IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.44820 of 2006 (T) (O.A.No.3807 of 2000) 1.A.Vijayan 2.K.Manoharan 3.P.Sankara Rameswaran 4.R.Vijayakumar 5.S.Kumar 6.N.Sathiyanarayanan ...Petitioners Vs 1.State of Tamilnadu, Rep. By its Secretary to Government, Labour and Employment Department, Secretariat, Chennai -9. 2.Chief Inspector of Factories, Chepauk, Chennai -5. ...Respondents Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of certiorarified mandamus, to call for the records pertaining to the order passed by the Ist respondent in G.O.(3D) No.5 Labour & Employment Dept. dated 19.6.98 and set aside the same in so far as the petitioners are concerned and direct the respondents to regularise the services of the petitioners retrospectively from the date on which they joined in service and confer all the consequential benefits including seniority. For Petitioners : Mr.Ganesan for Mr.S.Mani For Respondents : Mr.R.Murali, G.A. O R D E R The 6 petitioners, who are working as Assistant Inspector of Factories in the Labour Department filed O.A.No.3807 of 2000 before the Tamil Nadu Administrative Tribunal, seeking to challenge the order of the Ist respondent Government made in G.O. (3D) No.5 Labour & Employment Department dated 19.6.1998 and after setting aside the same seeks for regularisation of their services with a retrospective date calculated from the date on which on which they had entered into the service and confer all the consequential benefits including seniority. https://hcservices.ecourts.gov.in/hcservices/ 2. The original application was admitted on 27.06.2000. On notice from the Tribunal, the first respondent had filed a reply affidavit dated 29.11.2002. 3. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.No.44820 of 2006. 4. The case of the petitioners were that they were originally appointed as Assistant Inspector of Factories (AIF) in the year 1985 and 1989. They sent representations to the Government to regularise their service in the said post. Earlier, they also filed original application before the Tribunal, seeking for a direction to the respondents to consider their claim. It is pursuant to the direction, the impugned order came to be passed. Despite the fact that the petitioners were fully qualified to hold the post at the time of entry into the service and there being no exception, relaxation were called for. In respect of petitioners M/s.S.Kumar (P5), R.Vijayakumar (P4), P.Sankara Rameswaran (P3), N.Sathiyanarayanan (P6) and A.Vijayan (P1), their appointment were regularised from the date of issuance of Government order viz.,19.06.1998. Only in the case of Rajasekaran, as per the Tribunal's order dated 27.03.1996, he was regularised from the date on which, his initial date of entry viz., 05.04.1989. 5. The petitioners herein sent representations for their regularisation from their initial date of appointments and when the same was not forthcoming, they filed the original application, which was subsequently re-numbered as a writ petition. 6. In the reply affidavit filed by the respondent State, it was contended that the petitioners after being sponsored by the Employment Exchange were appointed temporarily under Rule 10(a) (i) of the General Rules. At the time of entry into service, they were fully aware that the post comes under the purview of Tamil Nadu Public Service Commission (TNPSC). When they had applied for selection to the same post through TNPSC, they failed to get through in the written examinations conducted by TNPSC. But out of concession, the Government order came to be passed considering the number of years of service they have put in. Only in the case of Rajasekaran, as he came under the 3% Handicapped quota and as per the orders of the Tribunal dated 27.03.1996, he was given retrospective regularisation. The petitioners having not qualified in the written examination conducted by the TNPSC for a regular selection, cannot seek for retrospective regularisation from an earlier point of time. 7. Mr.R.Murali, the learned Government Advocate also brought to the notice of this Court that the petitioners were subsequently considered and promoted for the post of Inspector of Factories, which is a next higher post and were also assigned in https://hcservices.ecourts.gov.in/hcservices/ the respective years of allotment. 8.Mr.Ganesan, learned counsel representing Mr.S.Mani, counsel for the petitioner referred to the judgment of the Supreme Court in G.P.Doval and others v. Chief Secretary, Govt., of U.P and others reported in AIR 1984 SC 1527 and referred to the following passage found in paragraph 15:- "15. ...It is thus well-settled that where officiating appointment is followed by confirmation unless a contrary rule is shown, the service rendered as officiating appointment cannot be ignored for reckoning length of continuous officiation for determining the place in the seniority list. Admittedly, that has not been done and the seniority list is drawn up from the date on which the approval/selection was made by the Public Service Commission in respect of each member of the service, which is clearly violative of Art.16 and any seniority list drawn up on this invalid basis must be quashed." 9. He further relied upon another judgment of the Supreme Court in Thiru A.Balakrishnan and another v. Govt. of T.N. And others reported in 1995 Supp (4) SCC 108 and referred to the following passage found in paragraph 4: "4. In the absence of any specific order denying seniority to the appellant from the date of their initial appointment – from which date they were regularised – they are entitled to count the whole of the period of service for the purpose of seniority." In the light of the above two observations, the learned counsel for the petitioner prayed for the reliefs to be granted to them by this Court. 10. However, it must be noted that the Supreme Court in State of Tamil Nadu and another v. E.Paripoornam and others reported in 1992 Supp (1) SCC 420 denied the relief in similar circumstances. In paragraph 14, it was observed as follows:- "14. Apart from that, Rule 10(a)(i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules. In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count https://hcservices.ecourts.gov.in/hcservices/ their temporary service for seniority. In A.P.M.Mayankutty v. Secretary, Public Service Department this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop-gap,emergency or fortuitous arrangement. The present case cannot be an exception to this principle even though their temporary services have been regularised, since regularisation was only for limited purposes." Therefore, the law laid down in Paripoornam's case still continues to occupy the field. It has been held so by the Supreme Court in M.P.Palanisamy and others v. A.Krishnan and others reported in 2009 (6) SCC 428. (Ref: paras 45,46 and 47). 11. Having obtained favourable orders, the petitioners in the absence of any legal or enforceable right cannot improve their case by filing another writ petition. The order passed by the first respondent State impugned in the writ petition is fully in consonance with the relevant statutory rules. 12. In the light of the above, the writ petition stands dismissed. However, there will be no order as to costs. svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary to Government, State of Tamilnadu Labour and Employment Department, Secretariat, Chennai -9. 2.The Chief Inspector of Factories, Chepauk, Chennai -5. + 1 cc to Government Pleader, SR No.11692 BVN(CO) SR/1.3.2011 W.P.No.44820 of 2006 (O.A.No.3807 of 2000) https://hcservices.ecourts.gov.in/hcservices/