The State of Tamil Nadu vs M. Seeniammal

V.M. Velumani, J.—Since the issue involved in these writ appeals, Contempt Petitions and review applications are common, these appeals and petitions were heard together and are disposed of by this common judgment. Heard Mr. K. Chellapandian, learned Additional Advocate General assisted by Mr. A.K. Baskarapandian, learned Special Government Pleader, Mr. M. Govindan, learned Special Government Pleader and Mr. V.R. Shanmuganathan, learned Special Government Pleader for the State and Mr. K.C. Ramalingam, Mr. S.M. Lingeswaran, Mr. C.M. Arumugam, Mr. G. Thalaimutharasu, Mr. S. Muthalraj and Mr. R. Sureshkumar, learned counsel for the respondents.

The respondents in all the Writ appeals were appointed in various departments, either on part time basis or on consolidated pay. After serving for about 10 years, they came up with writ petitions seeking regularisation of their services, on the basis of some Government orders and a few decisions of this Court. Those writ petitions were allowed by this Court, forcing the State of Tamil Nadu, to come up with these appeals. In one case, the writ appeal filed by the respondent/employee was allowed and in another case, the Miscellaneous Petition filed by the State for condonation of delay in filing the writ appeal was dismissed.

For the purpose of easy appreciation, the particulars of employment of all the respondents/employees are presented in a Tabular column as follows:

The writ petitions filed by the respondents were allowed by the learned Judge based on G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006 and a few earlier judgments granting the benefit of regularisation upon completion of 10 years of service with time scale of pay.

But under the said Government order G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, only full time daily wage employees were directed to be regularised on completion of 10 years of continuous service as on 01.01.2006. However, the part time employees, temporary employees and employees on consolidated pay and employees, who had completed 10 years of service even after 01.01.2006 sought for regularisation based on G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006. This Court accepted their claim and passed orders directing the department to regularise their services as per G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006.

But when similar claims were made on the basis of G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, Government passed G.O.Ms. No. 74 Personnel and Administrative Reforms Department dated 27.06.2013 and clarified that G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, is applicable only to the full time daily wage employees, who had completed 10 years of continuous service as on 01.01.2006. It was made clear in that order that part time employees are not entitled for regularisation and that full time daily wage employees, who had completed 10 years of service after 01.01.2006 are also not entitled to regularisation. G.O. No. 74 Personnel and Administrative Reforms Department dated 27.06.2013, reads as follows:

"6) In supersession of the orders issued in the Government Order read above, the Government now issue revised orders on regularisation of services of full time daily wage employees working in all Government departments as detailed below:

(i) This Order shall be deemed to have been come into force with retrospective effect from 01.01.2006.

(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange to discharge the function of the post in the Tamilnadu Basic Service and complete 10 (ten) years of service as on 01.01.2006 shall be regularised against regular vacancies in the sanctioned cadre strength.

(iii) In cases of relaxation of service rules, the service rule relating to the educational qualification and mode of recruitment shall not be relaxed.

(iv) In cases, where relaxation of rules are involved, monetary benefit shall be allowed with effect from the date of issue of orders as per Rule 23(a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services;

(v) In cases where relaxation of rules are not involved, monetary benefit shall be allowed with effect from the date of regularisation;

(vi) The part-time and casual employees are not entitled to the concession referred to at para (ii) above;

(vii) The services of the full time daily wage employees who have completed 10 years of service after 01.01.2006 shall not be regularised;

(viii) All the appointing authorities should adhere to the above instructions scrupulously in future. Failing which, it will be viewed seriously and necessary disciplinary action will be initiated as per rules against the person who is responsible for the said lapses. All the Heads of Departments are directed to ensure that all the above said instructions are followed without fail and lapses if any found, responsibility will be fixed against them;

(ix) All the proposals for regularisation of the services of full time daily wage employees should be sent to the Government even in cases where relaxation of rules are not involved."

But unfortunately this order G.O.Ms. No. 74, could not be placed by the Government before the learned Judges, as it came only subsequently.

Apart from G.O.Ms. No. 74, there was one more subsequent development. It was an order passed by this Court in request of a few persons employed in the School Education Department, which was reversed by the Supreme Court eventually on 21.02.2014. The facts leading to this development are as follows:

(i). Based upon the G.O.Ms. No. 22 Personnel and Administrative Reforms Department dated 28.02.2006 several individuals approached this Court and obtained orders in a batch of cases in writ petition Nos. 4859 of 2009. Those orders were also confirmed on appeals in Writ Appeal No. 1520 of 2010 batch, by the Division Bench of this Court by order dated 25.10.2010. SLPs filed by the Government were dismissed by the Apex Court.

(ii). Therefore, the State issued G.O.Ms. No. 123 School Education Department dated 17.08.2011 implementing the orders in favour of these individuals. Thereafter, other persons similarly placed started filing cases and all those cases were allowed by the learned Judges sometimes after notice and sometimes even at the admission stage. In one set of cases, the State went on appeal in SLP Civil Nos. 2726-2729 of 2014 with civil appeal Nos. 2730-2731 of 2014. Those appeals were allowed by the Supreme Court by a judgment dated 21.02.2014 in Secretary to Government, School Education Department vs. Thiru. R. Govindasamy and others, reported in CDJ Law Journal 2014 SC 146.

