IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P.Nos.15852 to15856 of 2003 P.Gomathi ......Petitioner in W.P.15852/03 Kasturi Kamalam .....Petitioner in W.P.15853/03 K.Mohanraj .....Petitioner in W.P.15854/03 B.Ravichandran .....Petitioner in W.P.15855/03 R.Rathna .....Petitioner in W.P.15856/03 vs. 1.The Secretary and Controller of Examinations, T.N.Public Service Commission, Govt. Estate, Chennai 600 002. 2.The Secretary, Legislative Assembly, Secretariat, Fort St.George, Chennai 600 009. ....Respondents in all W.Ps. Common Prayer:writ Petitions filed under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorarified mandamus to call for the records relating to the Advertisement in the Daily Thanthi (Tamil News Paper) in No.042 dated 07.05.2003 in respect of his Notification dated 02.05.2003 calling for applications for filling up 8 vacancies in the category of LDCC from stipulated applicants and quash the Notification therein of the first respondent and further direct the second respondent to entertain the representation of the petitioner given in writing on 13.05.2003 praying for the confirmation of his appointment to the post of LDCC of the Secretariat of the Tamil Nadu Legislative Assembly on merits within a reasonable time. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mrs.Nalini Chidambaram for M/s.Gladis Daniel For Respondents : Ms.C.N.G.Niraimathi for R1 Mr.N.Senthil Kumar for R2 Additional Government Pleader C O M M O N O R D E R The petitioners have filed these writ of Certiorarified mandamus in calling for the records pertaining to the Advertisements in Daily Thanthi in No.042 dated 07.05.2003 in respect of the notification dated 02.05.2003 calling for applications for filling up 8 vacancies in the category of LDCC from stipulated applicants and to quash the notification therein of the first respondent and also to direct the second respondent to entertain the representation of the petitioners dated 13.05.2003 praying for the confirmation of their appointments to the post of LDCC of the Secretariat of the Tamil Nadu Legislative Assembly on merits within a reasonable time. 2. The petitioners were appointed as Lower Division (Counter) Clerk by means of Office Order No.738/94-1 TNLAS (OPI) dated 13.05.1994, Office Order No.855/96-1 TNLAS (OPI) dated 17.05.1996, Office Order No.738/94-2 TNLAS (OPI) dated 13.05.1994, Office Order No.1336/91-1 TNLAS (OPI) dated 29.08.1991, Office Order No.855/94-1 TNLAS (OPI) dated 13.5.1994 respectively as candidates sponsored by the Employment Exchange of the District Employment Office, Chennai-40. Indeed, except the petitioner in W.P.No.15855 of 2003, the other writ petitioners are physically challenged persons. Their appointment orders mentioned that their appointments were purely temporary and their services were liable to be terminated at any time without prior notice and without assigning any reason therefor and also with indication that they would not acquire any service rights in the Secretariat by virtue of their appointments. 3. The petitioners were working in the post of LDC for a period of 9 years, 7 years, 9 years, 12 years, 9 years respectively. The petitioners were aged about 35 years, 50 years, 45 years, 39 years, 34 years respectively at the time of filing of these writ petitions and there were no scope for alternative employment. The original sanctioned number of posts for Lower Division (Counter) Clerk were only 10. The petitioners since they belonged to Backward Community or being physically challenged were sponsored by the Employment Exchange and appointed by the first respondent to the six specified categories of vacancies for the posts of LDCC. In 1999, when the respondents made appointments for the remaining two posts sanctioned, they made direct appointments without disturbing the appointments of six earlier appointees and https://hcservices.ecourts.gov.in/hcservices/ this indicated the continued security of their jobs in the particular circumstances. Because of the petitioners' long and continued service, they were given all enhancements of pay and all allowances given to the regular and permanent employees of the Government. The first respondent had caused an advertisement in Daily Thanthi dated 07.05.2003 at page 15 publishing the notification dated 02.05.2003 which called for applications including the alleged vacant posts in the category of LDCC from applicants of Adi Dravidar 2 (one being unsupported widow), Most Backward Community 2 (one being unsupported widow), Backward Community 2 (one being unsupported widow), Common Category 2 (one being unsupported widow) and total in all 8 vacancies. 