The Principal Secretary to Government, Vs T. Bharathkumar

Prayer : Writ Appeal filed under Clause XV of Letters Patent, to allow the writ appeal by setting aside the order passed in W.P.(MD).No.1417 of 2017 dated 25.10.2021 on the file of this Court.

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W.A.(MD)No.1099 of 2022

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For Appellants : Mr.Veerakathiravan, Addl. Advocate General, Assisted by Mr.J.Ashok, Addl. Government Pleader.

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For Respondent : Mr.S.Visvalingam

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JUDGMENT

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(By G.R.SWAMINATHAN, J.)

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The State is on appeal challenging the order dated 25.10.2021

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passed by the learned Single Judge allowing W.P.(MD)No.1417 of 2017 filed by the respondent herein.

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2.The respondent was serving in the Water Resources Organization

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of the Public Works Department as Nominal Muster Roll Employee (NMR) from 01.05.1997 till 31.10.2010. Persons who had joined the department as NMRs even subsequently had been regularized vide G.O.Ms.No.202 Public Works Department dated 01.08.2012. They were

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regularized from the date on which they had completed ten years of service. Seeking grant of similar relief, the respondent herein submitted representation to the department. His request was rejected by the Government vide letter dated 19.09.2016. Challenging the same, 2/24

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W.P.(MD)No.1417 of 2017 was filed. The learned Single Judge set

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aside the order impugned in the writ petition and granted relief in the following terms:-

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“5.By the impugned order passed by the first respondent, it is stated that the representation of the petitioner for regularization cannot be considered in the case of the petitioner, as he has not been recruited through Employment Exchange and that the petitioner had not completed ten years of service before 01.01.2006. The impugned order is, therefore, based on the assumption that an employee is entitled to regularization only if he completes ten years of service before the issuance of G.O.(Ms).No.22, Personnel and Administrative Reforms Department, dated 28.02.2006, which was given retrospective effect from 01.01.2006. It is now demonstrated before this Court that several batches of employees, who have completed ten years of service after 2006, have been regularized. It is also admitted before this Court that the original order of the Government regularizing a few hundreds of employees indicate that the Nominal Muster Roll employees were not selected through Employment Exchange.

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6.The issue on hand has already been settled by this Court in W.P.No.16107 of 2012 and the same was also confirmed by the Honourable Supreme Court in S.L.P.(CC)No.17385 of 2016. A

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Review Petition filed thereafter, in R.P. (C)No.2442 of 2017 was also dismissed on 30.09.2016. Since several others, who were similarly placed were given the benefit of regularization irrespective of the date of completion of ten years, this Court has no hesitation to allow this Writ Petition in tune with the precedents submitted by the petitioner before this Court.

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7.Accordingly, this Writ Petition is allowed. The impugned order, dated 19.09.2016, passed by the first respondent, is quashed and the first respondent is directed to regularize the service of the petitioner on par with other persons, who got their service regularised earlier. The regularization of service shall be with effect from the date on which the petitioner completes ten years of service. The respondents shall pass appropriate orders and disburse the monetary benefits to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. No costs.”

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Questioning the same, this writ appeal has been filed.

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3.The learned Additional Advocate General reiterated all the contentions set out in the grounds of appeal and called upon this Court to set aside the order of the learned Single Judge and dismiss the writ petition.

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4.Per contra, the learned counsel for the respondent / writ

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petitioner submitted that the learned Single Judge had merely applied the principle of equality enshrined in Article 14 of the Constitution of India. Three typed sets of papers had been filed by the respondent enclosing a host of government orders and earlier orders passed by this Court. The learned counsel submitted that this writ appeal deserves to be dismissed in view of the judgment of the Hon'ble Full Bench reported in 2024-1- Writ L.R. 321 (M.Sivappa Vs. State of Tamil Nadu and Others) . He pointed out that all the decisions relied on by the learned Additional Advocate General including the judgement reported in 2017 (4) CTC 113 (State of Tamil Nadu Vs. A.Singamuthu) had been considered by the Hon'ble Full Bench. The learned counsel would point out that admittedly, the writ petitioner had served the department as NMR employee for full thirteen years ie., from 01.05.1997 till 31.10.2010. He drew our attention to the proposal submitted by the immediate superior for regularizing his service along with that of others. While similarly placed other employees had been regularized by issuing G.O.Ms.No.202 Public Works Department dated 01.08.2012, the writ petitioner alone had been left out. He further pointed out that the order passed in

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W.P.(MD)No.16017 of 2012 was the basis for the order passed by the learned Single Judge. He pointed that questioning the said order, writ appeal was filed and it was dismissed and the Hon'ble Supreme Court declined to interfere. When in similar circumstances, NMRs had been granted relief, there is no reason as to why the writ petitioner should be treated otherwise. Written submission had also been filed and the learned counsel took us through the same in full. He called upon this Court to sustain the impugned order and dismiss the writ appeal.