In Paragraph Nos. 5 to 8 of the said decision, the Supreme Court held as follows:

"5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more less integra.

In Secretary, State of Karnataka and Others Vs. Umadevi and Others, , this Court held as under:

"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.

In Union of India (UOI) and Others Vs. A.S. Pillai and Others, , this Court dealt with the issue of regularisation of part-time employees and the court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.

This Court in State of Rajasthan and Others Vs. Daya Lal and Others, , has considered the scope of regularisation of irregular or part time appointments in all possible eventualities and laid down well settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein, the same are as under:

8(i) The High Courts in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a temporary or ad hoc or daily wage employee, under cover of some interim orders of the Court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment". Even temporary, ad hoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.

(iii) Even where a scheme is formulated for regularisation with a cut off date (that is a scheme providing that persons who had put in a specified number of years and continuing in employment as on the cut off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing for successive cut-off dates.

(iv) part time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) part time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. (emphasis added)

The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised should not be affected."

Therefore, on the basis of law now declared by the Supreme Court in respect of the very part time sweepers in the School Education Department, the State of Tamil Nadu has come up with the present appeals as well as review petitions contending that the respondents are not entitled to regularisation. However, by the time, these appeals were filed with condone delay petitions and the delay was condoned, some of the employees pressurized the Government through contempt petitions and obtained orders of regularisation. Therefore, when we took up these appeals for hearing, the Government had already issued orders regularising the services of some of the employees with prospective effect.

Therefore, in the light of the above two developments, the question that arises for consideration in these appeals is as to whether the respondents in these appeals and review applications are entitled to seek regularisation or not.

In some of the orders out of which the present appeals arise, the learned Judges have relied upon the first portion of paragraph 55 of the decision of the Supreme Court reported in Secretary, State of Karnataka and Others Vs. Umadevi and Others, But in the latter portion of paragraph No. 55, the Apex Court has set aside the direction of the High Court to the Government to consider the cases for regularisation, which is as follows:

"55.....In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant), the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos. 3595-612 and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weight age for their having been engaged for work in the Department for a significant period of time. That would be the extent of exercise of power by this Court under Article 142 of the Constitution to do justice to them."

There is no dispute about the fact that all the respondents are part time employees or consolidated pay employees. There are no Government orders for regularising part time employees and consolidated pay employees. G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006 was issued only in favour of full time daily rated employees. Even G.O.Ms. No. 123 School Education Department dated 17.08.2011, had been issued only for implementing the judgment of this Court to avoid contempt in respect of persons mentioned therein. It is not applicable to all part time employees and consolidated employees. The respondents cannot claim the same relief.

We are conscious of the fact that some persons similarly placed as the respondents have escaped the guillotine. Therefore, the learned counsel for the respondents contend that if the appeals are allowed, one batch of employees will face hostile discrimination. Therefore, the respondents plead equality of treatment.

In the judgment reported in 1995(Supp) 4 SCC 706 [Harpal Kaur Chahal (Smt) Vs. Director, Punjab Instructions, Punjab and another], the Apex Court held that Article 14 cannot be extended to legalise the illegal orders though others had wrongly got the benefit of orders. The relevant portion is extracted herein:

"3.... The view of the High Court is obviously illegal and the judgment rendered would not form the ground for our holding that the others who got the benefit by illegal orders will be extended in favour of other candidates though illegally appointed. Article 14 cannot be extended to legalise the illegal orders though orders had wrongly got the benefit of the orders...."

In view of the above judgment, the respondents are not entitled to relief based on earlier orders of this Court. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud even by extending the wrong decisions made in other cases. The judgment reported in Basawaraj and Others Vs. The Spl. Land Acquisition Officer, , considered the issue and held as follows:-

"8. It is settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."

G.O.22 is applicable only to full time daily wage employees appointed against the sanctioned vacancies paid not out of contingent fund or on consolidated pay. They must also have completed 10 years of continuous service as on 01.01.2006. A reading of the said G.O. clearly shows that it applies only to daily wage employees. Further by G.O.Ms. No. 74, the Government clarified that G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, is not applicable to part time, the consolidated pay employees and employees appointed on temporary basis. In view of the authoritative pronouncement of the Apex Court referred to above in Secretary to Government, School Education Department vs. Thiru. R. Govindasamy and others reported in CDJ Law Journal 2014 SC 146, a direction to the department to regularise the services of daily wagers, temporary, part time, contract workers and persons employed on consolidated salary cannot be issued by this Court based on the Government orders issued contrary to statutory provisions of appointment being made without following the regular procedure, we also hold that in any event G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, is applicable only to full time daily wage earners, who had completed 10 years of continuous service as on 01.01.2006. The said G.O., cannot be applied for part time employees, employees receiving consolidated salary and also to persons, who completed 10 years of service after 01.01.2006.

