High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:10.07.2009CORAN:THE HON'BLE MR.JUSTICE P.JYOTHIMANIWRIT PETITION NOS.15250 & 15821 OF 2008AND CONNECTED MISCELLANEOUS PETITIONS1.T.Selvam2.T.Selvarani3.C.Murugan4.K.Sengivel5.S.Manivannan6.S.Abirami7.K.Balamurugan8.B.Hari Govindan9.G.Thirunavukkarasu10.S.Murugavel11.A.B.Vikneshwaran12.S.Saravanan13.R.Subhashini14.R.Niraimathi15.G.Elayaraja16.E.Elanthamizhan17.R.Sivakumar18.R.Balasundaram19.R.Selvam20.V.T.Premnath21.R.Ramya22.R.Santhi23.R.Ambuchezhian24.M.Santhosh25.M.S.Selvakumar26.D.Shanmugam27.K.Samidurai28.A.Venkatachalapathi29.A.Dhamotharan30.S.Ramesh31.B.Kiruthiga32.R.Selvaraj33.M.Guru34.C.Arulsankar35.R.Chandrasekar36.V.Manivel37.R.Harikrishnan38.K.Sursh39.M.Kalaimani https://hcservices.ecourts.gov.in/hcservices/

40.P.Manivannan41.P.Nehru42.R.Balamurugan43.K.Palanisamy44.D.Manickavasakam45.S.Kannan46.T.Saravanan47.P.Gurumurthy48.N.Somasundaram49.B.Ravindran50.S.Govindaperumal51.N.Velu52.G.Mala53.J.Perumal54.S.Shanmugam55.A.Prakash56.N.Murugananam57.P.Kamaraj58.Sundarajan59.Sabaragiri60.G.Vasudevan.. Petitioners in WP.No.15250/2008P.S.Hariharan.. Petitioner in WP.No.15821/2008vs.1.State of Tamil Nadu rep. By its Secretary Rural Development & Panchayat Raj Department Fort St.George, Chennai 9.2.The Director of Rural Development, Panagal Buildings, Saidapet Chennai 600 015. .. R.1 & R.2 in both the W.Ps.3.The District Collector of Cuddalore District at Cuddalore.4.The District Collector of Villupuram District at Villupuram. .. R.3 & R.4 in WP.No.15250/20085.V.Santhasezhiyan (impleaded as 5th respondent vide order in MP.No.1/09 dt.10.07.2009) ..R.5 in WP.15250/08 https://hcservices.ecourts.gov.in/hcservices/

5.The Collector Tiruvannamalai District Tiruvannamalai 606 604... 3rd respondent in WP.15821/2008 4.P.VISWANATHAN5.R.MANIKANDAN6.A.VIMAL RAJA 7.T.UTHAMA KUMAR8.K.KARTHIKESAN9.T.POOVANNAN10.S.RANJITH KUMAR11.P.VARADARAJAN12.G.KUMAR13.R.SUKUMAR14.G.SELVAM 15.M.RAJA 16.N.SENTHIL KUMAR17.B.HEMALATHA18.V.PALANISAMY19.S.SAKTHI 20.D.VELU21.G.RAVEENDRAN22.P.RENGANATHAN23.C.SAKTHIVEL 24.D.SARAVANA KUMAR25.V.GAYATHRI 26.A.SIVAPRAKASAM27.K.MALAR MOZHI28.M.MUTHUKUMAR29.L.RAMAKRISHNAN30.B.ARIVAZHAGAN31.K.GOPINATH32.K.SELVAM33.K.THIRUMANIKANDAN34.T.RAMESH KRISHNAN35.M.SWAMINATHAN36.R.CHEZIAN 37.P.KATHIRESAN38.K.RAMESH39.J.MANIKANDAN40.R.SENTHIL NATHAN41.S.RAGUTHAMAN42.A.GUNASEKARAN43.M.MANOHARAN44.P.GNANAVEL45.E.PACHAMUTHU 46.S.RAVI CHANDRAN47.P.PRABHU DOSS48.J.AFFOSE 49.R.SAKTHIVEL https://hcservices.ecourts.gov.in/hcservices/ (R4 to R49 impleaded as per order of Court dated.10.12.08 in MP.No.3/08in WP.15821/08) Writ petitions filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorarified Mandamus asstated therein.WP.15250/08 and 15821/08:Petition presented to this court under Article 226 of theConstitution of India to issue a writ of certiorarified mandamus (1)Calling for the records relating to the 1st respondent pertaining toG.O.Ms.No.96 Rural Development and Panchayat Raj [E3] Department dt.6.6.2008 and the consequnetial proceedings havingref.No.D.P.Rc.13985/008/EF dt. 6.6.2008 of the 2nd respodnentrespectively and quash the same and consequently direct the 1strespondent to extend the benefit of relaxation of Rule 2 of theSpecial Rules for the Tamil Nadu Panchayat Development Engineering infavour of the Technical Assistants recruited through the outsourcingmethod under the 'NREGS' and absorb them as Overseers/TechnicalAssistant/Road Inspector, under the relevant statutory service Rulesin exercise of the power under Rule 48 of the General Rules of theTamil Nadu State and subordinate services contained in Part-II inVolume-I of the Tamil Nadu Services Manual 1977(WP.No.15250/08)(2) Calling for the records of the 1st respondent pertaining to theG.O.(Ms) No.96 Rural Development and Panchayat Raj (E3) Departmentdated 06.06.2008 and quash the same and consequently direct the 1strespondent to 3rd respondent to cancel all the appointments made inTiruvannamalai District in pursuance of the above G.O.Ms.No.96 dated06.06.2008.(WP.15821/08)For petitioners in: Mr.L.ChandrakumarWP.No.15250 of 2008For petitioner in: Mr.Vijay Narayan WP.No.15821 of 2008 Senior counsel for Mr.Jayaprakash NarayanFor respondents: Mr.P.S.Raman Addl.Advocate General I assisted by Mr.A.Arumugham,Spl.G.P.COMMON ORDERIn these writ petitions G.O.Ms.No.96, Rural Development andPanchayat Raj (E3) Department dated 6.6.2008 is questioned by therespective petitioners. https://hcservices.ecourts.gov.in/hcservices/

