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Judgment
M. Jaichandren, J.—This writ appeal has been filed against the order of the learned single Judge, dated 18.3.2011, made in W.P. No.
16381 of 2009. The petitioner in the said writ petition is the respondent in the present writ appeal. The writ appeal has been filed by the appellants
herein, who were the respondents in the writ petition, in W.P. No. 16381 of 2009, which had been filed praying for a Writ of Certiorarified
Mandamus challenging the order of the first appellant, dated 9.7.2009, and for a consequential direction to reinstate the respondent herein in
service, with full back wages, continuity of service and all other attendant benefits, by regularizing his service as an office assistant.
It has been stated that the respondent had studied upto VIII standard. He had been engaged as an office assistant, by the Tamil Nadu
Legislative Assembly Department, continuously, from the year, 1989. His services had been utilized during the Assembly Sessions. The main
grievance of the respondent is that, in spite of the fact that a number of persons who were similarly placed, including his juniors, had been
absorbed, either as office assistants, or in certain other posts, by the first appellant, the respondent had not been regularized in service. However,
the requests made by the respondent had been rejected by the first appellant. In such circumstances the respondent had filed a writ petition before
this court, in W.P. No. 9194 of 2004, seeking to quash the order of the first appellant, dated 25.2.2003, refusing to absorb the respondent as a
regular office assistant. After the filing of the said writ petition the respondent had not been given even the temporary employment, which was being
given to him, during the Assembly Sessions, in the past.
The writ petition, in W.P. No. 9194 of 2004, had been disposed of by this court, by its order, dated 21.4.2009, on merits. However, the
respondent had been permitted to make a representation to the first respondent, with regard to the reliefs prayed for in the writ petition.
Accordingly, the respondent had made a representation to the first appellant, dated 2.5.2009, requesting the first respondent for being absorbed,
as an office assistant, on a regular basis. However, the first appellant had passed an order, in S.O.Ms. No. 118, Legislative Assembly Secretariat,
dated 9.7.2009, rejecting the request of the respondent stating that he is not entitled to absorption, as an office assistant, on a regular basis.
It had been stated that the regular staff members had been appointed to the Tamil Nadu Legislative Assembly Secretariat, as per the Tamil
Nadu Legislative Assembly Secretariat Service Rules, taking into consideration the age, educational qualifications, rule of reservation etc. Since the
respondent had been working in the Secretariat, intermittently, during the Assembly Sessions, on a lump sum basis, he was not entitled to be
regularised in service. Further, the appointment of the respondent was purely on a temporary basis and it was contractual in nature. He cannot
claim any right based on such appointments.
The respondent had filed a writ petition before this Court, in W.P. No. 16381 of 2009, challenging the order passed by the first appellant, dated
9.7.2009. The learned single Judge, by his order, dated 18.3.2011, had allowed the said writ petition, setting aside the order of the first appellant,
dated 9.7.2009, and directing the absorption of the respondent, as regular office assistant, by issuing appropriate orders, within six weeks from the
date of receipt of a copy of the said order. However, it was made clear that the respondent would not be entitled to backwages. Aggrieved by the
said order passed by the learned single Judge, dated 18.3.2011, made in W.P. No. 16381 of 2009, the appellants have preferred the present writ
appeal, before this court, challenging the said order.
The appellants have stated, inter alia, that the order passed by the learned single Judge cannot be sustained in the eye of law, as the respondent
had been engaged, as an office assistant, temporarily, during the Assembly Sessions, on daily wage basis. As such, the respondent is not entitled to
seek regularization of his service as an office assistant. It had also been stated that the respondent had been engaged only during the Assembly
Sessions and his services had been discontinued after the Sessions got over. Further, a number of persons had been engaged in service, during the
Assembly Sessions, and their services had not been regularized.
It had also been stated that all regular appointments had been made, as per the Tamil Nadu Legislative Assembly Secretariat Service Rules,
framed under Article 187(3) of the Constitution of India. Since the respondent had been engaged in service only during the Assembly Sessions,
intermittently, it would not give him any right to the post of office assistant, which had to be filled up as per the said rules.
