IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.7.2008 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.20449 of 2006 (T) O.A.No.7089 of 1995 G.Mani .. Petitioner vs. 1. The Deputy Commissioner Commercial Taxes Vellore Division Vellore 2. The Assistant Commissioner Commercial Taxes Villupuram,R.P.District .. Respondents This writ petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus to direct the respondents to regularise the services of the petitioner from the date of appointment i.e. From 19.10.1989 and grant all consequential benefits. (prayer amended as per order of this Court, dated 23.4.2008, in M.P.No.1 of 2008 in W.P.No.20449 of 2006) For petitioner : Mr.M.Vivekandan For Respondents : Mr.T.Sreenivasan Government Advocate O R D E R It is stated by the petitioner that he was selected through the employment exchange and appointed as a Typist in the office of the second respondent, on temporary basis, on 19.10.1989. From the date of his appointment, he has been working, continuously, till date. The petitioner has written the special qualifying examination conducted on 25.6.1995, for regularisation of the services of the temporary candidates, in pursuance of G.O.Ms.No.433, dated 14.12.1993. The Government has also stipulated that persons appointed prior to 15.5.1991 shall not be ousted from service unless the candidates selected by the service commission are appointed. While so, the https://hcservices.ecourts.gov.in/hcservices/ Director of Survey and Settlement has allotted candidates employed in the said Department, on consolidated pay, to the Vellore Division of the Commercial Taxes Department, in pursuance of G.O.Ms.No.248, Revenue Department, dated 23.3.1993. Pursuant to the said allotment, the first respondent had also allotted candidates to the office of the second respondent. Thus, the continuance of the petitioner in service has come under serious threat. 2. It has also been stated that the petitioner had completed six years of service as on the date of the filing of the original application and as per the order passed by the Tamil Nadu Administrative Tribunal, in O.A.No.3002 of 1991, the petitioner is entitled to be regularised in service. The order of the Government made in G.O.Ms.No.433, dated 14.12.1993, makes it clear that all the vacancies of the years 1994 and 1995 are reserved for the candidates taking the special qualifying examination. The petitioner has written the special qualifying examination and he is fully qualified to hold the post. While so, the persons coming from the survey department had been directed to acquire the technical qualification in Typewriting, within two years from the date of the appointment. They were not required to take the special qualifying examination. In such circumstances, the petitioner had filed an original application in O.A.No.7089 of 1995, which has been transferred to this Court and renumbered as W.P.No.20449 of 2006. 3. In the reply affidavit filed on behalf of the respondents, the claims made by the petitioner had been denied. It has been stated that the petitioner was appointed under Rule 10(a) (i) of the General Rules, as vacancies were existing at that time. The Government in letter No.66445/per-M/93, dated 14.9.1993, has instructed that the temporary candidates should not be continued after the selection and allotment of candidates by the Tamil Nadu Public Service Commission for the same category. 4. It has also been stated that the Tamil Nadu Administrative Tribunal, by an interim order made in O.A.No.4560 of 1994, had directed the authorities concerned to get information from all the Departments before 31.12.1994 and to ensure that the temporary incumbents are replaced by the candidates from the Tamil Nadu Public Service Commission reserve list of 1993. The principal Commissioner and Commissioner of Commercial Taxes, Madras, in letter No.H2/22223/95, dated 10.3.1993, had requested the first respondent to meet the concerned officials in the Tamil Nadu Public Service Commission Office with the details of temporary incumbents in the post of Junior Assistants, Typists and Steno Typists of Vellore Division and to get allotment of regular candidates from the reserve list of Tamil Nadu Public Service Commission and to terminate all the temporary incumbents in the post of Junior Assistants, Typists and Steno Typists by replacing them by regular candidates. https://hcservices.ecourts.gov.in/hcservices/ 5. In reference No Rc.B2/4871/95, dated 18.4.1995, the first respondent had addressed the Tamil Nadu Public Service Commission to allot Typists to terminate the temporary incumbents. In the meanwhile, the Tamil Nadu Public Service Commission had called for the present vacancy position in the Unit. Accordingly, the first respondent had issued the vacancy position taking into account the temporary typists also. The Chairman, the Tamil Nadu Public Service Commission has furnished the list of vacancies received from various unit officers in D.O.Letter No.6141/CD-A4/90, dated 8.9.1995, addressed to the Chief Secretary to the Government. As per G.O.Ms.No.50, Personnel and Administrative Reforms Department, dated 14.2.1995, vacancies in the posts of Junior Assistants and Typists are to be filled by appointment of Junior Assistants-cum-Typists. The Secretary to Government, Personnel and Administrative Reforms Department, had requested the Director of Survey and Settlement, Madras, to sponsor the names of qualified surveyors/draftsmen, including section writers for appointment in the above posts in accordance with the guidelines prescribed in G.O.Ms.No.248, Revenue, dated 23.3.1994. Accordingly, the candidates appointed under Rule 10 (a) (i) of the General Rules were to be ousted. 6. It has also been stated that the petitioner has been working on a temporary basis only from 21.5.1992. In such circumstances, the reliefs sought for by the petitioner ought not to be granted by this Court. 