Supreme Court of India, in the landmark decision in State of Karnataka and Others v. Uma Devi

W.P.No.13428 of 2020 etc.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.08.2024CORAM:THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANW.P.Nos.13428, 13433, 13438, 13441 & 13445 of 2020and W.M.P.Nos.16573, 16575, 16576, 16581, 16582, 16583, 16589, 16591, 16592, 16596, 16599, 16601, 16609, 16610 & 16612 of 20203094, 3095, 3099, 3101, 3103 of 2021W.P.No.13428 of 2020:-R.Senthil Kumar...Petitioner-Vs-1. The Government of Tamil Nadu, Rep. by its Secretary to Government, Municipal Administration & WaterSupply Department, Fort St. George, Chennai – 600 009.2. The Commissioner, Tiruppur City Municipal Corporation, Tiruppur. ... RespondentsPrayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the concerned records relating to the order in Na.Ka.No.C3/6782/2013 dated 09.09.2020 passed by the second respondent and quash the same and consequently direct the second respondent to regularize the service of the petitioner as driver in Tiruppur City Municipal corporation with effect from the date of his appointment with all consequent monetary and other Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.service benefits. In all W.Ps.For Petitioner : Mr.M.GnanasekarFor RespondentsFor R1: Mr.S.Arumugam Government AdvocateFor R2: Mr.S.Sukanbanan, Senior Counsel For Mrs.P.Shanthi, Standing CounselCOMMON ORDERThese writ petitions have been filed challenging the order dated 09.09.2020 passed by the second respondent, thereby rejected the request made by the petitioner for regularization of their service.2.The petitioner in all the writ petitions are qualified to be appointed as Driver and the second respondent engaged the petitioners as Driver as and when required. While being so, the second respondent published advertisement to fill up the post of Driver on temporary basis that too on contract basis. Accordingly, the petitioners were attended the interview and they were given employment as Driver, on the following conditions:- “epge;jidfs; :- Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.1/ ,e;j gzpepakdk; Kw;wpYk; jw;fhypfkhdJ/2/ ,t;thizapid gad;gLj;jp epue;ju gzpaplk; nfhuf;TlhJ/3/ gzpapy; nrh;e;Jgpd; Cjpa Vw;wKiwapy; Cjpak; tH';fnfhuf;TlhJ/4/ xJf;fPL bra;a[k; gzpeph;thfeyd; fUjpkhw;wk; bra;af;ToaJ/5/ gzpg[hpe;j ehl;fSf;F kl;Lnk Cjpak; bgw;Wf; bfhz;L. eph;thfk; vLf;Fk; ve;j xU Kotpw;Fk; fl;Lg;gl ntz;Lk;/6/ rPUil mzpe;J gzpg[hpa ntz;Lk;/7/ gzpapd; flika[zh;e;J mYtyf eilKiwg;go khefuhl;rp mYtyh;fspd; fl;Lg;ghl;oy; gzpg[hpa ntz;Lk;/”3.Thereafter, the petitioners and others were terminated from service after the period of three years by an order dated 31.08.2013. Aggrieved by the same the petitioners and other similarly placed persons preferred a batch of writ petitions and this Court granted an interim order and allowed them to continue in their respective posts. Thereafter, by an order dated 22.07.2020, this Court directed the second respondent to consider the representation submitted by the petitioners for regularization of their service. It was rejected on the ground that they were appointed on Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.consolidated salary and daily wage basis that too on contract basis. As per the service conditions, their service cannot be regularized. Challenging the said order, the petitioners filed the present writ petitions.4.The learned counsel appearing for the petitioners submitted that the petitioners were appointed in the vacant post and they were appointed on contract basis and not through consultancy. They also completed 480 days in the given two years. Therefore, they are entitled to be regularized in their respective post. In fact, they were continuously working in their respective posts as Driver by receiving salary from the second respondent. 5.Heard the learned counsel appearing on either side and perused the materials placed before this Court.6.On perusal of the counter filed by the second respondent and on the submissions made by the learned Senior Counsel appearing for the second respondent reveled that all the petitioners were appointed in the non sanctioned post. Further they were not appointed in a proper manner and as such they are not entitled for regularization of their respective Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.service. Further, they are not eligible for appointment as per service rules and the post of Driver was not available as per the service rule and they were not appointed as per service rules in force. Therefore, the request made by the petitioners rightly rejected. 