The Secretary,Tamil Nadu Legislative Assembly,Secretariat,Chennai 600 009 v. A.Sivasankaran

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.03.2009CORAMTHE HONOURABLE MR. JUSTICE D. MURUGESAN andTHE HONOURABLE MR. JUSTICE S. NAGAMUTHUWrit Appeal No.1194 of 2006The Secretary,Tamil Nadu Legislative Assembly,Secretariat,Chennai 600 009....AppellantVs.A.Sivasankaran...RespondentWrit Appeal under Clause 15 of Letters Patent, praying to setaside the Order dated 13.07.2006 made in W.P.No.22318 of 2006 A writof Certiorarified Mandamus calling for the records relating to theimpugned order No.1226/2006 SaMaPeSe(AaNaPi-1) dated 30.06.2006 andquash the same and consequently direct the respondent to reinstatethe petitioner in service alongwith all concomitant benefits.For Appellant: Mr.S.Gopinathan, Addl. Govt. PleaderFor Respondent: No AppearanceJUDGEMENT(Judgement of the Court was delivered by D.MURUGESAN, J.)The sole respondent by name A.Sivasankaran though was served andthe name is printed in the cause list, there is no appearance eitherin person or through his Counsel.2. It appears that the respondent has made an application on10.01.2005 to the Secretary, Tamil Nadu Legislative Assembly,Secretariat for appointment as Office Assistant. The saidapplication was considered in terms of Rule 17(a)(i) of the TamilNadu Legislative Assembly Secretariat Service Rules and by orderdated 12.01.2005, he was appointed temporarily as Office Assistant.For better appreciation of the order of appointment, we are inclinedto extract the said order: https://hcservices.ecourts.gov.in/hcservices/ LEGISLATIVE ASSEMBLY SECRETARIATOFFICE ORDER No.85/2005-1 TNLAS (OP.I) Dated 12.01.2005Sub: Establishment – Legislative Assembly Secretariat - appointment of Temporary Office Assistant - orders – Issued. *****Under rule 17(a)(i) of Tamil Nadu LegislativeAssembly Secretariat Service Rules, Thiru.A.Sivasankaranis appointed temporarily as Office Assistant in thisSecretariat.(2) His appointment is subject to verification oforiginal certificates regarding educationalqualification, community and age. He is eligible to drawpay and allowances in the scale of pay of Rs.2550-55-60-3200.(3) He is instructed to join duty immediately. Heis also instructed that at the time of joining duty heshould bring the original certificates regardingeducational qualification, community and age. (4) He is also informed that his appointment ispurely temporary and will be terminated from service,under rule 17(f) of the said Rules, at any time withoutany notice and without assigning any reason and hecannot claim any service right by virtue of thistemporary appointment.Sd/- V.Rajaraman Secretary 3. By a subsequent order dated 30.06.2006, he was terminatedfrom service in exercise of the power conferred under the very samerule. The said order of termination was put in issue in the writpetition and by the order under the appeal dated 13.07.2006, the writpetition was allowed. Hence, the Secretary, Tamil Nadu LegislativeAssembly, Secretariat, Chennai has filed the present writ appeal.4. In exercise of clause (3) of Article 187 of the Constitutionof India, the Governor of Tamil Nadu, after consultation with theSpeaker of the Legislative Assembly is entitled to make the https://hcservices.ecourts.gov.in/hcservices/ Secretariat Service Rules. Accordingly, the Tamil Nadu LegislativeAssembly Secretariat Service Rules (hereinafter referred to as "theRules") were framed and came into force on 24.03.1955 subject tocertain subsequent amendments. In terms of Rule 2(1) of the Rules,a person appointed to service means, "a person is said to be'appointed to the service' when, in accordance with these rules orin accordance with the rules applicable at the time as the case maybe. Such appointee is also put on probation or training for aprescribed period. Sub rule (3) of Rule 2 of the Rules defines"approved probationer" in the service, class or category, as amember of the service, class or category who has satisfactorilycompleted his probation and awaits appointment as a full member ofservice, class or category. Even in case, the services of thecandidate under probation could be dispensed with under the sub-rule(6) of Rule 2 of the Rules. The appointment in question is, theoffice Assistant and the appointing authority is, the DeputySecretary of the Tamil Nadu Legislative Assembly, Secretariat,Chennai as could be seen from Appendix-I of the Rules.5. In terms of rule 6 of the Rules, all appointments should bemade strictly in accordance with Clause (IV) of Appendix-II of theRules. In terms of Rule 7-A of the Rules, rule of reservationshould be followed and in terms of Rule 17 of the Rules, temporaryappointments could be made and the Rule 17(a) (i) of the Rules readsas under:-"17. Temporary appointments and promotions:-(a) (i) Where it is necessary in the publicinterest owing to an emergency which has arisen tofill immediately a vacancy in a post borne on thecadre of the service and there would be unduedelay or administrative inconvenience in making anappointment in accordance with these rules to fillup the vacancy, the appointing authority mayappoint or promote temporarily any person,otherwise than in accordance with these rules."6. A perusal of the appointment order dated 12.01.2005 wouldshow that the respondent was appointed not in terms of the rule 6,but only under the Rule 17(a) (i) which relates to the temporaryappointments. The said rule empowers the appointing authority tomake such temporary appointments in the public interest owing to anemergency which has arisen to fill immediately a vacancy. In termsof rule 17(f), the services of a person appointed under sub rule (a)shall be liable to be terminated by the appointing authority at anytime without notice and without any reason being assigned. As longas the respondent, who secured an appointment in terms of rule 17(a)(i), is also bound by rule 17(f) whereby he cannot claim thepermanency over the appointment as a matter of right and consequentlyhe cannot question the order of termination made in exercise of thepowers under rule 17(f) of the Rules. https://hcservices.ecourts.gov.in/hcservices/

