S. Jalajakumari v. The Personal Assistant (General)to the CollectorVirudhunagar, Virudhunagar District

WP.No.6331 to 6336/04 :The State of Tamil Nadu,rep. by its Secretary to Government,Personnel and Administrative Reforms(P) Department, Secretariat,Chennai - 9.The State of Tamil Nadu,rep. by its Secretary to Government,Rural Development Department,Fort St. George, Chennai - 9.1st and 2nd Petitioner in WP.6331 to 6336 /04The District Collector,(Panchayat Development)Collectorate, Perambalur,Perambalur District.Petitioner in WP.6331/04, 6334/04The District Collector,(Panchayat Development)Collectorate, Trichy.3rd Petitioner in WP.6332/04, 6333/04, 6336/04.The District Collector,Collectorate, Karur District.3rd Petitioner in WP.6335/04The Project Officer,District Rural Development Agency,Perambalur, Perambalur District.4th Petitioner in WP.6334/04.The District Development Officer,office of the Divisional Development Officer,Karur.4th Petitioner in WP.6335/04The Divisional Development Officer,Office of the Divisional Development Office,Musiri, Trichy District.4th Petitioners in WP.6336/04vs1. R.Bhuvaneswari1st Respondent in WP.6331/042. G. Chandrika1st Respondent in WP.6332/043. K.Gowri1st Respondent in WP.6333/044. S.Suganthi1st Respondent in WP.6334/045. E.Lalitha1st Respondent in WP.6335/046. S.Srivalli1st Respondent in WP.6336/04 https://hcservices.ecourts.gov.in/hcservices/

7. The RegistrarTamil Nadu Administrative Tribunal,Chennai.2nd Respondent in WP.6331/04, 6332/04, 6333/04, 6334/04, 6335/04, 6336/048. The Commissioner of Panchayat Union,Office of the Commissioner of Panchayat Union,Manapparai, Trichy District.3rd Respondent in WP.6332/04W.P.12031/04 and W.P.23887/04C.Sarasam .. petitioner in Both WPsVs1.The State of TamilNadu rep by its secretary,P & AR Department,Fort St. George, Chennai-9.2. The Secretary to Govt,Tamil Nadu Public Service Commission,Chennai-2.3. The Director of Medical Education, Chepauk, Chennai.4.The Dean, Chennai Medical College, Chennai-3.5. Tamil Nadu Administrative Tribunal,Rep.by the Registrar, Chennai-104 .. Respondents in both Wps.Prayer in W.P.15177/01:-Petition under Article 226 of theConstitution of India praying to issue a writ of CertiorarifiedMandamus calling for the records relating to the order dated03.7.2001 passed by the Tribunal in O.A. No. 2031 of 1996 andquash the same and direct the respondents 1, 5 and 6 to regularisethe service of the petitioners as Typist.Prayer in WP's 6331 to 6336/04To issue a writ of certiorari or any other appropriate writorder or direction in the nature of writ calling for the recordspertaining to the order dt. 11.7.02 made in O.A.No.423/97 inWP.No.6331/04 O.A.No.424/97 in W.P.No.6332/04, O.A.No.425/97 inWP.No.6333//04, O.A..426/07 in WP.No.6334/04, O,A.No.426/07 in https://hcservices.ecourts.gov.in/hcservices/ w.P.No.6335/04 O.A.No.1112/97 in WP.No.6336/04 on the file of theHon'ble Tamil Nadu Administrative Tribunal, Chennai, The 2ndrespondent herein and quash the same.Prayer in WP.No.12031/04 and 23887/04To writ of certiorarified Mandamus to call for the records on thefile of the fifth and 4th respondent, in connection, with theorders passed by in O.A.1905/97 in WP.12031/04 and O.A.No. inw.P.No.23887/04 dt. 25.3.04 and ref.No.2602/E2(1)/97 dt.18.2.97and quash the same and direct the respondents 1 to 4 toregularised the services of the petitioner in the post of Typistwith effect from the date of initial appointment, with allmonetary and service, benefits.W.P.15177/01For Petitioner : Mr. A. RahulFor Respondents 1,5&6: Mr. M. Dhandapani, Spl. GPIn WP 6331/04 to 6336/04For Petitioner: Mr. M.Dhadapani spl, GP,For Respondent: Mr. V.Ravikumar, for R1 in all WPs. Mr. M.Hidayathullah for R3 in WP 6332/04.In WP 23887/04For Petitioner: Mr.R.SingaraveluFor Respondents: Mr.M.Dhandapani,Spl, Gp. for R1, R3 & R4 Mr. A.Arul for R2In WP.12031/04For Petitioner: Mr. R.singaravelu.For Respondents:Mr.M.Dhandapani Spl.Gp For R1 to R4.COMMON ORDERK. CHANDRU, J.Heard the arguments of the learned counsel for the partiesand have perused the records.2.Aggrieved by the common order dated 07.7.2002 made inO.A. Nos. 423 to 427 of 1997, 1112 of 1997, the State of TamilNadu has filed the present writ petitions.3.In W.P. No. 15177 of 2001, the petitioners, viz.,S.Jalajakumari and Mookkaya, are challenging the order of theTamil Nadu Administrative Tribunal [for short, 'Tribunal'] dated https://hcservices.ecourts.gov.in/hcservices/

