N. Neela vs The Joint Director, Higher Secondary School Education and Others

A.K. Rajan, J.—The petitioner filed the above writ petition praying to issue a writ of Certiorarified Mandamus to call for the records of the

third respondent dated 20.04.2000 made in his Proceedings N.Dis. No. 4787/Aa 2/2000, quash the same and to direct the respondents to

regularise the service of the petitioner since 1968 and fix the petitioner''s salary on time scale of pay in par with other IV Categories as per the

orders of the 6th Pay Commissioner and pay arrears of back wages with bank interest within three months.

The brief facts that are necessary for disposal of the writ petition are that the petitioner is working as part time Sweeper in the fourth respondent

school from 1966 onwards and she was originally paid Rs. 55/- per month and presently, she is getting Rs. 400/- from the Government and Rs.

600/-from the fourth respondent-management. The petitioner gave representations to the fourth respondent to regularise her services and to pay

the regular pay scale and the fourth respondent in turn wrote to the third respondent to regularise the service of the petitioner. The respondents sent

a communication seeking certain particulars from the fourth respondent and the fourth respondent school has also sent the particulars. Inspite of

repeated requests and representations, the petitioner''s service is not at all regularised. Hence the above writ petition.

From the typed set of papers filed along with the petition, it is seen that the petitioner has made representation on 29.08.1991 to the school to

the effect that persons appointed subsequent to the petitioner were regularised and their services were confirmed whereas this petitioner has not

been regularised and she requested for regularisation of her service. The Inspector of Schools for girls in its letter dated 11.12.1991 requested the

fourth respondent to send her comments to the letter written by the petitioner and the fourth respondent has sent reports recommending the

petitioner to be absorbed in the regular pay scale. There are number of communications between the fourth respondent and the respondents

requesting to regularise the services of the petitioner. Inspite of that no order has been passed so far.

No counter has been filed by the respondents 1 to 3 inspite of repeated adjournments, and this Court on 29.09.2003 passed an order as

follows:

Inspite of specific order to file counter, the respondents have not filed counter. A week''s time is granted to file counter. If no counter is filed,

orders will be passed on merits without waiting any more for the counter to be filed by the respondent. Post next.

Even after that, no counter has been fled by the respondents.

The fourth respondent-School has filed a counter stating that the petitioner was given an adhoc payment by way of remuneration every month,

which has been increased periodically and at present a sum of Rs. 335/-per month is given by the Government to the petitioner. Apart from that

the petitioner gets the annual Pongal Bonus as stipulated by the Government. The fourth respondent further submitted that the School is making all

efforts and also made request to the Government to appoint the petitioner as a full-time employee and the fourth respondent also requested the

Court to pass suitable orders.

Learned counsel appearing for the petitioner referred to the communications along with the communications in which the date seal is found as

3.9.1964 which shows the strength of the staff of the fourth respondent school in that ""other-servants"" category, Sweeper-cum-Gardener,

Watchman, Gardener, Scavenger part time are referred to and their wages were stated not exceeding Rs. 55/- a month for a part time servant.

Relying upon the said letter, learned counsel submitted that the post in which the petitioner is holding has been sanctioned by the Government and

therefore, the petitioner is entitled to be absorbed in that post. But this communication does not show that it is a full time post. There is a specific

direction that wages shall not exceed Rs. 55/- and they have to be paid according to the market rates.

Learned counsel appearing for the petitioner relying upon the judgment of the Supreme Court in Dharwad District P.W.D. Literate Daily-Wage

Employees Association and others v. State of Karnataka and others (1990 1 L.L.N. 1011 where the casual employees of the Government were

regularized the following principles of equal pay for equal work, submitted that the petitioner is also similarly placed worker; on the principles of

equal pay for equal work, the petitioner is entitled to be regularised and paid the scale of pay as payable to a person holding that post.

It has to be noted that is a case where the persons were employed by the Government on a part time basis; that principles laid down in that case

cannot be applied to the facts of the present case, since the petitioner is working in a School which is aided by the Government. In the

circumstances, unless there is a post created by the Government, the person cannot be appointed to that post. In the said circumstance, the

decision of the Supreme Court cited supra, does not in any way helpful to the petitioner in this case.

Learned counsel for the petitioner further relied upon another judgment of this Court in Mrs. Rajammal and 3 others v. The Commissioner for

Collegiate Education, Madras-6 and another 2001 (3) CTC 162 wherein V.S. Sirpurkar, J. has held that part time sweepers who had put in 28

years of service had not been regularised and the Court directed the management to consider application for regularisation within two months from

date of receipt of application. Relying upon the above decision, learned counsel for the petitioner has submitted that since the school authorities

themselves wanted to regularise the petitioner, a similar direction may be issued.

Though the case of the petitioner requires sympathy this Court cannot pass orders directing the Government to create the post and to appoint

the petitioner in the regular post. The only order that this Court can pass is to consider the representations of the petitioner already made earlier

and pending for a quite long number of years; if necessary, to create the post and convert the part time post to full time post. Considering the

nature of the case, this Court directs the respondents 1 to 3 to consider the application of the petitioner made as early as on 29.08.1991 and the

subsequent representations, and the recommendations made by the fourth respondent, and pass appropriate orders, within a period of one month

from the date of receipt of a copy of this order.

With the above observation, the writ petition is disposed of. No costs.