4. The petitioners ascertained from the office of the second respondent that the said vacancies of 8 posts in the category of LDCC were only in respect of 6 number of LDCC posts functioned by the petitioners appointed temporarily but treated by the respondent as vacant. If the 8 persons were appointed pursuant to the said advertisement, the petitioners would be ousted and rendered jobless. They made representations dated 13.05.2003 to the second respondent pointing out their predicament with a prayer to confirm their jobs for which the second respondent had not responded. 5. According to the learned senior counsel appearing for the petitioners, the proposed appointments in regard to 8 vacancies in the category of LDCC out of sanctioned 10 posts pursuant to advertisement dated 07.05.2003 are illegal, arbitrary because of the fact that the respondents could not assume and publish that in the category of LDCC in the Tamil Nadu Legislative Assembly, was existed 8 vacancies ignoring the petitioners and the direct appointment of two persons, all were functioning presently as regular employees for a long period in the total sanctioned strength of 10 posts and if the new appointments to the vacancies of 8 posts to be created by ousting, then they would be arbitrary, unreasonable and against the principles of natural justice and the arbitrary action of the respondents was nothing but a crucial one rendering the petitioners as destitutes, violating the principles of Equity and Natural Justice. Hence the petitioners have approached this Court by means of the present writ petitions. 6. The second respondent in his letter No.5959-A/2002-4, TNLAS (OP-I) dated 25.04.2003 addressed to the first respondent had among other things stated that 'owing to the sensitive nature of the work and the urgency with which routine functions at the 'Reception' counter were to be maintained without any interruption at the Legislators' Hostel, 6 temporary candidates were recruited through the Employment Exchange for the post of Lower Division (Counter) Clerk and further that six candidates recruited through the Employment Exchange are working in the Legislators' Hostel for https://hcservices.ecourts.gov.in/hcservices/ the period ranging from 6 to 11 years and out of the six persons, three are physically handicapped and based on the representations received from the individuals, the Tamil Nadu Public Service Commission was addressed from 1996 onwards for concurrence for their continuance. The Tamil Nadu Public Service Commission in its letter sixth cited (Leter No.544/CD-A4/96 dated 17.8.1999 from the Secretary, Tamil Nadu Public Service Commission, Chennai-2) while granting its concurrence for the temporary appointment of the above six candidates in the post of Lower Division (Counter) Clerk had also informed that their temporary services could be continued until regular candidates were allotted by the Commission an also requested the Secretariat to furnish the actual estimate of vacancies to be filled up by direct recruitment by the Tamil Nadu Public Service Commission. Accordingly, the actual estimates of vacancies were furnished to the Tamil Nadu Public Service Commission in the Secretariat letter seventh cited (Letter No.21295/99-2, TNLAS (OP-I) dated 3.3.2000) and also informed that three out of the above candidates have crossed the age of 40 years and hence made a request to place the entire matter before the Commission for re-consideration for continuance of the temporary service of the six candidates on regular basis and moreover requested to state whether it is possible to conduct a Special Qualifying Examination for the above six temporary candidates as a special case, if it is not possible to reconsider the request for their regularisation. 7. The learned counsel for the first respondent submits that the Secretary of the Service Commission in his Letter No.3043/CD.B2/02 dated 11.06.2003 addressed to the Secretary to the Government, the Tamil Nadu Legislative Assembly, Chennai 9 has among other things stated that since the Government has requested the Commission to regularise the services of six persons who were selected from the District Employment Exchange and appointed could not be regularised and further stated that the 6 temporary LDCC services could not be regularised and informed accordingly and further if special qualifying examination was to be conducted in respect of the six persons then it would creat a bad precedent and therefore it had not accorded consent for the conduct of the special qualifying examination and moreover the Deputy Secretary of the first respondent in its letter No.3726/LCD-A1/2003 dated 11.11.2009 addressed to its standing counsel had among other things mentioned that in regard to the concurrence sought for by the Government as per letter dated 11.06.2003 was decided by the Full Commission to the effect that it was not possible to obtain the concurrence of the first respondent/Commission in respect of Tmt.Gomathi and 5 others viz., (the writ petitioners) (at this stage) since the Commission had refused to grant its earlier and this may be informed to the High Court at the time of hearing of the case. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned Additional Government Pleader appearing for the second respondent submits that the post of Lower Division (Counter) Clerk in Legislative Assembly Secretariat is governed by the Adhoc Rules issued in G.O.Ms.21, Legislative Assembly Department dated 18.05.1964 in S.O.Ms.No.232, Legislative Assembly Secretariat dated 25.09.1989, orders were issued to the effect that the above post would fall under the purview of the Tamil Nadu Public Service Commission and the educational qualification was raised from minimum general educational qualification to that of the degree qualification and the posts of Lower Division (Counter) Clerk were created to attend the'reception' work at the Legislators' Hostel and the vacancies arising in the category could not be kept unfilled even for a short duration considering the nature of duties and responsibilities to be discharged round the clock in three shifts and also that the continous enquiries from various important quarters are to be attended by them and because of the nature of the work and the urgency with which routine functions at the Reception counter were to be maintained without any interruption at the Legislators' Hostel, the petitioners were temporarily employed through the Employment Exchange and at the time of their appointments, it was clearly mentioned that the said appointments were purely temporary and their services were liable to be terminated without assigning any reason or notice. 9. Proceeding further, the learned Additional Government Pleader for the second respondent contends that the Tamil Nadu Public Service Commission in its Le544/CD-A4/96 dated 15.04.1997 informed that the post of Lower Division Counter Clerk comes under the purview of the the Tamil Nadu Public Service Commission for the purpose of direct recruitment and that the recruitment of Lower Division Counter Clerk were made without the concurrence of the Tamil Nadu Public Service Commission and that their temporary appointments were irregular and to rectify the continuance of the temporary candidates until regular candidates were appointed, the Tamil Nadu Public Service Commission was addressed to fill up four vacancies of Lower Division (Counter) Clerk Post in the second respondent's letter No. 5437/94-1 dated 23.03.1994 and two vacancies of the said post in the second respondent's Letter No.5203/96-1 dated 3.4.1996 and the first respondent/Service Commission in its Letter No.544/CD-A4/96 dated 17.08.1999 accorded its concurrence for the temporary appointment including the petitioners from the date of initial appointment and informed that their services may be continued until regular candidates were allotted by the first respondent/Commission and the first respondent/Commission had allotted only two candidates in February, 2000, again it was addressed in second respondent's letter No.21295/99-2 dated 3.3.2000 for filling up of 7 vacancies in the category of Lower Division (Counter) Clerk including the four https://hcservices.ecourts.gov.in/hcservices/ vacancies already intimated and three vacancies which arose thereafter and subsequently the first respondent was addressed in the second respondent's letter No.2198/2002-2 dated 24.09.2002 to fill up another vacant post of Lower Division (Counter) Clerk and that the petitioners are continuously working in the casual vancies that arose from time to time. 10. Besides the above, it is the stand of the second respondent that the petitioners once again requested that their temporary services may be regularised and that the first respondent/Service Commission was addressed in detail to concur for their regular absorption including the petitioners in the second respondent's letter No.5959/A/200-1 dated 2.5.2002 purely on humanitarian grounds and also because of the fact that some of them were physically handicapped and they had put in service of 6 to 11 years and the first respondent/Commission in its letter No.3043/CD- B2/02 dated 26.03.2003 declined to give its concurrence for their regular absorption and in the meanwhile, the first respondent/Commission in its Advertisement No.42 had advertised in Daily Thanthi for filling up the 8 vacant posts of Lower Division Counter Clerk including the posts held by the six temporary Lower Division Counter Clerks including the petitioners and as a matter of fact, the petitioners were appointed temporarily as Lower Division Counter Clerks and their appointment orders stated that their appointments were purely temporary and they were liable to be terminated from service any time without assigning reason