2. While the petitioners in W.P.No.15250 of 2008, who belong toVillupuram and Cuddalore Districts were employed as TechnicalAssistants under the National Rural Employment Guarantee Scheme(NREGS) on consolidated pay as per G.O.Ms.No.153 R.D. & P.R. Dept.,dated 20.10.2006, they were appointed through Outsourcing Agencies.Even though they were registered in the Employment Exchange, theappointment as Technical Assistants was made without reference totheir registration in the Employment Exchange. 3. The petitioner in W.P.No.15821 of 2008 was never consideredfor appointment under the National Rural Employment Guarantee Schemeeither through Employment Exchange sponsorship or by OutsourcingAgencies. The name of the petitioner was not sponsored by theEmployment Exchange, even though he got registered in the EmploymentExchange in Thiruvannamalai. 4. All the petitioners are Diploma Holders in Civil Engineering.Of course, it is stated that few of them in W.P.No.15250 of 2008 areB.E. Degree holders and they were registered in the ProfessionalEmployment Exchange. Some of them being Diploma Holders in CivilEngineering were waiting from 1985 and some others after graduation,were waiting from 1995. 5. Under the National Rural Employment Exchange Act and as perthe National Rural Employment Guarantee Scheme framed thereunder,recruitment was made from among rural youths. Accordingly, the StateGovernment issued G.O.Ms.No.153, R.D. & P.R. Dept., dated 20.10.206for the purpose of appointment to the post of Technical Assistantunder two sources; one by sponsorship from Employment Exchange andanother through Outsourcing Agencies. 6. The appointment was made on consolidated pay of Rs.4000/- permonth which was subsequently increased to Rs.5000/-. It is statedthat in respect of Villupuram District, the petitioners wereappointed in December, 2006 and they joined duty during January, 2007through Outsourcing Agencies. It is their case that the DistrictCollector has ratified their appointment in April, 2007 and they havebeen working as Technical Assistants under the National RuralEmployment Guarantee Scheme. 7. In the meantime, the Government created around 673 vacanciesof the post Overseers and in such process of appointment, instead ofconsidering the petitioners who are working as Technical Assistantswith the same qualification as required for the posts Overseers, theGovernment, under G.O.Ms.No.96 R.D. & P.R. (E3) Department dated6.6.2008, proceeded to consider only those persons who wereappointed under the above said scheme through the EmploymentExchange sponsorship, thereby denying the opportunity to thepetitioners who were appointed through Outsourcing Agencies. https://hcservices.ecourts.gov.in/hcservices/

8. The abovesaid G.O.Ms.No.96 dated 6.6.2008 has been challengedby the petitioners on various grounds including that the same isviolative of Articles 14 and 21 of the Constitution of India. Thatapart, it is stated that the petitioners who were appointed throughOutsourcing Agencies are having the same qualification as possessedby the persons who were appointed through Employment Exchange as perG.O.Ms.No.153, R.D. & P.R. Dept., dated 20.10.2006 and therefore,there is discrimination exercised in the impugned G.O. in isolatingthe petitioners who were appointed through Outsourcing Agencies whichis in violation of Articles 14 and 21 of the Constitution of India.9. In the counter affidavit filed by the respondents inW.P.No.15250 of 2008, it is stated that the writ petitioners belongto Villupuram and Cuddalore Districts and the District Collector hasstated that 28 petitioners from Cuddalore District and 29petitioners from Villupuram District were engaged as TechnicalAssistants through Outsourcing Agencies under the National RuralEmployment Guarantee Scheme and Tsunami Scheme. It is stated that inCuddalore District, out of 28 petitioners, 23 were not sponsored bythe Employment Exchange and similarly, in Villupuram District, out of29 petitioners, 11 were not sponsored by the Employment Exchange. Itis stated that two writ petitioners one from Cuddalore and one fromVillupuram who were sponsored by the Employment Exchange have notjoined in the post of Technical Assistant. It is also stated thateleven writ petitioners, that is, one from Cuddalore and 10 fromVillupuram sponsored by the Employment Exchange were called forinterview but they failed to get selected. Four writ petitioners outof whom two from Cuddalore and two from Villupuram were sponsored byEmployment Exchange and they could not be called for interview asthey were very low down in the seniority list. 9(a). It is stated that in respect of six writ petitioners onefrom Cuddalore and five from Villupuram, the relevant records werenot