S.Ravikumar, v. Union Territory Of Puducherry
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.07.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN and W.M.P.No.21578 of 2016 S.Ravikumar ... Petitioner -Vs1. Union Territory of Puducherry, represented by the Chief Secretary, Central Secretariat, Puducherry.
2. The Managing Director, Puducherry Distilleries Limited, Ariyapalayam, Villianur 605 110.
3. Director, Employment Exchange, Puducherry.
4. R.Shanmugam
5. R.Selvarangam
6. B.Murugan
7. S.Jayakumar
8. I.Sasikumar
9. V.Manikandan
10. V.Kannan
11. S.Prabakar
12. I.Kumar
13. S.Seetharaman
14. D.Murugan
15. S.Kodandaraman
16. A.Rajaram
17. S.Sachidanandam
18. M.Elumalai
19. B.Narayanasamy
20. R.Ramalingam
21. R.Prabagaran
22. A.P.Murugan
23. M.Tirouchalinhame
24. S.Madan
25. K.Meena
26. V.Soupramaniane
27. D.Vijayalakshmi
28. G.Selvaraj
29. V.Sundaramoorthi
30. B.Palanivel
31. R.Marie Roland
32. P.Nagarajan
33. K.Meganathan
34. T.Karthigeyan
35. S.Malarmozhi
36. R.Sankardoss
37. N.Sengadirselvan
38. S.Sivaraj 39.T.Kadiresan
40. Pushpanathan
41. R.Venkatesan
42. P.Raja
43. J.Kichetane
44. D.Karunakaran
45. M.Gunasekaran
46. S.Kalidoss
47. S.Arjunan
48. K.Thirumurugan
49. D.Perambalam
50. S.Gunasekaran
51. B.Nagarajan
52. V.Devesenapathi
53. D.Katchammallee
54. S.Sabarinathan
55. A.Elumalai
56. P.Thamizharasan ... Respondents Prayer:- Writ Petition filed under Article 226 of Constitution of India for the issuance of Writ of Certiorarified Mandamus, to call for the records of the selection process of public appointment notice issued by the second respondent in Dinamani Tamil Newspaper dated 28.10.2015 at Villupuram District and consequential appointment dated 07.12.2015 and quash the same as illegal, unjust and directing the second respondent to fill up the vacancies as per G.O.Ms.No.22/DPAR (PW) dated 27.02.2009.
For Petitioner : Mr.R.Venkatesulu For Respondents R1 and R3 : Mrs.V.Usha Additional Government Pleader (Pondy) R2 : T.P.Manoharan, Senior Counsel for T.M.Naveen R4, R5, R11, R12 R20, R24, R28, R32 to R56 : Mr.Prakash Adiyapadam R6 to R10, R13 to R19, R21 to R23, R25 to R27 R30 and R31 : Mr.S.Venkataraman
ORDER
This Writ Petition has been filed challenging the selection process of public appointment notice issued by the second respondent in Dinamani Tamil
Newspaper dated 28.10.2015 at Villupuram District and consequential appointment of the respondents 4 to 56, dated 07.12.2015.
2. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the materials available on record.
3. The petitioner is a qualified individual and he had registered his name with the Employment Exchange and awaiting for public employment. The second respondent appointed candidates by adopting irregular methods without following due process. Initially the workers were taken by the second respondent on daily rated casual labour basis and later they were inducted into regular work without any procedure of selection, thereby depriving the candidates who have registered their names in the Employment Exchange for public employment. Therefore, the petitioner obtained information under the Right to Information Act and the information revealed that the second respondent had resorted to large scale appointments by adopting illegal methods and contrary to the recruitment rules. The second respondent filled up 53 Multipurpose Worker posts and they were appointed on daily rated casual labour basis. Subsequently, they were made regular employees without resorting to selection from open market and through Employment Exchange.
4. The Union Territory of Puducherry, in order to regularize the employment on full time and part time manner in the Government Departments, passed orders pursuant to the direction issued by this Court vide G.O.Ms.No.22/DPAR (PW) dated 27.02.2009. However, the second respondent issued appointment orders to the respondents 4 to 56, as daily rated casual labours, who were engaged in the year 2009 and 2010 in violation of the said Government Order, that too without following any selection method and without any reference to the Employment Exchange i.e. the third respondent herein. Therefore, the petitioner, who had already registered with the Employment Exchange and obtained seniority was deprived of his opportunity for his employment.
