Thus, on the whole, the appellants in these appeals are found to be not entitled to any relief. These appeals have, therefore, to be dismissed.
“8.t his 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 wellsettled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
“(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 post”.
//True Copy//
Sub Assistant Registrar
sk
To
1.The Secretary to Government,
Commercial Taxes and Registration Department,
Government of Tamil Nadu,
Fort St.George,
Chennai-600 009.
2.The Inspector General of Registration,
The Inspector General of Registration Office,
Santhome High Road, Chennai-600 028.
3.The District Registrar,
The District Registrar Office,
No.44. 3 rd Cross Street, Indra Nagar,
KNG Petrol Bunk Back Side,
Virudhachalam District-6060 001.
+1cc to the Government Pleader, S.R.No. 80922
WP.No.725 of 2014
TR(22/12/2017)
3 issues framed by the court
Whether temporary employees appointed without following open competitive recruitment rules are entitled to retrospective regularization upon completion of ten years of service.
Whether the State can regularize irregular appointments made in violation of constitutional recruitment schemes and rules.
Whether the High Court's direction for permanent regularization of daily wage employees engaged without proper selection process is sustainable.
Colour shows how this judgement treated each authority
R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799]Explained¶29
B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937]Applied¶31
State of Haryana Vs. Piara Singh and Others [1992) 3 SCR 826]Distinguished¶34
State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193Followed¶63
Secretary to Government Vs. R.Govindasamy and others reported in [(2014) 4 SCC 769]Followed¶61
2 provisions across 2 enactments
D. Panneerselvam
S. Muthusamy
K. Thangavel
K. Shanthi
The Secretary to Government, Commercial Taxes and Registration Department, Government of Tamil Nadu
The Inspector General of Registration
S.M. Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