7. In the counter affidavit filed by the first respondent in M.P.No.1 of 2008 in W.P.No.20449 of 2006, it has been stated that the Tamil Nadu Public Service Commission had conducted the special qualifying examinations for the temporary candidates based on the orders of the Government in G.O.Ms.No.433, Personnel and Administrative Reforms Department, dated 14.12.1993, for regularising the services of the Junior Assistants and Typists recruited through the employment exchange. The candidates were to secure a minimum of 30% of marks in the special qualifying examination. Since the petitioner was not successful in the special qualifying examination conducted by the Tamil Nadu Public Service Commission, he was not eligible for regularisation in service. 8. Mr.M.Vivekanandan, the learned counsel appearing for the petitioner had submitted that the petitioner has been employed as a Typist, in the second respondent Department, continuously, from the date of his appointment i.e., 19.10.1989. Being fully qualified, the petitioner's service ought to have been regularised by the respondents. However, the persons from other Departments are being posted in the respondent Department to oust from service the petitioner and other similarly placed persons. Considering the length of service put in by the petitioner, this Court may be pleased to direct the respondents to regularise the petitioner in service. In https://hcservices.ecourts.gov.in/hcservices/ view of the interim order passed by the Tamil Nadu Administrative Tribunal, the petitioner is continuing in service till date. 9. The learned counsel appearing for the petitioner had relied on the decision of the Supreme Court in U.P.STATE ELECTRICITY BOARD Vs. P.C.PANDEY & OTHERS (2007 (7) SUPREME 374), wherein it was held as follows: 11. Learned counsel for the appellant had relied upon the decision of this Court in Secretary, State of Karnataka & Ors Vs. Uma Devi (3) & Ors. (2006) 4 SCC 1 and has urged that no direction for regularisation can be given by the Court. In our opinion, the decision in Uma Devis case (supra) is clearly distinguishable. The said decision cannot be applied to a case where regularisation has been sought for in pursuance of Article 14 of the Constitution. 16. We are constrained to refer to the above decisions and principles contained therein because we find that often Uma Devis case (supra) is being applied by Courts mechanically as if it were a Euclids formula without seeing the facts of a particular case. As observed by this Court in Bhavnagar University (supra) and Bharat Petroleum Corporation Ltd., (supra), a little difference in facts or even one additional fact may make a lot of difference in the presidential value of a decision. Hence, in our opinion, Uma Devis case (supra) cannot be applied mechanically without seeing the facts of a particular case, as a little difference in facts can make Uma Devis case (supra) inapplicable to the facts of that case. 18. We may further point out that a seven- Judge Bench decision of this Court in Maneka Gandhi Vs. Union of India & Anr., AIR 1978 SC 597 has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhis case (supra) is a decision of a seven-Judge Bench, whereas Uma Devis case (supra) is a decision of five-Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhis case (supra) does not specifically deal with the question of https://hcservices.ecourts.gov.in/hcservices/ regularisation of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of general application. 10. The learned counsel appearing for the petitioner had also relied on the decision rendered by a Division Bench of this Court, on 10.6.2008, in W.P.Nos.15177 of 2004 (batch) wherein it has been held as follows: "15. 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 & Administrative Reforms Department dated 28.2.2006 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.Nos.6331 to 6336 of 2004 must be affirmed though not for the reasons indicated indicated therein. 16. Accordingly, W.P.Nos.6331 to 6336 of 2004 will stand dismissed. The other writ petitions being W.P. Nos.15177 of 2001 and W.P.Nos.12031 and 23887 of 2004 will stan 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." 11. The learned counsel appearing for the petitioner had also placed before this Court a Government order in G.O.Ms.No.22, Personnel and Administrative Reforms (F), Department, dated 28.2.2006, which reads as follows: "The Hon'ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Services and Teachers Associations General Conference held on 8.2.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 1.1.2006 will be regularised. https://hcservices.ecourts.gov.in/hcservices/ 2. Based on the announcement made by the Hon'ble Chief Minister on 8.2.2006, the Government direct that the services of the daily wages employees working in all Government Departments who have rendered 10 years of service as on 1.1.2006 be regularised by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. 3. The Departments of Secretariat may therefore, be directed to pursue action to regularise the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 1.1.2006 as ordered in para 2 above in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required, proposal shall be sent to Government. 4. This order issues with the concurrence of Finance Department vide its U.O.No.985/FS/P/2006." 12. The learned counsel appearing for the petitioner had submitted that according to paragraph 53 of the decision rendered by the Supreme Court in SECY., STATE OF KARNATAKA Vs. UMA DEVI (3) ((2006) 4 SCC 1), an exception had been carved out in favour of the persons who have been appointed through the employment exchange and who have been working for a considerable length of time. Therefore, there is no total embargo imposed on the respondents to consider the claims of the petitioner for regularisation of his service. Therefore, in view of the cases cited above and in view of G.O.Ms.No.22, Personnel and Administrative Reforms (F), Department, dated 28.2.2006, the respondents may be directed by this Court to regularise the service of the petitioner, as prayed for in the writ petition, with all attendant benefits. 