Depends upon the requirements, not more than 25% of vacancies arising in future in the appropriate Group D posts (initial category) may be filled by absorption of full time casual labourers available in the list and not less than 75% of vacancies shall be filled by direct recruitment. The full time casual labourers shall also be considered by the competent selection committee along with open candidates provided, the full time casual labourers possess the required educational qualification and if selected necessary age relaxation, wherever required shall be obtained from Lieutenant Governor.
5. However, the second respondent failed to follow any of the procedure while appointing the respondents 4 to 56 as multipurpose workers, which is Group D category by illegal and irregular manner. Therefore, the petitioner and others made representations to the second respondent not to regularize the respondents 4 to 56. However, it was not considered and as such they were constrained to file a writ petition in W.P.No.2912 of 2015 for direction directing the second respondent to consider their representations dated 21.01.2015 to fill up the vacancies and appoint them in the suitable posts in the second respondent Distilleries Unit based on their suitability and eligibility.
In the said writ petition, the second respondent filed a counter and categorically stated that it is bound to make recruitments to the vacancies in all the posts only in accordance with the Constitutional Scheme of Public Employment. However, pending writ petition, the second respondent illegally appointed the respondents 4 to 56 and filled up the vacancies by irregular manner. The second respondent had issued a public appointment notice in Villupuram District, in Dinamani Tamil Daily Newspaper dated 28.10.2015, instead of Puducherry.
advertisement that too without even mentioning the name of the second respondent.
6. The second respondent filed counter and revealed that it has 145 sanctioned permanent posts of officers and employees. It has framed recruitment rules and make recruitment, promotions etc., to the said posts in accordance with the methods and procedures prescribed therein. In the year 2009, Government of Puducherry had appointed a sitting MLA as the Chairman of the second respondent company. As the ex-officio Chairman of the Board of Directors, he was on his own had chosen persons and engaged them on casual and daily rated basis through back door on various dates without prescribing any qualifications, calling for applications, conducting interview, issuing any engagement order/letter giving any designation or assigning any work in any of the sanctioned permanent posts to them.
The said Chairman had chosen on his own 78 other persons and engaged them on casual and daily rated basis through back door on various dates in the second respondent company, without issuing any engagement order, giving any designation or assigning any work in any of the sanctioned permanent posts to them. The second respondent was paying wages to them only for the days they were actually engaged and worked.
in the second respondent company every month. Out of 78 persons, the second respondent company had stopped engaging 25 persons. The engagement of the remaining 53 persons were also illegal, nullity, void ab initio, non-est in law, invalid and would not confer any status of employees of the second respondent company. Therefore, they are not entitled to seek either for continuous engagement or regularization in any of the sanctioned posts.
7. In the month of July 2011, the Government of Puducherry had appointed another sitting MLA as the Chairman of the second respondent. He had also engaged another 52 persons on casual and daily rated basis at Karaikal region for the IMFL Sub-Plant Project and it has proposed Arrack Blending Unit at Karaikal. However, after completion of the works under the scheme, they had no legal right to seek either for continuous engagement or regularization in any of the sanctioned permanent posts. Therefore, after expiry of the tenure of office of the Chairman and after completion of the works under the schemes, the second respondent company had stopped engaging them. Subsequently, 17 vacancies had arisen in 7 sanctioned permanent posts in the second respondent company and published a notification dated 31.08.2012. However, it was challenged by the respondents 4 to 56 herein, who were already engaged on casual and daily rated basis through back door in
W.P.No.28902 of 2012 before this Court and initially they had obtained interim injunction and finally it was dismissed as withdrawn. At the same time, the writ petition in W.P.No.2912 of 2015 was also dismissed. However, the selection process was pending for long years. The second respondent was not able to proceed further. In the 246th Board meeting held on 17.08.2015, the second respondent had created 58 Group C posts of multipurpose worker in the scale of pay of Rs.5200-20200 with grade pay of Rs.1800/- and prescribed the method of recruitment as direct recruitment. As per the decision, it had issued notification dated 28.10.
2015 as follows:- " Applications are invited from the eligible candidates of Indian Citizens who are Natives/Residents of Union Territory of Puducherry for Direct Recruitment to the 53 (Fifty three) posts of Multi-Purpose Worker (Group-C, carrying the Grade Pay of Rs.1800 in the Pay Bank of Rs.5200 to 20200) to fill the existing vacancies in the Puducherry Distilleries Limited, Villianur, Puducherry. The Casual Labourers (CLRs) who have already put not less than 5 years of service in the PDL will also be considered."
