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Rev. Aplc. (MD) No. 87 of 2014 has been filed by the State seeking to review the order passed by the Division Bench of this Court in W.A.
(MD)No.729 of 2013 dated 23.07.2013.
Rev. Appl. No. 223 of 2015 has been filed by a third party to the writ proceedings seeking to review the Full Bench Judgment of this Court in
W.P.(MD)No.1083 of 2012 and W.A.(MD)No.555 of 2010 dated 29.11.2013.
Rev. Appl. No. 254 of 2015 has been filed by the first petitioner in W.P.(MD) No. 1083 of 2012 seeking to review the Full Bench Judgment of
this Court in W.P.(MD)No.1083 of 2012 and W.A.(MD) No.555 of 2010 dated 29.11.2013. The facts and circumstances leading to clubbing of
these review applications are as follows:
The core issues involved in all the review applications are as to whether the sanitary workers employed in the Municipalities of the State are
entitled to be regularised with time scale of pay on completion of three years of service. If yes, then whether from the date of appointment or from
the date of completion of three years or from 23.02.2006 ?.
The writ petition in W.P.(MD) No. 4978 of 2012 was filed by the writ petitioners seeking to quash the order dated 28.07.2006 wherein their
plea for regularisation after completion of three years from the date of appointment with time scale of pay was rejected by the State. Applying
G.O.Ms. No.22, Personnel and Administrative Reforms (F) Department dated 28.02.2006, the learned Single Judge disposed the writ petition
directing the respondents therein to regularise the services of the writ petitioners on their completion of three years and to pass orders within a
period of six weeks. Aggrieved, an appeal in W.A.(MD)No.729 of 2013 was filed by the State. The Writ Appeal was allowed following the
judgment of another Division Bench Judgment in W.A. Nos.47 and 385 of 2010, holding that the issue has to be dealt with as per G.O.Ms.
No.199, Municipal Administration and Water Supply Department, dated 15.11.2010, with a direction to regularise the service of the writ
petitioners on completion of three years. It is pertinent to mention here that the order was passed by consent. Contending that the earlier Division
Bench Judgment in W.A. Nos.47 and 385 of 2010 is not applicable to the facts of the case as held by the Full Bench in W.P.(MD).No.1083 of
2012 and W.A.(MD) No.555 of 2010 dated 29.11.2013 reported in 2013(6)CTC 593 (FB). Dhanasekaran and others v. Government of Tamil
Nadu and others, and that the decision in W.A. No. 729 of 2013 has been overruled by the Full Bench and that G.O.Ms. No.199 is not
applicable and only G.O.Ms. Nos.101, 71 and 21, Municipal Administration and Water Supply Department dated 30.04.1997, 05.05.1998 and
23.02.2006 respectively would be applicable as held by the Full Bench and that the sanitary workers are entitled to be regularised only with effect
from 23.02.2006, the Rev.Aplc. No.87 of 2014 has been filed by the State to recall the order of the Division Bench.
Rev. Appl. No. 223 of 2015 has been filed by a sanitary worker, a third party to the writ petition seeking review of W.P.(MD)No.1083/2012
and W.A.(MD)No.555 of 2010 dated 29.11.2013 of the Full Bench, contending that the earlier Full Bench had not taken into account that the
contents of G.O.Ms. No.71, Municipal Administration and Water Supply Department, dated 30.04.1997 and G.O.Ms. No.199, Municipal
Administration and Water Supply Department, dated 12.08.1997 are same except for the fact that G.O.Ms. No.71 was applicable to
Municipalities and G.O.Ms. No.199 was applicable to Town Panchayats and that since the Division Benches of this Court directed regularisation
with time scale of pay to the sanitary workers in Town Panchayats from the date on which they completed three years, the Review Application
No.69 of 2013 was allowed by the Division Bench based on the submissive representation on behalf of the State that the regularisation of sanitary
workers are to be made as per G.O.Ms. No.71. It is contended that many workers in the Municipalities through out the State were regularised
either from the date of their initial appointment or from the date of their completion of three years or 1½ years and therefore a different view cannot
be taken nullifying the appointments made, and that the similar contentions of the State with respect to sanitary workers in Town Panchayats was
negated by the Division Bench in W.A.No.47 of 2010 and the SLP filed by the State was also dismissed. Therefore, a different stand with respect
to the sanitary workers in Municipalities cannot be taken. Stating that the order of the Full Bench sought to be reviewed, as it affects the right of the
applicant, though he was not a party to the writ petition, the present review application has been filed.
Rev. Appl. No. 254 of 2015 has been filed by the first petitioner in W.P.(MD) No. 1083 of 2012 contending that G.O.Ms. No.21 dated
23.02.2006 is not applicable as held by the Full Bench in the order dated 29.11.2013 and that only G.O.Ms. No.71 dated 05.05.1998 is
applicable; that the Full Bench ought to have returned the reference after finding that the facts in W.A. Nos. 4170 and 4171 of 2011 and W.A.
(MD)No.729 of 2013 were different, but the Full Bench has travelled beyond the scope of reference and has gone into the mode of appointments;
that there cannot be any discrimination between the sanitary workers employed in Town Panchayats and Municipalities; that the Full Bench failed
to consider that the provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 can also be
invoked for regularisation. Stating so, the petitioner has sought review of the order dated 29.11.2013.
