K.Arul v. The State Of Tamil Nadu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN W.P.No.845 of 2022:- K.Arul
...Petitioner
-Vs1.The State of Tamil Nadu, Represented by the Secretary to Government, Education Department, Fort St.George, Chennai - 9.
2.The Director of School Education, College Road, Chennai - 09.
3.The Chief Educational Officer, Vellore-District.
4.The District Educational Officer, Vellore-District.
... Respondents Prayer in W.P.No.845 of 2022: Writ Petition filed under Article 226 of Constitution of India praying for the issuance of a Writ of Mandamus, directing the respondents to consider the petitioner's representation dated 25.09.2021 to regularize the petitioner's service from the date of his initial appointment on 25.02.1985 in light of G.O.Ms.No.123 School Education Department dated 17.08.2011 and consequently direct the respondents to pay monetary and service benefits with all consequential benefits and arrears.
In all W.Ps For Petitioners : Mr.S.Esairani Narasimman For Respondents : Mr.S.Arumugam Government Advocate COMMON
ORDER
These Writ Petitions have been filed for a direction directing the respondents to consider the petitioners' representation dated 25.09.2021 to regularize thier service from the date of their respective initial appointments in light of G.O.Ms.No.123 School Education Department dated 17.08.2011 and consequently direct the respondents to pay monetary and service benefits with all consequential benefits and arrears.
2. Heard the learned counsel on either side and perused the materials available on record.
3. The petitioners were selected and appointed to post of part time sweepers in various Schools. However, their services were not regularized so far. Though the Government of Tamil Nadu passed various orders for regularizing the services of all the part time sweepers/sanitary workers in G.O.Ms.No.22 Personnel and Administrative Reforms (F) Department, dated
28.02.2006 and G.O.Ms.No.74 Personnel and Administrative Reforms (F) Department, dated 27.06.2013, the Education Department failed to implement the Government Orders. Therefore, the petitioners made several representations to regularize their services with effect from the date of their initiation of appointment with all attendant service benefits and continuity of service.
4. A perusal of the counter filed by the respondents revealed that all the petitioners were appointed as Part Time Sweepers without following proper procedure laid down by the Tamil Nadu Service Rules. The appointment in the basic service, which is governed by the Tamil Nadu Basic Service Rules, states that for the post of Sweeper, the mode of appointment has been clearly defined with reference to Rule No.1 Constitution Rule, Rule No.2 Appointing authority, Rule No.3 Appointment, Rule No.3A Reservation of Appointments and Rule No.4 Selection of direct recruits. These rules were not followed while appointing the petitioners as part time sweepers. They were paid consolidated salary from the contingency fund allotted for the office. Therefore, the appointment is not regular or direct appointment. The Government Orders referred by the petitioners are applicable only to the incumbents who were appointed with reference to the Tamil Nadu Basic Service Rules.
5. The Hon'ble Supreme Court of India repeatedly held that the Courts should not issue a direction for regularization of services of an employee which would be violative of the Constitutional scheme. While something that is irregular, for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and / or appointment of ineligible candidates cannot be regularized. Mere continuation of service by a temporary or adhoc or daily-wage employee, under cover of some interim orders of the Court, would not confer upon him any right to be absorbed into service, as such service would be "litigious employment".
Further, even temporary, adhoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularization, if he is not working against a sanctioned post. Further, part time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent continuance of part time temporary employees.
6. Therefore, the regularization of service of the petitioners against the existing Service Rules of the State Government will be a violation of Article 14 and 16 of the Constitution of India.
7. Therefore, this Writ Petition is devoid of merits and is liable to be dismissed. Accordingly, this Writ Petition stands dismissed. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs. 03.01.2024 Internet: Yes Index : Yes/No Speaking/Non Speaking order mn
G.K.ILANTHIRAIYAN. J, mn To
1. The Secretary to Government, The State of Tamil Nadu, Education Department, Fort St.George, Chennai - 600 009.
2.The Director of School Education, College Road, Chennai - 09.
3.The Chief Educational Officer, Vellore-District.
4.The District Educational Officer, Vellore-District.
03.01.2024