1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19[CASE NUMBER]06[CASE NUMBER]2019 CORAM: THE HONOURABLE MR[CASE NUMBER]JUSTICE [ENTITY] W[CASE NUMBER]P[CASE NUMBER](MD)[CASE NUMBER][CASE NUMBER]23619 of 2015 and M[CASE NUMBER]P[CASE NUMBER](MD)[CASE NUMBER][CASE NUMBER]s[CASE NUMBER]1 and 2 of 2015 [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY] Sanitary worker Government Hostel Karaikudi, Sivagangai District[CASE NUMBER] [ENTITY] Sanitary Worker, Government Boys Hostel Thiruppathur, Sivagangai District[CASE NUMBER] [ENTITY] Sanitary Worker, Government Boys Hostel Devakottai, Sivagangai District[CASE NUMBER] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 2 [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY], Sanitary Worker Government Girls Hostel, Singampunari, Sivagangai District[CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 3 [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY], Sanitary Worker Government Girls Hostel, Sivagangai[CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [SECTION][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 4 [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] [ENTITY][CASE NUMBER] Petitioners Vs[CASE NUMBER] 1[CASE NUMBER]The [ENTITY], Rep by its Secretary, Department of Adi Dravidar and Tribal Welfare, Fort St[CASE NUMBER]George, Chennai 600 009[CASE NUMBER] 2[CASE NUMBER]The [ENTITY], Rep by its Secretary, Finance (Pension Division) Department Fort St[CASE NUMBER]George, Chennai 600 009 Respondents PRAYER: Writ Petition under [SECTION] of the [ACT], to issue a Writ of Mandamus, directing the respondents herein to consider regularization and fixation of time scale of pay of petitioners service as per G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]385 Finance (Pension Division) Department dated 01[CASE NUMBER]10[CASE NUMBER]2010 and recommended by the 5th respondent in his proceedings [CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 11[CASE NUMBER]10[CASE NUMBER]2013 within a reasonable time[CASE NUMBER] For Petitioners : Mr[CASE NUMBER][ENTITY] For Respondents : Mr[CASE NUMBER][ENTITY] Additional Government Pleader http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 5 ORDER
The relief sought for in the present writ petition is to direct the respondents to consider the claim for regularization and fixation of time scale of pay of writ petitioners as per G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER] 385 Finance (Pension Division) Department dated 01[CASE NUMBER]10[CASE NUMBER]2010 and recommended by the 5th respondent in his proceedings [CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 11[CASE NUMBER]10[CASE NUMBER]2013[CASE NUMBER]
2[CASE NUMBER]All these writ petitioners were appointed as Sanitary Workers in Government Adi Dravidar Boys and Girls Hostel, Government boys and girls College Hostel[CASE NUMBER] Admittedly, all these writ petitioners were appointed on consolidated pay on temporary basis[CASE NUMBER]
3[CASE NUMBER]The learned counsel for the writ petitioners made a submission that on account of the fact that the writ petitioners are serving for a considerable length of time and they are entitled to be regularized in the sanctioned post in the regular time scale of pay[CASE NUMBER]
This apart, further relief is also sought for to grant special time scale of pay in accordance with the G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]385 Finance (Pension Division) Department, dated 01[CASE NUMBER]10[CASE NUMBER]2010[CASE NUMBER] The fact http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in remains that these writ petitioners were engaged as Sanitary Workers on consolidated pay and they were not even issued with any order of appointment by the competent authority[CASE NUMBER] The petitioners are unable to produce any appointment order issued by the competent authority[CASE NUMBER] However, a proposal was enclosed, which was sent by the fifth respondent on 11[CASE NUMBER]10[CASE NUMBER]2013[CASE NUMBER] The learned counsel for the writ petitioners states that the proposal sent by the fifth respondent indicates the date of appointment of the writ petitioners on consolidated pay on temporary basis[CASE NUMBER]
4[CASE NUMBER]The learned Additional Government Pleader appearing on behalf of the respondents mad a submission that the proposal produced by the writ petitioners is a false and fabricated one[CASE NUMBER] The fifth respondent never submitted any such proposal officially[CASE NUMBER] It is a fabricated proposal sent with the collusion of the writ petitioners and the counter affidavit filed by the District Collector states clearly that it is a fabricated document and in this regard Para [CASE NUMBER][CASE NUMBER] 8 of the counter affidavit, which is relevant and extracted hereunder:
8[CASE NUMBER]I respectfully submitted that regarding the averment made by the petitioner that as per G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]44, Labour and Exploynment dept[CASE NUMBER] dated http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 11[CASE NUMBER]03[CASE NUMBER]2015, instructions have been issued for the publication in general news papers and the District Collector is the competent authority[CASE NUMBER]
(i)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(2) of petitioner affidavit is denied, and proposals has not yet to been sent in [CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 11[CASE NUMBER]10[CASE NUMBER]2013 by 5th respondent and the question of violating the Government Orders does not arise[CASE NUMBER] The above said [CASE NUMBER][CASE NUMBER][CASE NUMBER] dated 11[CASE NUMBER]10[CASE NUMBER]2013 falsely fabricated by the writ petitioners[CASE NUMBER] (A copy of distribution Register is also enclosed)[CASE NUMBER]
(ii)I respectfully submitted that regarding the averment made by the petitioner that grounds paragraph 8(3) of petitioner affidavit is denied[CASE NUMBER] A subsequent Government order has been passed in G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]74[CASE NUMBER] P & AR Dept dated 27[CASE NUMBER]06[CASE NUMBER]2013[CASE NUMBER]
(iii)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(4) of petitioner affidavit is denied as false[CASE NUMBER]
(iv)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(5) of petitioner affidavit is denied as false[CASE NUMBER]
(v)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(6) of petitioner affidavit, no person are engaged on daily wages or under consolidated pay in ADW Hostels till now in Sivagangai District[CASE NUMBER]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in
(vi)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(7) of petitioner affidavit, as the petitioner are not appointed either daily wages or by part time sweepers, in respect of Sivagangai District[CASE NUMBER]
(vii)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(8) of the petitioner affidavit, the question of regularisation of their service does not arise[CASE NUMBER]
(viii)I respectfully submitted that the averments of the petitioner herein in grounds paragraph 8(9) of petitioner affidavit, for the year 2013-14 and 2014-15, no allotment was given to Sivagangai District under the Head of Account 02 Wages and no expenditure was made[CASE NUMBER] Hence, the point raised by petitioner is not correct one[CASE NUMBER]
(ix)I respectfully submitted that the reply submitted by me on the averments of the petitioner here in paragraph 1 to 8 (9) grounds of the petitioner mentioned paragraph 8(10) of the affidavit is not correct[CASE NUMBER]
5[CASE NUMBER]In view of the fact that the genuinity of the proposal alleged to be sent by the fifth respondent itself is doubted and further, the order of appointment has not been produced by these writ petitioners, the very sanctity of the appointment made is not http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in established by the writ petitioners[CASE NUMBER] However, it is submitted that the writ petitioners are temporarily working as Sanitary Workers in Adi Dravidar and Tribal Welfare Department[CASE NUMBER]
6[CASE NUMBER]This being the factum, this Court is of the considered opinion that the benefit of the regularization or permanent absorption cannot be granted in violation of the recruitment rules in force[CASE NUMBER] The regularization is to be granted strictly in accordance with the recruitment rules in force[CASE NUMBER] The persons, who were appointed not in accordance with the recruitment rules, cannot be brought under the regular establishment and the sanctioned post in violation of the rules as well as the legal principles settled in this regard by the [ACT] Bench of the Hon'ble Supreme Court of India, in the case of the [PRECEDENT], the settled legal principles, which are extracted hereunder:
5[CASE NUMBER] This Court has also on occasions issued directions which could not be said to be consistent with the [ACT]al scheme of public employment[CASE NUMBER] Such directions are issued presumably on the basis of equitable considerations or individualization of justice[CASE NUMBER]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the [ACT] and not to make directions, which at times,even if do not run counter to the [ACT]al scheme, certainly tend to water down the [ACT]al requirements[CASE NUMBER] It is this conflict that is reflected in these cases referred to the [ACT] Bench[CASE NUMBER]