Summarising, the state has sought the review of the order dated 23.07.2013 in W.A.(MD) No. 729 Of 2013 based on the decision of the Full
Bench dated 29.11.2013 and the individuals are seeking to review the Full Bench judgment dated 29.11.2013, which according to them has
unsettled the benefits conferred on them by G.O.Ms.No.71 dated 05.05.1998 and by various decisions of this Court and Governmental action.
Therefore, all the review applications were clubbed and heard together.
Contentions of the respective Counsels:
The learned Additional Advocate General appearing for the State as petitioners in Rev. Aplc. No. 87 of 2014 and the respondents in the other
review petitions espoused that the Full Bench in the Judgment dated 29.11.2013 reported in 2013 (6) CTC 593 has laid down that
G.O.Ms.No.199 dated 12.08.1997 is not applicable to the employees working in Municipalities and hence overruled the judgment of the Division
Bench in W.A.No 729 of 2013. Further, the learned Additional Advocate General, relying upon paragraphs 26 and 28 of the Judgment of the Full
Bench, contended that the scope of G.O.Ms. No.101 dated 30.04.1997, G.O.Ms. No. 199 dated 12.08.1997, G.O.Ms.No.71 dated
05.05.1998 and G.O.Ms.No.21 dated 23.02.2006, was considered by the Full Bench which rightly held that the regularisation can be given effect
from 23.02.2006. The learned Additional Advocate General has also relied upon G.O.Ms.No.166, Municipal Administration and Water Supply
(ME.3) Department dated 31.12.2014 to contend that the date of effect of regularisation and fixation of time scale was clarified by the
Government and the effective date shall be from 23.02.2006 based on the judgment of the Full Bench and therefore, the regularisation of the
sanitary workers in Municipalities cannot be permitted from the date of completion of three years or from their initial appointment date. It was also
contended that as rightly held by the Full Bench, the names can only be sponsored by Employment Exchange for appointments and that the
decision for regularisation rests with the Government and no right has accrued to the workers as per the Government orders. The regularisation of
few employees erroneously made will not confer any right to others to seek regularisation from the date of appointment. Under the circumstances,
the Learned Additional Advocate General has sought for dismissal of the review applications filed by the other applicants and to allow the review
filed by the State.
The learned senior counsel Mr. R. Singaravelan appearing for the Review Petitioner in Rev. Appl. No.223 of 2015 vehemently pointing out the
difficulties faced by the sanitary workers by relying upon the judgment of the Hon''ble Supreme Court in Delhi Jal Board v. National Campaign for
Dignity & Rights of Sewerage & Allied Workers, reported in (2011) 8 SCC 568 contended that this Court must consider the hazards and threats
faced by them. It is also submitted that the Full Bench failed to consider that the instructions for regularisation given in G.O.Ms.No.71 were
specific, while G.O.Ms.No.101 was general and following the same, many Municipalities made appointments. It was further contended by the
learned senior counsel that G.O.Ms.No.71 has created a vested right in respect of persons employed after 30.04.1997 and the same cannot be
taken away by another Government order issued after 8 years. Countering the arguments of the learned Additional Advocate General and also
G.O.Ms.No.1, the learned senior counsel relied upon the ratio laid down in the judgment of the Hon''ble Supreme Court in CIT v. Vatika
Township (P) Ltd., reported in (2015) 1 SCC 1 and contended that retrospective operation of a statute is permissible only when it confers benefit
without causing detriment to others and retrospective construction is not permissible when a vested right has been created. The learned Senior
Counsel, pointing out to the Full Bench Judgment, contended that when the Full Bench had held that the Division Bench in W.A.(MD)No.729 of
2013 had no occasion to consider the scope of G.O.Ms.Nos.101, 71 and 21 dated 30.04.1997, 05.05.1998 and 23.02.2006 respectively, the
Full Bench ought not to have given independent findings on G.O.Ms.No.21 dated 23.02.2006 making G.O.Ms.No.101 and G.O.Ms.No.71
ineffective despite not challenged, thereby taking away their right to be considered for regular appointment on par with others in confirmation of the
fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India. Further, it was also contended by the learned senior
counsel that a new pension scheme was introduced by the State Government with effect from 01.04.2003 and by the Central Government with
effect from 01.04.2004 and the same was not brought to the knowledge of the Full Bench and if the regularisation was to be effective only from
23.02.2006, then none of the sanitary workers would satisfy the requirements of the scheme. The learned senior counsel, relying upon the
judgment of the Hon''ble Supreme Court in Shivdeo Singh v. State of Punjab, reported in AIR 1963 Supreme Court 1909 contended that the High
Court has powers to review its orders under Article 226 of the Constitution of India, when its orders affect the rights of parties not before it as in
the instant case, and sought the review and recalling of the Full Bench order dated 29.11.2013 and also for regularisation as per G.O.Ms.No.71
dated 05.05.1998.