7.In this regard, a Constitutional Bench of the Hon'ble Supreme Court of India, in the landmark decision in State of Karnataka and Others v. Uma Devi (3) and Others reported in (2006) 4 SCC 1, has held as follows: “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?”Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.8.In another case in Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and Others reported in (2014) 4 SCC 769, the Hon'ble Supreme Court of India held that employees were not entitled to regularization even when they had put in long service because they were not working against sanctioned post. It is useful to refer to the relevant portions of the said Judgment:“7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or parttime 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 Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.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 cutoff 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 Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.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.”9.In similar matter, in the case of The State of Tamil Nadu and Others v. J.Manikandan and Others by an order dated 16.06.2023 made in W.A.No.959 of 2020, this Court, relying upon the decisions of the Hon'ble Supreme Court of India, had observed that Court cannot issue mandamus to regularize the services of temporary employees. It is relevant to extract the following portions of the said judgment: “13.1 It is also relevant to refer yet another decision of the Honble Supreme Court in the case of Union of India and Others. Vs.Ilmo Devi and another (Civil Appeal Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.Nos.5689 & 5690 of 2021, dated: 07.10.2021). 13.2 In the said decision the Hon-ble Supreme Court held that even the regularisation of the services of the employees working on temporary status is a policy decision and in judicial review the Court cannot issue Mandamus to do so. The relevant portion of the decision is extracted hereunder: “8.4 The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part~time employees and were contingent paid staff. As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts. 8.5 Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so?4. Further, the Hon-ble Supreme Court in a recent judgment in Civil Appeal Nos. 10563 to 10570 of 2017, dated 11.04.2023 in the case of The Government of Tamil Nadu & Another Vs. Tamil Nadu Makkal Nala Paniyalargal and Others, has elaborately discussed its earlier decisions cited supra and held that “in the absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State and set aside the judgment of the High Court wherein issued directions to create the posts and absorb the respondents therein, as the same is not sustainable in law.” 10.The aforesaid decisions squarely applicable to the case on hand. When the initial appointments are not made against any sanctioned post and not in accordance with any service rules in force, the service Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.cannot be regularized. Mere continuation of long years in their respective employment, it will not confer any vested right to claim regularization. Accordingly, the request made by the petitioners rightly rejected by the second respondent and this Court finds no infirmity or illegality in the order passed by second respondent. 11.In view of the above discussions, all the Writ Petitions stand dismissed. Consequently, connected miscellaneous petitions are closed. There shall be no orders as to costs. 27.08.2024Index : Yes/NoSpeaking/Non Speaking orderNeutral Citation : Yes/NortsPage 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc. G.K.ILANTHIRAIYAN. J,rtsTo1. The Secretary to Government, Government of Tamil Nadu, Municipal Administration & WaterSupply Department, Fort St. George, Chennai – 600 009.2. The Commissioner, Tiruppur City Municipal Corporation, Tiruppur. W.P.Nos.13428, 13433, 13438, 13441 & 13445 of 202027.08.2024Page 12 of 12