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5.We carefully considered the rival contentions and went through the materials on record. It is true that the writ petitioner served the Water Resources Department for full thirteen years ie., from 01.05.1997 till 31.10.2010. We also notice that similarly placed individuals and even persons who had joined as NMR employee subsequently had been granted the benefit of regularization vide G.O.(Ms)No.202 Public Works Department dated 01.08.2012. But there is one fundamental factual distinction. All those persons referred to by the learned counsel for the writ petitioner continued to serve the department as NMRs when the benefit of regularization was conferred. The writ petitioner did not

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continue as NMR after 31.10.2010. The learned Additional Advocate General would remark that the writ petitioner probably felt tired of being NMR and that since he was not regularized, he had left the service on his own. The learned counsel for the writ petitioner would rebut by claiming that the writ petitioner was ousted from service and therefore, he could not continue to serve the department as NMR.

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6.We called upon the learned counsel for the writ petitioner to

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draw our attention to the earliest representation made by the writ petitioner seeking the benefit of regularization. Our attention was drawn to the representation dated 31.03.2016 enclosed at Page No.72 of the typed set of papers. We carefully read the representation. All that the writ petitioner would claim therein was that when the Government had regularized those NMRs who had put in ten years of service and 28.02.2006 was not the cut-off date, he also deserved to be given the very same relief. But in that representation dated 31.03.2016, the writ petitioner had nowhere alleged that he was ousted from service or that he was prevented from reporting for duty. Even in the affidavit filed in support of the writ petition, such a claim has not been made. We,

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therefore, have to necessarily proceed on the premise that the writ

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petitioner ceased to be an NMR with effect from 31.10.2010 and that he was not arbitrarily stopped from reporting for duty by the employer.

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7.Once this conclusion is arrived at, we have to hold that the claim made by the writ petitioner suffered from the doctrine of laches. He filed the writ petition only in the year 2017. Even the representation was made only in the year 2016. Thus, for six long years, the writ petitioner chose to keep quiet. After he realized that persons who were similarly placed had been regularized, he woke up and wanted to take his chance.

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8.The learned Single Judge chose to place reliance on the order made in W.P.(MD)No.16107 of 2012. It is true that the relief of regularization was granted to the writ petitioner therein and the learned Single Judge chose to disregard the cut-off date as 01.01.2006. When appeal was filed and reliance was placed on G.O.(Ms)No.74 dated 27.06.2013, the Hon'ble Division Bench held that the Government cannot rely on a government order issued subsequent to the order of the learned Single Judge. That was the primary reason for dismissing the writ appeal.

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It is true that the Hon'ble Supreme Court declined to interfere with the said order. But when the writ petitioner approached the government with a representation in the year 2016, G.O.(Ms)No.74 dated 27.06.2013 held the field. G.O.(Ms)No.74 clearly states that if an NMR or even an employee on full time basis did not complete ten years of service as on 01.01.2006, he cannot seek the benefit of regularization. This government order was considered by the Hon'ble Supreme Court in the decision reported in (2017) 4 SCC 113 (State of Tamil Nadu Vs. A.Singamuthu) and it was held as follows:-

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“9.Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.

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10.In the present case, it is available on record that the State Government vide G.O. Ms. No.22 dated 28.02.2006, issued by the Personnel and Administrative Reforms Department, directed the services of daily wage employees working in all Departments of Government, who have rendered ten years of service as on 01.01.2006 to be regularised by appointing them in the time scale of pay of the post concerned subject to they being otherwise qualified for the post. G.O.Ms.No.22 Personnel and Administrative Reforms dated 28.02.2006 reads as under:

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“ABSTRACT

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Public Services Employees working on daily wagesBringing into regular establishment on completion of ten years of service as on 01.01.2006-Orders issued.

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PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT

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G.O. Ms. No.22 Dated 28.02.2006

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ORDER

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The Hon’ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 08.02.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 01.01.2006 will be regularized.

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2. Based on the announcement made by the Hon’ble Chief Minister on 08.02.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 01.01.2006 be regularized by appointing them in the time scale of pay of the post in accordance with the service conditions

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prescribed for the post concerned, subject to their being otherwise qualified for the post.

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3. The Departments of Secretariat may therefore, be directed to pursue action to regularize the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 01.01.2006 as ordered in para 2 above in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required proposal shall be sent to Government.