available and they have also not approached the Head of theDepartment. It is also stated that by G.O.Ms.No.51 dated 28.3.2008the Government has created 673 additional posts of Overseers witheffect from 1.4.2008 for better implementation of the National RuralEmployment Guarantee Scheme and the Government in G.O.Ms.No.96, RD &PR Department, dated 6.6.2008 has ordered to absorb all 543 TechnicalAssistants recruited through Employment Exchange for Overseersappointment and to fill up 130 posts through Employment Exchange. Itis also stated that the said G.O. came to be challenged in some otherwrit petitions and this Court upheld the validity of the G.O. and thesame was also confirmed by the Division Bench in W.A.Nos.776 and 777of 2008 by judgement dated 6.8.2008.10. While Mr.L.Chandrakumar, learned counsel for the petitionersin W.P.No.15250 of 2008 and Mr.Vijay Narayan, learned senior counselappearing for the petitioner in W.P.No.15821 of 2008 have contended https://hcservices.ecourts.gov.in/hcservices/ that out of the petitioners in W.P.No.15250 of 2008, eight wereappointed in December, 2006 under the National Rural EmploymentGuarantee Scheme and the same was ratified by the District Collectorand even though the appointment was made through OutsourcingAgencies, the same was not the fault on the part of the petitionerssince all of them were registered under the Employment Exchange evenon the said date of appointment. It is their contention that oncethe qualification for the candidates either appointed throughEmployment Exchange or through Outsourcing Agencies is one and thesame and the nature of duties performed by them as TechnicalAssistants are also same, there cannot be any discrimination amongthem for the purpose of appointing them in the newly created posts ofOverseers on regular basis. 11. On the other hand, it is the contention of the learnedAdditional Advocate General Mr.P.S.Raman that the petitioners in theabove said writ petition cannot be compared with those who wereemployed through Employment Exchange, not only for the reason thatwhen they were sponsored by the Employment Exchange they hadundergone the test of merit and their ability was ascertained basedon which their appointment was made by the District Collector, butalso on the basis that the appointment of the said petitionersthrough Outsourcing Agencies cannot be treated as appointment by dueprocess. It is also his submission that in respect of ThiruvannamalaiDistrict, when a group of persons similarly situated as that of thewrit petitioners in W.P.No.15250 of 2008 have challenged the impugnedG.O. in W.P.Nos.14222 and 14407 of 2008, this Court, by order dated8.7.2008, rejected the contention of arbitrariness or violation ofArticle 14 and upheld the validity of the said G.O. holding that thepetitioners cannot equate themselves with the Technical Assistantsappointed through Employment Exchange by the District Collector aftermaking them to undergo the process of selection. It is hissubmission that the judgement of the learned Judge has also beenconfirmed by the Division Bench in W.A.Nos.776 and 777 of 2008 byjudgement dated 6.8.2008 however, with a direction to consider thecase of persons who have registered in the Employment Exchange withnecessary qualifications while making recruitment of Overseers bygiving relaxation in respect of their age. The learned AdditionalAdvocate General would fairly submit that in cases where the personswho were appointed by Outsourcing Agencies will be considered, ifthey got registered in the Employment Exchange and if they arequalified, subject to availability of vacancies and theiremployment exchange seniority, by giving relaxation of age.12. A reference to the judgement of this Court made inW.P.Nos.14222 and 14407 of 2008 dated 8.7.2008 makes it clear thatthe impugned G.O. which is challenged in these writ petitions waschallenged in those cases, of course, by the persons who wereappointed through Outsourcing Agencies in Thiruvannamalai District.There also, a similar contention was raised viz., the persons https://hcservices.ecourts.gov.in/hcservices/ appointed through Outsourcing Agencies as Technical Assistants andthe persons appointed through the Employment Exchange are equallyqualified as all possessed Diploma in Civil Engineering and theywere appointed under the same scheme, viz., the National RuralEmployment Guarantee Scheme and they were imparted the sametechnical training and the nature of duties to be discharged by themare similar and the tenure and salary are also same and therefore,the impugned G.O. seeking to discriminate the equals in the matter ofappointment to the newly created posts of Overseers is violative ofArticle 14 of the Constitution of India. 