1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.02.2011 CORAM : THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE MR.JUSTICE R.SUBBIAH W.A.(MD) No.151 of 2011 1.The Director of Rural Development, Panagal Building,Saidapet, Chennai. 2.The District Collector, Virudhunagar District, Virudhunagar. 3.The Commissioner, Vembakktottai Panchayat Union, Virudhunagar District. ...Petitioners/Appellants Vs. K.Krishnaveni ... Respondent/Respondent PRAYER: Writ Appeal is filed under Clause 15 of the Letters Patent against the order dated 03.11.2010 in W.P.(MD) No.3159 of 2008 on the file of this Court. Prayer in W.P.(MD) No.3159 of 2008: Presented to this Court under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records on the file of the Second respondent in pursuant to the impugned order passed by him vide Na.Ka.No.8002/2007/P4 dated 12.11.2007 and quash the same as illegal and consequently directing the 2nd respondent to consider the petitioner's case for regularization with effect from the date of initial appointment i.e., 01.07.1990 and pay all attendant and service benefits within the time that may be stipulated by this Court. For Appellants : Mr.R.Janakiramulu, Special Government Pleader. For Respondent : Mr.G.Thalaimutharasu JUDGMENT R.SUBBIAH,J. This appeal is directed against the order dated 03.11.2010 in W.P.(MD) No.3159 of 2008 whereby the learned single Judge directed the appellant to pass appropriate orders on the basis of G.O.Ms.No.22 coupled with D.O.Lr.No.16831/06/E4, dated 18.10.2006 to regularise the services of the respondent within a period of six weeks. 2.The respondent herein had passed Higher Secondary Examination in the year 1991 and she had also passed Typewriting Higher Grade in English and Tamil in the year 1990 and also completed certificate course in Montessori Kinder Garden Training. She had enrolled her name in the employment exchange on 19.01.1987 and the registration was renewed periodically without any https://hcservices.ecourts.gov.in/hcservices/ 2 break. Based on her qualification, she was appointed as Typist on 01.07.1990 on daily wage basis under the scheme of Jawahar Velaivaippu Thittam for five years period and after completion of the said period, she was again appointed as Typist in the third appellant office on 01.12.1995 by way of Panchayat Union Council Resolution No.4 and the same was approved by the Special Officer. The respondent was continuously engaged as Typist for more than 17 years, without any break in the third appellant office. Since the appellant was appointed on daily wage basis in the place of permanent vacancy, she made a representation to the respondents to absorb her in the vacant place. 3.The first appellant issued a circular dated 18.10.2006 calling for particulars regarding the persons engaged on daily wage basis who have completed 10 years of service as on 01.01.2006 from the District Collector concerned for brining them into regular establishment. Similarly, the second appellant has also issued a memo dated 04.11.2006 to the Block Development Officers in Virudhunagar District to furnish the particulars as called for in the first appellant letter dated 18.10.2006. On receipt of the memo, the third appellant has also sent service particulars of the respondent to the second appellant on 08.05.2007. Since no order has been passed by the appellants, the respondent approached this Court by filing W.P.No.7307 of 2007. This Court in the said writ petition, directed the first appellant herein to pass appropriate orders in accordance with law taking into account the D.O.Lr.No.16831/06/E4, dated 18.10.2006 within a period of four weeks. 4.Pursuant to the order of this Court, the second appellant by his proceedings dated 12.11.2007 informed the respondent that since she has not completed 10 years of service as on 01.01.2006, her name was not included in the list of candidates those who have completed 10 years of service Aggrieved over the same, the respondent filed the writ petition. 5.The learned single Judge on consideration of the submissions made on either side, allowed the writ petition. Hence, the present appeal. 6.We have heard the submissions made by the learned counsel on either side and perused the entire materials available on record. 7.It is not in dispute that the respondent herein has put in 17 years of service in the third appellant office. In G.O.Ms.No.22 coupled with D.O.Lr.No.16831/06/E4, dated 18.10.2006, it has been stated that in all Government Departments those who have rendered 10 years of service as on 01.01.2006 are to be regularised by appointing them in the time scale of pay in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. The third appellant already sent service particulars of the respondent on 08.05.2007 pursuant to the order of the first appellant dated 18.10.2006. 8.The Hon'ble Supreme Court in State of Karnataka & Ors Vs. M.L.Kesari & others reported in AIR 2010 SC 2587 by referring to the earlier judgment of the Supreme Court in State of Karnataka Vs.Uma Devi reported in 2006 (4) SCC 1 held as follows: 5.The decision in State of Karnataka v. Umadevi was rendered on 10-4-2006. In that case, a Constitution Bench of this Court held that appointments made without following the due process or the rules https://hcservices.ecourts.gov.in/hcservices/ 3 relating to appointment did not confer any right on the appointees and the courts cannot direct their absorption, regularisation or re- engagement nor make their service permanent, and the High Court in exercise of jurisdiction under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularisation, or permanent continuance unless the recruitment had been done in a regular manner, in terms of the constitutional scheme; and that the courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities, nor lend themselves to be instruments to facilitate the bypassing of the constitutional and statutory mandates. 6.This Court in Umadevi further held that a temporary, contractual, casual or a daily-wage employee does not have a legal right to be made permanent unless he had been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution. This Court however made one exception to the above position and the same is extracted below: (SCC p.42, para 53) “53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan 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 six months from this date.” (emphasis in original) 7.It is evident from the above that there is an exception to the general principles against “regularisation” enunciated in Umadevi, if the following conditions are fulfilled: (i) The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years. (ii) The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will https://hcservices.ecourts.gov.in/hcservices/ 4 be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular. 8.Umadevi casts a duty upon the Government or instrumentality concerned, to take steps to regularise the services of those irregularly appointed employees who had served for more than ten years without the benefit or protection of any interim orders of courts or tribunals, as a one-time measure. Umadevi directed that such one-time measure must be set in motion within six months from the date of its decision (rendered on 10-4-2006). 9.A reading of the above decision would show that the employees who are irregularly appointed and who had served for more than 10 years or more in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals, are entitled for regularisation. 10.The principle laid down by the Supreme Court in the abovesaid decision is squarely applicable to the facts of the present case. Hence, we do not find any infirmity in the order passed by the learned single Judge. 11.The writ appeal is dismissed and the order of the learned single Judge is confirmed. No costs. Consequently, connected miscellaneous petition stands closed. Sd/- Assistant Registrar(CO) /TRUE COPY/ Sub Assistant Registrar To 1.The Director of Rural Development, Panagal Building,Saidapet,Chennai. 2.The District Collector, Virudhunagar District,Virudhunagar. 3.The Commissioner, Vembakktottai Panchayat Union,Virudhunagar District. +1cc to Mr.G.Thalaimutharasu, Advocate SR.No.9278 +1cc to The Special Govt.Pleader SR.No.9350 order made in W.A.(MD) No.151 of 2011 21.02.2011 sms PA/10.03.2011/4P/6C https://hcservices.ecourts.gov.in/hcservices/