8. As far as the Eligibility Criteria is concerned, mentioned as Educational qualification of SSLC or equivalent desirable-H.sc or equivalent. Candidates fulfilling the eligibility criteria may apply in the prescribed format along with all requisites testimonials on or before 11.11.2015 by 5.00 p.m. It was published in a Public Appointment Notification in the Tamil Daily "Dinamani"-Villupuram Edition dated 28.10.2015, inviting applications from
eligible persons for recruitment to the 53 posts of Multipurpose Workers, 2 posts of Plant Helpers and 2 posts of Electrician Gr-II. As per the revised Recruitment Rules for the post of Multipurpose Worker, the existing casual labourers, who have put in not less than 5 years of service in the second respondent company shall also be eligible for recruitment to the said posts. Hence, 53 persons working as casual and daily rated employees in the second respondent company namely, the respondents 4 to 56 were eligible for recruitment to those posts. Pursuant to the notification, all of them had submitted the applications for recruitment to the post of multipurpose worker.
Thereafter, to select suitable candidates, it has prescribed Trade-Test consisting of Written Test and On-line Practical Test and fixed time for conducting the said test from 9.00 a.m to 01.00 p.m on 26.11.2015. Thereafter, the respondents 4 to 56 were issued call letters to appear for the said written test and online practical test in the Plant on 26.11.2015. Based on the marks obtained by the candidates in the said tests, a merit list has been prepared. On 26.11.
possessing minimum educational qualification to acquire such qualification. The second respondent had accepted the said recommendations and issued a memorandum of temporary appointments to them on a scale of pay of PB:Rs.5200-20200 with Grade Pay Rs.1800 along with allowances as admissible from time to time under the second respondent company's rules subject to the terms and conditions prescribed therein. Accordingly, they were appointed as Multipurpose workers on adhoc basis. After their appointment, they are working for more than 6 years as Multipurpose workers.
9. Even according to the second respondent, in the year 2009, the Government of Puducherry had appointed one sitting MLA as Chairman of the second respondent. The said Chairman, without prescribing any qualifications, called for applications, conducted interview and had chosen to appoint the respondents 4 to 56 on casual and daily rated basis, through back door on various dates in the second respondent company and the second respondent company was also paying wages to them. They were continuing as casual labourers from their engagement in the year 2009 onwards. In order to make them permanent, in the 246th Board meeting, the board of the second respondent had created 58 Group C posts of Multipurpose workers. Though the second respondent prescribed certain methods of recruitment as direct
recruitment, it has failed to follow any of the rules prescribed under the Recruitment Rules for the posts of Group C, Multipurpose workers.
10. Though the second respondent had issued notification as mentioned above, the original notification issued in the Tamil Daily "Dinamani" in Villupuram Edition dated 28.10.2015 is extracted as follows:- PUBLIC APPOINTMENTS For a South India based SLPSCE, applications are invited for the following posts in PB:1 in the age group of 18 to 32 years (name of the post, vacancies, Grade pay & qualification required):
a. Multi-purpose Worker (53) GP 1,800 EQ-SSLC or equivalent.
b. Plant Helper (2) GP 1,900 EQ:ITI in Fitter trade + 2 years experience.
c. Electrician Gr III (2) GP 1,900 EQ: ITI Wireman or equivalent with competency certificate.
Reservation norms and age relaxation are as per rules. The Applicant should submit his/her signed application affixing pp size photo furnishing the Name, Gender, Domicile address for the previous five years, whether SC/ST/EXSM/PH, date of birth & age, qualifications and experience, etc., with two references along with testimonials to The Box No.627, The New Indian Express, Express Gardens, 29, Second Main Road, Ambattur Industrial Estate, Chennai-600 058 on (or) before 11.11.2015 (Wednesday) by 05.00 p.m."