The learned counsel Mr. V. Ajay Khose appearing for the petitioner in Rev. Appl. No. 254 of 2015, who happens to be the first of the many
writ petitioners in W.P.(MD)No.1083 of 2012 painstakingly contended that the Full Bench travelled beyond the scope of reference and
erroneously held that G.O.Ms.No.21 was applicable to the case of the petitioners while it was issued to regularise the ad-hoc and substitute NMR
workers employed prior to 01.10.1996. Pointing out to the appointment orders of the petitioners, it was further contended by the counsel that
G.O.Ms.No.21 was not applicable to the facts of the case under reference as all the petitioners were appointed as per G.O.Ms.No.101 and
therefore they were entitled to be regularised as per G.O.Ms.No.71 dated 05.05.1998 after completion of 3 years from the date of their
appointment and that already similarly placed workers appointed on or after 01.01.1997 in many other municipalities, Grade III Municipalities and
Corporations have been regularised with time scale of pay and hence, denial of the same to the petitioners would amount to discrimination. He also
relied upon other decisions of this Court. Under the above circumstances, the counsel sought the indulgence of the Court to review the order dated
29.11.2013 and issue appropriate directions for regularisation of the petitioners with time scale of pay as per G.O. Ms.No.71 dated 05.05.1998.
Heard all the parties and perused the records.
The case of the State is that since the order of the Division Bench in W.A.(MD) No.729 of 2013 was overruled by the Full Bench in the
judgment reported in 2013 (6) CTC 593, the review of the order of the Division Bench has been sought. We are of the view that this is not a
ground under which review can be sought. The Hon''ble Supreme Court in the judgment reported in (2013) 8 SCC 320, [Kamlesh Verma v.
Mayawati and others], after examining various judgments has laid down the circumstances, as to when the Court can review its own judgments.
The relevant portion of the judgment is extracted as under:
This Court has repeatedly held in various Judgments that the jurisdiction and scope of review is not that of an appeal and it can be
entertained only there is an error apparent on the face of record. A mere repetition through different counsel, of old and over rulled
arguments, a second trip over ineffectually covered grounds or minor mistakes of inconsequential import are obviously insufficient.......
.........
Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 40 VII Rule 1 of
CPC. In review jurisdiction, mere disagreement with the view of the Judgment cannot be the ground for invoking the same. As long as the
point is already dealt with and answered, the parties are not entitled to challenge the impugned Judgment in the guise that an alternative view
is possible under the review jurisdiction.
Summary of the principles:
Thus, in view of the above, the following grounds of review are maintainable, as stipulated by the statute:
20.1 When the review will be maintainable:-
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner
or could not be produced by him;
(ii) Mistake or error apparent on the face of record;
(iii) Any other sufficient reason.
The words ''any other sufficient reason"" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in
Moran Mar Basselios Catholicos v. Most Rev.Mar Poulose Athanasius & others [1955] 1 SCR 520, to mean, ""a reason sufficient on
grounds at least analogous to those specified in the rule"". The same principles have been reiterated in Union of India v. Sandur Manganese
& Iron Ores Ltd., ors., JT (2013) 8 SC 275.
20.2.When the review will not be maintainable:-
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable, unless the material error, manifest on the face of the order, undermine its soundness or results in miscarriage
of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate Court, it cannot be permitted to be advanced in the
review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.
We are of the view that the ground raised by the State would not fall under any of the circumstances under which a review is maintainable. If
the judgment has been overruled by a larger Bench, then the appropriate remedy would be to produce the Full Bench Judgment whenever the
Division Bench Judgment is relied upon and point out the same to the Court. The only error we find in the judgment of the Division Bench is that in
the conclusion, the Division Bench ought to have held that the "" Writ Appeal is disposed"" instead of "" Writ Appeal is allowed"" as the appeal was
ultimately decided in favour of the workers. Therefore we find no merit in the review application filed by the State in Rev.Aplc.No.87 of 2014 and
hence the same is liable to be dismissed.
Now coming to Rev. Appl. Nos. 223 and 254 of 2015, it is necessary to quote the relevant portions of the Judgment of the Full Bench
reported in 2013 (6) CTC 593 sought to be reviewed;
Since there were conflicting views expressed by two Division Benches, one of us (Justice S.NAGAMUTHU), directed the Registry to
place the matter before the Hon''ble Acting Chief Justice for constitution of a Larger Bench to decide the following question.
Whether the view taken by the Division Bench in W.P.(MD) Nos. 4170 and 4171 of 2011 and 9296 of 2012 is the correct view or that of
the other Division Bench in W.A.(MD)No.729 of 2013 is the correct view?
... ... ...
Then came G.O. Ms. No. 101, Municipal Administration and Water Supply Department, dated 30.04.1997. As found in the said G.O.,
the staff strength in various Municipal Corporations were all fixed as per the norms prescribed by the Government by order dated
23.05.1942. For about 55 years, there was no change in the norms, despite the fact that the burden of work had increased phenomenally
and the territory of the Corporations had also been enlarged. In this background, the Government took note of the fact that with the
available number of sanitary workers in the Municipal Corporations it was too difficult to meet the demand. Therefore, the Government
issued the said Government Order permitting the Municipal Corporations to create new posts of Sanitary Workers, based on need basis.
