G.Mani v. The Deputy Commissioner Commercial Taxes Vellore Division & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 7.7.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.20449 of 2006 (T)O.A.No.7089 of 1995G.Mani .. Petitioner vs. 1. The Deputy Commissioner Commercial Taxes Vellore Division Vellore2. The Assistant Commissioner Commercial Taxes Villupuram,R.P.District .. RespondentsThis writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Mandamus to direct therespondents to regularise the services of the petitioner from thedate of appointment i.e. From 19.10.1989 and grant all consequentialbenefits. (prayer amended as per order of this Court, dated 23.4.2008, inM.P.No.1 of 2008 in W.P.No.20449 of 2006) For petitioner : Mr.M.Vivekandan For Respondents : Mr.T.Sreenivasan Government AdvocateO R D E RIt is stated by the petitioner that he was selected through theemployment exchange and appointed as a Typist in the office of thesecond respondent, on temporary basis, on 19.10.1989. From the dateof his appointment, he has been working, continuously, till date. Thepetitioner has written the special qualifying examination conductedon 25.6.1995, for regularisation of the services of the temporarycandidates, in pursuance of G.O.Ms.No.433, dated 14.12.1993. TheGovernment has also stipulated that persons appointed prior to15.5.1991 shall not be ousted from service unless the candidatesselected by the service commission are appointed. While so, the https://hcservices.ecourts.gov.in/hcservices/ Director of Survey and Settlement has allotted candidates employed inthe said Department, on consolidated pay, to the Vellore Division ofthe Commercial Taxes Department, in pursuance of G.O.Ms.No.248,Revenue Department, dated 23.3.1993. Pursuant to the said allotment,the first respondent had also allotted candidates to the office ofthe second respondent. Thus, the continuance of the petitioner inservice has come under serious threat. 2. It has also been stated that the petitioner had completed sixyears of service as on the date of the filing of the originalapplication and as per the order passed by the Tamil NaduAdministrative Tribunal, in O.A.No.3002 of 1991, the petitioner isentitled to be regularised in service. The order of the Governmentmade in G.O.Ms.No.433, dated 14.12.1993, makes it clear that all thevacancies of the years 1994 and 1995 are reserved for the candidatestaking the special qualifying examination. The petitioner has writtenthe special qualifying examination and he is fully qualified to holdthe post. While so, the persons coming from the survey department hadbeen directed to acquire the technical qualification in Typewriting,within two years from the date of the appointment. They were notrequired to take the special qualifying examination. In suchcircumstances, the petitioner had filed an original application inO.A.No.7089 of 1995, which has been transferred to this Court andrenumbered as W.P.No.20449 of 2006.3. In the reply affidavit filed on behalf of the respondents, theclaims made by the petitioner had been denied. It has been statedthat the petitioner was appointed under Rule 10(a) (i) of the GeneralRules, as vacancies were existing at that time. The Government inletter No.66445/per-M/93, dated 14.9.1993, has instructed that thetemporary candidates should not be continued after the selection andallotment of candidates by the Tamil Nadu Public Service Commissionfor the same category. 4. It has also been stated that the Tamil Nadu AdministrativeTribunal, by an interim order made in O.A.No.4560 of 1994, haddirected the authorities concerned to get information from all theDepartments before 31.12.1994 and to ensure that the temporaryincumbents are replaced by the candidates from the Tamil Nadu PublicService Commission reserve list of 1993. The principal Commissionerand Commissioner of Commercial Taxes, Madras, in letterNo.H2/22223/95, dated 10.3.1993, had requested the first respondentto meet the concerned officials in the Tamil Nadu Public ServiceCommission Office with the details of temporary incumbents in thepost of Junior Assistants, Typists and Steno Typists of VelloreDivision and to get allotment of regular candidates from the reservelist of Tamil Nadu Public Service Commission and to terminate all thetemporary incumbents in the post of Junior Assistants, Typists andSteno Typists by replacing them by regular candidates. https://hcservices.ecourts.gov.in/hcservices/

5. In reference No Rc.B2/4871/95, dated 18.4.1995, the firstrespondent had addressed the Tamil Nadu Public Service Commission toallot Typists to terminate the temporary incumbents. In themeanwhile, the Tamil Nadu Public Service Commission had called forthe present vacancy position in the Unit. Accordingly, the firstrespondent had issued the vacancy position taking into account thetemporary typists also. The Chairman, the Tamil Nadu Public ServiceCommission has furnished the list of vacancies received from variousunit officers in D.O.Letter No.6141/CD-A4/90, dated 8.9.1995,addressed to the Chief Secretary to the Government. As perG.O.Ms.No.50, Personnel and Administrative Reforms Department, dated14.2.1995, vacancies in the posts of Junior Assistants and Typistsare to be filled by appointment of Junior Assistants-cum-Typists. TheSecretary to Government, Personnel and Administrative ReformsDepartment, had requested the Director of Survey and Settlement,Madras, to sponsor the names of qualified surveyors/draftsmen,including section writers for appointment in the above posts inaccordance with the guidelines prescribed in G.O.Ms.No.248, Revenue,dated 23.3.1994. Accordingly, the candidates appointed under Rule 10(a) (i) of the General Rules were to be ousted. 