11. The said notification does not contain the name who issued and on behalf of whom, the proposed recruitment of the post of Multipurpose worker. It is unfortunate to state that the second respondent is being such a Government company registered under the Companies act and its Government of Puducherry has established the second respondent as one of the undertaking for carrying out the commercial activity of blending, bottling and selling arrack to the vendors licensed by the Excise Department, the Government of Puducherry issued such a notification only with an intention to absorb the respondents 4 to 56 who were already engaged as casual and daily rated labourers. Therefore, the intention of the second respondent is very clear that not to give any chance to others to apply for the said posts, conveniently published in the Tamil Daily "Dinamani" in Villupuram Edition. Though the Villupuram edition is circulated at Puducherry, it is not circulated in other 3 regions, namely Karaikal, Mahe and Yanam.
12. That apart, a perusal of the said notification revealed that the applications are invited to the Box No.627, The New Indian Express, Express Gardens, 29, Second Main Road, Ambattur Industrial Estate, Chennai-600 058, on or before 11.11.2015. Whereas, the notification in the counter affidavit is completely different one. It is clearly mentioned that the eligible candidates
should be Indian Citizens who are Natives/Residents of Union Territory of Puducherry for Direct Recruitment. However, the said notification was not issued to other three regions, namely Karaikal, Mahe and Yanam of Union Territory of Puducherry. It is also significant to note that as per the recruitment rules, the eligible candidates should be sponsored by the third respondent, namely, Employment Exchange of Puducherry.
13. A perusal of the counter filed by the third respondent revealed that they have not received any notification from the second respondent requesting for sponsoring the names of candidates for appointing them as Multipurpose workers. The third respondent has to sponsor the candidates whenever any request is received for sponsoring the names of candidates for public employment. Only when the employer notify the vacancies in writing to the employment exchange to submit a panel of suitable candidates to fill up the post of Multipurpose worker, the employment exchange will sponsor the list of suitable candidates on the basis of their requirements. On Suo moto cannot furnish suitable candidates for the post of Multipurpose workers to the second respondent. Therefore, it is clear that the second respondent did not make any request to the third respondent to sponsor the candidates for its recruitment to fill up the post of Multipurpose workers. Hence, the second respondent,
intentionally did not call for any suitable candidates to fill up the post of multipurpose workers for the reason to fill the respondents 4 to 56, to the post of Multipurpose workers. Further, except the respondents 4 to 56, no other applications issued by the second respondent, since the second respondent had issued only 53 applications that too only to the respondents 4 to 56.
14. No applications were received in the Box No.627, The New Indian Express, Express Gardens, 29, Second Main Road, Ambattur Industrial Estate, Chennai-600 058. On verification, it is found that Box No.627 pertains to the Indian Express Newspaper office address. No prudent man would publish a notification that too giving address and post box number of a newspaper office, to invite applications. Therefore, the second respondent wantonly in order to avoid other persons' applications to fill up the post of Multipurpose workers, notified a false address and also without mentioning the department to whom they proposed to recruit the candidates. Further, though the second respondent stated in the counter that after receipt of application eligible candidates were subjected for their written test and on-line practical test, the second respondent did not produce any iota of evidence to substantiate the said contention. Therefore, the second respondent without following any of the procedures, recruited the respondents 4 to 56 to the post of Multipurpose workers and it is
nothing but back door entry. The entire process of recruitment done by the second respondent is against the recruitment rules and it cannot be sustained and it is liable to be declared as illegal.
15. The learned counsel for the respondents 4 to 56 submitted that they have nothing to do with the selection process done by the second respondent. As per the notification, the priority will be given to the Casual Labourers (CLRs) who have already put not less than 5 years of service in Distillery unit. Therefore, they are fully qualified and well suitable for the said posts and having 5 years of service in the second respondent company as casual labourers. As per notification, they had duly applied for the said post and after scrutinizing their application forms, they were issued call letters. After attending written test and on-line practical test they were successfully selected to the post of Multipurpose workers by the selection committee.
The recommendation of the selection committee was accepted by the second respondent and issued appointment orders to the respondents 4 to 56, on 29.12.2015. Accordingly, ever since from the date of appointments, they have been discharging their duty effectively and efficiently. Therefore, their appointment to the post of Multipurpose workers cannot be disturbed and their entire livelihood will be affected if their selection is declared as illegal.
learned counsel for the respondents 4 to 56 also submitted that G.O.Ms.No.22/DPAR (PW) dated 27.02.2009 is not applicable to the second respondent.