The learned counsel appearing on behalf of the appellants had submitted that the petitioner has no locus standi to claim that he is entitled to be
regularized in service, as an office assistant, without being selected and appointed, as per the Tamil Nadu Legislative Assembly Secretariat Service
Rules. It is not open to the respondent to claim that he is entitled to be regularized in service due to the fact that he had been engaged in service,
during the Assembly Sessions, on various occasions.
It had also been stated that the claims made by the respondent, in the affidavit filed in support of the writ petition, in W.P. No. 16381 of 2009,
are not true. None of his juniors had been regularized in service, as claimed by the respondent. The learned single Judge had erred in passing the
impugned order, dated 18.3.2011, directing the first appellant to regularize the respondent in service, as an office assistant. The learned single
Judge had failed to note that recruitment to the post of office assistant could be done only in accordance with the Tamil Nadu Legislative Assembly
Secretariat Service Rules. As such, the impugned order of the learned single Judge, dated 18.3.2011, is liable to be set aside.
The learned counsel appearing on behalf of the respondents had relied on the following decisions in support of his contention that a person who
had been engaged in service, continuously, for a considerable length of time, ought to be regularized in service.
1) K. Alex Vs. Delhi State Mineral Dev. Corporation, ,
2) U.P. State Electricity Board Vs. Pooran Chandra Pandey and Others,
3) District Educational Officer, Vs. S. Perumal and others, CDJ 2007 MHC 5207
4) The School committee, Tilak Vidyalaya Vs. The District Educational Officer, Tirunelveli South, 1991 TLNJ 1 and
5) Bhartiya Seva Samaj Trust Tr. Pres. and Another Vs. Yogeshbhai Ambalal Patel and Another,
The learned counsel appearing on behalf of the appellants had relied on the decision of the Supreme Court, reported Union of India (UOI) and
Others Vs. Vartak Labour Union, , wherein, the supreme Court had held as follows:
We are of the opinion that the respondent Union''s claim for regularization of its members merely because they have been working for BRO for
a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual
employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of
his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the
process envisaged by the relevant rules. (See: State of Karnataka Vs. Umadevi; Official Liquidator Vs. Dayanand; State of Karnataka Vs.
Ganapathi Chaya Nayak; Union of India Anr. Vs. Kartick Chandra Mondal; Satya Prakash Ors. Vs. State of Bihar; and Rameshwar Dayal Vs.
Indian Railway Construction Company Limited)
In Umadevi (3) (supra), a Constitution Bench of this Court had observed that:
It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that
the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long
period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were
engaged on daily wages in the department concerned on a wage that was made known to them. There is no case that the wage agreed upon was
not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those
who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such
employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle
could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or
temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to
be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and
16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal
treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be
absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and
16 of the Constitution are therefore overruled.
Explaining the dictum laid down in Umadevi (supra), a three judge Bench in Official Liquidator (supra) has observed that: In State of
Karnataka v. Umadevi (3), the Constitution Bench again considered the question whether the State can frame scheme for regularisation of the
services of ad hoc/temporary/daily wager appointed in violation of the doctrine of equality or the one appointed with a clear stipulation that such
appointment will not confer any right on the appointee to seek regularisation or absorption in the regular cadre and whether the Court can issue
mandamus for regularisation or absorption of such appointee and answered the same in negative.
The learned counsel had also submitted that a probationer has no right to the post which he holds, as his service could be terminated at any
time during or at the end of the period of probation, on account of his general suitability for the post held by him. Such an action of the competent
authority would not be punitive in nature. However, if a termination is on account of the allegation on the respondent, the decision of the competent
authority could be nullified, as it would be in violation of the principles of natural justice. The learned counsel had relied on the decision, reported in
State Bank of India and Others Vs. Palak Modi and Another etc., , in support of his contention.