or notice and that they would not acquire any service rights because of their temporary appointments and since the petitioners were appointed as per Rule 17(a) (i) of the Tamil Nadu Legislative Assembly Secretariat Service Rules, they were fully aware that their posts come under the purview of the first respondent/Commission and they would be replaced by the candidates selected by the Tamil Nadu Public Service Commission and indeed the first respondent/Commission had advertised for filling up 8 vacancies including the six posts held by the temporary Lower Division Counter Clerks' (inclusive of the petitioners) who were temporarily appointed as per Rule 17(a) (i) of the Tamil Nadu Legislative Assembly Secretariat Service Rules. 11. It is the contention of the second respondent that the first respondent was addressed in its letter No.5959/A/2002-2 dated 2.5.2002 to consider the case for regular absorption on humanitarian grounds and the first respondent in its letter No.3043/CD-B2/2002 dated 21.11.2002 called for certain clarifications and the Service Books of the petitioners and the same were forwarded but the first respondent in its Letter No.3043/CD-B2/2002 dated 26.03.2003 had declined to give its concurrence for the regular absorption and the second respondent in its Letter No.5959/A/2002-4 dated 25.4.2003 made a request once https://hcservices.ecourts.gov.in/hcservices/ again to the first respondent to reconsider their decision or if it was not possible to reconsider the decision to explore the possibility of holding a special qualifying examination as done in the previous cases but the first respondent in its letter No.3043/CD-B2/2002 dated 11.06.2003 had declined to give its concurrence and observed that it would not be possible to hold a special qualifying examination as it would set up a bad precedent for filling up the post of Lower Division Counter Clerk and because of the fact that the posts of Lower Division Counter Clerk come under the ambit of the first respondent/Commission for the purpose of direct recruitment and since the Commission was addressed to fill up the vacancies as per orders issued in S.O.Ms.No.232, Legislative Assembly Secretariat dated 25.09.2989, it could not be said that the advertisement was illegal, arbitrary and an unsustainable one. 12. At this juncture, the learned senior counsel appearing for the petitioners brings it to the notice of this Court to G.O.Ms.No.124, Personnel and Administrative Reforms (P) Department dated 12.09.2009 wherein 'the Government had directed the respondents viz., the Secretaries to Government of the Departments of Secretariat/Heads of Department/District Collectors as the case may be to implement the orders of High Court (i.e.) to regularise the services of Typists/Steno-typists/Junior Assistants who were appointed temporarily and who had failed in the Special Qualifying Examination conducted in the year 1995 from the date of their initial appointment with service benefits only and also a direction was issued by the Government to the effect that the services of similarly placed temporary Typist/Steno Typists/Junior Assistant who have failed in the Special Qualifying Examination 1995 and who have obtained orders favourable to them from the High Court of Madras shall be regularised by the authorities concerned with effect from the date of their initial appointment with service benefits only.' 13. It is apt for this Court to extract paragraph Nos.2 and 3 of the aforesaid G.O. wherein it is observed as follows:- “In the meantime, some of the temporary Junior Assistants/Typists and Steno-typists who were not qualified in the above said Special Qualifying Examination filed original applications in the Tamil Nadu Administrative Tribunal and subsequently Writ Petitions in the High Court, Madras and obtained interim orders from the Hon'ble Court and are continuing in service till date. In the orders of Tamil Nadu Administrative Tribunal 3rd read above (Orders of High Court Madras dated 11.07.2002 in O.A.Nos.423 to 427/1997 and https://hcservices.ecourts.gov.in/hcservices/ 1112/1997), the Hon'ble Tribunal have directed that the 'service of the petitioners shall be regularised with effect from the date of their initial appointment and that they will be eligible for service benefits only.' Moreover, in the order of High Court, Madras 6th read above, the Hon'ble Court have observed as follows:- "In the light of the above legal pronouncements and also in view of the policy decision taken by the State in G.O.Ms.No.22, Personnel and Administrative Reforms Department, dated 28.02.2006, and considering the fact that the State itself had implemented the earlier orders of the Tribunal in identical situations and also the fact that under Rule 48, they have necessary power to grant relaxation and further