6. It has also been stated that the petitioner has been workingon a temporary basis only from 21.5.1992. In such circumstances, thereliefs sought for by the petitioner ought not to be granted by thisCourt.7. In the counter affidavit filed by the first respondent inM.P.No.1 of 2008 in W.P.No.20449 of 2006, it has been stated that theTamil Nadu Public Service Commission had conducted the specialqualifying examinations for the temporary candidates based on theorders of the Government in G.O.Ms.No.433, Personnel andAdministrative Reforms Department, dated 14.12.1993, for regularisingthe services of the Junior Assistants and Typists recruited throughthe employment exchange. The candidates were to secure a minimum of30% of marks in the special qualifying examination. Since thepetitioner was not successful in the special qualifying examinationconducted by the Tamil Nadu Public Service Commission, he was noteligible for regularisation in service. 8. Mr.M.Vivekanandan, the learned counsel appearing for thepetitioner had submitted that the petitioner has been employed as aTypist, in the second respondent Department, continuously, from thedate of his appointment i.e., 19.10.1989. Being fully qualified, thepetitioner's service ought to have been regularised by therespondents. However, the persons from other Departments are beingposted in the respondent Department to oust from service thepetitioner and other similarly placed persons. Considering the lengthof service put in by the petitioner, this Court may be pleased todirect the respondents to regularise the petitioner in service. In https://hcservices.ecourts.gov.in/hcservices/ view of the interim order passed by the Tamil Nadu AdministrativeTribunal, the petitioner is continuing in service till date.9. The learned counsel appearing for the petitioner had relied onthe decision of the Supreme Court in U.P.STATE ELECTRICITY BOARD Vs.P.C.PANDEY & OTHERS (2007 (7) SUPREME 374), wherein it was held asfollows:11. Learned counsel for the appellant hadrelied upon the decision of this Court inSecretary, State of Karnataka & Ors Vs. Uma Devi(3) & Ors. (2006) 4 SCC 1 and has urged that nodirection for regularisation can be given by theCourt. In our opinion, the decision in Uma Deviscase (supra) is clearly distinguishable. The saiddecision cannot be applied to a case whereregularisation has been sought for in pursuance ofArticle 14 of the Constitution.16. We are constrained to refer to the abovedecisions and principles contained therein becausewe find that often Uma Devis case (supra) is beingapplied by Courts mechanically as if it were aEuclids formula without seeing the facts of aparticular case. As observed by this Court inBhavnagar University (supra) and Bharat PetroleumCorporation Ltd., (supra), a little difference infacts or even one additional fact may make a lotof difference in the presidential value of adecision. Hence, in our opinion, Uma Devis case(supra) cannot be applied mechanically withoutseeing the facts of a particular case, as a littledifference in facts can make Uma Devis case(supra) inapplicable to the facts of that case.18. We may further point out that a seven-Judge Bench decision of this Court in ManekaGandhi Vs. Union of India & Anr., AIR 1978 SC 597has held that reasonableness and non-arbitrarinessis part of Article 14 of the Constitution. Itfollows that the government must act in areasonable and non-arbitrary manner otherwiseArticle 14 of the Constitution would be violated.Maneka Gandhis case (supra) is a decision of aseven-Judge Bench, whereas Uma Devis case (supra)is a decision of five-Judge Bench of this Court.It is well settled that a smaller bench decisioncannot override a larger bench decision of theCourt. No doubt, Maneka Gandhis case (supra) doesnot specifically deal with the question of https://hcservices.ecourts.gov.in/hcservices/ regularisation of government employees, but theprinciple of reasonableness in executive actionand the law which it has laid down, in ouropinion, is of general application.10. The learned counsel appearing for the petitioner had alsorelied on the decision rendered by a Division Bench of this Court, on10.6.2008, in W.P.Nos.15177 of 2004 (batch) wherein it has been heldas follows:"15. In the light of the above legalpronouncements and also in view of the policydecision taken by the State in G.O.Ms.No.22,Personnel & Administrative Reforms Departmentdated 28.2.2006 and considering the fact that thestate itself had implemented the earlier orders ofthe Tribunal in identical situations and also thefact that under Rule 48, they have necessary powerto grant relaxation and further the fact that theindividuals have entered service on beingsponsored by Employment Exchange and have put inmore than two decades of service, we feel that itis a fit case that the order of the Tribunalchallenged in W.P.Nos.6331 to 6336 of 2004 must