03.7.2001 made in O.A. No. 2031 of 1996. In W.P. Nos. 5031 of2004 and 23887 of 2004, the petitioner is the same person by name,one Ms. C. Sarasam, challenging the common order of the Tribunaldated 25.3.2004 made in O.A. Nos. 1277 of 1997 and 1905 of 1997.4.The issue raised in all the writ petitions is that theprivate individuals who have been appointed to the post of Typistsunder Rule 10(a)(1) of the Tamil Nadu General Rules [for short,'Rules'], are eligible to be regularised in their service. Thefollowing is the details regarding the names of parties, theirage, office in which they are working at present along with thedates of joining, numbers of the O.As. filed before the Tribunal,result of the O.As. as well as the status of the interim order inthese writ petitions. Sl.No.W.P. No.Name of thepetitioner /Respondent &their ageOffice inwhichworkingDate ofinitialjoiningO.A.No. Anddate oftheorderRemarks,if any1.15177 /20011. S.Jalajakumari2. Mookayya(43 years)CollectorOffice,Virudhunagar TalukOffice,Tiruchirapalli15.12.19882031/9630.7.2001Failed inTNPSCSpecialExaminationO.A.dismissedcontinuingin serviceby orderdated08.10.2001 https://hcservices.ecourts.gov.in/hcservices/ Sl.No.W.P. No.Name of thepetitioner /Respondent &their ageOffice inwhichworkingDate ofinitialjoiningO.A.No. Anddate oftheorderRemarks,if any2.6331 /2004R.Bhuvaneswari(R1) (45Years)Steno,Collector'sOffice,Perambalur09/4/1986423/973.6332 /2004G. Chandrika(R1) (39Years)PanchayatUnionOfficeManapparai18.11.1990424/974.6333 /2004K. Gowri(R1) (38Years)PanchayatUnionOfficeTiruverumbur12.11.1990425/975.6334 /2004S. SuganthyBaby Asnath(R)(41 Years)DRDAPerambalur22.11.1990426/976.6335 /2004E. Lalitha(R1) (36Years)DDOOfficeKarur22.11.1990427/977.6336 /2004S. Srivalli(R1) (47Years)DDOOfficeMusiri08.11.19901112/97O.As.Allowed byorderdated07.7.2002Interimordersought bythe Statewasrefused.8.23887 /2004C. Sarasam(43 Years)TypistMadrasMedicalCollege19981277/9725.3.2004Failed inTNPSCExamination9.12031 /2004-do--do--do-1905/97Interiminjunctiondated23.8.2004for 12weeks 5.The admitted facts in these writ petitions are that thepetitioners' names were initially sponsored by the Employment https://hcservices.ecourts.gov.in/hcservices/ Exchange and they were appointed by the respective competentauthorities. Their services were continued without any break.Subsequently, when similarly placed employees moved theGovernment, it conducted Special Qualifying Test in consultationwith the Tamil Nadu Public Service Commission [for short,'TNPSC']. The private individuals in these cases had participatedin the Special Qualifying Test but were not successful.Therefore, when their services were sought to be terminated, theymoved the Tribunal with various Original Applications. In thisgroup of cases, while in one set of cases, the Tribunal grantedrelief directing their regularisation, in the other set of cases,the Tribunal refused to grant any relief. 6.Pending the writ petitions, this Court has grantedinterim orders in favour of the present individuals. By virtue ofthe same, they are continuing in service and in this process, theyhad put in nearly two decades of service.7.When the matter came up for final hearing, we directedthe State of Tamil Nadu to consider whether in the case of theseindividuals the power of exemption under Rule 48 can be invoked bythe State. However, the individuals were informed by theconcerned Department that it was not permissible for them toinvoke the power of exemption.8.In the light of this backdrop, the matters were heard atlength and a common order is being passed.9.On behalf of the State, it was submitted that though theappointment of the individuals were not through any backdoor andtheir names were sponsored by respective Employment Exchanges, butnevertheless, their appointments were specifically made under Rule10(a)(1) of the Rules which clearly states that when a permanentincumbent enters service, they should vacate the post which theywere holding. The learned Special Government Pleader alsosubmitted that having a sympathetic attitude towards such ad hocappointees, the Government persuaded the TNPSC to conduct aSpecial Qualifying Test and unfortunately, the individuals beforethis Court have failed. Therefore, no further relief can be givento them. He had also submitted that in the light of the judgmentof the Supreme Court in the case of Secretary, State of Karnatakav. Uma Devi (3) [2006 (4) SCC 1], any backdoor entrant can haveno right to get their services regularised and, therefore, hepleaded for rejecting the claims of the private individuals.10.1. Per contra, the learned counsels for the