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The Principal Secretary to Government, School Education Department, Fort St. George, Chennai and Others Vs. S. Bagavathy - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.A.(MD)No. 1219 of 2016 & C.M.P.(MD)No. 8055 of 2016
Judge
AppellantThe Principal Secretary to Government, School Education Department, Fort St. George, Chennai and Others
RespondentS. Bagavathy
Excerpt:
.....personnel and administrative reforms (f) department, dated 28.02.2006, is not applicable to part-time employees. the part-time employees are paid from contingent fund. the benefit conferred in g.o.(ms)no.22, personnel and administrative reforms (f) department, dated 28.02.2006, is applicable only to full-time daily-wage employees appointed against the sanctioned vacancies and not applicable to the employees paid from contingent fund or on consolidated pay. 6. the learned judge referring to the earlier orders passed by this court in writ petitions and the judgments of the division bench of this court passed in writ appeals, vide order dated 26.06.2013, allowed the writ petition. 7. against the said order, dated 26.06.2013, present appeal has been filed. 8. mr.v.r.shanmuganathan, learned.....
Judgment:

V.M. Velumani, J

1. This Writ Appeal has been filed by the appellants challenging the order of the learned Single Judge, dated 26.06.2013, made in W.P.(MD)No.7886 of 2013.

2. The respondent filed above Writ Petition seeking a direction to the appellants to appoint her in regular time scale either as Sweeper or Scavenger as per the orders issued by the State Government and regularise her service from the date of her initial appointment.

3. According to the respondent, she was selected and appointed as Scavenger through Employment Exchange on consolidated pay on 03.09.1989. She is working as part-time Sweeper from the year 1989 in the Office of the Assistant Elementary Educational Officer, Mandapam Camp.

4. The first appellant passed G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, to regularise the service of the employees, who have completed 10 years of service as on 01.01.2006. The respondent is working as Sweeper and therefore, the ban imposed by the Government is not applicable to her. Similarly placed employees were brought on regular time scale of pay as per the orders of this Court. The service of the respondent was not regularised. Therefore, the respondent filed the above writ petition for the relief stated supra.

5. The appellants contended that the respondent was appointed as part-time employee and G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, is not applicable to part-time employees. The part-time employees are paid from contingent fund. The benefit conferred in G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, is applicable only to full-time daily-wage employees appointed against the sanctioned vacancies and not applicable to the employees paid from contingent fund or on consolidated pay.

6. The learned Judge referring to the earlier orders passed by this Court in writ petitions and the judgments of the Division Bench of this Court passed in writ appeals, vide order dated 26.06.2013, allowed the writ petition.

7. Against the said order, dated 26.06.2013, present appeal has been filed.

8. Mr.V.R.Shanmuganathan, learned Special Government Pleader for the appellants submitted that G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, was passed by the first appellant only to regularise the services of dailywage employees, who have completed 10 years of service as on 01.01.2006. The said Government Order is not applicable to parttime employees or employees, who are paid consolidated wages. The daily-wage employees are working more hours than the parttime employees. This position was clarified by the Government, vide G.O.(Ms)No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013, where it has been categorically stated that only daily-wage employees, who have completed 10 years of service as on 01.01.2006 could be regularised in the regular vacancies. It is made clear that the educational qualification and mode of recruitment cannot be relaxed. The learned Special Government Pleader further contended that some of the employees pressurized the Government through contempt petitions and obtained orders of regularisation.

9. In support of his submissions, the learned Special Government Pleader relied on the following Judgments: (i) 2014 (4) SCC 769 [Secretary to Government, School Education Department, Chennai vs. R.Govindaswamy and others], wherein in paragraphs 7 and 8, it has been held as follows:

7. In Union of India vs. A.S. Pillai [2010 (13) SCC 448] 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.

8. This Court in State of Rajasthan v. Daya Lal [2011 (2) SCC 429] 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: (SCC p. 435, para 12)

(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 of service 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 supplied)

(ii) 2014 (4) LW 657 [The State of Tamil Nadu, Rep. by Secretary to Government, School Education Department and others Vs. M.Seeniammal and others], wherein in paragraphs 17 and 22, it has been held as follows:

17. 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.

22. Insofar as the parametres of Order 47 Rule 1 of the Code of Civil Procedure for entertaining review applications are concer ned, 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 CDJ Law Journal 2014 SC 146 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.

10. The learned Special Government Pleader also contended that in view of the above judgments, the judgments relied on by the learned Judge are not applicable to the case of the respondent, who is only a part-time employee and therefore, prayed for allowing the writ appeal.

11. Mr.J.Parekhkumar, learned counsel for the respondent submitted that all the judgments referred to by the learned Judge while allowing the writ petition are squarely applicable to the case of the respondent. In those judgments, this Court directed the Department to regularise the services of the part-time employees similarly placed, like the respondent. The Department also mplemented the direction given by this Court and regularise the services of similarly placed part-time employees.

12. The learned counsel for the respondent further submitted that the respondent is claiming regularisation not based on G.O. (Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, but only based on G.O.(Ms)No.528, Personnel and Administrative Reforms (F) Department, 10.10.1988. As per the said Government Order, the respondent is entitled to be regularised.

13. We have carefully perused all the materials available on record and considered the arguments advanced by the learned counsel appearing for the parties.

14. The issue to be decided in this writ appeal is, Whether part-time employees, like the respondent is entitled to regularisation as per G.O.(Ms)No. 22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, and brought on time scale of pay or not?

15. This issue is no longer res integra. This issue was considered by the Hon'ble Apex Court in Secretary to Government, School Education Department, Chennai vs. R.Govindaswamy and others reported in 2014 (4) SCC 769 and held that part-time employees are not entitled for regularization and they cannot claim any parity with regular employees. The parttime employees cannot claim regularisation in the absence of any legal right. Similarly, the Division Bench of this Court in the judgment reported in 2014 (4) LW 657 : 2014 (5) CTC 474 [The State of Tamil Nadu, Rep. by Secretary to Government, School Education Department and others Vs. M.Seeniammal and others], in which, one of us [V.M.VELUMANI, J.] is a party, relying on the judgment of the Hon'ble Apex Court referred to above, held that G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, is applicable only to the full time daily-wage employees, who have completed 10 years of service as on 01.01.2006. It was also held that 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. It has been specifically held that G.O. (Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, cannot be applicable to part-time employees and persons employed on consolidated salary and also persons, who have completed 10 years of service after 01.01.2006.

16. In view of the Judgment of the Hon'ble Apex Court and the Division Bench of this Court referred to above, the judgments relied on by the learned Single Judge with regard to regularization of part-time employees invoking G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, are no longer good law.

17. The learned counsel for the respondent contended that the respondent is not claiming regularisation as per G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006. On the other hand, she is claiming regularisation only as per G.O.(Ms)No.528, Personnel and Administrative Reforms (F) Department, 10.10.1988. This contention is not correct. A reading of the order of the learned Single Judge under challenge in this writ appeal, shows that the writ petition was allowed on the ground that the respondent is entitled to regularisation as per G.O.(Ms)No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006. In the circumstances, the impugned order dated 26.06.2013, made in W.P.(MD)No.7886 of 2013, is set aside.

Accordingly, the writ appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed.


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