beaffirmed though not for the reasons indicatedindicated therein.16. Accordingly, W.P.Nos.6331 to 6336 of 2004will stand dismissed. The other writ petitionsbeing W.P. Nos.15177 of 2001 and W.P.Nos.12031 and23887 of 2004 will stan allowed. The StateGovernment is directed to implement the order ofthe Tribunal within a period of eight weeks fromthe date of receipt of a copy of this order.However, there will be no order as to costs.Connected Miscellaneous Petitions are closed."11. The learned counsel appearing for the petitioner had alsoplaced before this Court a Government order in G.O.Ms.No.22,Personnel and Administrative Reforms (F), Department, dated28.2.2006, which reads as follows:"The Hon'ble Chief Minister had announcedduring the Tamil Nadu Government Officials Unionand Government Services and Teachers AssociationsGeneral Conference held on 8.2.2006, that theservices of employees working in variousGovernment Departments on daily wages basis whohave completed more than 10 years of service as on1.1.2006 will be regularised. https://hcservices.ecourts.gov.in/hcservices/

2. Based on the announcement made by theHon'ble Chief Minister on 8.2.2006, the Governmentdirect that the services of the daily wagesemployees working in all Government Departmentswho have rendered 10 years of service as on1.1.2006 be regularised by appointing them in thetime scale of pay of the post in accordance withthe service conditions prescribed for the postconcerned, subject to their being otherwisequalified for the post. 3. The Departments of Secretariat maytherefore, be directed to pursue action toregularise the services of the daily wagesemployees working in all Government Departments,who have rendered 10 years of service as on1.1.2006 as ordered in para 2 above inconsultation with the respective Heads ofDepartments wherever necessary. In special caseswherein relaxation of rules is required, proposalshall be sent to Government.4. This order issues with the concurrence ofFinance Department vide its U.O.No.985/FS/P/2006."12. The learned counsel appearing for the petitioner hadsubmitted that according to paragraph 53 of the decision rendered bythe Supreme Court in SECY., STATE OF KARNATAKA Vs. UMA DEVI (3)((2006) 4 SCC 1), an exception had been carved out in favour of thepersons who have been appointed through the employment exchange andwho have been working for a considerable length of time. Therefore,there is no total embargo imposed on the respondents to consider theclaims of the petitioner for regularisation of his service.Therefore, in view of the cases cited above and in view ofG.O.Ms.No.22, Personnel and Administrative Reforms (F), Department,dated 28.2.2006, the respondents may be directed by this Court toregularise the service of the petitioner, as prayed for in the writpetition, with all attendant benefits.13. On the other hand, Mr.T.Sreenivasan, the learned GovernmentAdvocate appearing for the respondents had submitted that thepetitioner cannot claim regularisation of his service as a matter ofright. Even though the petitioner might have been working as a Typistfrom the year 1989, the petitioner had been appointed under Rule 10(a) (i) of the General Rules, on a temporary basis. Once a regularselection has been made through the Tamil Nadu Public ServiceCommission, the temporary employees, like the petitioner, would haveto be necessarily ousted from service. Further, the Tamil Nadu PublicService Commission had conducted the special qualifying examination https://hcservices.ecourts.gov.in/hcservices/ for the temporary candidates, based on the order of the Governmentissued in G.O.Ms.No.433, dated 14.12.1993, for regularising theservice of the Junior Assistants and Typists recruited through theemployment exchange. The candidates should have secured a minimum of30% of marks to qualify for regularisation. However, the petitionerhad not qualified in the special qualifying examination conducted bythe Tamil Nadu Public Service Commission by securing the minimummarks required for regularising his service. In such circumstances,the reliefs sought for by the petitioner are unsustainable as beingdevoid of merits. 14. The learned Government Advocate appearing for the respondentshad relied on the decision of the Supreme Court in SECY., STATE OFKARNATAKA Vs. UMA DEVI (3) ((2006) 4 SCC 1) wherein it has been heldas follows:"It is not as if the person who accepts anengagement either temporary or casual in nature,is not aware of the nature of his employment. Heaccepts the employment with open eyes. It may betrue that he is not in a position to bargain—notat arm’s length—since he might have been searchingfor some employment so as to eke out hislivelihood and accepts whatever he gets. But onthat ground alone, it would not be appropriate tojettison the constitutional scheme of appointmentand perpetuate illegalities and to take the viewthat a person who has temporarily or casually gotemployed should be directed to be continuedpermanently. By doing so, it will be creatinganother mode of public appointment which is notpermissible. If the court were to void acontractual employment of this nature on theground that the parties were not having equalbargaining power, that too would not enable thecourt to grant any relief to that employee. Atotal embargo on such casual