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4. This order issues with the concurrence of Finance Department vide its U.O. No.985/FS/P/2006 dated 28.02.2006.”

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11. In G.O. Ms.No.22 P & AR Dept. dated 28.02.2006, only full-time daily wage employees were directed to be regularized on completion of ten years of continuous service as on 01.01.2006. This was clarified by the Government in the Government Order passed subsequently G.O.Ms.No.74 P &AR Dept. dated 27.06.2013 clarifying that G.O.Ms.No.22 P & AR Dept. dated 28.02.2006 is applicable only to the full-time daily wage employees, who had completed ten years of continuous service as on 01.01.2006. In G.O.Ms.No.74 dated 27.06.2013, it was made clear that the part-time employees are not entitled for regularization and that full-time daily wage employees, who had completed 10 years of service after 01.01.2006 are also not entitled for regularization of services. G.O.No. 74, Personnel and Administrative Reforms Department, dated 27.06.2013, reads as follows:

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“6) In supersession of the orders issued in the Government Order read above, the Government now issue revised orders on regularization of services of full time daily wage employees working in all Government departments as detailed below:

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(i) This Order shall be deemed to have been come into force with retrospective effect from 01.01.2006.

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(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange to discharge the function of the post in the Tamil Nadu Basic Service and complete 10 (ten) years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned cadre strength.

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(iii) In cases of relaxation of service rules, the service rule relating to the educational qualification and mode of recruitment shall not be relaxed.

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(iv)In cases, where relaxation of rules are involved, monetary benefit shall be allowed with effect from the date of issue of orders as per Rule 23 (a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services;

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(v) In cases where relaxation of rules are not involved, monetary benefit shall be allowed with effect from the date of regularisation;

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(vi) The part-time and casual employees are not entitled to the concession referred to at para (ii) above;

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(vii) The services of the full time daily wage employees who have completed 10 years of service after 01.01.2006 shall not be regularized;

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(viii) All the appointing authorities should adhere to the above instructions scrupulously in future. Failing which, it will be viewed seriously and necessary disciplinary action will be initiated as per rules against the person who is responsible for the said lapses. All the Heads of Departments are directed to ensure that all the above said instructions are followed without fail and lapses if any found, responsibility will be fixed against them;

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(ix) All the proposals for regularization of the services of full time daily wage employees should be sent to the Government even in cases where relaxation of rules are not involved.”

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In G.O. Ms. No.74, it was thus, made clear that the part-time employees are not entitled for regularization and that full-time daily wage employees, who had completed ten years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned post. It was also made clear that the services of daily wage employees who have completed ten years of service after 01.01.2006 are not entitled for regularization.

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12. In the present case, the respondent herein was engaged to fetch water, to sweep and other connected menial works for one or two hours in a day as part-time Masalchi. The post of part-time Masalchi is not included in Class IV or V of the Tamil Nadu Basic Service. Further a part-time Masalchi cannot be treated as equivalent to the post of Masalchi (full-time) basis because the post of part-time Masalchi does not come under the purview of service rules. The respondent herein was only a parttime Masalchi and hence the question of applying G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006, which is applicable only to the daily wage full-time employees,does not arise.

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13. G.O.(Rt.)No.84 Commercial Taxes and Registration (M2) Department dated 18.06.2012 was issued,by which 172

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part-time Masalchis, who were working for more than ten years as part-time Masalchis in Registration Department were regularized from the date of issuance of G.O. providing the grant of monetary benefits from the date of issuance of the Government Order. In G.O.(Rt) No.84 dated 18.06.2012, it was clearly stated that G.O.Ms.No.22 P &A R Dept. dated 28.02.2006 was applicable only to full-time daily wage employees and that the same was not applicable to part-time Masalchis. In the said G.O.(Rt.)No.84 dated 18.06.2012, it was made clear that monetary benefits are only from the date of issuance of the order of regularization. The relevant portion of the said G.O.(Rt.) No. 84 Commercial Taxes and Registration (M2) Department, reads as under:

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“Registration Department – Tamil Nadu Basic Service – 172 Part time Masalchis – Relaxation of Rules and Appointing them as full time Employees in the post of watchmen in Time Scale Pay and Regularisation of their services – Orders issued.

