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Judgment
Prabha Sridevan, J.—The petitioners are typists who have been appointed on 01.06.1998 on a purely temporary basis by the appointment
order which reads as follows:
With reference to the interview held on 16.5.1998 your are advised that you have been selected for engaging you to work as Typist in this bank on
daily wages. The daily wages fixed is Rs. 65/- [Rupees Sixty Five only] per day. The daily wages will not be paid on second Saturdays and
Sundays and other declared holidays to the Bank. You will be engaged for 75 days only from the date of reporting for duty and you will not be
allowed on any circumstances beyond 75th day.
Though their services were terminated in September 1998, they are continuing as such only by order of this Court issued from time to time. They
want to be regularised.
They were aggrieved by the circular dated 04.08.1998 by which applications were called for the posts of typists and the fact that their request
they should be absorbed as permanent typists fell on deaf ears. At first, the petitioners filed WP. No. 13998/98 which was dismissed on 9.9.98 on
the ground that there was an effective alternative remedy u/s 153 of the Tamil Nadu Cooperative Societies Act. On 14.09.1998 they filed a
revision petition. This was rejected on 25.9.98 as not maintainable. So, they filed WP. No. 15818/98 for quashing the circular dated 4.8.98. In
WMP. No. 23892/98, an order was passed on 11.11.98 which reads as follows:
It is represented by the learned Counsel for the petitioner that the petitioners are working in the Bank. If it is factually correct they should not be
disturbed until further orders. Counter two weeks.
Counter was filed by the respondents in 1998. And right from the beginning their stand was that the petitioners were not appointed against
permanent vacancies, the appointment was merely to meet some exigencies and the appointment was not in accordance with rules and that they
were terminated from service. Then contempt application was filed alleging that the petitioners were not allowed to work. A counter was filed
therein stating that their services were discontinued with effect from 26.9.98 and therefore when the interim order was passed they were not
working. On 6.8.2002 the following order was passed:
After going through the records and after hearing the arguments, I am satisfied that the balance of convenience is in favour of the writ petitioners for
permitting them to work in Tamil Nadu Cooperative State Agriculture and Rural Development Bank Ltd., Luz Church Road, Mylaopre, Chennai-
4 from the 7th August 2002. They will be entitled to be paid daily wages currently prevailing and if there is ay variation, the petitioners would be
entitled to the same. They cannot claim any back wages. In view of this the contempt petition is closed.
On 25.2.2005 WP. No. 15818/98 was disposed of holding that the revision u/s 153 was maintainable and directing the revisional authority to
decide the revision petition on merits. The petitioners'' continuance as typists was safeguarded till the disposal of the revision. On 12.09.2005 an
order was passed by the revisional authority in favour of the petitioners, directing regularisation. Thereafter, the petitioners filed the second revision.
The Government in its revision held that the appointment of the petitioners was not against any permanent vacancy or sanctioned post and that the
intention of the Management Bank was also that they should be temporarily appointed and therefore, the revision was disposed of holding that the
petitioners do not have a right to the posts and that the Bank cannot give them regular appointment and therefore, it was open to them to approach
the Government with a request to provide an alternative employment in any other Co-operative Bank or Society where there may be vacancies.
Against this, the present writ petition has been filed.
Originally the writ petition was allowed on the ground that such a second revision is not maintainable. Against that, a writ appeal was filed and
this Court was pleased to allow the writ appeal and set aside the order and posted this matter for hearing.
The learned Counsel for the petitioners submitted that when the petitioners were appointed, there were vacancies as can be seen from the
circular dated 4.8.98 and had the respondents considered their request dated 21.8.1998 the petitioners could have been absorbed. Learned
Counsel for the petitioners submitted that it is not as if the petitioners do not have the qualification. Learned Counsel also submitted that the
petitioners had registered themselves in the Employment Exchange. So, when they have come through the Employment Exchange and when there
are sufficient vacancies to absorb the petitioners, the respondents should have regularised them in the year 1998 and their failure to do so cannot
stand in the way of the petitioners getting justice. Learned Counsel submitted that neither Secretary, State of Karnataka and Others Vs. Umadevi
and Others, nor A. Umarani Vs. Registrar, Cooperative Societies and Others, will not apply to the petitioners herein since the authority who is
competent to pass orders had directed that they be regularized. While admitting that the original appointment was purely temporary and not against
any vacancy, the learned Counsel submit that the fact that there were vacancies and referred to:
EXTRACT OF THE MINUTES No. 23:
23.TYPIST:-Though the sanctioned strength of the Typist is 30, the bank proposed to have 25 at the rate of one for each Regional Offices and 5
posts for the head office with a view to minimise the cadre strength on need basis. The Committee agreed to have the revised strength of 25 posts
of Typists.