The Government permitted the Municipal Corporations to pass Resolutions creating additional posts, after getting sanction from the
Government and then to take steps to fill-up those newly created posts. Clause 4(6) of the said Government Order states that so far as the
posts which were newly created as well as the vacancies as against the posts which were already sanctioned, the appointment shall be made
only through Employment Exchanges and following the other established procedures. Clause 4(6) of the said Government Order is very
significant, which reads as follows:
VERNACULAR MATTER OMITTED
Based on the above Government Order, various Municipalities and Municipal Corporations created additional posts of Sanitary
Workers and accordingly filled-up the said posts. So far as the petitioners in W.P.(MD)Nos.1082/2012 and the appellants in W.A.
(MD)No.555/2010 are concerned, they were all appointed, on various dates, as against the newly created posts in pursuance of
G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated 30.04.1997.
As per Clause 4(6) of the above said Government Order, on completion of three years of service as sanitary workers, on consolidated
pay, the Government ought to have examined the question as to whether they should be regularised. But, the Government did not do so. As
a result, the petitioners and the appellants herein continued to work only on consolidated pay, that is from the date of their initial
appointments.
Then came G.O. Ms. No.71, Municipal Administration and Water Supply Department, dated 05.05.1998. This Government Order is,
though relates to substitute workers and daily wagers, still it has some relevance to answer the referred question in this matter. Let us have a
look into this Government Order also. After a number of appointments were made to the post of Sanitary Worker through Employment
Exchanges, the substitute workers and daily wagers, who were already working in various Municipalities and Municipal corporations, raised
a plea for absorption. In fact, there were some litigations also initiated before the High Court. Therefore, in order to safeguard the interest of
such substitute workers and daily wagers, the Government issued G.O.Ms. No.71, Municipal Administration and Water Supply
Department, dated 05.05.1998, and directed that as against the newly created posts of sanitary workers as per G.O.Ms. No.101,
Municipal Administration and Water Supply Department, dated 30.04.1997, the substitute workers shall also be absorbed depending upon
their length of service and other requirements. Clause 6 of the said Government Order states that such substitute workers and daily wagers,
who are absorbed, shall be paid only consolidated pay with effect from 01.05.1998 but, their services could be counted from the date of
their initial appointments. Thus, this Government order has nothing to do with the sanitary workers who appointed through Employment
Exchanges, like the petitioners and the appellants herein.
From the facts narrated above, it is crystal clear that there were three categories of sanitary workers. The first category of sanitary
workers are the ones who had been appointed as against the permanent vacancies prior to G.O.Ms. No.101, Municipal Administration and
Water Supply Department, dated 30.04.1997. The second category of sanitary workers are the ones who were appointed through
Employment Exchanges as against the newly created posts as per G.O.Ms. No.101, Municipal Administration and Water Supply
Department, dated 30.04.1997. The third category of sanitary workers are the ones who were absorbed with effect from 01.05.1998, as
per G.O.Ms. No.71, Municipal Administration and Water Supply Department, dated 05.05.1998, as against the newly created posts as
per G.O.Ms. No.101, Municipal Administration and Water Supply Department, dated 30.04.1997.
For the purpose of our discussion, it is not necessary to refer to the sanitary workers, who were appointed on regular basis, as against
the permanent vacancies prior to G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated 30.04.1997. So far as
the sanitary workers referred to as second and third categories, as above, they continue to work only on consolidated pay for several years.
There were several representations in respect of their request for regularisation of their services. Having taken note of the same,
G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006, came to be issued. Thus, this Government
Order is very crucial for the purpose of our discussion. Clause 4 of the said order states that the question of regularisation of these
employees could not be considered between 29.11.2001 and 07.02.2006 because the Government had issued G.O.Ms.No.212, Personnel
and Administrative Reforms Department, dated 29.11.2001, thereby completely banning filling-up of all vacant posts by direct recruitment.
The ban came to be lifted by the Government only from 07.02.2006, as per G.O.Ms.No.14, Personnel and Administrative Reforms
Department, dated 07.02.2006. Thus, after the ban was lifted, the Government issued G.O.Ms.No.21 Municipal Administration and Water
Supply Department, dated 23.02.2006. Clauses 5 and 6 of the said Government Order (G.O.Ms.No.21 Municipal Administration and
Water Supply Department, dated 23.02.2006) read as follows:
They accordingly direct the appointing authorities viz .Municipal Commissioner, Grade-III, Municipal Commissioners and
Commissioners of Municipal Corporations (Except Chennai) to appoint the employees on consolidated pay and NMRs on daily wages on
their roll as on 01.10.1996 in respect of Municipalities and Municipal Corporations (except Chennai) and as on 31.12.1996 in respect of
Grade-III Municipalities in the vacant posts and to regularize their services in the regular post, from the date of issue of this order subject to
the following conditions.
i) Sanctioned posts should be available.
ii) Persons should fulfill all educational and other qualifications and
iii) Establishment (pay and pension) expenditure of the Urban Local Body should not exceed 49% of revenue after filling up of posts.
The appointing authorities are strictly advised not to appoint any person on daily wages or on consolidated pay in the Municipalities and
in the Municipal Corporations in future.
... ... ...
