P.Gomathi v. The Secretary and Controller of Examinations

For Petitioners: Mrs.Nalini Chidambaram for M/s.Gladis DanielFor Respondents : Ms.C.N.G.Niraimathi for R1 Mr.N.Senthil Kumar for R2 Additional Government Pleader C O M M O N O R D E RThe petitioners have filed these writ of Certiorarifiedmandamus in calling for the records pertaining to theAdvertisements in Daily Thanthi in No.042 dated 07.05.2003 inrespect of the notification dated 02.05.2003 calling forapplications for filling up 8 vacancies in the category of LDCCfrom stipulated applicants and to quash the notification therein ofthe first respondent and also to direct the second respondent toentertain the representation of the petitioners dated 13.05.2003praying for the confirmation of their appointments to the post ofLDCC of the Secretariat of the Tamil Nadu Legislative Assembly onmerits within a reasonable time.2. The petitioners were appointed as Lower Division(Counter) Clerk by means of Office Order No.738/94-1 TNLAS (OPI)dated 13.05.1994, Office Order No.855/96-1 TNLAS (OPI) dated17.05.1996, Office Order No.738/94-2 TNLAS (OPI) dated 13.05.1994,Office Order No.1336/91-1 TNLAS (OPI) dated 29.08.1991, OfficeOrder No.855/94-1 TNLAS (OPI) dated 13.5.1994 respectively ascandidates sponsored by the Employment Exchange of the DistrictEmployment Office, Chennai-40. Indeed, except the petitioner inW.P.No.15855 of 2003, the other writ petitioners are physicallychallenged persons. Their appointment orders mentioned that theirappointments were purely temporary and their services were liableto be terminated at any time without prior notice and withoutassigning any reason therefor and also with indication that theywould not acquire any service rights in the Secretariat by virtueof their appointments.3. The petitioners were working in the post of LDC for aperiod of 9 years, 7 years, 9 years, 12 years, 9 yearsrespectively. The petitioners were aged about 35 years, 50 years,45 years, 39 years, 34 years respectively at the time of filing ofthese writ petitions and there were no scope for alternativeemployment. The original sanctioned number of posts for LowerDivision (Counter) Clerk were only 10. The petitioners since theybelonged to Backward Community or being physically challenged weresponsored by the Employment Exchange and appointed by the firstrespondent to the six specified categories of vacancies for theposts of LDCC. In 1999, when the respondents made appointments forthe remaining two posts sanctioned, they made direct appointmentswithout disturbing the appointments of six earlier appointees and https://hcservices.ecourts.gov.in/hcservices/ this indicated the continued security of their jobs in theparticular circumstances. Because of the petitioners' long andcontinued service, they were given all enhancements of pay and allallowances given to the regular and permanent employees of theGovernment. The first respondent had caused an advertisement inDaily Thanthi dated 07.05.2003 at page 15 publishing thenotification dated 02.05.2003 which called for applicationsincluding the alleged vacant posts in the category of LDCC fromapplicants of Adi Dravidar 2 (one being unsupported widow), MostBackward Community 2 (one being unsupported widow), BackwardCommunity 2 (one being unsupported widow), Common Category 2 (onebeing unsupported widow) and total in all 8 vacancies.4. The petitioners ascertained from the office of the secondrespondent that the said vacancies of 8 posts in the category ofLDCC were only in respect of 6 number of LDCC posts functioned bythe petitioners appointed temporarily but treated by the respondentas vacant. If the 8 persons were appointed pursuant to the saidadvertisement, the petitioners would be ousted and renderedjobless. They made representations dated 13.05.2003 to the secondrespondent pointing out their predicament with a prayer to confirmtheir jobs for which the second respondent had not responded. 5. According to the learned senior counsel appearing for thepetitioners, the proposed appointments in regard to 8 vacancies inthe category of LDCC out of sanctioned 10 posts pursuant toadvertisement dated 07.05.2003 are illegal, arbitrary because ofthe fact that the respondents could not assume and publish that inthe category of LDCC in the Tamil Nadu Legislative Assembly, wasexisted 8 vacancies ignoring the petitioners and the directappointment of two persons, all were functioning presently asregular employees for a long period in the total sanctionedstrength of 10 posts and if the new appointments to the vacanciesof 8 posts to be created by ousting, then they would be arbitrary,unreasonable and against the principles of natural justice and thearbitrary action of the respondents was nothing but a crucial