10[CASE NUMBER] When these matters came up before a Bench of two Judges, the learned Judges referred the cases to a Bench of three Judges[CASE NUMBER] The order of reference is reported in2003 [PRECEDENT][CASE NUMBER] This Court noticed that in the matter of regularization of ad hoc employees, there were conflicting decisions by three Judge Benches of this Court and by two Judge Benches and hence the question required to be considered by a larger Bench[CASE NUMBER] When the matters came up before a three Judge Bench, the Bench in turn felt that the matter required consideration by a http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in [ACT] Bench in view of the conflict and in the light of the arguments raised by the Additional Solicitor General[CASE NUMBER] The order of reference is reported in [PRECEDENT][CASE NUMBER] It appears to be proper to quotethat order of reference at this stage[CASE NUMBER] It reads:
1 [CASE NUMBER] Apart from the conflicting opinions between the three Judges' Bench decisions in [PRECEDENT] in MANU/SC/0379/1997 :
(1997)IILLJ856SC ,S tate of Haryana and Ors[CASE NUMBER] v[CASE NUMBER]
[ENTITY] and Ors[CASE NUMBER] Reported in [CASE NUMBER] and [ENTITY] Distt[CASE NUMBER] P[CASE NUMBER]W[CASE NUMBER]D[CASE NUMBER] Literate Daily Wage
Employees Association and Ors[CASE NUMBER] v[CASE NUMBER] State of Karnataka and Ors[CASE NUMBER]Reported in MANU/SC/0[SECTION]4/1990 : ([CASE NUMBER] , on the one hand and State of Himachal Pradesh v[CASE NUMBER]
Suresh Kumar Verma and Anr[CASE NUMBER] Reported in [PRECEDENT][CASE NUMBER] Reported in [PRECEDENT], and [PRECEDENT][CASE NUMBER] Reported in MANU/SC/0450/1979 :
(1979)IILL J209SC on the other, which has been brought out in one of the judgments under appeal of Karnataka High Court in [PRECEDENT] decided on 1[CASE NUMBER]6[CASE NUMBER]2000, reported in2001 (4) KLJ 466, learned Additional Solicitor General http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in urged that the scheme for regularization is repugnant to [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] and, therefore, these cases are required to be heard by a Bench of Five learned Judges ([ACT] Bench)[CASE NUMBER]
2[CASE NUMBER] On the other hand, Mr[CASE NUMBER] [ENTITY], learned senior counsel, appearing for the employees urged that such a scheme for regularization is consistent with the provision of [SECTION] and [SECTION] of the [ACT][CASE NUMBER]
3[CASE NUMBER]Mr[CASE NUMBER] [ENTITY], learned Counsel, appearing in [CASE NUMBER], has filed the G[CASE NUMBER]O[CASE NUMBER] dated 19[CASE NUMBER]7[CASE NUMBER]2002 and submitted that orders have already been implemented[CASE NUMBER]
4[CASE NUMBER] After having found that there is conflict of opinion between three Judges Bench decisions of this Court, we are of the view that these cases are required to be heard by a Bench of five learned Judges[CASE NUMBER]
5 [CASE NUMBER] Let these matters be placed before Hon'ble the JChief Justice for appropriate orders[CASE NUMBER]
We are, therefore, called upon to resolve this issue here[CASE NUMBER] We have to lay down the law[CASE NUMBER] We have to approach the question as a constitutional court should[CASE NUMBER]
12[CASE NUMBER]In spite of this scheme, there may be occasions when the sovereign State or http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in itsinstrumentalities will have to employ persons, in posts which are temporary, on dailywages, as additional hands or taking them in without following the requiredprocedure, to discharge the duties in respect of the posts that are sanctioned and thatare required to be filled in terms of the relevant procedure established by the[ACT] or for work in temporary posts or projects that are not needed permanently[CASE NUMBER] This right of the Union or of the State Government cannot but berecognized and there is nothing in the [ACT] which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation[CASE NUMBER] But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment[CASE NUMBER] [CASE NUMBER]r can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed[CASE NUMBER] Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under [SECTION] of the [ACT] or under [SECTION] of the [ACT], to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in the constitutional scheme[CASE NUMBER]
13[CASE NUMBER]What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time[CASE NUMBER] Such considerations can have only a limited role to play, when every qualified citizen has aright to apply for appointment, the adoption of the concept of rule of law and the scheme of the [ACT] for appointment to posts[CASE NUMBER] 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[CASE NUMBER] 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 [ACT][CASE NUMBER] The approving of such acts also results in depriving many of their opportunity to compete for public employment[CASE NUMBER] We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions[CASE NUMBER] In this context,we have also to bear in mind the exposition of law by a [ACT] Bench in [PRECEDENT][CASE NUMBER] [CASE NUMBER] : [PRECEDENT] [CASE NUMBER] It was held therein, "In our opinion, where a Government servant http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in has no right to a pos tor 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[CASE NUMBER]"