A close reading of the above judgment would go to show that in the said judgment, the Division Bench had an occasion to consider only
the scope of G.O.Ms. No. 22, School Education Department, dated 28.02.2006. The Division Bench held that G.O.Ms. Nos.100, School
Education Department, dated 13.04.2010, was only the permission given by the Government to the Director of School Education to take
further action for regularisation of the services of the persons concerned, as against the available vacancies. Therefore, the Division Bench
held that G.O.Ms. No.100, dated 13.04.2010, has got nothing to do with the date of regularisation and instead regularisation should be
given effect to as per G.O.Ms. No.22, dated 28.02.2006, only from the date of issuance of the G.O. The judgment would further go to
show that the Division Bench had no occasion to consider the Government Orders, namely G.O.Ms. Nos.101, 71 and 21, G.O.Ms. No.21
Municipal Administration and Water Supply Department, dated 30.04.1997, 05.05.1998 and 23.02.2006, respectively. Thus, the Division
Bench had no occasion to consider as to whether in the light of the Government orders issued by the Department of Municipal
Administration and Water Supply, the regularisation could be made from the date on which the sanitary workers had completed three years
of service from the date of their initial appointment or from the date of G.O.Ms.No.21, Municipal Administration and Water Supply
Department, dated 23.02.2006. In such view of the matter, we are of the view that the correctness of the view taken by the Division Bench
in W.P.(MD)No.4170 and 4171 of 2011, dated 02.04.2013, need not be gone into by us, since the view expressed in the said judgment
has got nothing to do with the issues involved in the present litigations.
... ... ...
A reading of the above judgment in W.A. (MD) No.729/2013 would reflect that the Division Bench had no occasion to refer to the
relevant Government Orders, namely G.O.Ms. Nos.101, 71 and 21, Municipal Administration and Water Supply Department, dated
30.04.1997, 05.05.1998 and 23.02.2006, respectively. These are the relevant Government orders pertaining to sanitary workers who were
appointed as against newly created posts as per G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated
30.04.1997.
... ... ...
The judgment in W.A.(MD) No. 729 of 2013 relates to the sanitary workers working in Municipalities. But, the Division Bench had
considered only G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997 and not the
G.O.Ms.Nos.101, 71 and 21, Municipal Administration and Water Supply Department, dated 30.04.1997, 05.05.1998 and 23.02.2006,
respectively. So far as G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997 is concerned, the said
G.O. has got nothing to do with the Sanitary Workers employed on consolidated pay in Municipalities and Municipal Corporations. There
were only six categories of employees for whose benefit G.O.Ms.No.199, dated 12.08.1997, was issued. They are Sanitary Inspector,
Sanitary Maistry, Sweeper, Coss Pool Cleaner, Compost Mazdoor and Drainage Cleaner. Therefore, in our considered view, the said
G.O.Ms.No.199, Municipal Administration and Water Supply Department, dated 12.08.1997, cannot be made applicable to the sanitary
workers working in Municipalities/Municipal Corporations. This point was not argued before the Division Bench and further it was not even
brought to the notice of the Division Bench about G.O.Ms.Nos.101, 71 and 21, Municipal Administration and Water Supply Department,
dated 30.04.1997, 05.05.1998 and 23.02.2006, respectively, referred to above. Therefore, we regret that we are unable to subscribe to
the view taken by the Division Bench in W.A.(MD)No.729 of 2013.
In our considered view, in the case of sanitary workers, who were appointed against the newly created posts in pursuance of
G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated 30.06.1997, their regularisation is governed by
G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006. Such a regularisation, as per the said G.O.,
should take effect only from the date of G.O. and not from the date on which they had completed three years of service from the date of
their initial appointment. Following are the reasons for our conclusion.
(a) As we have already pointed out, appointments of the petitioners and the appellants herein, were not made as per the Tamil Nadu
Municipal Corporations Basic Service Rules, 1996. As per the said Rules, sanitary workers can be appointed only by direct recruitment, in
time scale of pay. There is no provision in the Rules to appoint sanitary workers on consolidated pay. Therefore, there can be no doubt that
the petitioners and the appellants herein, who were all appointed, not as per the Tamil Nadu Municipal Corporations Basic Service Rules,
1996, but, outside the scope of the said Rules, however, governed by the Orders issued by the Government in G.O.Ms.No.101, Municipal
Administration and Water Supply Department, dated 30.04.1997.
(b) As we have already pointed out, as per G.O. Ms. No. 101, Municipal Administration and Water Supply Department, dated
30.04.1997, new posts of sanitary workers were all created, on need basis. The said Government Order permitted filling-up of such newly
created posts, through Employment Exchanges, on consolidated pay. That is how the petitioners and the appellants herein came to be
appointed.
(c) As per Clause 4(6) of G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated 30.04.1997, the said
appointment was initially for a period of one year, which could be extended upto three years. As we have already extracted, as per Clause
4(6), on completion of three years, the Government would decide whether to regularise the services of such employees, so as to bring them
into regular time scale of pay. Therefore, as per this Government Order, it is fallacious to contend that on completion of three years from the
date of initial appointment, such appointed sanitary workers shall be regularised.