onerendering the petitioners as destitutes, violating the principlesof Equity and Natural Justice. Hence the petitioners haveapproached this Court by means of the present writ petitions.6. The second respondent in his letter No.5959-A/2002-4,TNLAS (OP-I) dated 25.04.2003 addressed to the first respondent hadamong other things stated that 'owing to the sensitive nature ofthe work and the urgency with which routine functions at the'Reception' counter were to be maintained without any interruptionat the Legislators' Hostel, 6 temporary candidates were recruitedthrough the Employment Exchange for the post of Lower Division(Counter) Clerk and further that six candidates recruited throughthe Employment Exchange are working in the Legislators' Hostel for https://hcservices.ecourts.gov.in/hcservices/ the period ranging from 6 to 11 years and out of the six persons,three are physically handicapped and based on the representationsreceived from the individuals, the Tamil Nadu Public ServiceCommission was addressed from 1996 onwards for concurrence fortheir continuance. The Tamil Nadu Public Service Commission in itsletter sixth cited (Leter No.544/CD-A4/96 dated 17.8.1999 from theSecretary, Tamil Nadu Public Service Commission, Chennai-2) whilegranting its concurrence for the temporary appointment of the abovesix candidates in the post of Lower Division (Counter) Clerk hadalso informed that their temporary services could be continueduntil regular candidates were allotted by the Commission an alsorequested the Secretariat to furnish the actual estimate ofvacancies to be filled up by direct recruitment by the Tamil NaduPublic Service Commission. Accordingly, the actual estimates ofvacancies were furnished to the Tamil Nadu Public ServiceCommission in the Secretariat letter seventh cited (LetterNo.21295/99-2, TNLAS (OP-I) dated 3.3.2000) and also informed thatthree out of the above candidates have crossed the age of 40 yearsand hence made a request to place the entire matter before theCommission for re-consideration for continuance of the temporaryservice of the six candidates on regular basis and moreoverrequested to state whether it is possible to conduct a SpecialQualifying Examination for the above six temporary candidates as aspecial case, if it is not possible to reconsider the request fortheir regularisation. 7. The learned counsel for the first respondent submits thatthe Secretary of the Service Commission in his LetterNo.3043/CD.B2/02 dated 11.06.2003 addressed to the Secretary to theGovernment, the Tamil Nadu Legislative Assembly, Chennai 9 hasamong other things stated that since the Government has requestedthe Commission to regularise the services of six persons who wereselected from the District Employment Exchange and appointed couldnot be regularised and further stated that the 6 temporary LDCCservices could not be regularised and informed accordingly andfurther if special qualifying examination was to be conducted inrespect of the six persons then it would creat a bad precedent andtherefore it had not accorded consent for the conduct of thespecial qualifying examination and moreover the Deputy Secretary ofthe first respondent in its letter No.3726/LCD-A1/2003 dated11.11.2009 addressed to its standing counsel had among other thingsmentioned that in regard to the concurrence sought for by theGovernment as per letter dated 11.06.2003 was decided by the FullCommission to the effect that it was not possible to obtain theconcurrence of the first respondent/Commission in respect ofTmt.Gomathi and 5 others viz., (the writ petitioners) (at thisstage) since the Commission had refused to grant its earlier andthis may be informed to the High Court at the time of hearing ofthe case. https://hcservices.ecourts.gov.in/hcservices/

8. The learned Additional Government Pleader appearing forthe second respondent submits that the post of Lower Division(Counter) Clerk in Legislative Assembly Secretariat is governed bythe Adhoc Rules issued in G.O.Ms.21, Legislative AssemblyDepartment dated 18.05.1964 in S.O.Ms.No.232, Legislative AssemblySecretariat dated 25.09.1989, orders were issued to the effect thatthe above post would fall under the purview of the Tamil NaduPublic Service Commission and the educational qualification wasraised from minimum general educational qualification to that ofthe degree qualification and the posts of Lower Division (Counter)Clerk were created to attend the'reception' work at theLegislators' Hostel and the vacancies arising in the category couldnot be kept unfilled even for a short duration considering thenature of duties and responsibilities to be discharged round theclock in three shifts and also that the continous enquiries fromvarious important quarters are to be