privateindividuals submitted that in none of the cases, the initialappointment can be said to be a backdoor entry and it is theadmitted case of the parties that the names of the individuals https://hcservices.ecourts.gov.in/hcservices/ were sponsored by the respective Employment Exchanges and theywere appointed by the competent authority. For a long time, theState of Tamil Nadu had imposed ban on fresh recruitment to Stateservice and, therefore, it suited them to continue their servicesover a long period even though the appointment was on ad hocbasis. It presupposes the existence of posts and they werequalified to hold such posts. They also submitted that theprivate individuals were not successful in the Special QualifyingTest due to their advanced age and also family commitment sincemost of them are women candidates, they had family commitments.The fact that they had put in more than two decades of servicewithout any blemish will show that they were not unqualified forholding the post. They also submitted that it is not as if theState Government had no power to regularise their service byinvoking Rule 48 of the Tamil Nadu General Rules. They hadearlier invoked such power of exemption in favour of thosecandidates who had undergone the Special Qualifying Test. 10.2. There were also instances where the State hadregularised the services of many candidates without going throughthe process of any test. Most of the individuals have alreadycrossed 40 years of age and at this stage, they cannot seek anyfresh employment in any service more so, in Government service andif they are sent out at this advanced age, not only theindividuals but also their families will be put to grave hardship.They also submitted that it is not as if that the judgment inUmadevi (3)'s case (cited supra) referred to by the State as thesaid judgment itself came to be distinguished by a subsequentpronouncement of the Supreme Court. 10.3. They also submitted that in case of one M.Umaiarupatham in O.A. No. 4590 of 1995, the Tribunal allowed thecase and directed regularisation. Without filing any appeal, theGovernment issued G.O. Ms. no. 445 Finance (Co-op. Audit)Department dated 20.12.2005 implementing the said order andregularised the service of as many as 21 Junior Co-operativeAuditors on the ground that those persons have put in 20 years ofservice even though they had failed in the test conducted by theTNPSC. 10.4. They also submitted that the Government had recentlyissued G.O. Ms. No. 22 Personnel & Administrative ReformsDepartment dated 28.02.2006 by directing the regularisation ofemployees working in various Government Department on daily wagesand who have put in more than 10 years of service as on 01.01.2006provided they were qualified to hold the post. Paragraphs 1 and2 of the G.O. reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The Hon'ble Chief Minister had announcedduring the Tamil Nadu Government Officials Unionand Government Servants and Teachers AssociationsGeneral Conference held on 8.2.2006, that theservices of employees working in various GovernmentDepartments on daily wage basis who have completedmore than 10 years of service as on 1.1.2006 willbe regularised.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 Departments whohave rendered 10 years of service as on 1.1.2006 beregularized by appointing them in the time scale ofpay of the post in accordance with the serviceconditions prescribed for the post concerned,subject to their being otherwise qualified for thepost."11.When proposals were sent by the Director of MedicalEducation to regularise the case of Ms. C. Sarasam (petitioner inW.P. No. 23887 of 2004), the State by their letter Letter No.36547/AA2/06-2 Health, dated 11.9.2006, informed the Director thatthe said issue cannot be considered in view of the pendency ofthis writ petition. Therefore, they pleaded that their servicesalso should be regularised as ordered by the Tribunal in O.A.Nos. 423 to 427 of 1997 vide its order dated 07.7.2002.12.In the light of the rival submissions made by bothsides, it is necessary to decide whether the individuals beforethis Court are entitled for regularisation of their service.13.In this context, it is necessary to refer to the earlierdecision of the Division Bench of this Court in V. Radhakrishnanand others v. The Registrar, Central Administrative Tribunal,Madras Bench and others [2007 (3) CTC 672] dealing with the casualworkmen engaged by the State Forest Department. In that case,the Division Bench analysed Umadevi (3)'s case and reached