(d) As narrated above, the Government thereafter examined the question of regularisation only in the year 2006 and accordingly issued
G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006. The said Government Order directs that the
regularisation shall be from the date of issue of the Government Order, namely 23.02.2006.
(e) Thus, a conjoint reading of G.O. Ms. No. 101, Municipal Administration and Water Supply Department, dated 30.04.1997 and
G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2005, would go to clearly show that on completion
of three years of service from the date of initial appointment, the Government had an option to examine the question of regularisation, which
the Government did only in 2006 and it is the wisdom of the Government to give regularisation from any date. (Vide judgment of the
Supreme Court in K. Madalaimuthu and another v. State of T.N. And others - (2006) 6 SCC 558). Unless such date fixed by the
Government, giving effect to the regularisation, is proved to be arbitrary and violative of Article 14 of the Constitution of India or any other
constitutional provision, it cannot be held, in vacuum, that the said norms prescribed in G.O.Ms.No.21 for the purpose of regularisation is
either illegal or unconstitutional. Therefore, we have no hesitation to hold that regularisation of such sanitary workers, who are governed by
G.O.Ms.Nos.101, 71 and 21, Municipal Administration and Water Supply Department, dated 30.04.1997, 05.05.1998 and 23.02.2006,
respectively, shall be only from 23.02.2006. The contrary view expressed elsewhere in the judgments referred to above, in our respectful
view, are not correct.
In view of the foregoing discussions, we answer the question referred to us as follows:
(i) The view taken in W.P.(MD) Nos. 4170 and 4171 of 2011, dated 02.04.2013, has got nothing to do with the sanitary workers,
working in Municipalities and Municipal Corporations, who are governed by G.O.Ms.Nos.101, 71 and 21, Municipal Administration and
Water Supply Department, dated 30.04.1997, 05.05.1998 and 23.02.2006, respectively. Therefore, we have not examined the
correctness of the views expressed in W.P.(MD)Nos.4170 and 4171 of 2011.
(ii) The view expressed in W.A.(MD) No. 729/2013 is not the correct legal position in respect of sanitary workers who are governed by
G.O.Ms.Nos.101, 71 and 21, Municipal Administration and Water Supply Department, dated 30.04.1997, 05.05.1998 and 23.02.2006,
respectively and accordingly, we, with respect, overrule the same.
(iii) Those sanitary workers, who were appointed as per G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated
30.04.1997 or absorbed as per G.O.Ms.No.71, Municipal Administration and Water Supply Department, dated 05.05.1998, are all
governed by G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated 23.02.2006, in respect of their regularisation
in service and such regularisation shall take effect only from 23.02.2006 and not from the date on which they had completed three years of
service from the date of their initial entry into service.
It has been contended by the learned counsels appearing for the workers that the Full Bench failed to consider that apart from the difference in
applicability to Panchayats and Municipalities, G.O.Ms.No.199 and G.O.Ms.No.71 had similar clauses, covering similar set of workers. We
concur with the same. Following and interpreting G.O.Ms.199, various Benches of this Court had directed the services of the employees to be
regularized on completion of 3 years. One such order is the order made in W.A.Nos.47 and 385 of 2010. The order was unsuccessfully
challenged by the State before the Hon''ble Supreme Court in SLP (Civil) Nos. 26605/2010. Therefore, we are of the view that the regularization
of the sanitary workers with time scale of pay cannot be later than their date of completion of three years in consolidated pay nevertheless it cannot
be from 23.02.2006. When the clauses relating to sanitary workers appointed after G.O.Ms.No.101 remains the same, they have to be treated
alike irrespective of whether they work in Panchayats or in Municipalities or in Corporations (except Chennai).
That apart, the order of another Division Bench in Review Application No.69 of 2013 prior to the order of the Full Bench Judgment under
review, modified the earlier order by stating that the petitioners in the Municipalities would be governed by G.O.Ms.No.71 dated 05.05.1998 and
not G.O.Ms.No.199 but still went on to direct the respondents therein to comply with the earlier direction to regularize the service of the workers
on completion of three years with monetary benefits. The modification is possible only after verification. The said order was not challenged and the
fact was not brought to the knowledge of the Full Bench earlier.
That apart, the Full Bench, after recording that the petitioners and appellants in question were appointed in the newly created posts after
30.04.1997 through proper employment exchange, has treated them on par with persons appointed prior to the period, which was also not
pointed out earlier. Also, in paragraph 16 of the judgment, the Full Bench had observed that the ban imposed to make entry level appointments
vide G.O.Ms.No.212, Personnel and Administrative Reforms Department, dated 29.11.2001, having been lifted by G.O.Ms.No.14, Personnel
and Administrative Reforms Department, dated 07.02.2006, G.O Ms 21 was issued to regularise the service of the workers contrary to earlier
findings that the review applicants were already appointed prior to the ban. Further it was not pointed out to the Full Bench that G.O.Ms.No.21
was applicable only to the NMRs on daily wages working prior to 01.10.1996 in Corporations (Except Chennai), Municipalities and Town
Panchayats and not to direct recruits like the review applicants appointed prior to ban as per the rules and applicable Government Orders. Also, it
was not pointed out to the Full Bench that already, many workers were regularised with time scale of pay from the date of their appointment based
on G.O.Ms.No.71 dated 05.05.1998 and that Clause 6 of G.O.Ms.No.71 is applicable not only to persons employed prior to 1996 but also to
persons appointed after 30.04.1997, including the petitioners as all the persons falling in sub-categories in clause 3 (3) would be entitled to such
computation. In fact, by Resolution No.133, the Pattukottai Municiapality has passed a resolution to regularise the service of the review applicant
T. Kamaraj and others following G.O.Ms.No.101, which obviously has to be read along with G.O.Ms.No.71. Similar orders of regularisation with
retrospective effect were issued to the workers in Thiruvarur Municipality, Nagercoil, Rayagiri and Arcot Municpalities following G.O.Ms.No.71,
subsequently treating the directions in G.O.Ms.No.71 to be mandatory and not as suggestive. Such many orders have been passed with the
approval of the Commissioner of Municipal Administration.