7. The question of entitlement of such appointments made notstrictly in accordance with the general rule for such appointments,came up for consideration before the Apex Court in Secretary, Stateof Karnataka and others v. Umadevi (3)and others,(2006) 4SCC 1. In Para 43 of the said judgement the Apex Court has held asunder:-"43. ..... If it is a contractual appointment, theappointment comes to an end at the end of thecontract, if it were an engagement or appointment ondaily wages or casual basis, the same would come toan end when it is discontinued. Similarly, atemporary employee could not claim to be madepermanent on the expiry of his term of appointment.It has also to be clarified that merely because atemporary employee or a casual wage worker iscontinued for a time beyond the term of hisappointment, he would not be entitled to be absorbedin regular service or made permanent, merely on thestrength of such continuance, if the originalappointment was not made by following a due processof selection as envisaged by the relevant rules. Itis not open to the court to prevent regularrecruitment at the instance of temporary employeeswhose period of employment has come to an end or ofad hoc employees who by the very nature of theirappointment, do not acquire any right. The HighCourts acting under Article 226 of the Constitution,should not ordinarily issue directions forabsorption, regularisation, or permanent continuanceunless the recruitment itself was made regularly andin terms of the constitutional scheme. Merely becausean employee had continued under cover of an order ofthe court, which we have described as “litigiousemployment” in the earlier part of the judgement, hewould not be entitled to any right to be absorbed ormade permanent in the service. In fact, in suchcases, the High Court may not be justified in issuinginterim directions, since, after all, if ultimatelythe employee approaching it is found entitled torelief, it may be possible for it to mould the reliefin such a manner that ultimately no prejudice will becaused to him, whereas an interim direction tocontinue his employment would hold up the regular procedure for selection or impose on the State theburden of paying an employee who is really notrequired. The courts must be careful in ensuring thatthey do not interfere unduly with the economicarrangement of its affairs by the State or itsinstrumentalities or lend themselves the instruments https://hcservices.ecourts.gov.in/hcservices/ to facilitate the bypassing of the constitutional andstatutory mandates."8. In the above judgement, the Apex Court had quoted withapproval the earlier judgement reported in A.Umarani v. Registrar,Coop. Societies,(2004) 7 SCC 112.9. We may also quote the following judgements of the Apex Courtin support of the aforesaid preposition(i) Punjab Water Supply & Swerage Board v. Ranjodh Singh andothers, 2007 (2) SCC 491(ii) Municipal Corporation Jabalpur v. Om Prakash Dubey, 2007(1) SCC 373(iii) National Fertilisers Ltd., and others v. Somvar Singh,2006 (5) SCC 49310. The respondent had approached this Court questioning theauthority of the Secretary, Tamil Nadu Legislative Assembly interminating the services on the ground that such order of terminationis bad on the ground that no opportunity was given. The principles ofnatural justice cannot be pressed into service, in case, theappointment was made without following the rules for regularappointments. On the facts of this case, it could be seen that theapplication was made on 10.01.2005 and the appointment was made on12.01.2005. Such appointment, in our considered view is nothing but aback door entry by-passing the other eligible candidates for thepost in accordance with the rules. Hence, the grievance of therespondent that his services cannot be terminated without followingde hors of law cannot be accepted. The orders of termination of suchappointments which are ex facie innocuous and that they did not castany stigma on the government servant or visits him with penalconsequences must be regarded as effecting a termination simpliciter.This law has been laid down by the Apex Court in Nepal Singh v.State of U.P., (1980) 3 SCC 288. 11. It is brought to our notice that similar orders oftermination were set aside by this Court in a batch of writpetitions and the said order was questioned in W.A.No.2201 of 2003and batch cases and the writ appeals were dismissed as not pressed.In our opinion, merely because the appellant under similarcircumstances had not prosecuted the appeals and had not pressedthose appeals would not by itself disentitle the appellant fromraising the same issue in a subsequent appeals as the appeals are tobe considered independently on the basis of the law laid down by theApex Court. https://hcservices.ecourts.gov.in/hcservices/

12. Inasmuch as the respondent who was appointed withoutfollowing the rules, as a temporary Office Assistant with a clearunderstanding that his services could be terminated without anyfurther notice and without assigning any reasons, he cannot afteraccepting such conditions, question such appointment on the groundthat he has not been given any opportunity. Hence, in our consideredview, the appeal must succeed.12. In the result, the writ appeal is allowed and the orderdated 13.07.2006 made in W.P.No.22318 of 2006 is set aside. No costs.Consequently, M.P.No.1 of 2006 is closed. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarkmkTo The Secretary, Tamil Nadu Legislative Assembly, Secretariat, Chennai 600 009.+ 1 c.c. to The Government Pleader. S.R.No.9060. Writ Appeal No.1194 of 2006LA (CO)GSK 21.04.2009.