Therefore, the submission of the learned Counsel for the petitioners was that on the date of the appointment there were vacancies, the petitioners
were sponsored through the Employment Exchange and had the qualification. They should have been absorbed before inviting applications.
Learned Counsel for the respondents submitted that it is not correct to state that the petitioners were appointed against any sanctioned post or
permanent vacancies. It was made clear even at the time when they were engaged for work, that it was purely a temporary one and it was made
clear that they would be engaged only for 75 days from the date of reporting for duty and they will not be allowed under any circumstances
beyond 75 days. The petitioners were continued for 30 more days in view of the heavy volume of typing work. It is purely on account of exigency
of work. Learned Counsel submitted they were not recruited through the usual selection process. They were not selected by the Selected
Committee which is constituted to select and appoint candidates in accordance with the mandatory provisions of the Tamil Nadu Co-operative
Societies Act, 1983 in particular Rules 149, 150 and 151 of the Tamil Nadu Cooperative Societies Rules. Learned Counsel submitted that the
petitioners have been continuing in their posts only because of the interim orders of this Court and they cannot be regularized, as a matter of right.
The petitioners were admittedly engaged on 01.06.1998. The very fact that on 4.8.98 a circular was issued calling for applications to fill up the
vacancies in the cadre of typists is proof enough to show that when the petitioners were appointed it was not against permanent vacancies nor in a
sanctioned post. The petitioners could have saved themselves the ten years of litigation had they only responded to the applications on par with
others and they might have been appointed against the vacancies after interview by the Selection Committee. But the petitioners chose not to do
that and came to court and have been continuing only by virtue of the interim orders and not by virtue of a regular appointment to a sanctioned
post. Even their request dated 21.8.98 shows that their appointment was prior to the date on which the post of typist fell vacant. The Letter dated
21.8.98 is extracted as follows:
We submit that on selection through Employment Exchange, we have been appointed as Typists under your benign control. It is ascertained that at
present 26 posts of typists are fallen vacant to be filled regularly and permanently. As the appointments are made through the Employment
exchange in this bank and there are sufficient vacancies to absorb us in the regular and permanent vacancies, we request that we may be appointed
as typists permanently as we are also nearing the maximum age limit to get employment in these hard days of living, for which act of kindness we
shall even remember.
In the counter filed in WP. No. 15818/98 as seen before, it was the stand of the respondents that the petitioners were allowed to attend duty on
daily wage basis up to 26.9.1998 and after that their services were not utilized and that it is pertinent to note that the petitioners had worked in all
for a period ranging from 79-88 days. It was also stated therein that the consideration of the petitioners educational and other qualifications will
arise only as and when vacancies arise and thereafter, the candidates performance and fitness would be assessed and they will be employed
accordingly. It is also specifically stated that the petitioners were not called for interview against permanent vacancies. On 12.9.2005, the
Additional Registrar heard the revision u/s 153 of the Tamil Nadu Co-operative Societies Act, 1983. All these contentions were raised and it is
seen that the respondents had pleaded in detail that the petitioners were engaged on purely temporary casual and daily wage basis. The contentions
of the respondents are as follows:
He submitted that the revision petitioners were engaged purely on temporary, casual and daily wage basis and the respondents Management has
got prerogative right to dispense with their services if their services are no longer required by the Bank and that the revision petitioners were
engaged on daily wage basis only to carry out and liquidate the accumulated work which arose out of exigency, and this aspect of the matter was
clearly informed to the revision petitioners at the time of their engagement itself and they were fully aware of the same, and also have agreed such a
course and while so, it is not open on the part of the revision petitioners to contend to the contrary and it is submitted that the please made by the
revision petitioners are absolutely untenable and unsustainable.
It is submitted by the respondent that all the revision petitioners have been allowed to attend, duty on daily wage basis till 26.9.1998 and they were
paid daily wages upto 26.91.998 and that thereafter their services were not utilized by the respondent Bank and they were informed accordingly
on 26.9.98 itself. He has added that as and when any typing work got accumulated in the respondent''s Bank, the Bank engages such number of
persons to clear the said work and that after clearing and liquidating the said work, the bank dispenses with the services of such persons and there
is no illegality or irregularity in the mode of engagement of such persons on daily wage basis and it is pertinent to note here that the petitioners had
worked only for a period ranging from 79 to 88 days and they cannot claim regularization of their services merely on the above ground, and such a
regularization is not permissible under law.
...