attended by them and becauseof the nature of the work and the urgency with which routinefunctions at the Reception counter were to be maintained withoutany interruption at the Legislators' Hostel, the petitioners weretemporarily employed through the Employment Exchange and at thetime of their appointments, it was clearly mentioned that the saidappointments were purely temporary and their services were liableto be terminated without assigning any reason or notice.9. Proceeding further, the learned Additional GovernmentPleader for the second respondent contends that the Tamil NaduPublic Service Commission in its Le544/CD-A4/96 dated 15.04.1997informed that the post of Lower Division Counter Clerk comes underthe purview of the the Tamil Nadu Public Service Commission forthe purpose of direct recruitment and that the recruitment of LowerDivision Counter Clerk were made without the concurrence of theTamil Nadu Public Service Commission and that their temporaryappointments were irregular and to rectify the continuance of thetemporary candidates until regular candidates were appointed, theTamil Nadu Public Service Commission was addressed to fill up fourvacancies of Lower Division (Counter) Clerk Post in the secondrespondent's letter No. 5437/94-1 dated 23.03.1994 and twovacancies of the said post in the second respondent's LetterNo.5203/96-1 dated 3.4.1996 and the first respondent/ServiceCommission in its Letter No.544/CD-A4/96 dated 17.08.1999 accordedits concurrence for the temporary appointment including thepetitioners from the date of initial appointment and informed thattheir services may be continued until regular candidates wereallotted by the first respondent/Commission and the firstrespondent/Commission had allotted only two candidates in February,2000, again it was addressed in second respondent's letterNo.21295/99-2 dated 3.3.2000 for filling up of 7 vacancies in thecategory of Lower Division (Counter) Clerk including the four https://hcservices.ecourts.gov.in/hcservices/ vacancies already intimated and three vacancies which arosethereafter and subsequently the first respondent was addressed inthe second respondent's letter No.2198/2002-2 dated 24.09.2002 tofill up another vacant post of Lower Division (Counter) Clerk andthat the petitioners are continuously working in the casual vanciesthat arose from time to time.10. Besides the above, it is the stand of the secondrespondent that the petitioners once again requested that theirtemporary services may be regularised and that the firstrespondent/Service Commission was addressed in detail to concur fortheir regular absorption including the petitioners in the secondrespondent's letter No.5959/A/200-1 dated 2.5.2002 purely onhumanitarian grounds and also because of the fact that some of themwere physically handicapped and they had put in service of 6 to 11years and the first respondent/Commission in its letter No.3043/CD-B2/02 dated 26.03.2003 declined to give its concurrence for theirregular absorption and in the meanwhile, the firstrespondent/Commission in its Advertisement No.42 had advertised inDaily Thanthi for filling up the 8 vacant posts of Lower DivisionCounter Clerk including the posts held by the six temporary LowerDivision Counter Clerks including the petitioners and as a matterof fact, the petitioners were appointed temporarily as LowerDivision Counter Clerks and their appointment orders stated thattheir appointments were purely temporary and they were liable to beterminated from service any time without assigning reason or noticeand that they would not acquire any service rights because of theirtemporary appointments and since the petitioners were appointed asper Rule 17(a) (i) of the Tamil Nadu Legislative AssemblySecretariat Service Rules, they were fully aware that their postscome under the purview of the first respondent/Commission and theywould be replaced by the candidates selected by the Tamil NaduPublic Service Commission and indeed the firstrespondent/Commission had advertised for filling up 8 vacanciesincluding the six posts held by the temporary Lower DivisionCounter Clerks' (inclusive of the petitioners) who were temporarilyappointed as per Rule 17(a) (i) of the Tamil Nadu LegislativeAssembly Secretariat Service Rules.11. It is the contention of the second respondent that thefirst respondent was addressed in its letter No.5959/A/2002-2 dated2.5.2002 to consider the case for regular absorption onhumanitarian grounds and the first respondent in its letterNo.3043/CD-B2/2002 dated 21.11.2002 called for certainclarifications and the Service Books of the petitioners and thesame were forwarded but the first respondent in its LetterNo.3043/CD-B2/2002 dated 26.03.2003 had declined to give itsconcurrence for the