16. In this regard, the learned counsel for the petitioner relied upon the Judgment of this Court in W.P.No.43337 of 2016 dated 22.11.2019 in the case of S.Anbazhagan and others Vs The Chairman cum Managing Director, Tamil Nadu Generation and Distribution Corporation and others, wherein it has held that an appointment made in violation of the mandatory provisions of the Statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. It is equally well-settled that those who come by back door should go through the same door as held in the case of State of U.P. and Others Vs. U.P. State Law Officers Association & Others, reported in (1994) 2 SCC 204. Therefore, the appointment of the respondents 4 to 56 are illegal and liable to be declared as illegal.
17. That apart, the petitioner had produced Auditor's report obtained under the Right to Information Act with regard to the irregularities committed on recruitment, engagement and deployment of personnel in Puducherry Public
Sector Undertakings during the year 2013-2014 to 2017-2018. It revealed that the second respondent in its 246th Board meeting had accepted suggestion of the internal review committee constituted for implementation of central pay commission to increase the post of Multipurpose Workers from 17 to 58 and accepted the modification of Recruitment Rules already placed in 242nd meeting dated 28.10.2014. The internal review committee further suggested that instead of regularizing 53 CLRs outrightly, the mode of direct recruitment will help in offering direct employment through trade test. Accordingly, the second respondent had gone for direct recruitment of 53 Multipurpose workers and notified along with other two categories.
The regularization of existing 53 CLRs without following the due procedure of recruitment lacks justification for the reasons that the second respondent had not conducted the work study for assessment of work load required for the recruitment before increasing the number of posts from 17 to 58. It shows that these posts were created for regularizing the 53 existing CLRs in the way of direct recruitment besides the multipurpose workers already existing in the second respondent.
18. The notification issued in the daily newspaper "Dinamani", Villupuram edition for the post of 53 multipurpose workers. The Educational qualification is SSLC or equivalent in the age of 18 to 32. The above
notification was not in a standard format. The company's name, location and Post Box number were not disclosed in notification to avoid candidates from open market. On verification of application issued register, it was observed that only 53 applications were issued to the already existing casual labourers in the second respondent company and no other application was issued to any other third person. The respondents 4 to 56 directly received the application from the second respondent head office and had not applied to the address mentioned in the advertisement. As per the minutes of the departmental selection committee held on 26.11.2015, it was recorded that no application was received in response to the advertisement other than 53 existing CLRs.
19. Thus, it is clear that the second respondent had regularized the 53 existing CLRs proposed in the 242nd Board meeting by way of direct recruitment without getting approval of Government of Puducherry. Further revealed that out of 53 CLRs only eight applicants were eligible for the post of Multipurpose in respect of age and minimum educational qualification as prescribed in the advertisement notification as well as the amended draft Recruitment Rules by the board. Out of 53, only 19 were having minimum educational qualification of 10th std and 13 were having the age of within 32 years of age. The details of recruitment of the respondents 4 to 56 with regard
to their age and educational qualification are as follows:-
20. Thus, it is clear that the public sector undertakings had not revised the recruitment rules on the lines of sixth pay commission. It had made recruitment, up-gradation, modification of posts and scale of pay without following due procedures by amending recruitment rules with prior approval of Government of Puducherry. The directives of Government of Puducherry were not followed in respect of engagement and regularization of CLRs who were not having prescribed age and educational qualification as per the recruitment rules. Therefore, the entire selection process of public appointment notice issued by the second respondent in "Dinamani" daily newspaper in Villupuram
edition and its consequential appointment of the respondents 4 to 56 dated 07.12.2015 are declared as illegal.
21. In view of the above, the selection process of public appointment notice issued by the second respondent in Dinamani Tamil Newspaper dated 28.10.2015 at Villupuram District and the consequential appointments of respondents 4 to 56, dated 07.12.2015 are hereby declared as illegal.
22. Accordingly, this writ petition stands allowed. Consequently, connected Miscellaneous petition is closed. There shall be no order as to costs.
23. The first respondent is directed to take appropriate action as against the person who issued the illegal notification dated 28.10.2015 and the person who recruited the respondents 4 to 56, in accordance with law, within a period of twelve weeks from the date of receipt of a copy of this order. 12.07.2023 Internet : Yes Index : Yes Speaking order mn
To
1. The Chief Secretary, Union Territory of Puducherry, Central Secretariat, Puducherry.
2. The Managing Director, Puducherry Distilleries Limited, Ariyapalayam, Villianur 605 110.
3. Director, Employment Exchange, Puducherry.
G.K.ILANTHIRAIYAN, J.
mn 12.07.2023