At this juncture it is relevant to refer to the observations of the Supreme Court while considering the plight of the sanitary workers because of
the inaction of the State, in paragraph 19 of the judgment reported in (2011) 8 SCC 568 (Delhi Jal Board v. National Campaign for Dignity &
Rights of Sewerage & Allied Workers), which reads as follows:
19.At the threshold, we deem it necessary to erase the impression and misgivings of some people that by entertaining petitions filed by
social action groups/activists/workers and NGOs for espousing the cause of those who, on account of poverty, illiteracy and/or ignorance
and similar other handicaps, cannot seek protection and vindication of their constitutional and/or legal rights and silently suffer due to actions
and/or omissions of the State apparatus and/or agencies/instrumentalities of the State or even private individuals, the superior courts exceed
the unwritten boundaries of their jurisdictions. When the Constitution of India was adopted, the people of this country resolved to constitute
India into a sovereign democratic republic. They also resolved to secure to all its citizens, justice, social, economic and political; liberty of
thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the
dignity of the individual and the unity and integrity of the nation.
Indisputably, the delay is because of the State and its instrumentalities and the benefit granted to many others by interpreting the Government
Orders in G.O.Ms.Nos.101 and 71 as mandatory cannot be treated as optional with regard to petitioners based on the orders of the Full Bench
without placing all the facts before the Court. Article 16 of the Constitution guarantees equality of opportunity in the matter of employment to any
office under the State. Despite the fact that all the workers are sanitary employees, a discrimination is sought to be made as though it is applicable
only to employees in Panchayats and persons appointed prior to 1996, which cannot be permitted and such action cannot be termed as reasonable
classification as merely the place of work and date of appointment differs and if it is allowed, it will only amount to arbitrariness, defeating the
salient protection guaranteed under Articles 14 and 16 of the Constitution.
Further, the Hon''ble Supreme Court in Raghubir Singh v. Haryana Roadways, reported in (2014) 10 SCC 301 has held as under:
35.Further, in U.P. Warehousing Corporation and Ors., v. Vijay Narayan Vajpayee, (1980) 3 SCC 459, in which the ratio decidendi has
got relevance to the fact situation of the case on hand this Court held as under :-
21.The question whether breach of statutory regulations or failures to observe the principles of natural justice by a statutory Corporation
will entitle an employee of such Corporation to claim a declaration of continuance in service and the question whether the employee is
entitled to the protection of Articles 14 and 16 against the Corporation were considered at great length in Sukhdev Singh & Ors. v.
Bhagatram Sardar Singh Raghuvanshi & Anr., (1975) 1 SCC 421. The question as to who may be considered to be agencies or
instrumentalities of the Government was also considered, again at some length, by this Court in Ramana Dayaram Shetty v. The International
Airport Authority of India & Ors., (1979) 3 SCC 489.
22.I find it very hard indeed to discover any distinction, on principle, between a person directly under the employment of the Government
and a person under the employment of an agency or instrumentality of the Government or a Corporation, set up under a statute or
incorporated but wholly owned by the Government..... There is no good reason why, if Government is bound to observe the equality
clauses of the constitution in the matter of employment and in its dealings with the employees, the Corporations set up or owned by the
Government should not be equally bound and why, instead, such Corporations could become citadels of patronage and arbitrary action. In
a country like ours which teems with population, where the State, its agencies, its instrumentalities and its Corporations are the biggest
employers and where millions seek employment and security, to confirm the applicability of the equality clauses of the constitution, in relation
to matters of employment, strictly to direct employment under the Government is perhaps to mock at the Constitution and the people. Some
element of public employment is all that is necessary to take the employee beyond the reach of the rule which denies him access to a Court
so enforce a contract of employment and denies him the protection of Articles 14 and 16 of the Constitution. After all employment in the
public sector has grown to vast dimensions and employees in the public sector often discharge as onerous duties as civil servants and
participate in activities vital to our country''s economy. In growing realization of the importance of employment in the public sector,
Parliament and the Legislatures of the States have declared persons in the service of local authorities, Government companies and statutory
corporations as public servants and, extended to them by express enactment the protection usually extended to civil servants from suits and
prosecution. It is, therefore, but right that the independence and integrity of those employed in the public sector should be secured as much
as the independence and integrity of civil servants.