13. On the other hand, Mr.T.Sreenivasan, the learned Government Advocate appearing for the respondents had submitted that the petitioner cannot claim regularisation of his service as a matter of right. Even though the petitioner might have been working as a Typist from the year 1989, the petitioner had been appointed under Rule 10 (a) (i) of the General Rules, on a temporary basis. Once a regular selection has been made through the Tamil Nadu Public Service Commission, the temporary employees, like the petitioner, would have to be necessarily ousted from service. Further, the Tamil Nadu Public Service Commission had conducted the special qualifying examination https://hcservices.ecourts.gov.in/hcservices/ for the temporary candidates, based on the order of the Government issued in G.O.Ms.No.433, dated 14.12.1993, for regularising the service of the Junior Assistants and Typists recruited through the employment exchange. The candidates should have secured a minimum of 30% of marks to qualify for regularisation. However, the petitioner had not qualified in the special qualifying examination conducted by the Tamil Nadu Public Service Commission by securing the minimum marks required for regularising his service. In such circumstances, the reliefs sought for by the petitioner are unsustainable as being devoid of merits. 14. The learned Government Advocate appearing for the respondents had relied on the decision of the Supreme Court in SECY., STATE OF KARNATAKA Vs. UMA DEVI (3) ((2006) 4 SCC 1) wherein it has been held as follows: "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. He accepts the employment with open eyes. It may be true that he is not in a position to bargain—not at arm’s length—since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. 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. 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 temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succour to them. 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. 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 https://hcservices.ecourts.gov.in/hcservices/ the consequences flowing from it. 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. Considered in the light of the very clear constitutional scheme, it cannot be said that the temporary, contractual, causal or daily-wage 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 Articles 14 and 16 of the Constitution. It is therefore not possible to accept the argument that the State action in not regularising the employees was not fair within the framework of the rule of law. Orders for absorption, regularisation or permanent continuance of such employees are passed apparently in exercise of the wide powers under Article 226 of the Constitution. The wide powers under Article 226 are not intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution. It is time that the courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance tends to defeat the very constitutional scheme of public employment. It has to be emphasised that this is not the role envisaged for the High Courts in the scheme of things and their wide powers under Article 226 are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten. In view of the above decision, it is clear that the illegal appointments cannot be regularised. 15. The learned Government Advocate appearing for the respondents had further submitted that the Supreme Court has made it amply clear that irregular or illegal appointments cannot be regularised as it would infringe on the rights of those who are waiting to be employed https://hcservices.ecourts.gov.in/hcservices/ with all the necessary qualifications that are required for being appointed in the various posts which are occupied by persons who have been irregularly or illegally appointed, on a temporary basis. 16. Considering the averments made by the petitioner as well as the respondents and in view of the submissions of the learned counsels appearing on their behalf and on a perusal of the records available, this Court is persuaded to take note of the fact that the petitioner has been in service as a Typist, under the second respondent Department, from 19.10.1989 when he had been appointed through the employment exchange. Further, he has been continuing in service by an interim order passed by the Tamil Nadu Administrative Tribunal, which has been in force till date. 17. At this juncture, this Court has also taken note of the fact that in a number of decisions rendered by the Supreme Court, it has been amply made clear that the Tribunals and the Courts of law should desist from issuing directions to the Governments and the authorities concerned to regularise the services of the temporary employees. 18. It is also seen that the Government of Tamil Nadu has issued G.O.Ms.No.22, Personnel and Administrative Reforms (F), Department, dated 28.2.2006, directing the various Departments of the Government to initiate action to regularise the services of the daily wages employees who have rendered 10 years of service, as on 1.1.2006. 19. In such circumstances, this Court finds it appropriate to direct the first respondent to consider the request of the petitioner for regularising his service as a Typist in the respondent Department as prayed for by him in view of the decisions relied on by the learned counsel appearing for the petitioner and by taking note of G.O.Ms.No.22, Personnel and Administrative Reforms (F), Department, dated 28.2.2006 and pass appropriate orders thereon, within a period of 12 weeks from the date of receipt of a copy of this order. 20. Accordingly, the writ petition stands disposed of with the above directions. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lan To: 1. The Deputy Commissioner Commercial Taxes Vellore Division Vellore 2. The Assistant Commissioner Commercial Taxes Villupuram,R.P.District 1 CC To Mr.M.Vivekandan, Advocate, SR NO.35153. 1 CC to the Government Pleader, SR NO.35358. W.P.No.20449 of 2006 (T) O.A.No.7089 of 1995 vs(co) pmk/12.8.2008. https://hcservices.ecourts.gov.in/hcservices/