regular absorption and the second respondent inits Letter No.5959/A/2002-4 dated 25.4.2003 made a request once https://hcservices.ecourts.gov.in/hcservices/ again to the first respondent to reconsider their decision or if itwas not possible to reconsider the decision to explore thepossibility of holding a special qualifying examination as done inthe previous cases but the first respondent in its letterNo.3043/CD-B2/2002 dated 11.06.2003 had declined to give itsconcurrence and observed that it would not be possible to hold aspecial qualifying examination as it would set up a bad precedentfor filling up the post of Lower Division Counter Clerk and becauseof the fact that the posts of Lower Division Counter Clerk comeunder the ambit of the first respondent/Commission for the purposeof direct recruitment and since the Commission was addressed tofill up the vacancies as per orders issued in S.O.Ms.No.232,Legislative Assembly Secretariat dated 25.09.2989, it could not besaid that the advertisement was illegal, arbitrary and anunsustainable one.12. At this juncture, the learned senior counsel appearingfor the petitioners brings it to the notice of this Court toG.O.Ms.No.124, Personnel and Administrative Reforms (P) Departmentdated 12.09.2009 wherein 'the Government had directed therespondents viz., the Secretaries to Government of the Departmentsof Secretariat/Heads of Department/District Collectors as the casemay be to implement the orders of High Court (i.e.) to regularisethe services of Typists/Steno-typists/Junior Assistants who wereappointed temporarily and who had failed in the Special QualifyingExamination conducted in the year 1995 from the date of theirinitial appointment with service benefits only and also a directionwas issued by the Government to the effect that the services ofsimilarly placed temporary Typist/Steno Typists/Junior Assistantwho have failed in the Special Qualifying Examination 1995 and whohave obtained orders favourable to them from the High Court ofMadras shall be regularised by the authorities concerned witheffect from the date of their initial appointment with servicebenefits only.'13. It is apt for this Court to extract paragraph Nos.2 and3 of the aforesaid G.O. wherein it is observed as follows:-“In the meantime, some of the temporaryJunior Assistants/Typists and Steno-typists whowere not qualified in the above said SpecialQualifying Examination filed original applicationsin the Tamil Nadu Administrative Tribunal andsubsequently Writ Petitions in the High Court,Madras and obtained interim orders from the Hon'bleCourt and are continuing in service till date. Inthe orders of Tamil Nadu Administrative Tribunal 3rdread above (Orders of High Court Madras dated11.07.2002 in O.A.Nos.423 to 427/1997 and https://hcservices.ecourts.gov.in/hcservices/ 1112/1997), the Hon'ble Tribunal have directed thatthe 'service of the petitioners shall beregularised with effect from the date of theirinitial appointment and that they will be eligiblefor service benefits only.' Moreover, in the orderof High Court, Madras 6th read above, the Hon'bleCourt have observed as follows:-"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 and Administrative Reforms Department,dated 28.02.2006, 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 being sponsoredby Employment Exchange and have put in more thantwo decades of service, we feel that it is a fitcase that the order of the Tribunal challenged inW.P.No.6331 to 6336 of 2004 must be affirmed thoughnot for the reasons indicated therein.Accordingly, W.P.Nos.6331 to 6336 of 2004 willstand dismissed. The other writ petitions beingW.P.No.15177 of 2001 and W.P.Nos.12031 and 23887 of2004 will stand allowed. The State Government isdirected to implement the order of the Tribunalwithin a period of eight weeks from the date ofreceipt of a copy of this order. However, therewill be no order as to costs. ConnectedMiscellaneous Petitions are closed."3. In all the other orders of High Court,Madras 4th to 8th read above (Orders of High CourtMadras dated 28.01.2008, in W.P.No.15135/2008,Orders of High Court Madras dated 31.03.2008 inW.P.No.27188/2006, Orders of High Court Madrasdated10.06.2008 in W.P.Nos.15177/2001, 6331/04,6332/2004, 6333/2004, 6334/2004, 6335/2004,6336/2004, 23887/2004, 12031/2004 and 30832/2006,Orders of High Court Madras dated 25.08.2008 inW.P.No.18339/2008, Orders of High Court Madrasdated 19.01.2009 in W.P.No.23195/2008) the HighCourt, Madras have passed orders in favour of theapplicants directing the respondents to regularisethe services of the temporary JuniorAssistants/Typists and Steno-Typists as the casemay be from the date of their initial appointment."14. The learned Additional Government Pleader appearing for