or temporaryemployment is not possible, given the exigenciesof administration and if imposed, would only meanthat some people who at least get employmenttemporarily, contractually or casually, would notbe getting even that employment when securing ofsuch employment brings at least some succour tothem. After all, innumerable citizens of our vastcountry are in search of employment and one is notcompelled to accept a casual or temporaryemployment if one is not inclined to go in forsuch an employment. It is in that context that onehas to proceed on the basis that the employmentwas accepted fully knowing the nature of it and https://hcservices.ecourts.gov.in/hcservices/ the consequences flowing from it. When the court is approached for relief byway of a writ, the court has necessarily to askitself whether the person before it had any legalright to be enforced. Considered in the light ofthe very clear constitutional scheme, it cannot besaid that the temporary, contractual, causal ordaily-wage employees have been able to establish alegal right to be made permanent even though theyhave never been appointed in terms of the relevantrules or in adherence of Articles 14 and 16 of theConstitution. It is therefore not possible toaccept the argument that the State action in notregularising the employees was not fair within theframework of the rule of law.Orders for absorption, regularisation orpermanent continuance of such employees are passedapparently in exercise of the wide powers underArticle 226 of the Constitution. The wide powersunder Article 226 are not intended to be used fora purpose certain to defeat the concept of socialjustice and equal opportunity for all, subject toaffirmative action in the matter of publicemployment as recognised by our Constitution. Itis time that the courts desist from issuing orderspreventing regular selection or recruitment at theinstance of such persons and from issuingdirections for continuance of those who have notsecured regular appointments as per procedureestablished. The passing of orders for continuancetends to defeat the very constitutional scheme ofpublic employment. It has to be emphasised thatthis is not the role envisaged for the High Courtsin the scheme of things and their wide powersunder Article 226 are not intended to be used forthe purpose of perpetuating illegalities,irregularities or improprieties or for scuttlingthe whole scheme of public employment. Its role asthe sentinel and as the guardian of equal rightsprotection should not be forgotten.In view of the above decision, it is clear that the illegalappointments cannot be regularised. 15. The learned Government Advocate appearing for the respondentshad further submitted that the Supreme Court has made it amply clearthat irregular or illegal appointments cannot be regularised as itwould infringe on the rights of those who are waiting to be employed https://hcservices.ecourts.gov.in/hcservices/ with all the necessary qualifications that are required for beingappointed in the various posts which are occupied by persons who havebeen irregularly or illegally appointed, on a temporary basis. 16. Considering the averments made by the petitioner as well asthe respondents and in view of the submissions of the learnedcounsels appearing on their behalf and on a perusal of the recordsavailable, this Court is persuaded to take note of the fact that thepetitioner has been in service as a Typist, under the secondrespondent Department, from 19.10.1989 when he had been appointedthrough the employment exchange. Further, he has been continuing inservice by an interim order passed by the Tamil Nadu AdministrativeTribunal, which has been in force till date. 17. At this juncture, this Court has also taken note of the factthat in a number of decisions rendered by the Supreme Court, it hasbeen amply made clear that the Tribunals and the Courts of law shoulddesist from issuing directions to the Governments and the authoritiesconcerned to regularise the services of the temporary employees. 18. It is also seen that the Government of Tamil Nadu has issuedG.O.Ms.No.22, Personnel and Administrative Reforms (F), Department,dated 28.2.2006, directing the various Departments of the Governmentto initiate action to regularise the services of the daily wagesemployees who have rendered 10 years of service, as on 1.1.2006. 19. In such circumstances, this Court finds it appropriate todirect the first respondent to consider the request of the petitionerfor regularising his service as a Typist in the respondent Departmentas prayed for by him in view of the decisions relied on by thelearned counsel appearing for the petitioner and by taking note ofG.O.Ms.No.22, Personnel and Administrative Reforms (F), Department,dated 28.2.2006 and pass appropriate orders thereon, within a periodof 12 weeks from the date of receipt of a copy of this order.20. Accordingly, the writ petition stands disposed of with theabove directions. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ lanTo:1. The Deputy Commissioner Commercial Taxes Vellore Division Vellore2. The Assistant Commissioner Commercial Taxes Villupuram,R.P.District1 CC To Mr.M.Vivekandan, Advocate, SR NO.35153.1 CC to the Government Pleader, SR NO.35358.W.P.No.20449 of 2006 (T) O.A.No.7089 of 1995vs(co)pmk/12.8.2008.