14[CASE NUMBER]During the course of the arguments, various orders of courts either interim or final were brought to our notice[CASE NUMBER] The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtaining[CASE NUMBER] Learned counsel for the State of Karnataka submitted that chaos has been created by such orders without reference to legal principles and it is time that this Court settled the law once for all so that in case the court finds that such orders should not be made, the courts, especially, the High Courts would be precluded from issuing such directions or passing such orders[CASE NUMBER] The submission of learned Counsel for the respondents based on the various orders passed by the High Court or by the Government pursuant to the directions of Court also highlights the need for settling the law by this Court[CASE NUMBER] The bypassing of the constitutional scheme cannot be perpetuated by the passing of orders without dealing with and deciding the validity of such orders on the touchstone of constitutionality[CASE NUMBER] While approaching http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in the questions falling for our decision, it is necessary to bear this in mind and to bring about certainty in the matter of public employment[CASE NUMBER] The argument on behalf of some of the respondents is that this Court having once directed regularization in the [ENTITY] case (supra), all those appointed temporarily at any point of time would 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[CASE NUMBER] 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[CASE NUMBER] 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[CASE NUMBER] The very divergence in approach in this Court, the socalled 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[CASE NUMBER] 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[CASE NUMBER]
20[CASE NUMBER]The Decision in [ENTITY] Distt[CASE NUMBER] P[CASE NUMBER]W[CASE NUMBER]D[CASE NUMBER] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in Literate Daily Wage Employees Association and Ors[CASE NUMBER] v[CASE NUMBER] State of Karnataka and Ors[CASE NUMBER]
MANU/SC/0[SECTION]4/1990 :([CASE NUMBER] dealt with a scheme framed by the State of Karnataka, though at the instance of the court[CASE NUMBER] The scheme was essentially relating to the application of the concept of equal pay for equal work but it also provided for making permanent,or what it called regularization, without keeping the distinction in mind, of employees who had been appointed ad hoc, casually, temporarily or on daily wage basis[CASE NUMBER] In other words, employees who had been appointed without following the procedure established by law for such appointments[CASE NUMBER] This Court, at the threshold, stated that it should individualize justice to suit a given situation[CASE NUMBER] With respect, it is not possible to accept the statement, unqualified as it appears to be[CASE NUMBER] This Court is not only the constitutional court, it is also the highest court in the country, the final court of appeal[CASE NUMBER] By virtue of [SECTION] of the [ACT], what this Court lays down is the law of the land[CASE NUMBER] Its decisions are binding on all the courts[CASE NUMBER] Its main role is to interpret the constitutional and other statutory provisions bearing in mind the fundamental philosophy of the [ACT][CASE NUMBER] We have given unto ourselves a system of governance by rule of law[CASE NUMBER] The role of the Supreme Court is to render justice according to law[CASE NUMBER] As one jurist put it, the Supreme http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in Court is expected to decide questions of law for the country and not to decide individual cases without reference to such principles of law[CASE NUMBER] Consistency is a virtue[CASE NUMBER] Passing orders not consistent with its own decisions on law, is bound to send out confusing signals and usher in judicial chaos[CASE NUMBER] Its role, therefore, is really to interpret the law and decide cases coming before it, according to law[CASE NUMBER] Orders which are inconsistent with the legal conclusions arrived at by the court in the self same judgment not only create confusion but also tend to usher in arbitrariness highlighting the statement, that equity tends to vary with the Chancellor's foot[CASE NUMBER]