https://hcservices.ecourts.gov.in/hcservices/ the second respondent cites the decision of the Hon'ble SupremeCourt in SECRETARY, STATE OF KARNATAKA AND OTHERS V. UMA DEVI ANDTHREE OTHERS, 2006 (4) SUPREME COURT CASES at page 1, wherein theHon'ble Supreme Court has observed that 'the wide powers underArt.226 are not intended to be used for issuance of suchdirections, certain to defeat the concept of social justice, equalopportunity for all and the constitutional scheme of publicemployment and the Supreme Court is bound to insist on the Statemaking regular recruitments and appointments and not to encourageor shut its eyes to the persistent transgression of the rules ofregular recruitment and it is erroneous for Supreme Court to merelyconsider equity for the handful of people who have approached theCourt with a claim whilst ignoring equity for the teeming millionsseeking employment and a fair opportunity for competing foremployment and also that Courts must be careful in ensuring thatthey do not interfere unduly with the economic/financialarrangement of the affairs of the State or its instrumentalities."15. It is not out of place for this Court to recall theobservations of the Hon'ble Supreme Court in the aforesaid decisionat page 42 in paragraph No.53 wherein it is observed as follows:-"...53. One aspect needs to be clarified.There may be cases where irregular appointments(non illegal appointments)as explained inS.V.NARAYANAPPA ((1967) 1 SCR 128:AIR 1967 SC1071), R.N.NANJUNDAPPA ((1972) 1 SCC 409:(1972) 2SCR 799) AND B.N.NAGARAJAN ((1979) 4 SCC (L&S) 4:(1979) 3 SCR 937) and referred to in para 15 above,of duly qualified persons in duly sanctioned vacantposts might have been made and the employees havecontinued to work for ten years or more but withoutthe intervention of orders of the courts or oftribunals. The question of regularisation of theservices of such employees may have to beconsidered on merits in the light of the principlessettled by this Court in the cases abovereferred toand in the light of this judgment. In thatcontext, the Union of India, the State Governmentsand their instrumentalities should take steps toregularise as a one-time measure, the services ofsuch irregularly appointed, who have worked for tenyears or more in duly sanctioned posts but notunder cover of orders of the courts or of tribunalsand should further ensure that regular recruitmentsare undertaken to fill those vacant sanctionedposts that require to be filled up, in cases wheretemporary employees or daily wagers are being nowemployed. The process must be set in motion within https://hcservices.ecourts.gov.in/hcservices/ six months from this date. We also clarify thatregularisation, if any already made, but not subjudice, need not be reopened based on thisjudgment, but there should be no further bypassingof the constitutional requirement and regularisingor making permanent, those not duly appointed asper the constitutional scheme."16. The learned senior counsel for the petitioners placesreliances on Rule 48 of the Tamil Nadu State and SubordinateService Rules, which reads as follows:-"48. Notwithstanding anything contained inthese rules or in the special rules, the Governorshall have power to deal with the case of anyperson or class of persons serving in a civilcapacity under the Government of Tamil Nadu or ofany person who has or of any class of persons whohave served as aforesaid or any candidate or classof candidates for appointment to a service in suchmanner as may appear to him to be just andequitable:Provided that, where any such rule isapplicable to the case of any person or class ofpersons, the case shall not be dealt with in anymanner less favourable to him or them than thatprovided by that rule." and contends that the State Government have necessary power togrant relaxation and also that the petitioners were appointed asLower Division (Counter) Clerks in the establishment of the secondrespondent on being sponsored by the Employment Exchange of theDistrict Employment Office, Chennai and therefore prays forallowing the writ petitions.17. It is pertinent for this Court to cite the decision ofthe Hon'ble Supreme Court R.N.NANJUNDAPPA V. T.THIMMAIAH ANDANOTHER, AIR 1972 SUPREME COURT 1767, wherein it is observed asfollows:-" ...