W.P.No.13428 of 2020 etc.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.08.2024CORAM:THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYANW.P.Nos.13428, 13433, 13438, 13441 & 13445 of 2020and W.M.P.Nos.16573, 16575, 16576, 16581, 16582, 16583, 16589, 16591, 16592, 16596, 16599, 16601, 16609, 16610 & 16612 of 20203094, 3095, 3099, 3101, 3103 of 2021W.P.No.13428 of 2020:-R.Senthil Kumar...Petitioner-Vs-1. The Government of Tamil Nadu, Rep. by its Secretary to Government, Municipal Administration & WaterSupply Department, Fort St. George, Chennai – 600 009.2. The Commissioner, Tiruppur City Municipal Corporation, Tiruppur. ... RespondentsPrayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the concerned records relating to the order in Na.Ka.No.C3/6782/2013 dated 09.09.2020 passed by the second respondent and quash the same and consequently direct the second respondent to regularize the service of the petitioner as driver in Tiruppur City Municipal corporation with effect from the date of his appointment with all consequent monetary and other Page 1 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.service benefits. In all W.Ps.For Petitioner : Mr.M.GnanasekarFor RespondentsFor R1: Mr.S.Arumugam Government AdvocateFor R2: Mr.S.Sukanbanan, Senior Counsel For Mrs.P.Shanthi, Standing CounselCOMMON ORDERThese writ petitions have been filed challenging the order dated 09.09.2020 passed by the second respondent, thereby rejected the request made by the petitioner for regularization of their service.2.The petitioner in all the writ petitions are qualified to be appointed as Driver and the second respondent engaged the petitioners as Driver as and when required. While being so, the second respondent published advertisement to fill up the post of Driver on temporary basis that too on contract basis. Accordingly, the petitioners were attended the interview and they were given employment as Driver, on the following conditions:- “epge;jidfs; :- Page 2 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.1/ ,e;j gzpepakdk; Kw;wpYk; jw;fhypfkhdJ/2/ ,t;thizapid gad;gLj;jp epue;ju gzpaplk; nfhuf;TlhJ/3/ gzpapy; nrh;e;Jgpd; Cjpa Vw;wKiwapy; Cjpak; tH';fnfhuf;TlhJ/4/ xJf;fPL bra;a[k; gzpeph;thfeyd; fUjpkhw;wk; bra;af;ToaJ/5/ gzpg[hpe;j ehl;fSf;F kl;Lnk Cjpak; bgw;Wf; bfhz;L. eph;thfk; vLf;Fk; ve;j xU Kotpw;Fk; fl;Lg;gl ntz;Lk;/6/ rPUil mzpe;J gzpg[hpa ntz;Lk;/7/ gzpapd; flika[zh;e;J mYtyf eilKiwg;go khefuhl;rp mYtyh;fspd; fl;Lg;ghl;oy; gzpg[hpa ntz;Lk;/”3.Thereafter, the petitioners and others were terminated from service after the period of three years by an order dated 31.08.2013. Aggrieved by the same the petitioners and other similarly placed persons preferred a batch of writ petitions and this Court granted an interim order and allowed them to continue in their respective posts. Thereafter, by an order dated 22.07.2020, this Court directed the second respondent to consider the representation submitted by the petitioners for regularization of their service. It was rejected on the ground that they were appointed on Page 3 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.consolidated salary and daily wage basis that too on contract basis. As per the service conditions, their service cannot be regularized. Challenging the said order, the petitioners filed the present writ petitions.4.The learned counsel appearing for the petitioners submitted that the petitioners were appointed in the vacant post and they were appointed on contract basis and not through consultancy. They also completed 480 days in the given two years. Therefore, they are entitled to be regularized in their respective post. In fact, they were continuously working in their respective posts as Driver by receiving salary from the second respondent. 5.Heard the learned counsel appearing on either side and perused the materials placed before this Court.6.On perusal of the counter filed by the second respondent and on the submissions made by the learned Senior Counsel appearing for the second respondent reveled that all the petitioners were appointed in the non sanctioned post. Further they were not appointed in a proper manner and as such they are not entitled for regularization of their respective Page 4 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.service. Further, they are not eligible for appointment as per service rules and the post of Driver was not available as per the service rule and they were not appointed as per service rules in force. Therefore, the request made by the petitioners rightly rejected. 7.In this regard, a Constitutional Bench of the Hon'ble Supreme Court of India, in the landmark decision in State of Karnataka and Others v. Uma Devi (3) and Others reported in (2006) 4 SCC 1, has held as follows: “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?”Page 5 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.8.In another case in Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and Others reported in (2014) 4 SCC 769, the Hon'ble Supreme Court of India held that employees were not entitled to regularization even when they had put in long service because they were not working against sanctioned post. It is useful to refer to the relevant portions of the said Judgment:“7. This Court in State of Rajasthan & Ors. v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or parttime 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 Page 6 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.