the fact that the individuals have entered service on being sponsored by Employment Exchange and have put in more than two decades of service, we feel that it is a fit case that the order of the Tribunal challenged in W.P.No.6331 to 6336 of 2004 must be affirmed though not for the reasons indicated therein. Accordingly, W.P.Nos.6331 to 6336 of 2004 will stand dismissed. The other writ petitions being W.P.No.15177 of 2001 and W.P.Nos.12031 and 23887 of 2004 will stand allowed. The State Government is directed to implement the order of the Tribunal within a period of eight weeks from the date of receipt of a copy of this order. However, there will be no order as to costs. Connected Miscellaneous Petitions are closed." 3. In all the other orders of High Court, Madras 4th to 8th read above (Orders of High Court Madras dated 28.01.2008, in W.P.No.15135/2008, Orders of High Court Madras dated 31.03.2008 in W.P.No.27188/2006, Orders of High Court Madras dated10.06.2008 in W.P.Nos.15177/2001, 6331/04, 6332/2004, 6333/2004, 6334/2004, 6335/2004, 6336/2004, 23887/2004, 12031/2004 and 30832/2006, Orders of High Court Madras dated 25.08.2008 in W.P.No.18339/2008, Orders of High Court Madras dated 19.01.2009 in W.P.No.23195/2008) the High Court, Madras have passed orders in favour of the applicants directing the respondents to regularise the services of the temporary Junior Assistants/Typists and Steno-Typists as the case may be from the date of their initial appointment." 14. The learned Additional Government Pleader appearing for https://hcservices.ecourts.gov.in/hcservices/ the second respondent cites the decision of the Hon'ble Supreme Court in SECRETARY, STATE OF KARNATAKA AND OTHERS V. UMA DEVI AND THREE OTHERS, 2006 (4) SUPREME COURT CASES at page 1, wherein the Hon'ble Supreme Court has observed that 'the wide powers under Art.226 are not intended to be used for issuance of such directions, certain to defeat the concept of social justice, equal opportunity for all and the constitutional scheme of public employment and the Supreme Court is bound to insist on the State making regular recruitments and appointments and not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment and it is erroneous for Supreme Court to merely consider equity for the handful of people who have approached the Court with a claim whilst ignoring equity for the teeming millions seeking employment and a fair opportunity for competing for employment and also that Courts must be careful in ensuring that they do not interfere unduly with the economic/financial arrangement of the affairs of the State or its instrumentalities." 15. It is not out of place for this Court to recall the observations of the Hon'ble Supreme Court in the aforesaid decision at page 42 in paragraph No.53 wherein it is observed as follows:- "...53. One aspect needs to be clarified. There may be cases where irregular appointments (non illegal appointments)as explained in S.V.NARAYANAPPA ((1967) 1 SCR 128:AIR 1967 SC 1071), R.N.NANJUNDAPPA ((1972) 1 SCC 409:(1972) 2 SCR 799) AND B.N.NAGARAJAN ((1979) 4 SCC (L&S) 4: (1979) 3 SCR 937) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within https://hcservices.ecourts.gov.in/hcservices/ six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 16. The learned senior counsel for the petitioners places reliances on Rule 48 of the Tamil Nadu State and Subordinate Service Rules, which reads as follows:- "48. Notwithstanding anything contained in these rules or in the special rules, the Governor shall have power to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable: Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule." and contends that the State Government have necessary power to grant relaxation and also that the petitioners were appointed as Lower Division (Counter) Clerks in the establishment of the second respondent on being sponsored by the Employment Exchange of the District Employment Office, Chennai and therefore prays for allowing the writ petitions. 17. It is pertinent for this Court to cite the decision of the Hon'ble Supreme Court R.N.NANJUNDAPPA V. T.THIMMAIAH AND ANOTHER, AIR 1972 SUPREME COURT 1767, wherein it is observed as follows:- " ...(A) (B) (C) Article 309 speaks of rules for appointment and general conditions of service. Regularisation of appointment by stating that notwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules, the rule itself is open to criticism on the ground that it is in violation of current rules. Therefore the Mysore Rules of 1967 cannot be permitted to stand https://hcservices.ecourts.gov.in/hcservices/ to operate as a regularisation of appointment of one person in utter defiance of rules requiring consideration of seniority and merit in the case of promotion and consideration of appointment by selection or