(A) (B) (C) Article 309 speaks of rulesfor appointment and general conditions of service.Regularisation of appointment by stating thatnotwithstanding any rules the appointment isregularised strikes at the root of the rules and ifthe effect of the regularisation is to nullify theoperation and effectiveness of the rules, the ruleitself is open to criticism on the ground that itis in violation of current rules. Therefore theMysore Rules of 1967 cannot be permitted to stand https://hcservices.ecourts.gov.in/hcservices/ to operate as a regularisation of appointment ofone person in utter defiance of rules requiringconsideration of seniority and merit in the case ofpromotion and consideration of appointment byselection or by competitive examination. AIR 1964SC 1854 AND AIR 1966 SC 602. Dist. AIR 1969 MYS208.Reversed. (Para 23)The contention that a rule under Article 309for regularisation of the appointment of a personwould be a form of recruitment read with referenceto power under Article 162 is unsound andunacceptable. If the appointment itself is ininfraction of the rules or if it is in violation ofthe provisions of the Constitution illegalitycannot be regularised. Ratification orregularisation is possible of an act which iswithin the power and province of the authority butthere has been some non-compliance with procedureor manner which does not go to the root of theappointment Regularisation cannot be said to be amode of recruitment.(Paras 26, 27,28)"18. Also this Court points out the decision of the Hon'bleSupreme Court ALL MANIPUR REGULATOR POSTS VACANCIES SUBSTITUTETEACHERS' ASSOCIATION V. STATE OF MANIPUR, 1991 Supp (2) SUPREMECOURT CASES 643 at page 644, wherein it is held as follows:" (1) All substituted/ad hoc teachers whohave put in five years of service or more ason October 1, 1990 shall be regularisedwithout any DPC. This regularisation wouldbe subject to their possessing the requiredqualifications at the time of their initialappointment.(2)The substituted/ad hoc teachers who haverendered less than five years of service ason October 1, 1990 shall be allowed toappear before the DPC for selection. TheDPC shall be constituted exclusively forthem within three months from today. Thosewho are selected by the DPC shall beregularised immediately thereafter.(3)Twenty-three substituted/ad hoc teacherswho have been already selected by the DPCshall be regularly appointed forthwithretaining their present seniority.(4)All the substituted/adhoc teachers who are https://hcservices.ecourts.gov.in/hcservices/ in service as on today shall be allowed tocontinue in service till the DPC declaresits result of the selection. The servicesof those who do not appear before DPC orcould not be selected by the DPC could beterminated unless their services arerequired for a further period.(5) It is said that the DPC earlier convenedhas selected some persons for directrecruitment. If there are additionalvacancies in addition to those which arebeing occupied by the substituted/ad hocteachers, they may straightway be appointedafter the DPC completes the process ofselection of substituted/ad hoc teachersfor regularisation depending upon thevacancy position.(6)As to the seniority between the directrecruits and the regularised candidates, wemake it clear that the direct recruitsother than those mentioned in para (3)above, shall be ranked below all theregularised candidates."19. Continuing further, the Hon'ble Supreme Court in STATEOF HARYANA AND OTHER V. PIARA SINGH AND OTHERS, (1992) 4 SUPREMECOURT CASES 118 at page 121 inter alia observed as follows:-"..The blanket direction issued by the HighCourt that all those ad hoc/temporary employees whohave continued for more than a year should beregularised, cannot be sustained. The directionhas been given without reference to the existenceof a vacancy. The direction in effect means thatevery ad hoc/temporary employee who has beencontinued for one year should be regularised eventhough (a) no vacancy is available for him – whichmeans creation of a vacancy (b) he was notsponsored by the Employment Exchange nor was heappointed in pursuance of a notification callingfor applications which means he had entered by aback-door (c) he was not eligible and/or qualifiedfor the post at the time of his appointment (d) hisrecord of service since his appointment is notsatisfactory. These are in addition to some of theother problems (indicated in para25), which wouldarise from giving of such blanket orders.Moreover, from the mere continuation of an ad hocemployee for one year, it cannot be presumed that https://hcservices.ecourts.gov.in/hcservices/ there is need for a regular post. Such apresumption may be justified only when suchcontinuance extends to several years. Conditionsand circumstances of one unit may not be the sameas of the other. Just because in one case, adirection was given to regularise employees whohave put in one year's service as far as possibleand subject to fulfilling the qualifications, itcannot be held that in each and every case such adirection must follow irrespective of and withouttaking into account the other relevantcircumstances and consideration." (Para 33)20. Also in the said decision at page 122 it is held thus:-"Where a