itsconclusions in paragraphs 11 and 12 of the said judgment which maybe usefully reproduced below:-Para 11:"In the Uma Devi's case (supra) relied on by thelearned SCGSC, the Supreme Court has directed thatthe State Governments and their instrumentalitiesshould take steps to regularise as a one-timemeasure, the services of such irregularlyappointed, who have worked ten years or more, induly sanctioned posts but not under cover of orders https://hcservices.ecourts.gov.in/hcservices/ of the courts or of Tribunals and should furtherensure that regular recruitments are undertaken tofill those vacant sanctioned posts that require tobe filled up, in cases where temporary employees ordaily wagers are being employed. But, in theinstant case, the services of the petitioners havebeen necessitated in the College for over twodecades continuously for its establishment, controland management and undisputedly, they have beenaccorded temporary status too. Of course, theyhave been given time scale of pay and their wagesare on par with the regular employees but sansother benefits. Though the respondents 2 to 4 haveconsistently taken a stand that the petitionerswill be absorbed after creation of Group D posts oras and when vacancies arise, the position whichprevailed as on the date of the first direction ofthe Tribunal in the year 1992 is still prevailingas on date and there have been no fruitful effortsshown to be made in respect of creation of Group Dposts. On the other hand, the petitioners had comeacross so much of hurdles and hardships all theseyears by putting in sincere and devoted service,but, without job security. If their work is ofsuch a nature which has to be taken continuously,the consequent corollary is where the work taken isnot for a short period or limited for a season orwhere work is not of a part-time nature, then, theyshould be conferred the permanent status.Para 12:Of course, the Constitution Bench Supreme Court hascategorically held in Uma Devi's case that as aone-time measure, the services of irregularlyappointed employees who have put in ten years ofservices should be regularised. But, in the caseon hand, the petitioners have been accordedtemporary status and have been put under time-scaleof pay which is not so in the case referred toabove. Further, in this case, the petitioners havebeen employed for more than two decades; yet, theyhave not been conferred permanent status despiterepeated directions given by the Tribunal. Thatapart, it is also not the case of the College thatthe petitioners have been appointed dehors therules or in other words, they have come through theback-door entry. When such is the case, if stepsare not taken to regularise the services of thepetitioners, the Governmental agency should notallow the petitioners to remain as temporary https://hcservices.ecourts.gov.in/hcservices/ employees which amounts to sheer exploitation oflabour as it is envisaged from the provisions ofSection 2 (ra) of the Industrial Disputes Act.Therefore, in the peculiar circumstances of thiscase, though we are seized of the principle laiddown in Uma Devi's case in framing a scheme forregularisation, since the case of the petitionersis much worse than the employees in Uma Devi's forthe reasons already stated, taking cognizance oftwo decades of service rendered by the petitioners,temporary status and time-scale of pay offered tothem and considering the fact that conferring onthem permanent status would enable them to getretirement benefits, we are of the consideredopinion that it will not be a wise policy tocontinue the services of the petitioners astemporary employees as done hitherto. Therefore,the continued exploitation should come to an end bycreating a feeling of job security in the minds ofthe petitioners, at least by the fag end of theirservice. Though it is purely an administrativedomain of the department to create posts, theremust be a rational basis for keeping them undertemporary status which is not there in this case."14.Further, subsequent to Umadevi (3)'s case (supra), theSupreme Court considered the said case in U.P. State ElectricityBoard v. Pooran Chandra Pandey & others [2007 AIR SCW 6904] andparagraphs 11, 16 and 17 and 19 may be usefully extracted below:-Para 11:"Learned counsel for the appellant has relied uponthe decision of this Court in Secretary, State ofKarnataka & Ors vs. Uma Devi (3) & Ors (2006) 4SCC 1 and has urged that no direction forregularization can be given by the Court. In ouropinion, the decision in Uma Devi's case (supra) isclearly