Per contra, the learned appearing on behalf of the respondent had submitted that the respondent had been engaged in service, during the
Assembly Sessions, on several occasions. The respondent is fully qualified to be appointed as an office assistant, on a regular basis. It has been
further stated that some of the persons, who were juniors, had been appointed in the various posts in the secretariat service. However, the claim of
the respondent had been rejected by the first appellant, arbitrarily. In such circumstances, the learned single Judge of this Court, by his order,
dated 18.3.2011, made in W.P. No. 16381 of 2009, had directed the first appellant to regularize the service of the respondent, as an office
assistant. The order passed by the learned single Judge is sustainable both in law and on facts. As such, the present writ appeal is liable to be
dismissed, as it is devoid of merits.
In view of submissions made by the learned counsels appearing on behalf of the appellants, as well as the respondents, and on a perusal of the
records available, and in view of the decisions cited supra, we are of the considered view that the order of the learned single Judge, dated
18.3.2011, made in W.P. No. 16381 of 2009, cannot be sustained in the eye of law. It is noted that in the order, dated 21.4.2009, made in W.P.
No. 9194 of 2004, this Court had clearly stated that the respondent was not entitled to claim regularization in the post of office assistant, as he had
been engaged during the Assembly Sessions, on a temporary basis. In the said order it had been made clear that several persons, like the
respondent, had been engaged as assistants and office assistants, on a lump sum basis, to assist the regular staff of the Legislative Assembly
Secretariat, due to the increased workload whenever meetings were held by the Assembly. Such persons had been employed without following the
usual procedure of recruitment, the Government policy of reservation and other qualifications, including educational and age qualifications. It had
also been made clear that for permanent appointments to be made the procedures prescribed by the Tamil Nadu Legislative Assembly Secretariat
Service Rules, which had been framed by the government in consultation with the speaker of the Assembly, under Article 187(3) of the
Constitution of India, were to be followed. Therefore, the persons like the respondent who were appointed on a temporary basis, without
following the procedures prescribed by the Rules, cannot claim regularization in service, without following the procedures established by law.
However, this Court, in its order, dated 21.4.2009, made in W.P. No. 9194 of 2004, had permitted the petitioner to make a representation, with
regard to his request for temporary appointment, during the Assembly Sessions, as he had not been engaged in service in spite of the fact that other
similarly placed persons were engaged in such service. As the representation made by the respondent, dated 2.5.2009, had been rejected by the
first appellant, by its order, dated 9.7.2009, the respondent had filed a writ petition before this Court, in W.P. No. 16381 of 2009, challenging the
said order. The learned single Judge of this Court, by his order, dated 18.3.2011, had set aside the order of the first appellant, dated 9.7.2009,
and had directed the regularization of the service of the respondent, as an office assistant, without back wages.
It is noted that the learned single Judge while passing the order, dated 18.3.2011, in W.P. No. 16381 of 2009, had not considered the fact
that the respondent had to be recruited as an office assistant only as per the procedures prescribed by the Tamil Nadu Legislative Assembly
Secretariat Service Rules. The engagement of the respondent in service, on a temporary basis, during the Assembly Sessions, cannot give him a
right to be regularized in service for the post of office assistant. The contention raised on behalf of the respondent that certain other similarly placed
persons including his juniors, had been regularized in service had not been substantiated by the respondent with sufficient evidence. It is a well
settled position in law that recruitment to various posts are to be made only by following the procedures established by law. When specific rules
had been framed for recruiting persons to the posts of assistants and office assistants in the secretariat service it would not be open to the
respondent to claim that he should be regularized in service, as an office assistant, as he had been engaged in service, during the Assembly
Sessions, on various occasions. Such engagement of the respondent in service, intermittently, during the Assembly Sessions, would not give him
any right to claim for regularization of his service in the post of office assistant. As such, we are of the considered view that the order of the learned
single Judge, dated 18.3.2011, made in W.P. No. 16381 of 2009, is liable to be set aside. Accordingly, it is set aside. The writ appeal stands
allowed. Consequently, connected miscellaneous petitions are closed.