temporary or ad hoc appointment iscontinued for long the Court presumes that there isneed and warrant for a regular post and accordinglydirects regularisation. But there is no 'rule ofthumb' in such matters. The relief must be mouldedin each case having regard to all the relevantfacts and circumstances of that case. It cannot bea mechanical act but a judicious one. Issuinggeneral declaration of indulgence is not part ofcourt's jurisdiction." (Paras 21, 33 and 41)21. Further more, in page 123 of the aforesaid decision, itis held hereunder:-"Ordinarily speaking, the creation andabolition of a post is the prerogative of theExecutive. It is the Executive again that laysdown the conditions of service subject, of course,to a law made by the appropriate legislature. Thispower to prescribe the conditions of service can beexercised either by making rules under the provisoto Article 309 of the Constitution or (in theabsence of such rules) by issuingrules/instructions in exercise of its executivepower. The court comes into the picture only toensure observance of fundamental rights, statutoryprovisions, rules and other instructions, if any,governing the conditions of service. The mainconcern of the Court in such matters is to ensurethe rule of law and to see that the Executive actsfairly and gives a fair deal to its employmentconsistent with the requirements of Articles 14 and16. It also means that the State should notexploit its employees nor should it seek to take https://hcservices.ecourts.gov.in/hcservices/ advantage of the helplessness and misery of eitherthe unemployed persons or the employees, as thecase may be. The State must be a model employer.(Para 21)"22. Besides the above, it is relevant for this Court to citethe decision of the Hon'ble Supreme Court E.RAMAKRISHNAN AND OTHERSV. STATE OF KERALA AND OTHERS (1996) 10 SUPREME COURT CASES 565, atpage 566 wherein it is held as follows:-"2. It is sought to be contended byMr.M.M.Paikeday, the learned Senior Counsel for thepetitioners that in the light of the law laid downby this Court in Piara Singh case ((1992) 4 SCC 118:1992 SCC (L&S) 825:(1992) 21 ATC 403) and in view ofthe fact that the petitioners have been continuingfor more than 14 years, they are required to beregularised. We find no force in the contention.Admittedly, the posts are to be filled up throughselection by PSC recruitment norms. Necessarily,therefore, the requisition was sent for selectionthrough the PSC and candidates came to be selected.Under those circumstances, the candidates, who werefound eligible and selected and recommended forappointment by the PSC, were required to beappointed. The Court rightly had exercised thepower in declining to regularise the services of thepetitioners.3. The learned counsel sought to rely upon anorder of the Government where the Government haddecided to regularise the services of the ad hocemployees. Obviously, since the decision runs intothe teeth of statutory requirement under Article 320of the Constitution the Government cannot take anydecision contrary to the Constitution to regularisethe services of the candidates dehors therecruitment rules and the statutory process forselection through the PSC. The High Court,therefore, has rightly given direction to theGovernment to notify 30 vacancies and odd orwhatever may be the vacancies existing to fill upfrom amongst the candidates selected by the PSC.4. It is then contended that the petitionershave turned overaged and therefore, necessarydirection may be given to regularise their serviceby filling up the unfilled posts. Even that reliefalso cannot be granted. If the petitioners haveturned overaged on the date of recruitment, itwould be for the appropriate Government to relax https://hcservices.ecourts.gov.in/hcservices/ the age requirement and the petitioners have tostand in the queue and get selection through thePSC. Thus what they get is only the right toappointment to the post.5. The special leave petition is accordinglydismissed."23.Further more, the Hon'ble Supreme Court in DR.SURINDERSINGH JAMWAL AND ANOTHER V. STATE OF JAMMU & KASHMIR, AIR 1996SUPREME COURT 2775 has held that ' in Adhoc Employees appointmentsmade dehors the service rules to the employees are not entitled toregularisation, but they can continue only till regularly selectedcandidates are appointed but however they can apply and seekselection according to Rules and they have become aged barred onrelevant date and State has been directed to relax necessary agequalification."24. In JACOB M.PUGHUPARAMBIL AND OTHERS V. KERALA WATERAUTHORITY AND OTHERS, (1991) 1 SUPREME COURT CASES 28 at page 31,the Hon'ble Supreme Court has observed as follows:-"India is a developing country. It has avast surplus labour market. Large