IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.07.2009 CORAN: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NOS.15250 & 15821 OF 2008 AND CONNECTED MISCELLANEOUS PETITIONS 1.T.Selvam 2.T.Selvarani 3.C.Murugan 4.K.Sengivel 5.S.Manivannan 6.S.Abirami 7.K.Balamurugan 8.B.Hari Govindan 9.G.Thirunavukkarasu 10.S.Murugavel 11.A.B.Vikneshwaran 12.S.Saravanan 13.R.Subhashini 14.R.Niraimathi 15.G.Elayaraja 16.E.Elanthamizhan 17.R.Sivakumar 18.R.Balasundaram 19.R.Selvam 20.V.T.Premnath 21.R.Ramya 22.R.Santhi 23.R.Ambuchezhian 24.M.Santhosh 25.M.S.Selvakumar 26.D.Shanmugam 27.K.Samidurai 28.A.Venkatachalapathi 29.A.Dhamotharan 30.S.Ramesh 31.B.Kiruthiga 32.R.Selvaraj 33.M.Guru 34.C.Arulsankar 35.R.Chandrasekar 36.V.Manivel 37.R.Harikrishnan 38.K.Sursh 39.M.Kalaimani https://hcservices.ecourts.gov.in/hcservices/ 40.P.Manivannan 41.P.Nehru 42.R.Balamurugan 43.K.Palanisamy 44.D.Manickavasakam 45.S.Kannan 46.T.Saravanan 47.P.Gurumurthy 48.N.Somasundaram 49.B.Ravindran 50.S.Govindaperumal 51.N.Velu 52.G.Mala 53.J.Perumal 54.S.Shanmugam 55.A.Prakash 56.N.Murugananam 57.P.Kamaraj 58.Sundarajan 59.Sabaragiri 60.G.Vasudevan .. Petitioners in WP.No.15250/2008 P.S.Hariharan .. Petitioner in WP.No.15821/2008 vs. 1.State of Tamil Nadu rep. By its Secretary Rural Development & Panchayat Raj Department Fort St.George, Chennai 9. 2.The Director of Rural Development, Panagal Buildings, Saidapet Chennai 600 015. .. R.1 & R.2 in both the W.Ps. 3.The District Collector of Cuddalore District at Cuddalore. 4.The District Collector of Villupuram District at Villupuram. .. R.3 & R.4 in WP.No.15250/2008 5.V.Santhasezhiyan (impleaded as 5th respondent vide order in MP.No.1/09 dt.10.07.2009) ..R.5 in WP.15250/08 https://hcservices.ecourts.gov.in/hcservices/ 5.The Collector Tiruvannamalai District Tiruvannamalai 606 604. .. 3rd respondent in WP.15821/2008 4.P.VISWANATHAN 5.R.MANIKANDAN 6.A.VIMAL RAJA 7.T.UTHAMA KUMAR 8.K.KARTHIKESAN 9.T.POOVANNAN 10.S.RANJITH KUMAR 11.P.VARADARAJAN 12.G.KUMAR 13.R.SUKUMAR 14.G.SELVAM 15.M.RAJA 16.N.SENTHIL KUMAR 17.B.HEMALATHA 18.V.PALANISAMY 19.S.SAKTHI 20.D.VELU 21.G.RAVEENDRAN 22.P.RENGANATHAN 23.C.SAKTHIVEL 24.D.SARAVANA KUMAR 25.V.GAYATHRI 26.A.SIVAPRAKASAM 27.K.MALAR MOZHI 28.M.MUTHUKUMAR 29.L.RAMAKRISHNAN 30.B.ARIVAZHAGAN 31.K.GOPINATH 32.K.SELVAM 33.K.THIRUMANIKANDAN 34.T.RAMESH KRISHNAN 35.M.SWAMINATHAN 36.R.CHEZIAN 37.P.KATHIRESAN 38.K.RAMESH 39.J.MANIKANDAN 40.R.SENTHIL NATHAN 41.S.RAGUTHAMAN 42.A.GUNASEKARAN 43.M.MANOHARAN 44.P.GNANAVEL 45.E.PACHAMUTHU 46.S.RAVI CHANDRAN 47.P.PRABHU DOSS 48.J.AFFOSE 49.R.SAKTHIVEL https://hcservices.ecourts.gov.in/hcservices/ (R4 to R49 impleaded as per order of Court dated.10.12.08 in MP.No.3/08 in WP.15821/08) Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus as stated therein. WP.15250/08 and 15821/08: Petition presented to this court under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus (1) Calling for the records relating to the 1st respondent pertaining to G.O.Ms.No.96 Rural Development and Panchayat Raj [E3] Department dt. 6.6.2008 and the consequnetial proceedings having ref.No.D.P.Rc.13985/008/EF dt. 6.6.2008 of the 2nd respodnent respectively and quash the same and consequently direct the 1st respondent to extend the benefit of relaxation of Rule 2 of the Special Rules for the Tamil Nadu Panchayat Development Engineering in favour of the Technical Assistants recruited through the outsourcing method under the 'NREGS' and absorb them as Overseers/Technical Assistant/Road Inspector, under the relevant statutory service Rules in exercise of the power under Rule 48 of the General Rules of the Tamil Nadu State and subordinate services contained in Part-II in Volume-I of the Tamil Nadu Services Manual 1977(WP.No.15250/08) (2) Calling for the records of the 1st respondent pertaining to the G.O.(Ms) No.96 Rural Development and Panchayat Raj (E3) Department dated 06.06.2008 and quash the same and consequently direct the 1st respondent to 3rd respondent to cancel all the appointments made in Tiruvannamalai District in pursuance of the above G.O.Ms.No.96 dated 06.06.2008.(WP.15821/08) For petitioners in : Mr.L.Chandrakumar WP.No.15250 of 2008 For petitioner in : Mr.Vijay Narayan WP.No.15821 of 2008 Senior counsel for Mr.Jayaprakash Narayan For respondents : Mr.P.S.Raman Addl.Advocate General I assisted by Mr.A.Arumugham,Spl.G.P. COMMON ORDER In these writ petitions G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008 is questioned by the respective petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2. While the petitioners in W.P.No.15250 of 2008, who belong to Villupuram and Cuddalore Districts were employed as Technical Assistants under the National Rural Employment Guarantee Scheme (NREGS) on consolidated pay as per G.O.Ms.No.153 R.D. & P.R. Dept., dated 20.10.2006, they were appointed through Outsourcing Agencies. Even though they were registered in the Employment Exchange, the appointment as Technical Assistants was made without reference to their registration in the Employment Exchange. 