High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12.12.2007 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.22104 OF 20061.Tamil Nadu Public works Department Employees Welfare Association, rep. by its Joint Secretary, Register No.1554/MDS Chepauk, Affiliated to N.G.O. Union, Chennai-600 005.2.K.Loganathan3.K.Murugan4.R.Banumathi5.M.Selvam6.B.Gopikumar7.S.Rajendran8.K.Venkatesan9.G.Riyas Basha10.K.Alis Mary (Petitioners 2 to 10 are impleaded vide order dt.9.2.2007 in MP Nos.2 and 3 of 2006).. PetitionersVs.1.State of Tamil Nadu, represented by its Secretary Department of Public Works, Fort St. George, Chennai-600 009.2.The Engineer in Chief, and Chief Engineer (General), Chepauk, Chennai-600 005.3.The Chief Engineer (Buildings), Public works Department, Chepauk, Chennai-600 005.4.The Superintending Engineer (Building Maintenance Circle), Public Works Department, Chepauk, Chennai-600 005.5.The Executive Engineer, North Presidency Division, Chepauk, Chennai-600 005. https://hcservices.ecourts.gov.in/hcservices/

6.The Assistant Executive Engineer, Secretariat Sub-Division, Public works Department, Secretariat, Chennai-600 009... Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of mandamus,directing the respondents herein to engage the members of petitionerAssociation in the NMR Roll and further to regularise the service ofthe said employees who fulfil the qualification as per norms with allservice benefits rendered earlier including the service renderedunder so-called contract and grant consequential relief. For Petitioner : Mr.V.Prakash, SC for Mr.S.S.VasudevanFor Respondents: Mr.S.Gopinathan, AGPORDERSeeking writ of mandamus to direct the respondents toengage the members of petitioner Association in the NMR Roll andfurther to regularise the service of the said employees, thepetitioners have brought forth this writ petition before this court.2.The affidavit filed in support of the petition is perused.The court heard the learned counsel for the petitioners.3.The case of the petitioners is that the members of thepetitioner Association have been working continuously for more than15 years in the P.W.D. (Building Maintenance) and they are engaged inall types of work, such as regular maintenance and repair in theSecretariat building, etc. The Association placed a representationfor regularisation of their members' service, but it was neverconsidered. Since the members of the Association have rendered morethan 10 years of continuous work, which was the qualifying servicefor regularisation and their legitimate claim for regularisation wasdenied by the respondents till this time, the T.N.P.W.D. EmployeesAssociation, Chennai filed O.A.No.7453 of 2000 before the Tamil NaduAdministrative Tribunal, Chennai, seeking for injunction restrainingthe respondents from recruiting fresh NMRs and also to direct therespondents to finalise the norms and cadre strength as perG.O.Ms.No.355. The stay was granted by the Tribunal. Thereafter, theTribunal has stated that the interim injunction would not applyinsofar as the residence of VIPs regarding the NMRs already engagedas per the roll maintained. 4.The further case of the petitioners is that till January,2001, the members of the Association were being engaged throughcontract for nearly about five years with the meagre wages. Therespondents have stated that the reason for such engagement is thatthe employees working under the South division were all maintainingthe office of the Ministers and the quarters of the Judges. Thosebuildings are covered under VIP places and the employees of the southdivision are engaged as NMRs and that discrimination was maintainedby the respondents while treating the employees of South Division incomparison with the North Division and Marina Division. The Engineerin Chief, the second respondent has issued a letter, dated 8.4.2004 https://hcservices.ecourts.gov.in/hcservices/ to the Chief Engineer (Buildings), the third respondent herein,stating to consider the representation of the members of thepetitioner association in engaging their members in the NMR Roll andadvised to engage the employees, who were working for a long periodin the NMR Roll, but so far, the claim has not been considered. Thesecond respondent again issued a circular, dated 11.08.2004, by whichhe instructed all other Chief Engineers to engage the employees, whorendered long years of service in the P.W.D. But, that circular wascontrary to the direction issued by the Tribunal. 5.The further case of the petitioners is that the ExecutiveEngineer, P.W.D. issued a letter to the Chief Engineer, dated31.3.2006 that the members of the petitioner Association have beenrendering service under the Chief Minister Special branch and furtherrequested the Chief Engineer to consider the representation forregularisation and claims and further requested to issue anappropriate Government Order relating to the issue. Pursuant to thesame, the Chief Engineer issued a circular, dated 12.4.2006instructing all the Superintending Engineers (Building), to considerthe employees, who were rendered 10 years of service forregularisation. But, the circulars have not been considered by theauthorities. Despite the orders of the Tribunal, the respondentsherein are engaging the members of the petitioner Association throughcontract basis, which was unjust and illegal. The members of thepetitioner Association are receiving meagre wages of Rs.2000/- permonth, inspite of rendering more than 15 years of service. With thelow wages, the members of the petitioner Association's family weresuffering to eke out their livelihood. The so-called contract underwhich the members of the petitioner Association were now beingengaged was nothing, but a farce and not genuine, since the so-calledcontract was signed by the department heads and not through anygenuine method of calling for tender, etc. Further, the very samepersons are being employed which would only show that the saidcontract being entered into for the engagement of the said employers,which was only done with a view to defeat the claim of the employeesfor regularisation and that the contract system was clearly an unfairlabour practice indulged by the respondents. 