Therefore, all the writ appeals filed by the State challenging the orders of the learned Judges, granting the relief of regularisation to the employees in question, are liable to be allowed.

Insofar as the review applications are concerned, the learned counsel appearing for the employees contend (i) that the review applications were not filed in time; (ii) that the review applications are not based either upon any errors apparent on the face of the record or upon the discovery of new and important material; and (iii) that the Government, after having implemented the orders in respect of some, cannot discriminate against others.

We have given our anxious consideration to the above submissions.

The first objection of the learned counsel for the respondents is factually incorrect. The learned counsel for the contesting respondents have calculated the period of limitation from the time they received order copies. The review applications as well as the writ appeals were entertained only after the Registry found that they were filed within the period of limitation from the date of service of the copies of the orders on the appellants. Therefore, we do not agree that the review applications/writ appeals were filed beyond time.

Insofar as the parameters of Order 47 Rule 1 of the Code of Civil Procedure for entertaining review applications are concerned, it is to be seen that the law declared by the Supreme Court in Secretary to Government, School Education Department vs. Thiru. R. Govindasamy and others reported in s merely reiterates the ratio laid down by the Supreme Court in various decisions. But, on an erroneous reading of the Government Orders, such as G.O.Ms. No. 22 Personnel and Administrative (Reforms) Department dated 28.02.2006, the writ appeal filed by the respondent was allowed and Miscellaneous Petition filed by the State for condonation of delay in filing the writ appeal has been dismissed. The fact that G.O.Ms. Nos. 22 applies only to full-time employees and only to those who have completed 10 years of service as on 01.01.2006 is so clear from the G.O. Any reading of the Government Order otherwise, tantamounts to an error apparent on the face of the record. Therefore, the review applications are founded upon a solid foundation that the orders reflect an error apparent on the face of the record. Hence, the second contention is also to be rejected.

We have already dealt with the third contention, in a previous paragraph. At the cost of repetition, it should be pointed out that in many of the cases, (i) the writ petitions were allowed at the admission stage on the ground that they were covered by G.Os. as well as by previous decisions, (ii) the writ appeals filed by the State were dismissed at the admission stage or at the stage of condonation of delay, and (iii) the orders of regularisation were passed by the Government under threat of contempt proceedings. Therefore, it is futile to contend that one set of employees have already reaped the benefit and the denial of benefit to the respondents before us would lead to hostile discrimination.

Mr. R. Lakshmanan, one of the learned counsel for the contesting respondents, contended that the decision of the Supreme Court in Secretary to Government, School Education Department vs. Thiru. R. Govindasamy and others reported in CDJ Law Journal 2014 SC 146 came only on 21.02.2014 and that therefore, it cannot have retrospective application to cases already decided. But, the said contention does not have legal basis. The judgment of the Supreme Court, dated 21.02.2014, is only declaratory in nature and which only reiterated and reinforced the law that was always in force. The judgment did not evolve a new proposition of law, so as to apply the principle of prospective over ruling. Therefore, the said contention is also to be rejected.

Therefore, the State is entitled to succeed in all these writ appeals and review applications. However, we also wish to record the statement made by the learned Additional Advocate General to the effect that if orders of regularisation have already been passed in respect of any of the individuals, those orders will not be recalled or cancelled, by virtue of the decision that we take in these batch of cases. In view of the above,

(i) the writ appeals in W.A.(MD) Nos. 1157 of 2013, 992 to 994 of 2013, 1015 of 2013, 1054 of 2013, 1116 of 2013, 1110 of 2013, 1107 of 2013, 1115 to 1156 of 2013, 1356 to 1369 OF 2013, 1178 of 2013, 440 to 446 of 2014 and W.A. No. 842 of 2013 are allowed and the orders of the learned Judges in W.P.(MD) Nos. 12874 of 2011, 4750 to 4752 of 2011, 4912 and 4910 of 2011, 4748, 4749 of 2011, 4911 of 2011, 4664 to 4669 of 2011, 14155 to 14168 of 2012, 5220 of 2013, 4711 to 4717 of 2010 and 8539 of 2010 are set aside.

(ii) The Review Application in R.A. (MD) No. 88/2013 is allowed and the order, dated 30.07.2013, passed in W.A. (MD) No. 775 of 2013 is recalled.

(iii) The Review Application in R.A. (MD) No. 28 of 2014 is allowed, the order dated 02.01.2014 in M.P. (MD) No. 1 of 2013 in W.A. (MD) SR No. 47622 of 2013 is recalled. The condone delay petition is allowed and the writ appeal is allowed, (Registry is directed to number of the writ appeal) setting aside the order of the learned Single Judge in W.P. (MD) No. 10020 of 2013.

(iv) The Writ Appeal in W.A. (MD) No. 775/2013, filed by the employee for enlargement of the benefit granted by the learned Single Judge is dismissed, in view of the dismissal of the writ petition itself.

(v) The contempt petitions filed by the contesting respondents are closed. No costs. Consequently connected Miscellaneous Petitions are closed.