IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04.11.2011 CORAM THE HONOURABLE MR.JUSTICE M.M. SUNDRESH W.P.No.18741 of 2010 1. P. Saroja 2. A. Naramma 3. P. Indirani 4. N.Mariyammal 5. N. Anjalai 6. P. Ramesh 7. Sarasu .. Petitioners -Vs - 1. The Secretary to Government, School Education Department, Secretariat, Chennai -600 009. 2. The Director of School Education, DPI Campus, College Road, Nungambakkam, Chennai. 3. The Chief Educational Officer, Kanchipuram District, Kanchipuram. 4. The District Educational Officer, Kanchipuram District, kanchipuram. .. Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Mandamus, directing the 1st respondent to consider the claim of the petitioners for absorbing them in regular time scale of pay in the existing vacancies within a reasonable time. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. R. Rengaramanujam For Respondents : Mr. I. Arokiasamy, (For R1 to R4) Government Advocate ORDER Petitioners herein are working as Sweepers. They have been in the said capacity for the past 20 years. The following are the particulars in respect of appointment of the petitioners as a Part- time employees:- S.No. Name Date of Joining Qualification at the time of appointment Community 1 P. Saroja 1/4/78 4th Std SC 2 A.Naramma 1/6/88 5th Std SC 3 P. Indirani 1/3/85 5th Std SC 4 N. Mariyammal 17/2/1992 5th Std SC 5 N. Anjalai 2/7/74 5th Std SC 6 P. Ramesh 1/6/86 8th Std BC 7 Sarasu 1/7/85 5th Std MBC 2. It is the case of the petitioners that the 1st respondent has taken a policy decision to absorb the existing employees, who have put in work for more than 10 years in the temporary capacity in the regular vacancies as per the Government Order passed in G.O.Ms.No.22 P & A.R Department dated 28.02.2006. Accordingly, particulars have been sought for from the Department in which the petitioners are working. Even though the particulars have been given regarding appointment of the petitioners, the petitioners have not been regularized by absorbing them. Hence, the present writ petition is filed. 3. Even though the matter was adjourned on several occasions, no counter affidavit has been filed. The learned counsel for the petitioners submitted that in so far as the other employee, who has not been regularized, on the ground that he is a Part-time employee, the said contentions are rejected by the Hon'ble Division Bench and direction has been issued to regularise the employee/respondent therein in the Writ Appeal No.230 of 2009 dated 03.08.2009, which has become final against the respondent. Therefore, it is not open to the respondent to raise the plea that the petitioners, being part time workers, they cannot be regularized. https://hcservices.ecourts.gov.in/hcservices/ 4. The learned counsel for the petitioner submitted that merely because they have not been sponsored by the Employment Exchange, their cases cannot be rejected by placing reliance on a decision of this Hon'ble Court made in Writ Appeal No. 47 of 1998 The School Committee, Tilak Vidyalaya Higher Secondary School, Kalladaikurichi represented by its Secretary and another Vs. The District Educational officer, Tirunelveli South, Tirunelveli – 1 and another reported in 1991 Tamil Nadu Law Notes Journal page 1, wherein it was held that the appointment through the Employment Exchange is not necessary for the category of Sweeper. The learned counsel further submitted that as per the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, particularly, with reference to Section 2, "Sweeper", being a unskilled office worker, the provisions would not apply. 5. The learned counsel for the petitioners further submitted that in so far as the stand taken by the respondents regarding part time workers are concerned, the said objection has been over ruled by the Hon'ble Division Bench judgment rendered in Writ Appeal No.230 of 2009 dated 03.08.2009 in Para 3 of the said judgment. The Hon'ble Division Bench has dealt with the case of a part time sweeper and the portion of which reads as under:- " 3. According to the respondent/writ petitioner, he was appointed as a part time sweeper on 21.08. 1995 in B.M.S. Government Girls Higher Secondary School, Little Kancheepuram through the Employment Exchange. Though he has been working for 13 years continuously in the said school, his services were not regularized, in spite of the fact that the appellant had lifted the ban for the regular appointments of those who are appointed as part time watchman, gardener, scavenger, etc., through the Employment Exchange. The ban was lifted by the Government by its letter No. 123 School Education Department dated 12.05.2000. Based on the above order of the Government, some of the part time employees were already regularized and they are working as permanent employees of the Education Department. The Government, by G.O.Ms.No.22 Personnel and Administrative Reforms (F) Department dated 28.02.2006, directed the authorities to regularize the services of the daily wages employees working in all Government Department, who have rendered 10 years of service as on 01.04.2006. Since the services of the petitioner were not regularized as per the said G.O, he has filed W.P.No.6919 of 2008 before this Court and by order dated 20.03.2008, this Court directed the 1st appellant to consider his representation. Pursuant to the same, the 3rd appellant issued orders on 19.05.2008, stating that the application of the respondent for regularisation was under consideration. https://hcservices.ecourts.gov.in/hcservices/ Since no action has been taken by the Government, he approached this Court by way of present writ petition. The writ petition filed by the respondent was allowed on 29.07.2008 by the learned single as stated supra. Aggrieved over the same, the Government has preferred the present appeal. " 6. Considering the issues involved, it has been held by the Hon'ble Division Bench as follows: " 8. We do not find any force in the said submission made by the learned Government Advocate. On a perusal of the entire materials, it could be seen that the respondent was working for the past 13 years as a part time employee in a Higher Secondary School. Para 3 of G.O.Ms.No. 22 P & A. R.(F) Dept., dated 28.02.2002 reads as follows: "3. The Departments of secretariat may therefore, be directed to pursue action to regularize the services of the daily wages employees working in all Government Department, who have rendered 10 years of service as on 01.04.2006......" 