The above cardinal legal principles laid down by this Court on all fours are applicable to the case on hand for the reasons that the
respondent is a statutory body which is under the control of the State Government and it falls within the definition of Article 12 of the
Constitution of India and therefore Part III of the Constitution is applicable to its employees.
In the case of E.P. Royappa v. State of Tamil Nadu and Others, reported in 1974(1) SLR 497, a Constitution Bench of the Hon''ble Supreme
Court considered the scope of Articles 14 and 16 and laid down the following principles:
82......Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its
great importance as a principle ensuring equality of opportunity in Public employment which is so vital to the building up of the new classless
egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in
Article 14. In other "" words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all
matters relating to public employment. The basic principle which, there informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J. ""a
way of life"", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate
its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects
and dimensions and it cannot be ""cribbed, cabined and confined"" within traditional and doctrinaire limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while
the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to
political logic and constitutional law and is, therefore, violative of Article 14 and if it affects any matter relating to public employment, it is
also violative of Article 16. Article 14 and 16 strikes at arbitrariness in State action and ensure fairness and equality of treatment. They
require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any
extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as
distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and out side the area of
permissible considerations, it would amount to mala fide experience of power and that is hit by Articles 14 and 16. Mala fide exercise of
power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are
inhibited by Articles 14 and 16.
83.It is also necessary to point out that the ambit and reach of Articles 14 and 16 are not limited to cases where the public servant effected
has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Articles 14 and 16 if he has been
arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of
infringement of Articles 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post.
That might have some relevance to Article 311 but not to Articles 14 and 16.
In the case of The Manager Govt. Branch Press and Anr. v. D.B. Belliappa, reported in AIR 1979 S.C. 429, a three Judges Bench of the
Hon''ble Supreme Court held that protection under Articles 14 and 16(1) of the Constitution of India, is available even to a temporary government
servant and if the action of the employer is found to be arbitrary or discriminatory, it is liable to be invalidated.
Considering the above ratio laid down by the Supreme Court, differential treatment of employees in the Town Panchayats and Municipalities
and among different employees in the Municipalities itself, would amount to defeating the rights guaranteed under Article 14 and 16 of the
Constitution of India.
Therefore, the above errors have affected the outcome of the reference to the Full Bench.
It has been further contended by the learned counsels for the individual applicants that the Full Bench has travelled beyond the scope of
reference and went to give a third view, contrary to the facts, when all the particulars were not placed before it. For the sake of convenience, the
reference before the Full Bench is reproduced as under:
Whether the view taken by the Division Bench in W.P.(MD) Nos. 4170 and 4171 of 2011 and 9296 of 2012 is the correct view or that of
the other Division Bench in W.A.(MD)No.729 of 2013 is the correct view?"".
Though, as pointed out by the counsels, after answering the reference in the negative, the Full Bench had held that the regularisation can be
given effect only from 23.02.2006 in para 28 (iii) of the judgment sought to be reviewed, we do not agree the same to be excess as it was
necessary for the Court to discuss the issue in detail to answer the point of reference. However, the findings in para 28(iii) are incorrect and liable
to be recalled in view of our findings in the earlier paragraphs.
Another contention by the learned Additional Advocate General was that by virtue of G.O.Ms. No.166 dated 31.12.2014, the regularization
can be given effect only from 23.02.2006. We do not agree with the said contention as we have already held that the sanitary workers are entitled
to be regularized as per the terms of G.O.Ms.No.71 dated 05.05.1998 from the date of their initial appointment. Paragraph-29 of the decision of
the Supreme Court reported in (2015) 1 SCC 1 (CIT v. Vatika Township (P) Ltd.) is relevant and the same is extracted hereunder:
The obvious basis of the principle against retrospectivity is the principle of ""fairness"", which must be the basis of every legal rule as was
observed in L''Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co.Ltd, reported in (1994) 2 WLR 39. Thus,
legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as
prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying
an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the
subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for
the parties. In any case, we shall refer to few judgments containing this dicta, a little later.
In the present case, by virtue of G.O.Ms. No. 101 dated 30.04.1997 and G.O. Ms. No.71 dated 05.05.1998, the right to be considered for
regularization on completion of the mandatory period had already accrued to the petitioners on the date of their appointment. The only condition is
to be satisfied is the required number of days, of course without blemish. Therefore, any subsequent Government Order cannot take away the
fundamental right of the petitioners to be considered for appointment.
In the result, Rev. Aplc. No.87 of 2014 is dismissed and Rev. Appl. Nos. 223 and 254 of 2015 are allowed on the following terms:
a) Persons employed as sanitary workers and covered by G.O. Ms. No.101 dated 30.04.1997 and G.O.Ms. No.71 dated 05.05.98 are
entitled to be regularized after the completion of the respective period under consolidated pay as specified in the Government Orders from
the date of their initial appointment.
b) Any orders passed by any Municipality regularizing the service based on G.O.Ms. No.21 dated 23.02.2006, Full Bench Judgment dated
29.11.2013 and G.O.Ms. No.166 dated 31.12.2014 shall be recalled and appropriate orders shall be passed as held above.
Consequently, the connected miscellaneous petitions are closed. No costs.