distinguishable. The said decision cannotbe applied to a case where regularization has beensought for in pursuance of Article 14 of theConstitution." Para 16:"We are constrained to refer to the above decisionsand principles contained therein because we findthat often Uma Devi's case (supra) is being appliedby Courts mechanically as if it were a Euclid'sformula without seeing the facts of a particularcase. As observed by this Court in BhavnagarUniversity (supra) and Bharat Petroleum CorporationLtd. (supra), a little difference in facts or evenone additional fact may make a lot of difference in https://hcservices.ecourts.gov.in/hcservices/ the precedential value of a decision. Hence, inour opinion, Uma Devi's case (supra) cannot beapplied mechanically without seeing the facts of aparticular case, as a little difference in factscan make Uma Devi's case (supra) inapplicable tothe facts of that case.Para 17:In the present case the writ petitioners(respondents herein) only wish that they should notbe discriminated against vis-`-vis the originalemployees of the Electricity Board since they havebeen taken over by the Electricity Board "in thesame manner and position". Thus, the writpetitioners have to be deemed to have beenappointed in the service of the Electricity Boardfrom the date of their original appointments in theSociety. Since they were all appointed in thesociety before 4.5.1990 they cannot be denied thebenefit of the decision of the Electricity Boarddated 28.11.1996 permitting regularization of theemployees of the Electricity Board who were workingfrom before 4.5.1990. To take a contrary viewwould violate Article 14 of the Constitution. Wehave to read Uma Devi's case (supra) in conformitywith Article 14 of the Constitution, and we cannotread it in a manner which will make it in conflictwith Article 14. The Constitution is the supremelaw of the land, and any judgment, not even of theSupreme Court, can violate the Constitution."Para 19:"In the present case many of the writ petitionershave been working from 1985 i.e. they have put inabout 22 years' service and it will surely not bereasonable if their claim for regularization isdenied even after such a long period of service.Hence apart from discrimination, Article 14 of theConstitution will also be violated on the ground ofarbitrariness and unreasonableness if employees whohave put in such a long service are denied thebenefit of regularization and are made to face thesame selection which fresh recruits have to face." 15.In the light of the above legal pronouncements and alsoin view of the policy decision taken by the State in G.O. Ms. No.22 Personnel & Administrative Reforms Department dated 28.02.2006and considering the fact that the State itself had implemented theearlier orders of the Tribunal in identical situations and alsothe fact that under Rule 48, they have necessary power to grantrelaxation and further the fact that the individuals have entered https://hcservices.ecourts.gov.in/hcservices/ service on being sponsored by Employment Exchange and have put inmore than two decades of service, we feel that it is a fit casethat the order of the Tribunal challenged in W.P. No. 6331 to 6336of 2004 must be affirmed though not for the reasons indicatedtherein. 16.Accordingly, W.P. Nos. 6331 to 6336 of 2004 will standdismissed. The other writ petitions being W.P. No. 15177 of2001 and W.P. Nos. 12031 and 23887 of 2004 will stand allowed.The State Government is directed to implement the order of theTribunal within a period of eight weeks from the date of receiptof a copy of this order. However, there will be no order as tocosts. Connected Miscellaneous Petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.griTo1.The Personal Assistant (General)to the CollectorVirudhunagar2.The Personal Assistant to the Collector(Panchayat Development)Virudhunagar District3. The SecretaryRevenue DepartmentChennai – 94. The RegistrarTamilnadu Administrative TribunalChennai.5. The Commissioner of Panchayat UnionOfficer of the Commissioner of Panchayat UnionManapparai, Trichy District https://hcservices.ecourts.gov.in/hcservices/

6. The SecretaryP and AR Department Fort st. George, Chennai-9.7. The secretaryTamilnadu Public Service CommissionChennai-28. The Director of Medical EducationChepauk, Chennai-59. The Dean Chennai Medical College, Chennai1 cc to Mr.R. Singaravelan, Advocate, Sr. 282406 ccs to mr.V. Ravikumar, Advocate, Sr. 280841 cc to Government Pleader, Sr. 28199 W. P. No. 15177 of 2001, etc.batchRSM (CO)kk, RVL, GKG 1/7