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------------------------------------------------------------------Commercial Taxes and Registration (M2) Department G.O. (Rt) No.84 Dated: 18.06.2012. Based on the Directions of the Hon’ble High Court, the School Education Department and the Treasuries and Accounts Department under the control of the Finance Department have appointed two Full-time Masalchis and 57 Full-time Masalchis, respectively, in regular time scale of pay and regularized their services from the date of issue of the orders. In compliance to the orders of the Hon’ble High Court, the services of 6 Part time Masalchis were appointed in this Department and regularized their services from the date of issue of the orders in the reference 3rd and 5th cited. Considering the Part-time Masalchis working for a long period in this Department and most of them had completed the

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age of 40 and certain employees have completed 50 years of age, it is not possible to seek jobs from outside and the employees were repeatedly sending representations to regularize their services, on a sympathetic consideration, the Inspector General of Registration sent a proposal to the Government to appoint the Part-time Masalchis in the post of Watchman by relaxing the necessary provisions in the Special Rules for the Tamil Nadu Basic Service from the date of issue of the orders….…The Government has decided that, the remaining 172 Part time Masalchis, mentioned in the Annexure, may be appointed in Time Scale Pay, in the existing vacancy of watchmen by relaxing the Rule 3 (A) (Community Rotation) and Rule 5 (1) (Age Qualification) and the services of the Partmasalchi be regularized and they may be awarded monetary benefit from the date of issue of the order…” In pursuance of the above said Government Order and vide proceedings of the District Registrar, the respondent herein appointed as full-time employee in the post of Watchman on 02.07.2012 and has been placed at Sub-Registrar, Uraiyur, Trichy. As per G.O. Ms.No.84, the respondent can claim monetary benefits only from the date of issuance of Government Order regularising his services and not earlier.

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14. In a similar issue, concerning part-time sweepers, the State of Tamil Naduhas filed an appeal before this Court, and those appeals were allowed by this Court byjudgment dated 21.02.2014 inSecretaryto Government, School Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014) 4 SCC 769. After referring to various judgments on this issue, in paras (5) to (7), this Court held as under:

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“5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra.

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6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this Court held as under: (SCC p. 40, para 48)

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“48. … 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. 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.”

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7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with the issue of regularisation of part-time employees and the Court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.”

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15. In State of Rajasthan and Others Vs. Daya Lal and Others(2011) 2 SCC 429, this Court has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and thisCourt clearly laid down that parttime employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-

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time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under:

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“12. We may at the outset refer to the following well settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

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(i) 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. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of 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 regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized.

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(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 regularization, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

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(iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number

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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.

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(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.

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(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.

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[See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Cooperative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1.” (emphasis added) Page No. 15 of 19

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16. The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondent’s service from the date of completion of ten years of service with salary and other benefits. The learned Judge failed to take note of the fact that as per G.O. Ms.No. 22 dated 28.02.2006, the services of employees working in various government departments on full-

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time daily wage basis, who have completed more than ten years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full-time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as parttime Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006.

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17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around Rs.10,85,113/- (approximately)towards back wages apart from

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pension which will have a huge impact on the State exchequer. That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G.Os. and if the impugned order is sustained, the Government will have to pay the back wages to all those persons from the date of completion of ten years in service and this will have a huge impact on the State exchequer. Since the impugned order directing regularization of the respondent from the date of completion of their ten years would adversely affect the State exchequer in a huge manner, the impugned order cannot be sustained on this score also.

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18. It is pertinent to note thateven the regularisation of services of part-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Government Orders and not from the date of completion of their ten years of service. The Division Bench also failed to take note that G.O.Ms.No. 22 P &AR Dept. dated 28.02.2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01.01.2006 and not to part-time employees.As per G.O.(Rt.) No.84 dated 18.06.2012, the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18.06.2012. The impugned order of the

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Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. Page No. 18 of 19 Page 18Civil Appeal No. of 2017 @ SLP(C) No. 17702 of 2014 19. In the result, the impugned order is set aside and this appeal is allowed. No costs.”

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Though the said case primarily pertained to a part-time employee. But G.O.(Ms)No.74 was upheld in full.

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9.It is true that the decision of the Hon'ble Full Bench of this Court reported in 2024-1- Writ L.R. 321 (M.Sivappa Vs. State of Tamil Nadu and Others) is in favour of the contention of the learned counsel for the writ petitioner. But then, when we are asked to choose between the decision of the Hon'ble Supreme Court and that of Hon'ble Full Bench of this Court, we would rather go by what the Hon'ble Supreme Court had held.

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10.The learned counsel for the writ petitioner had filed a catena of government orders passed as late as in 2019 and 2020 in which regularization orders have been passed. But those government orders are based on the orders of the High Court that were passed prior to issuance of G.O.(Ms)No.74 dated 27.06.2013.

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W.A.(MD)No.1099 of 2022

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11.In this view of the matter, the order of the learned Single Judge

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is set aside and the writ appeal is allowed. No costs. Consequently,

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connected miscellaneous petition is closed.