scaleunemployment offers a matching opportunity to theemployer to exploit the needy. Under such marketconditions the employer can dictate his terms ofemployment taking advantage of the absence of thebargaining power in the other. The unorganised jobseeker is left with no option but to acceptemployment on take-it-or-leave-it terms offered bythe employer. Such terms of employment offer nojob security and the employee is left to the mercyof the employer. Employers have betrayed anincreasing tendency to employ temporary hands evenon regular and permanent jobs with a view tocircumventing the protection offered to the workingclasses under the benevolent legislations enactedfrom time to time. One such device adopted is toget the work done through contract labour. It isin this backdrop the request for regularisation inservice has to be considered."25.This Court points out that it is true that a personappointed temporarily on an adhoc basis has no right to the post asper decision PARSHOTAM LAL DHINRA V. UNION OF INDIA, AIR 1958SUPREME COURT 36. Added further, this Court quotes the observationof the Hon'ble Supreme Court that the successive extension oftemporary appointment does not give rise to legitimate expectationsof regularisation as per decision CHAN CHAL GOYAL (MRS.) V. STATE https://hcservices.ecourts.gov.in/hcservices/ OF RAJASTHAN, 2003 (3) SCC 485.26. The first respondent is well within its right to take astand that the six persons who were selected from the DistrictEmployment Exchange and appointed could not be regularised becausethe said post fell within the purview of the Service Commission.27. Merely because a person continues to serve as perinterim orders of Court, such continuance cannot confer any rightto continuance or regularisation as held in STATE OF UTTAR PRADESHV. RAJ KARAN SINGH, (1998) 8 SCC 529. Hence the contra view of thewrit petitioners that their receipt of pay and allowancesidentified with that of regular and permanent employees of theGovernment confirming their belief for their continuance in thepresent job without interruption is to suffer from chimericaldeluge view, as opined by this Court.28. Be that as it may, on a careful consideration ofrespective contentions and in view of the fact that the firstrespondent/Service Commission has reiterated in its LetterNo.3726/LCD/A1/03 dated 11.11.2009 to the effect that ' it is notpossible to obtain its concurrence in respect of the petitionerssince it has refused to accord its concurrence earlier and takingnote of the fact that the petitioners were appointed temporarily asper Rule 17 (a) (i) of Tamil Nadu Legislative Assembly SecretariatService Rules as candidates sponsored by the Employment Exchange ofthe District Employment Office, Chennai in the posts of LowerDivision (Counter) Clerks in the second respondent's Secretariatand continues to serve till date, and since the petitioners wereinformed that by virtue of the temporary appointments they wouldnot acquire any service rights in the second respondent'sSecretariat as per their appointment letters, this Court on thebasis of the cumulative facts and circumstances of the case is ofthe considered view that the proper forum to consider and grantregularisation in respect of the employees officiating for longperiod, etc., is the State Government and it is for the StateGovernment viz., the Government of Tamil Nadu to consider theplight of the petitioners with an empathy to do equitable justice,with specific reference to Rule 48 of the Tamil Nadu State andSubordinate Service Rules in regard to their regularisation and theage relaxation requirement in an objective fashion, provided theyare eligible, qualified, their record of service being satisfactoryand their appointments do not run counter to the Reservation Policyof the State and accordingly the petitioners are directed to submittheir detailed representations to the State Government within aperiod of one month herefrom and upon the receipt of the saidrepresentations, the State Government is to pass orders within aperiod of three months therefrom and it is made clear that till theGovernment takes a decision and pass appropriate orders, in the https://hcservices.ecourts.gov.in/hcservices/ matter in issue, the writ petitioners are permitted to continue intheir employment with the second respondent as LDCC. 29. With these observations, the writ petitions are disposedof without costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvriTo1.The Secretary and Controller of Examinations, T.N.Public Service Commission, Govt. Estate, Chennai 600 002.2.The Secretary, Legislative Assembly, Secretariat, Fort St.George, Chennai 600 009.+1cc to M/s.Gladyas Daniel & C.Uma,Advocates Sr 14166KU(CO)km/9.3.W.P.NOs.15852 to 15856 of 2003