3. The petitioner in W.P.No.15821 of 2008 was never considered for appointment under the National Rural Employment Guarantee Scheme either through Employment Exchange sponsorship or by Outsourcing Agencies. The name of the petitioner was not sponsored by the Employment Exchange, even though he got registered in the Employment Exchange in Thiruvannamalai. 4. All the petitioners are Diploma Holders in Civil Engineering. Of course, it is stated that few of them in W.P.No.15250 of 2008 are B.E. Degree holders and they were registered in the Professional Employment Exchange. Some of them being Diploma Holders in Civil Engineering were waiting from 1985 and some others after graduation, were waiting from 1995. 5. Under the National Rural Employment Exchange Act and as per the National Rural Employment Guarantee Scheme framed thereunder, recruitment was made from among rural youths. Accordingly, the State Government issued G.O.Ms.No.153, R.D. & P.R. Dept., dated 20.10.206 for the purpose of appointment to the post of Technical Assistant under two sources; one by sponsorship from Employment Exchange and another through Outsourcing Agencies. 6. The appointment was made on consolidated pay of Rs.4000/- per month which was subsequently increased to Rs.5000/-. It is stated that in respect of Villupuram District, the petitioners were appointed in December, 2006 and they joined duty during January, 2007 through Outsourcing Agencies. It is their case that the District Collector has ratified their appointment in April, 2007 and they have been working as Technical Assistants under the National Rural Employment Guarantee Scheme. 7. In the meantime, the Government created around 673 vacancies of the post Overseers and in such process of appointment, instead of considering the petitioners who are working as Technical Assistants with the same qualification as required for the posts Overseers, the Government, under G.O.Ms.No.96 R.D. & P.R. (E3) Department dated 6.6.2008, proceeded to consider only those persons who were appointed under the above said scheme through the Employment Exchange sponsorship, thereby denying the opportunity to the petitioners who were appointed through Outsourcing Agencies. https://hcservices.ecourts.gov.in/hcservices/ 8. The abovesaid G.O.Ms.No.96 dated 6.6.2008 has been challenged by the petitioners on various grounds including that the same is violative of Articles 14 and 21 of the Constitution of India. That apart, it is stated that the petitioners who were appointed through Outsourcing Agencies are having the same qualification as possessed by the persons who were appointed through Employment Exchange as per G.O.Ms.No.153, R.D. & P.R. Dept., dated 20.10.2006 and therefore, there is discrimination exercised in the impugned G.O. in isolating the petitioners who were appointed through Outsourcing Agencies which is in violation of Articles 14 and 21 of the Constitution of India. 9. In the counter affidavit filed by the respondents in W.P.No.15250 of 2008, it is stated that the writ petitioners belong to Villupuram and Cuddalore Districts and the District Collector has stated that 28 petitioners from Cuddalore District and 29 petitioners from Villupuram District were engaged as Technical Assistants through Outsourcing Agencies under the National Rural Employment Guarantee Scheme and Tsunami Scheme. It is stated that in Cuddalore District, out of 28 petitioners, 23 were not sponsored by the Employment Exchange and similarly, in Villupuram District, out of 29 petitioners, 11 were not sponsored by the Employment Exchange. It is stated that two writ petitioners one from Cuddalore and one from Villupuram who were sponsored by the Employment Exchange have not joined in the post of Technical Assistant. It is also stated that eleven writ petitioners, that is, one from Cuddalore and 10 from Villupuram sponsored by the Employment Exchange were called for interview but they failed to get selected. Four writ petitioners out of whom two from Cuddalore and two from Villupuram were sponsored by Employment Exchange and they could not be called for interview as they were very low down in the seniority list. 9(a). It is stated that in respect of six writ petitioners one from Cuddalore and five from Villupuram, the relevant records were not