13. In that case, a learned Judge of this Court (S.Nagamuthu,J.)found that as per G.O.Ms.No.153 R.D. & P.R. Dept., dated 20.10.2006,even though there was two sources of appointment to the post ofTechnical Assistant, in respect of appointment made throughOutsourcing Agencies, the same was not by the Government, whereas inthe case of appointment made through Employment Exchange sponsorship,the selection was made for the same post based on a subsequentwritten test to decide about the merit and ability and suitability.The learned Judge has found that the appointment of candidatesthrough Outsourcing Agencies can only be termed as being outside thepurview of legal source, by applying the test laid down by theSupreme Court in Secretary, State of Karnataka and others v. Umadevi(3) [(2006) 4 SCC 1].14. Having found that the persons appointed through OutsourcingAgencies cannot be deemed to have been appointed through the regularscheme, the learned Judge has rejected the contention of violation ofArticle 14 of the Constitution of India and upheld the impugned G.O.It was also found that the persons appointed through OutsourcingAgencies could not be construed to be either temporary or contractualemployees of the Government. In respect of the persons who gotregistered in the Employment Exchange in Thiruvannamalai and DindigulDistricts, the learned Judge has also held that the assumption thattheir employment exchange seniority would not be considered for thepurpose of appointment to the newly created post of Overseers ismisconceived, further holding that the candidates fromThiruvannamalai and Dindigul Districts who got registered themselvesin the Employment Exchange would not be deprived of their absorption.15. While upholding the said order, the Division Benchconsisting of the then Hon'ble the Chief Justice (A.K.Ganguly,CJ. -as he then was) and F.M.Ibrahim Kalifulla,J., in W.A.Nos.776 and 777of 2008, by judgement dated 6.8.2008, confirmed the view of thelearned Single Judge that the persons sponsored by the EmploymentExchange and appointed by the Government and the persons appointedthrough Outsourcing Agencies under the National Rural EmploymentGuarantee Scheme are not similarly situated. Having found thatexcept in Thiruvannamalai and Dindigul Districts apart from two moreDistricts (probably meaning Villupuram and Cuddalore Districts), in https://hcservices.ecourts.gov.in/hcservices/ all other Districts, there is uniform method of recruitment throughEmployment Exchange and only in those Districts, the recruitment wasmade through Outsourcing Agencies, while affirming the judgement inwrit petitions and approving the validity of the impugnedG.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Departmentdated 6.6.2008, the Division Bench held that since the personsbelonging to Thiruvannamalai and Dindigul Districts who wereappointed as Technical Assistants through Outsourcing Agencies, gotregistered with the Employment Exchange and there is no fault ontheir part in such appointment, they may be given a chance, if theirregistration with Employment Exchange continues, to appear in theOverseers recruitment process by granting exemption of age, if theyin the meantime cross the required age limit and their experience asTechnical Assistants should be given weightage. The Division Benchalso directed the recruitment process for appointment to the posts ofOverseers to be completed within six weeks' time. The Division Benchultimately held as follows:" Considering the aforesaid facts, this Court disposeof the above two appeals by directing that in case offuture recruitment to the post of Overseer in the aforesaidtwo Districts, viz., Tiruvannamalai and Dindigul, theappellants, whose registration continues in the EmploymentExchange, should be given a chance to appear in the saidrecruitment process. In doing so, the cases of theappellants should not be discarded on the ground of theirage. In other words, if they have crossed the requisiteage, it should be condoned. After they appear in thewritten test, their performance in the test should be takeninto account including their seniority in registration.This Court makes it clear that if in all these things, theappellants are found equal along with other persons who areto be recruited, in that case, the case of the appellantsshould be given a weightage considering their pastexperience. This Court also gives a direction that thevacancies in the aforesaid two Districts in the post ofOverseer may be filled up by initiating recruitment processas early as possible, preferably, within a period of sixweeks from this date.6. This Court is passing this order in view of thestand taken by the Government in para 4 of theG.O.Ms.No.96, Rural Development and Panchayat Raj (E3)Department dated 06.6.2008, which reads as follows:'4. (iii) The present Technical Assistants are havinga field working experience of 1 – 2 years in the Districtswhich will be advantageous for the district administrationin effective implementation of Rural Development Schemes,whereas the new recruits from employment exchange will beraw hands". https://hcservices.ecourts.gov.in/hcservices/