43[CASE NUMBER]Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our [ACT] and since the rule of law is the core of our [ACT], a Court would certainly be disabled from passing an order upholding a violation of [SECTION] or in ordering the overlooking of the need to comply with the requirements of [SECTION] read with [SECTION] of the [ACT][CASE NUMBER] Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee[CASE NUMBER] If it is a contractual appointment, the appointment comes to an end at the http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued[CASE NUMBER] Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment[CASE NUMBER] It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment,he would not be entitled to be absorbed in regular service or made permanent,merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules[CASE NUMBER] It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right[CASE NUMBER] High Courts acting under [SECTION] of the [ACT], should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme[CASE NUMBER] Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service[CASE NUMBER] In fact, in such http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required[CASE NUMBER] The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates[CASE NUMBER]
44[CASE NUMBER] The concept of 'equal pay for equal work' is different from the concept of conferring permanency on those who have been appointed on ad hoc basis,temporary basis, or based on no process of selection as envisaged by the Rules[CASE NUMBER] This Court has in various decisions applied the principle of equal pay for equal work and has laid down the parameters for the application of that principle[CASE NUMBER] The decisions are rested on the concept of equality enshrined in our [ACT] in the light of the directive principles in that behalf[CASE NUMBER] But the acceptance of that principle cannot lead to a position where the court could direct that appointments made without following the due http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in procedure established by law, be deemed permanent or issue directions to treat them as permanent[CASE NUMBER] Doing so, would be negation of the principle of equality of opportunity[CASE NUMBER] The power to make an order as is necessary for doing complete justice in any cause or matter pending before this Court, would not normally be used forgiving the go-by to the procedure established by law in the matter of public employment[CASE NUMBER] Take the situation arising in the cases before us from the State of Karnataka[CASE NUMBER] Therein, after the [ENTITY] decision, the Government had issue deprecated directions and mandatory orders that no temporary or ad hoc employ mentor engagement be given[CASE NUMBER] Some of the authorities and departments had ignored those directions or defied those directions and had continued to give employment,specifically interdicted by the orders issued by the executive[CASE NUMBER] Some of the appointing officers have even been punished for their defiance[CASE NUMBER] It would not be just or proper to pass an order in exercise of jurisdiction under [SECTION] or [SECTION] of the [ACT] or in exercise of power under [SECTION] of the [ACT] permitting those persons engaged, to be absorbed or to be made permanent, based on their appointments or engagements[CASE NUMBER] Complete justice would be justice according to law and though it would be open to this Court to mould the relief, this Court would not grant a relief which http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in would amount to perpetuating an illegality[CASE NUMBER]
45[CASE NUMBER] While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time[CASE NUMBER] It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment[CASE NUMBER] He accepts the employment with eyes open[CASE NUMBER] It maybe true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets[CASE NUMBER] But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently[CASE NUMBER] By doing so, it will be creating another mode of public appointment which is not permissible[CASE NUMBER] If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee[CASE NUMBER] A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them[CASE NUMBER] After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment[CASE NUMBER] It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it[CASE NUMBER] In other words, even while accepting the employment, the person concerned knows the nature of his employment[CASE NUMBER] It is not an appointment to a post in the real sense of the term[CASE NUMBER] The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State[CASE NUMBER] The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in [SECTION] of the [ACT][CASE NUMBER]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in