available and they have also not approached the Head of the Department. It is also stated that by G.O.Ms.No.51 dated 28.3.2008 the Government has created 673 additional posts of Overseers with effect from 1.4.2008 for better implementation of the National Rural Employment Guarantee Scheme and the Government in G.O.Ms.No.96, RD & PR Department, dated 6.6.2008 has ordered to absorb all 543 Technical Assistants recruited through Employment Exchange for Overseers appointment and to fill up 130 posts through Employment Exchange. It is also stated that the said G.O. came to be challenged in some other writ petitions and this Court upheld the validity of the G.O. and the same was also confirmed by the Division Bench in W.A.Nos.776 and 777 of 2008 by judgement dated 6.8.2008. 10. While Mr.L.Chandrakumar, learned counsel for the petitioners in W.P.No.15250 of 2008 and Mr.Vijay Narayan, learned senior counsel appearing for the petitioner in W.P.No.15821 of 2008 have contended https://hcservices.ecourts.gov.in/hcservices/ that out of the petitioners in W.P.No.15250 of 2008, eight were appointed in December, 2006 under the National Rural Employment Guarantee Scheme and the same was ratified by the District Collector and even though the appointment was made through Outsourcing Agencies, the same was not the fault on the part of the petitioners since all of them were registered under the Employment Exchange even on the said date of appointment. It is their contention that once the qualification for the candidates either appointed through Employment Exchange or through Outsourcing Agencies is one and the same and the nature of duties performed by them as Technical Assistants are also same, there cannot be any discrimination among them for the purpose of appointing them in the newly created posts of Overseers on regular basis. 11. On the other hand, it is the contention of the learned Additional Advocate General Mr.P.S.Raman that the petitioners in the above said writ petition cannot be compared with those who were employed through Employment Exchange, not only for the reason that when they were sponsored by the Employment Exchange they had undergone the test of merit and their ability was ascertained based on which their appointment was made by the District Collector, but also on the basis that the appointment of the said petitioners through Outsourcing Agencies cannot be treated as appointment by due process. It is also his submission that in respect of Thiruvannamalai District, when a group of persons similarly situated as that of the writ petitioners in W.P.No.15250 of 2008 have challenged the impugned G.O. in W.P.Nos.14222 and 14407 of 2008, this Court, by order dated 8.7.2008, rejected the contention of arbitrariness or violation of Article 14 and upheld the validity of the said G.O. holding that the petitioners cannot equate themselves with the Technical Assistants appointed through Employment Exchange by the District Collector after making them to undergo the process of selection. It is his submission that the judgement of the learned Judge has also been confirmed by the Division Bench in W.A.Nos.776 and 777 of 2008 by judgement dated 6.8.2008 however, with a direction to consider the case of persons who have registered in the Employment Exchange with necessary qualifications while making recruitment of Overseers by giving relaxation in respect of their age. The learned Additional Advocate General would fairly submit that in cases where the persons who were appointed by Outsourcing Agencies will be considered, if they got registered in the Employment Exchange and if they are qualified, subject to availability of vacancies and their employment exchange seniority, by giving relaxation of age. 12. A reference to the judgement of this Court made in W.P.Nos.14222 and 14407 of 2008 dated 8.7.2008 makes it clear that the impugned G.O. which is challenged in these writ petitions was challenged in those cases, of course, by the persons who were appointed through Outsourcing Agencies in Thiruvannamalai District. There also, a similar contention was raised viz., the persons https://hcservices.ecourts.gov.in/hcservices/ appointed through Outsourcing Agencies as Technical Assistants and the persons appointed through the Employment Exchange are equally qualified as all possessed Diploma in Civil Engineering and they were appointed under the same scheme, viz., the National Rural Employment Guarantee Scheme and they were imparted the same technical training and the nature of duties to be discharged by them are similar and the tenure and salary are also same and therefore, the impugned G.O. seeking to discriminate the equals in the matter of appointment to the newly created posts of Overseers is violative of Article 14 of the Constitution of India. 