6.The petitioners' further case is that by G.O.Ms.No.49, dated14.5.2002, the P&A Reforms Department directed that the work done bythe Group D category, i.e. Sweepers, Cleaner, Gardeners andScavengers shall be progressively outsourced and entrusted oncontract basis, but in the said G.O., it has been specifically statedthat on outsourcing, a condition may be imposed in the tender toensure that the existing NMR/consolidated wage/daily wage/employeesare to be given preference in employment by the contractor to protecttheir interest. Again by G.O.Ms.No.22, dated 28.2.2006, the samedepartment directed all the departments to regularise the services ofthe daily wage employees, working in all Government departments, whohave rendered 10 years of service as on 1.1.2006. Therefore, merelyextending such benefit to the daily wages employees and leaving ofalleged contract employees, the members of the petitionerAssociation, who are the very same employees employed directly by therespective respondents is highly arbitrary and discriminatory andviolative of Article 14 of the Constitution of India. The very sameemployees, who are now under the alleged contract, which contract wastaken by the respective department heads, in some cases, have alreadyput in 10 years as NMRs or have put in 3 to 6 years under the allegedcontract system and hence, the switch over to the contract system bythe respondents is changing the service condition without notice and https://hcservices.ecourts.gov.in/hcservices/ is done only to deny the employees herein the benefits of the aboveG.O. and it is an unfair labour practice. Under these circumstances,a direction has got to be issued first to engage the members of thepetitioner association in the NMR Roll and further to regularise theservice of the said employees, who fulfil the qualification as perthe norms with all service benefits rendered earlier including theservice rendered under the so-called contract and grant consequentialrelief thereon. 7.The learned counsel for the petitioners reiterated the groundswhat are mentioned in the petition. 8.The court heard the learned counsel for the respondents. Thelearned counsel for the respondents in short would contend that themembers of the petitioner Association as on today, are not in NMRRoll and apart from that, they have been working through thecontractor and under these circumstances, they cannot be equated withthe daily wage earner, to whom the G.O., dated 28.2.2006 could beapplied and hence, the writ petition has got to be dismissed. 9.The court has paid its anxious consideration on thesubmissions made. It is not in controversy that the members of thepetitioner Association have been working as daily wage earners for along time, but the intervening circumstance was that they have beenpaid through contractor. It is pertinent to point out that thoughthe members of the petitioner Association were paid throughcontractor, they have been engaged for the same work what is beingdone by the daily wage earner. It is also pertinent to point outthat the alleged contract was taken by the respective departmentHeads. Apart from that, they have put in 10 years of service as NMRs.The contention of the respondents that their services are under thecontract system, cannot be countenanced in law. Now, the departmentcannot be allowed to state that these petitioners' names are notfound in the NMRs and they have been working under the contract,which was taken by the respective department heads. 10.Now, it would be quite clear that though the petitioners'names were not found in the NMR, the fact remains is that they havebeen working for more than 10 years. The court is of the consideredopinion that no discrimination could be allowed between thepetitioners Association, who are actually working under the contract,which is taken by the respective department heads and the persons, towhom daily wages are being given, while the service what is nowrendered by the members of the petitioner Association, who are thepetitioners herein, and also the daily wage earners are exactly same.Merely because they are under the contract, their request cannot bedenied. 11.Adding circumstance is that the contract, which is nowpleaded by the State, is taken by the respective department heads.The court is unable to understand why discrimination is shown inapplying G.O.Ms.No.22, dated 28.2.2006. Once it is brought to thenotice of the court that the members of the petitioner Associationhave been working for more than 10 years and they have been renderingthe same service, though under the contract, like the daily wageearner, merely because of the reason that they are not under the NMR,they cannot be denied regularisation. If it is allowed, that wouldamount to discrimination, which in the opinion of the court isviolative of Article 14 of the Constitution. https://hcservices.ecourts.gov.in/hcservices/

12.Though number of representations were given, all have beenrejected without any consideration of real situation. Hence, it is afit case where a direction has got to be given to the respondents tofirst engage the members of the petitioners Association in the listof NMR Roll and also to regularise their service as applicable to theother daily wage earners as found in G.O.Ms.No.22, dated 28.02.2006,within a period of twelve weeks herefrom. Accordingly, a directionis issued and the writ petition is ordered. No costs. vvkSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary, State of Tamil Nadu, Department of Public Works, Fort St. George, Chennai-600 009.2.The Engineer in Chief, and Chief Engineer (General), Chepauk, Chennai-600 005.3.The Chief Engineer (Buildings), Public works Department, Chepauk, Chennai-600 005.4.The Superintending Engineer (Building Maintenance Circle), Public Works Department, Chepauk, Chennai-600 005.5.The Executive Engineer, North Presidency Division, Chepauk, Chennai-600 005.6.The Assistant Executive Engineer, Secretariat Sub-Division, Public works Department, Secretariat, Chennai-600 009.+ One cc to Mr. s. S. Vasudevan, Advocate SR 74055+ One cc to Govt Pelader SR 73989LA (co)sg 03/01/08W.P.NO.22104 OF 200612.12.2007