46[CASE NUMBER] Learned Senior Counsel for some of the respondents argued that on the basis of the doctrine of legitimate expectation, the employees, especially of the Commercial Taxes Department, should be directed to be regularized since the decisions in [ENTITY] (supra), [ENTITY] (supra), [ENTITY], and Gujarat Agricultural University and the like, have given rise to an expectation in them that their services would also be regularized[CASE NUMBER] The doctrine can be invoked if the decisions of the Administrative Authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn{See Lord [ENTITY] in [PRECEDENT], National Buildings Construction Corporation v[CASE NUMBER]S[CASE NUMBER] Raghunathan MANU/SC/0550/1998 :
AIR1998SC2779 and Dr[CASE NUMBER] [PRECEDENT]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in There is no case that any assurance was given by the Government or the concerned department while making the appointment on daily wages that the status conferred on him will not be withdrawn until some rational reason comes into existence for withdrawing it[CASE NUMBER] The very engagement was against the constitutional scheme[CASE NUMBER] Though, the Commissioner of the Commercial Taxes Department sought to get the appointments made permanent, there is no case that at the time of appointment any promise was held out[CASE NUMBER] [CASE NUMBER] such promise could also have been held out in view of the circulars and directives issued by the Government after the [ENTITY] decision[CASE NUMBER] Though, there is a case that the State had made regularizations in the past of similarly situated employees, the fact remains that such regularizations were done only pursuant to judicial directions, either of the Administrative Tribunal or of the High Court and in some case by this Court[CASE NUMBER] Moreover, the invocation of the doctrine of legitimate expectation cannot enable the employees to claim that they must be made permanent or they must be regularized in the service though they had not been selected in terms of the rules for appointment[CASE NUMBER] The fact that in certain cases the court had directed regularization of the employees involved in those cases cannot be made use of to found a claim based on legitimate expectation[CASE NUMBER] The argument if accepted would also http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in run counter to the constitutional mandate[CASE NUMBER] The argument in that behalf has therefore to be rejected[CASE NUMBER]
47[CASE NUMBER] When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature[CASE NUMBER] Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission[CASE NUMBER] Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees[CASE NUMBER] It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent[CASE NUMBER] The State cannot constitutionally make such a promise[CASE NUMBER] It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post[CASE NUMBER]
48[CASE NUMBER] It was then contended that the rights of the employees thus appointed, under [SECTION] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in and [SECTION] of the [ACT], are violated[CASE NUMBER] It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work[CASE NUMBER] The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them[CASE NUMBER] There is no case that the wage agreed upon was not being paid[CASE NUMBER] Those who are working on daily wages formed a class by themselves,they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules[CASE NUMBER] [CASE NUMBER] right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work[CASE NUMBER] 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[CASE NUMBER] As has been held by this Court, they cannot be said to be holders of a post,since, a http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in regular appointment could be made only by making appointments consistent with the requirements of [SECTION] and [SECTION] of the [ACT][CASE NUMBER] 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[CASE NUMBER] That would be treating un-equals as equals[CASE NUMBER] 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[CASE NUMBER] The arguments based on [SECTION] and [SECTION] of the [ACT] are therefore overruled[CASE NUMBER]
49[CASE NUMBER] It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law[CASE NUMBER] The rule of law compels the State to make appointments as envisaged by the [ACT] and in the manner we have indicated earlier[CASE NUMBER] In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees[CASE NUMBER] Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in the people of India[CASE NUMBER] It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages[CASE NUMBER] When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced[CASE NUMBER] Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of [SECTION] and [SECTION] of the [ACT][CASE NUMBER]