13. In that case, a learned Judge of this Court (S.Nagamuthu,J.) found that as per G.O.Ms.No.153 R.D. & P.R. Dept., dated 20.10.2006, even though there was two sources of appointment to the post of Technical Assistant, in respect of appointment made through Outsourcing Agencies, the same was not by the Government, whereas in the case of appointment made through Employment Exchange sponsorship, the selection was made for the same post based on a subsequent written test to decide about the merit and ability and suitability. The learned Judge has found that the appointment of candidates through Outsourcing Agencies can only be termed as being outside the purview of legal source, by applying the test laid down by the Supreme Court in Secretary, State of Karnataka and others v. Umadevi (3) [(2006) 4 SCC 1]. 14. Having found that the persons appointed through Outsourcing Agencies cannot be deemed to have been appointed through the regular scheme, the learned Judge has rejected the contention of violation of Article 14 of the Constitution of India and upheld the impugned G.O. It was also found that the persons appointed through Outsourcing Agencies could not be construed to be either temporary or contractual employees of the Government. In respect of the persons who got registered in the Employment Exchange in Thiruvannamalai and Dindigul Districts, the learned Judge has also held that the assumption that their employment exchange seniority would not be considered for the purpose of appointment to the newly created post of Overseers is misconceived, further holding that the candidates from Thiruvannamalai and Dindigul Districts who got registered themselves in the Employment Exchange would not be deprived of their absorption. 15. While upholding the said order, the Division Bench consisting of the then Hon'ble the Chief Justice (A.K.Ganguly,CJ. - as he then was) and F.M.Ibrahim Kalifulla,J., in W.A.Nos.776 and 777 of 2008, by judgement dated 6.8.2008, confirmed the view of the learned Single Judge that the persons sponsored by the Employment Exchange and appointed by the Government and the persons appointed through Outsourcing Agencies under the National Rural Employment Guarantee Scheme are not similarly situated. Having found that except in Thiruvannamalai and Dindigul Districts apart from two more Districts (probably meaning Villupuram and Cuddalore Districts), in https://hcservices.ecourts.gov.in/hcservices/ all other Districts, there is uniform method of recruitment through Employment Exchange and only in those Districts, the recruitment was made through Outsourcing Agencies, while affirming the judgement in writ petitions and approving the validity of the impugned G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008, the Division Bench held that since the persons belonging to Thiruvannamalai and Dindigul Districts who were appointed as Technical Assistants through Outsourcing Agencies, got registered with the Employment Exchange and there is no fault on their part in such appointment, they may be given a chance, if their registration with Employment Exchange continues, to appear in the Overseers recruitment process by granting exemption of age, if they in the meantime cross the required age limit and their experience as Technical Assistants should be given weightage. The Division Bench also directed the recruitment process for appointment to the posts of Overseers to be completed within six weeks' time. The Division Bench ultimately held as follows: " Considering the aforesaid facts, this Court dispose of the above two appeals by directing that in case of future recruitment to the post of Overseer in the aforesaid two Districts, viz., Tiruvannamalai and Dindigul, the appellants, whose registration continues in the Employment Exchange, should be given a chance to appear in the said recruitment process. In doing so, the cases of the appellants should not be discarded on the ground of their age. In other words, if they have crossed the requisite age, it should be condoned. After they appear in the written test, their performance in the test should be taken into account including their seniority in registration. This Court makes it clear that if in all these things, the appellants are found equal along with other persons who are to be recruited, in that case, the case of the appellants should be given a weightage considering their past experience. This Court also gives a direction that the vacancies in the aforesaid two Districts in the post of Overseer may be filled