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 cutoff 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 Page 7 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.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.”9.In similar matter, in the case of The State of Tamil Nadu and Others v. J.Manikandan and Others by an order dated 16.06.2023 made in W.A.No.959 of 2020, this Court, relying upon the decisions of the Hon'ble Supreme Court of India, had observed that Court cannot issue mandamus to regularize the services of temporary employees. It is relevant to extract the following portions of the said judgment: “13.1 It is also relevant to refer yet another decision of the Honble Supreme Court in the case of Union of India and Others. Vs.Ilmo Devi and another (Civil Appeal Page 8 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.Nos.5689 & 5690 of 2021, dated: 07.10.2021). 13.2 In the said decision the Hon-ble Supreme Court held that even the regularisation of the services of the employees working on temporary status is a policy decision and in judicial review the Court cannot issue Mandamus to do so. The relevant portion of the decision is extracted hereunder: “8.4 The observations made in paragraph 9 are on surmises and conjunctures. Even the observations made that they have worked continuously and for the whole day are also without any basis and for which there is no supporting evidence. In any case, the fact remains that the respondents served as part~time employees and were contingent paid staff. As observed above, there are no sanctioned posts in the Post Office in which the respondents were working, therefore, the directions issued by the High Court in the impugned judgment and order are not permissible in the judicial review under Article 226 of the Constitution. The High Court cannot, in exercise of the power under Article 226, issue a Mandamus to direct the Department to sanction and create the posts. The High Court, in exercise of the powers under Article 226 of the Constitution, also cannot direct the Government and/or the Department to formulate a particular regularization policy. Framing of any scheme is no function of the Court and is the sole prerogative of the Government. Even the creation Page 9 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.and/or sanction of the posts is also the sole prerogative of the Government and the High Court, in exercise of the power under Article 226 of the Constitution, cannot issue Mandamus and/or direct to create and sanction the posts. 8.5 Even the regularization policy to regularize the services of the employees working on temporary status and/or casual labourers is a policy decision and in judicial review the Court cannot issue Mandamus and/or issue mandatory directions to do so?4. Further, the Hon-ble Supreme Court in a recent judgment in Civil Appeal Nos. 10563 to 10570 of 2017, dated 11.04.2023 in the case of The Government of Tamil Nadu & Another Vs. Tamil Nadu Makkal Nala Paniyalargal and Others, has elaborately discussed its earlier decisions cited supra and held that “in the absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State and set aside the judgment of the High Court wherein issued directions to create the posts and absorb the respondents therein, as the same is not sustainable in law.” 10.The aforesaid decisions squarely applicable to the case on hand. When the initial appointments are not made against any sanctioned post and not in accordance with any service rules in force, the service Page 10 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc.cannot be regularized. Mere continuation of long years in their respective employment, it will not confer any vested right to claim regularization. Accordingly, the request made by the petitioners rightly rejected by the second respondent and this Court finds no infirmity or illegality in the order passed by second respondent. 11.In view of the above discussions, all the Writ Petitions stand dismissed. Consequently, connected miscellaneous petitions are closed. There shall be no orders as to costs. 27.08.2024Index : Yes/NoSpeaking/Non Speaking orderNeutral Citation : Yes/NortsPage 11 of 12 https://www.mhc.tn.gov.in/judis W.P.No.13428 of 2020 etc. G.K.ILANTHIRAIYAN. J,rtsTo1. The Secretary to Government, Government of Tamil Nadu, Municipal Administration & WaterSupply Department, Fort St. George, Chennai – 600 009.2. The Commissioner, Tiruppur City Municipal Corporation, Tiruppur. W.P.Nos.13428, 13433, 13438, 13441 & 13445 of 202027.08.2024Page 12 of 12