50[CASE NUMBER] It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of [SECTION] of the [ACT][CASE NUMBER] But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the [ACT] as one of its basic features, has included [SECTION], [SECTION] so as to ensue that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment[CASE NUMBER] In the guise of upholding rights under [SECTION] of the [ACT], a set of persons cannot be http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in preferred over a vast majority of people waiting for an opportunity to compete for State employment[CASE NUMBER] The acceptance of the argument on behalf of the respondents would really negate the rights of the others conferred by [SECTION] of the [ACT], assuming that we are in a position to hold that the right to employment is also a right coming within the purview of [SECTION] of the [ACT][CASE NUMBER] The argument that [SECTION] of the [ACT] is breached because the employment on daily wages amounts to forced labour, cannot be accepted[CASE NUMBER] After all,the employees accepted the employment at their own volition and with eyes open as to the nature of their employment[CASE NUMBER] The Governments also revised the minimum wages payable from time to time in the light of all relevant circumstances[CASE NUMBER] It also appears to us that importing of these theories to defeat the basic requirement of public employment would defeat the constitutional scheme and the constitutional goal of equality[CASE NUMBER]
5[CASE NUMBER]The legal principles settled by the [ACT] Bench was reiterated by the two Judges Bench of the Hon'ble Supreme Court, in the case of [PRECEDENT] is extracted hereunder:
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in
8[CASE NUMBER] This Court in State of Rajasthan & Ors[CASE NUMBER] v[CASE NUMBER]
Daya Lal & Ors[CASE NUMBER], 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[CASE NUMBER] The same are as under:(SCC P[CASE NUMBER] 435,para 12) (i) The High Courts, in exercising power under [SECTION] of the [ACT] 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[CASE NUMBER] The equality clause contained in [SECTION] and [SECTION] 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[CASE NUMBER] 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[CASE NUMBER]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in
(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[CASE NUMBER] 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[CASE NUMBER] Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right[CASE NUMBER]
(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[CASE NUMBER]
(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts[CASE NUMBER] There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees[CASE NUMBER]
http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in
(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[CASE NUMBER] [CASE NUMBER]r can employees in private employment, even if serving full time, seek parity in salary with government employees[CASE NUMBER] The right to claim a particular salary against the State must arise under a contract or under a statute[CASE NUMBER] (Emphasis supplied)
6[CASE NUMBER]Recently, the Supreme Court in the case of [ENTITY] [CASE NUMBER]vs[CASE NUMBER] A[CASE NUMBER]Singamuthu reported in 2017 (4) SCC 113 held as follows:
[SECTION][CASE NUMBER]The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G[CASE NUMBER]O[CASE NUMBER] Ms[CASE NUMBER] [CASE NUMBER][CASE NUMBER]22 dated 28[CASE NUMBER]02[CASE NUMBER]2006 and directed the appellants to grant regularisation of respondents service from the date of completion of ten years of service with salary and other benefits[CASE NUMBER] The learned Judge failed to take note of the fact that as per G[CASE NUMBER]O[CASE NUMBER] Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER] 22 dated 28[CASE NUMBER]02[CASE NUMBER]2006, the services of employees working in various government departments on full-time daily wage basis, who have completed more than ten years of continuous service as on 01[CASE NUMBER]01[CASE NUMBER]2006 will be regularised and not part-time [ENTITY]s like the respondent herein[CASE NUMBER] In G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER] [CASE NUMBER][CASE NUMBER] 84 dated http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in 18[CASE NUMBER]06[CASE NUMBER]2012, the Government made it clear that G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER] [CASE NUMBER][CASE NUMBER] 22 dated 28[CASE NUMBER]02[CASE NUMBER]2006 is applicable only to full- time daily wagers and not to part-time daily wagers[CASE NUMBER] Respondent was temporarily appointed part-