up by initiating recruitment process as early as possible, preferably, within a period of six weeks from this date. 6. This Court is passing this order in view of the stand taken by the Government in para 4 of the G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 06.6.2008, which reads as follows: '4. (iii) The present Technical Assistants are having a field working experience of 1 – 2 years in the Districts which will be advantageous for the district administration in effective implementation of Rural Development Schemes, whereas the new recruits from employment exchange will be raw hands". https://hcservices.ecourts.gov.in/hcservices/ 16. It is stated that the said judgement of the Division Bench has also been confirmed by the Hon'ble Supreme Court. In such view of the matter, when the Additional Advocate General has submitted that the direction given by the Division Bench in respect of persons who are similarly situated as the petitioners in that case belonging to Thiruvannamalai and Dindigul Districts will be given effect to the petitioners in W.P.No.15250 of 2008 belonging to Villupuram and Cuddalore Districts, if they still remain on the rolls of Employment Exchange, and they will be considered for the newly created posts of Overseers not only by giving weightage to the services rendered by them as Technical Assistants though appointed through Outsourcing Agencies, but also giving relaxation to age limit in the event of the petitioners having crossed the required age limit, there is no difficulty to conclude in the said line as that of the decision of the Division Bench. 17. Insofar as the writ petitioner in W.P.No.15821 of 2008 is concerned, admittedly he was not appointed under the National Rural Employment Guarantee Scheme in the year 2007 either through Employment Exchange or through Outsourcing Agencies, but he is still waiting as a person registered with the Employment Exchange having the qualification of Diploma in Engineering. In such circumstances, while it is true that he will also be entitled to be considered for the newly created posts of Overseers, subject to his turn under the Employment Exchange Registration, he is not entitled to any other relief. 18. In such view of the matter, both the writ petitions are dismissed and it is held that G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008 is valid, however, it is made clear that while making future recruitment to the posts of Overseers from the Cuddalore and Villupuram Districts including Thiruvannamalai and Dindigul Districts as directed by the Division Bench, those writ petitioners who continue to remain on the rolls of Employment Exchange, should be given opportunity to participate in the process of recruitment for the posts of Overseers created in G.O.Ms.No.51. While considering the same, the case of such petitioners shall not be rejected on the ground of age limit, if their names still remain on the rolls of Employment Exchange and by giving age relaxation they may be permitted to participate in the selection process which may include written test, seniority in the Employment Exchange, etc. 19. It is also made clear that if the petitioners are found equal with other persons, the experience gained by the petitioners in W.P.No.15250 of 2008 as Technical Assistants from December, 2006 has to be given weightage. The recruitment process in respect of said Districts viz., Cuddalore and Villupuram shall be completed as stated above within a period of six weeks from the date of this order. As observed by the Division Bench, the experience gained by those https://hcservices.ecourts.gov.in/hcservices/ petitioners who were appointed through Outsourcing Agencies as Technical Assistants is directed to be considered by virtue of clause 4(3) of G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008. The writ petitions are dismissed with the above directions. No costs. Connected miscellaneous petitions are closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar kWh To 1.The Secretary, Government of Tamil Nadu Rural Development & Panchaya Raj Department Fort St.George, Chennai 9. 2.The Director of Rural Development, Panagal Buildings, Saidapet Chennai 600 015. 3.The District Collector of Cuddalore District at Cuddalore. 4.The District Collector of Villupuram District at Villupuram. 5.The Collector Tiruvannamalai District Tiruvannamalai 606 604. + 1 cc to Mr.V.Perumal,Advocate,SR.30341 + 1 cc to Mr.V.Jayaprakash Narayanan,Advocate,SR.30110 + 1 cc to Mr.L.Chandrakumar,Advocate,SR.30337 + 1 cc to Mr.K.Premkumar,Advocate,SR.30324 W.P.Nos.15250 & 15821 of 2008 SV(CO) EM/14.7.09 https://hcservices.ecourts.gov.in/hcservices/