9. Though in the letter dated 20.02.1995 it has been stated that the regularization shall not apply to the appointment on daily wages employees, if any, made on or after 01.03.1993, in G.O.Ms.No.22 P & A.R(F) Department dated 28.02.2006, it was made clear by the Government to regularise the part time employees, who had completed 10 years of service. In fact, the services of some of the part time employees were regularised pursuant to the orders passed by this Court in the earlier writ petitions. Under those circumstances, we do not find any justification in delaying the regularisation of the services of the respondent by saying that the proposal for regularisation of part time employees is pending for consideration before the Government. On that ground, the respondent cannot be made to wait for a long period, especially when he had completed 13 years of service, which is more than that of the required service mentioned in G.O.Ms.22 dated 28.02.2006. Under such circumstances, we do not find any infirmity in the directions given by the learned single Judge. Hence, we are not inclined to entertain this appeal. Accordingly, this appeal fails and is dismissed. No costs. Consequently, connected M.Ps are closed. A https://hcservices.ecourts.gov.in/hcservices/ copy of this order shall be communicated to the State Government (Secretary), School Education Department, to issue the necessary orders in compliance with the order, passed by the learned single judge, within a period of two months from the date of receipt of a copy of this orders. " 7. Therefore, considering the ratio laid down in the Judgment of the Hon'ble Division bench of this Court, which has become a final against the respondents, the objection regarding non-applicability of the Government Order for regularization on the ground that the same is not applicable to the part time worker cannot be sustained. 8. The only other objection that could be raised is that the petitioners were not employed by the Employment Exchange. The learned counsel further submitted that the definition of the "unskilled office" work as mentioned in the Employment Exchange Act 1959 includes a Sweeper and as per Section 3 of the said act, the other provisions would not apply. Therefore, this Court is of the view that the respondents can refuse to consider the case of the petitioners on the ground that they have not been appointed through the Employment Exchange. Further considering the very same issue, the Hon'ble Division Bench in the judgment reported in 1991 TamilNadu Law Notes Journal page 1 has held as follows:- " Learned Counsel for the appellants submitted that the direction contained in paragraphs 5(i) and 5 (ii) supra in G.O.Ms.No.1138 dated 25th September,1978 has been wrongly sought to be applied to the case of a sweeper. She submitted that the Employment Exchange (Compulsory notification) of vacancies) Act, 1959 itself provides in section 3 that the Act will not to apply in relation to various vacancies including vacancies 'in any employment to do unskilled office work". Under section 2(2) (i)(7) it has been provided that "unskilled office work" would mean work done in an establishment amongst others by sweeper. Thus the Legislature in its supreme wisdom had kept sweepers salary with certain other categories as persons to whom the employment Exchanges (compulsory notification of vacancies Act, 1959, would not apply. That being the position it was not permissible for the respondents to extend the provisions of the said Act even to sweepers who the Legislature itself had exempted. Indeed, in the directions contained in paragraphs 5(i) and 5(ii) of G.O.Ms.No.1138 dated 25th September, 1978 (supra), there is no mention of the categories of the employees to whom the direction would apply but it goes without saying that those directions can only be applied to the categories of https://hcservices.ecourts.gov.in/hcservices/ employees who fell within the categories other than the exempted categories as stipulated in the Employment Exchanges (Compulsory notification of vacancies Act, 1959. The directions given by the respondents, therefore, to follow the provisions of the Act even in respect of sweepers, does not have any sanction of law. The respondents were, therefore, not justified in law in stopping the grant in respect of the salary of Paramasivan who had been appointed as a sweeper by the management only on the ground that his employment was not in accordance with the Employment Exchanges (Compulsory notification of vacancies) Act, 1959 or the 1960 Rules framed thereunder. Neither the Act not the Rules nor even G.O.Ms.No.1138 dated 26th September, 1978 authorise the respondents to stop the grant in respect of the salary of Parmasivam on the ground as notified above. We therefore find that the learned single Judge who failed to notice this aspect of the matter fell in error in dismissing the writ petition. Consequently we allow this writ appeal. As a result, Writ Petition No.12442 of 1985 would stand allowed with a direction to the respondents to insist on the compliance with the provisions of the Employment Exchanges (Compulsory Notification of vacancies) Act, 1959 and the Rules framed thereunder in 1960 only in respect of the categories of the employees covered by that Act and the Rules and thus the objection found to the appointment of the Paramasivam would stand over-ruled. All necessary consequences shall follow. 9. In the light of ratio laid down by the Hon'ble Division Bench and taking into consideration the provisions contained in Sections 2 and 3 of the Employment Exchange Act 1959, this Court is of the view that the argument advanced by the learned Government Pleader also cannot be sustained. 10. Hence, the writ petition is allowed, directing the 1st respondent to consider the claim of the petitioners for absorbing them in the regular time scale of pay in the existing vacancies within a period of two months from the date of receipt of copy of this order. It is made clear that in the event of non-availability of existing vacancies, the petitioners will be considered for absorption in the regular time scale of pay in future depending upon the seniority. The said consideration will have to be made by the 1st https://hcservices.ecourts.gov.in/hcservices/ respondent in the light of the discussion made above with regard to G.O.Ms.No.22 P & A.R Department dated 28.02.2006 within a period of eight weeks from the date of the receipt of the copy of this order. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. sms To 1. The Secretary to Government, School Education Department, Secretariat, Chennai -600 009. 2. The Director of School Education, DPI Campus, College Road, Nungambakkam, Chennai. 3. The Chief Educational Officer, Kanchipuram District, Kanchipuram. 4. The District Educational Officer, Kanchipuram District, kanchipuram. 1 cc To Mr.R.Renga Ramanujam, Advocate Sr 67549 W.P.No.18741 of 2010 jp[co] gp/7.12 https://hcservices.ecourts.gov.in/hcservices/