time worker as per [ACT] Volume (2) Appendix (5) and his appointment was completely temporary[CASE NUMBER] The respondent being appointed as part-time [ENTITY], cannot compare himself to full-time daily wagers and seek benefit of G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]22 dated 28[CASE NUMBER]02[CASE NUMBER]2006[CASE NUMBER] 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[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER] [CASE NUMBER][CASE NUMBER]22 dated 28[CASE NUMBER]02[CASE NUMBER]2006[CASE NUMBER]
17[CASE NUMBER]The learned Single Judge erred in extending the benefit of G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]22 dated 28[CASE NUMBER]02[CASE NUMBER]2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent[CASE NUMBER] The respondent was appointed on 01[CASE NUMBER]04[CASE NUMBER]1989 and completed ten years of service on 31[CASE NUMBER]03[CASE NUMBER]1999[CASE NUMBER] 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[CASE NUMBER]04[CASE NUMBER]1999 till the date of his regularization that is 18[CASE NUMBER]06[CASE NUMBER]2012, the financial commitment to the State would be around Rs[CASE NUMBER] 10,85,113/- (approximately)towards back wages http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in apart from pension which will have a huge impact on the State exchequer[CASE NUMBER] That apart, the learned senior counsel for the appellant submitted that in respect of Registration Department, about 172 persons were regularized under various G[CASE NUMBER]Os[CASE NUMBER] 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[CASE NUMBER] 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[CASE NUMBER]
18[CASE NUMBER]It is pertinent to note that even the regularisation of services of part-time employees vide G[CASE NUMBER]O[CASE NUMBER](Rt[CASE NUMBER]) [CASE NUMBER][CASE NUMBER]505 Finance (AA-2) Department dated 14[CASE NUMBER]10[CASE NUMBER]2009 and G[CASE NUMBER]O[CASE NUMBER](2D) [CASE NUMBER][CASE NUMBER][SECTION] Finance (T[CASE NUMBER]A[CASE NUMBER]
2)Department dated 26[CASE NUMBER]03[CASE NUMBER]2010 was effected by extending the benefit of G[CASE NUMBER]O[CASE NUMBER] dated 28[CASE NUMBER]02[CASE NUMBER]2006 only from the date of Government Orders and not from the date of completion of their ten years of service[CASE NUMBER] The Division Bench also failed to take note that G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER] 22 P &AR Dept[CASE NUMBER] dated 28[CASE NUMBER]02[CASE NUMBER]2006 is applicable only to full-time daily wage employees and who had completed ten years of continuous service as on 01[CASE NUMBER]01[CASE NUMBER]2006 and not to part-time employees[CASE NUMBER] As per G[CASE NUMBER]O[CASE NUMBER](Rt[CASE NUMBER]) [CASE NUMBER][CASE NUMBER]84 dated 18[CASE NUMBER]06[CASE NUMBER]2012, http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in the respondent is entitled to the monetary benefits only from the date of issuance of Government Order regularizing his service that is 18[CASE NUMBER]06[CASE NUMBER]2012[CASE NUMBER] The impugned order of the 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[CASE NUMBER]
19[CASE NUMBER]In the result, the impugned order is set aside and this appeal is allowed[CASE NUMBER] [CASE NUMBER] costs[CASE NUMBER]
7[CASE NUMBER]This being the factum of the case, if at all the writ petitioners are working for more than 3 years continuously, their cases can be considered for grant of special time scale of pay as per G[CASE NUMBER]O[CASE NUMBER]Ms[CASE NUMBER][CASE NUMBER][CASE NUMBER]385, if they are otherwise eligible and in accordance with the terms and conditions of the Government Orders[CASE NUMBER] However, the benefit of regularization or permanent absorption cannot be granted, in view of the legal principles settled by the constitutional Courts[CASE NUMBER] Thus, these writ petitions are devoid of merits and the same is dismissed[CASE NUMBER] [CASE NUMBER] costs[CASE NUMBER] Consequently, the connected miscellaneous petitions are closed[CASE NUMBER]
06[CASE NUMBER]06[CASE NUMBER]2019 Index:Yes/[CASE NUMBER] Internet:Yes/[CASE NUMBER] http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in To
1[CASE NUMBER]The [ENTITY], Rep by its Secretary, Department of Adi Dravidar and Tribal Welfare, Fort St[CASE NUMBER]George, Chennai 600 009[CASE NUMBER]
2[CASE NUMBER]The [ENTITY], Rep by its Secretary, Finance (Pension Division) Department Fort St[CASE NUMBER]George, Chennai 600 009 http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in [ENTITY],J[CASE NUMBER]
Ns and M[CASE NUMBER]P[CASE NUMBER](MD)[CASE NUMBER][CASE NUMBER]s[CASE NUMBER]1 and 2 of 2015 19[CASE NUMBER]06[CASE NUMBER]2019 http: www[CASE NUMBER]judis[CASE NUMBER]nic[CASE NUMBER]in