16. It is stated that the said judgement of the Division Benchhas also been confirmed by the Hon'ble Supreme Court. In such viewof the matter, when the Additional Advocate General has submittedthat the direction given by the Division Bench in respect of personswho are similarly situated as the petitioners in that case belongingto Thiruvannamalai and Dindigul Districts will be given effect tothe petitioners in W.P.No.15250 of 2008 belonging to Villupuram andCuddalore Districts, if they still remain on the rolls of EmploymentExchange, and they will be considered for the newly created posts ofOverseers not only by giving weightage to the services rendered bythem as Technical Assistants though appointed through OutsourcingAgencies, but also giving relaxation to age limit in the event of thepetitioners having crossed the required age limit, there is nodifficulty to conclude in the said line as that of the decision ofthe Division Bench. 17. Insofar as the writ petitioner in W.P.No.15821 of 2008 isconcerned, admittedly he was not appointed under the National RuralEmployment Guarantee Scheme in the year 2007 either throughEmployment Exchange or through Outsourcing Agencies, but he is stillwaiting as a person registered with the Employment Exchange havingthe qualification of Diploma in Engineering. In such circumstances,while it is true that he will also be entitled to be considered forthe newly created posts of Overseers, subject to his turn under theEmployment Exchange Registration, he is not entitled to any otherrelief.18. In such view of the matter, both the writ petitions aredismissed and it is held that G.O.Ms.No.96, Rural Development andPanchayat Raj (E3) Department dated 6.6.2008 is valid, however, it ismade clear that while making future recruitment to the posts ofOverseers from the Cuddalore and Villupuram Districts includingThiruvannamalai and Dindigul Districts as directed by the DivisionBench, those writ petitioners who continue to remain on the rolls ofEmployment Exchange, should be given opportunity to participate inthe process of recruitment for the posts of Overseers created inG.O.Ms.No.51. While considering the same, the case of suchpetitioners shall not be rejected on the ground of age limit, iftheir names still remain on the rolls of Employment Exchange and bygiving age relaxation they may be permitted to participate in theselection process which may include written test, seniority in theEmployment Exchange, etc. 19. It is also made clear that if the petitioners are foundequal with other persons, the experience gained by the petitioners inW.P.No.15250 of 2008 as Technical Assistants from December, 2006 hasto be given weightage. The recruitment process in respect of saidDistricts viz., Cuddalore and Villupuram shall be completed as statedabove within a period of six weeks from the date of this order. Asobserved by the Division Bench, the experience gained by those https://hcservices.ecourts.gov.in/hcservices/ petitioners who were appointed through Outsourcing Agencies asTechnical Assistants is directed to be considered by virtue of clause4(3) of G.O.Ms.No.96, Rural Development and Panchayat Raj (E3)Department dated 6.6.2008. The writ petitions are dismissed with the above directions. Nocosts. Connected miscellaneous petitions are closed. Sd/- Asst. Registrar / True Copy / Sub.Asst Registrar kWhTo1.The Secretary, Government of Tamil Nadu Rural Development & Panchaya Raj Department Fort St.George, Chennai 9.2.The Director of Rural Development, Panagal Buildings, Saidapet Chennai 600 015.3.The District Collector of Cuddalore District at Cuddalore.4.The District Collector of Villupuram District at Villupuram.5.The Collector Tiruvannamalai District Tiruvannamalai 606 604.+ 1 cc to Mr.V.Perumal,Advocate,SR.30341+ 1 cc to Mr.V.Jayaprakash Narayanan,Advocate,SR.30110+ 1 cc to Mr.L.Chandrakumar,Advocate,SR.30337+ 1 cc to Mr.K.Premkumar,Advocate,SR.30324W.P.Nos.15250 & 15821 of 2008SV(CO)EM/14.7.09