The respondent added that, in future, as and when permanent posts were to be filled up or created and if the petitioners names were to be
sponsored by the Employment Exchange and if they were found to be qualified or have satisfied the eligibility criteria then in force, they will be
considered appropriately in the matter of regular appointment, since the respondent bank is transacting more than Rs. 300 crores of rupees through
its Head Office as well as number of its Primary Land Development Banks throughout the State, it is most essential to call for list of candidates of
state level and scrutinize applications by conducting written examinations, oral interview etc., and appoint most meritorious candidates from the lot
available throughout the State and hence, the petitioners therefore, cannot restrict the bank to call for candidates only from City leaving the major
part of our state, but the respondent Bank has the right to call for and select the candidates from the state level as was done in the recruitment
made in the past.
...
He added that the recruitment committee has not selected the petitioners but they were engaged by the General Manager in order to meet the
urgent work. It is pertinent to note that the Managing Director has not interviewed any candidate for making daily wage appointments, and in fact
the petitioners did not even appear before the Managing Director. Hence, the General Manager has not even taken into account the higher
educational qualifications of the candidates to assess their merit, nor has conducted any written examinations as stipulated under the Rule 151[4].
Thus, the procedure prescribed under Rules 149, 150 and 151 were not followed in the case of the petitioners by reason of the fact that they were
not selected or appointed against permanent vacancies.
However, that aspect of the matter that they were not appointed against the permanent vacancy and not on a regular basis was not considered
by the revisional authority who held that since the petitioners had the required educational qualification and in fact they were over qualified and
since they were not removed at the end of 75 days but were allowed to continue for 30 more days and since thereafter on 4.8.98 there was a
circular calling for applications against permanent vacancy, it is possible to regularize them because they have been continuing to work on the basis
of the order of this Court on 7.8.2002. It is not the revisional authority''s finding that the petitioners had been appointed against sanctioned post.
But, the order dated 7.8.2002 was passed in the contempt petition and this only shows that the petitioners will be entitled to be paid daily
wages and cannot claim any backwages. This order does not in any way improve the position of the petitioner.
Thereafter the Government had passed the order which is under challenge in which the finding is that the petitioners have not been appointed
against a permanent vacancy or sanctioned post; but purely on temporary basis. In fact, even their own letter as observed above shows that they
only wanted to be absorbed when the applications were called for, for the post of typist against permanent vacancy. Since their, applications were
not in accordance with the rules, the regularization that they claim was rightly rejected by the second respondent by the impugned order.
The petitioners cannot claim regularization. Their appointment was temporary. They had been terminated even before this Court granted the
interim order. Yet they have been staying on for the last 9 years. To direct regularization of service would be to run in violation of Uma Devi''s case
by the Constitution Bench. Some extracts from three judgments of the Hon''ble Supreme Court will settle the issue.
[a] Pargraphs 30,35,37,39 and 41 of A. Umarani Vs. Registrar, Cooperative Societies and Others, are as follows:
...
The State had framed rules in exercise of its power conferred upon it u/s 180 of the 1983 Act in the year 1988. Rule 149 of the 1988 Rules
provides for a complete code as regards the mode and manner in which appointments were required to be made and the process o appointments
is required to be carried out. In terms of the said rule, requirements to possess educational qualification and other qualifications had been laid
down. One of the essential qualifications laid down for holding certain posts is ""undergoing cooperative training and previous experience.
...
No appointment, therefore, can be made in deviation of or departure from the procedures laid down in the said statutory rules.
...
The 1983 Act was furthermore amended in the year 1995 providing for cadre strength which is directly relatable to the income of the
cooperative societies.
...
Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any ""State"" within the measure of Article 12 of the
Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well settled that an
appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other
essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization.
...
Regularisation furthermore cannot give permanence to an employee whose services are ad h occurrence in nature.
[b] Paragraph 53 of Secretary, State of Karnataka and Others Vs. Umadevi and Others, is as follows:
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 regularization of the services of such employees may gave to be considered on merits in the light of the principles settled
by this Court in the cases above referred 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 regularize 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. We also clarify that regularization 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.
[c] Paragraphs 12 and 14 of Kendriya Vidyalaya Sangathan and Ors. v. L.V. Subramanyeswara and Anr. reported in 2007 [5] SCC 106 are as
follows:
...
It is true that they had continued in service for such a long time, but they have been thrust upon the appellant by reason of interim orders
passed by the High court.
...
Furthermore, the respondents even did not complete the period of 10 years without intervention by the court, they would not have been in
service for more than 10 years but for intervention of the High court, they had been continued in service in terms of the interim order passed by the
High Court.
For the reasons given above and the decisions cited above, the writ petition is dismissed. Consequently, connected miscellaneous petition is
also dismissed.