P.M.Kesavan v. The Secretary To Government

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 11.07.2017 CORAM :

THE HON'BLE MR. JUSTICE M.V.MURALIDARAN Writ Petition No.4582 of 2012 P.M.Kesavan .. Petitioner Vs.

1.The Secretary to Government, School Education Department, Fort St. George, Chennai - 600 009.

2.The Director of Elementary Education, DPI Complex, Chennai - 600 006.

3.The District Education Officer, Nasarathpettai, Kannikapuram, Kancheepuram District.

.. Respondents PRAYER : Petition under Article 226 of the Constitution of India to issue a writ of mandamus to direct the respondents to regularise the petitioner's service as Night Watchman from the date of the initial appointment with all the attendant benefits arising there from including revision of pay, disbursement of arrears of salary.

For Petitioner : Mr.Yogesh Kannadasan for M/s.M.Suresh Kumar For Respondents : Mrs.M.E.Raniselvam Additional Government Pleader

ORDER

This writ petition has been filed seeking a writ of mandamus directing the respondents to regularise the petitioner's service as Night Watchman from the date of the initial appointment with all attendant benefits arising therefrom, including revision of pay, disbursement of arrears of salary.

2. The case of the petitioner is that as per the proceedings

of the Commissioner of Alandur Municipality dated 27.01.1978, the petitioner was appointed as Cholera Overseer on temporary basis and the said appointment was made after his name was sponsored by the employment exchange. As per the proceedings of the Commissioner dated 10.02.1979, the petitioner was permitted to continue in the said post for a further period of three months. Thereafter, the period was extended and the petitioner was continuously working as such till 31.05.1980. Subsequently, the Appointing Committee has passed a resolution, based on which the Alandur Municipality by proceedings dated 18.6.1980 had passed an order appointing the petitioner as Night Watchman on temporary basis.

Thereafter, as per the recommendation of the Alandur Municipality, the petitioner was transferred to work as Night Watchman in the Primary School, Nanganallur, which is coming under the control of the Assistant Educational Officer, Chitlapakkam, Chennai, who comes under the control of the third respondent. From the said date onwards, the petitioner was continuing to work as Night Watchman in the said school. During 2007-2008, there was exchange of correspondence between the Education Department and the Government to regularise the services of the persons, who were employed like the petitioner for more than 10 years and to effect necessary pay revision. Even though the petitioner's name was recommended by the third respondent, so far no final order was passed.

According to the petitioner, the persons who were similarly placed like the petitioner in the other departments have been regularised. On 21.07.2009, the petitioner sent a representation to the respondents, but till date no order has been passed. Hence, the petitioner has filed the present writ petition seeking the aforesaid relief.

3. Resisting the writ petition, the second respondent filed the counter stating that the petitioner is continuing his work on temporary basis as on date. It is stated that similarly placed persons had approached this Court and this Court has also considered the issue and directed the respondent authority to regularise the services of the persons who are working for long time and the Government had preferred writ appeal and the same was also dismissed and the special leave petition preferred by the Government was also dismissed. Pursuant to the order of the Apex Court, the Government passed G.O.Ms.No.111, dated 09.05.2012 stating that the persons who are serving for long time were to be regularised. It is stated that the Government Order has given relaxation to 614 persons who approached this Court and got the relief. Therefore, the respondent is not in a position to regularise the services of the petitioner. Since a batch of writ petitions filed by the similarly placed persons was pending, the respondent is not in a position to dispose of the representation of the petitioner.

4. I heard Mr.Yogesh Kannadasan for M/s.M.Suresh Kumar, learned learned counsel for the petitioner and Mrs.M.E.Rani Selvam, learned Additional Government Pleader for the respondents.

5. Learned counsel for the petitioner submits that the petitioner has been appointed as Night Watchman in the year 1980 and till the date of filing of the writ petition, the petitioner was working as Night Watchman and he retired from service as such in June 2012. He would submit that the services of similarly placed persons were regularised by other departments and regular pay scale was paid and, therefore, the said benefits may also be extended to the petitioner.

6. Learned Additional Government Pleader, on the other hand, submitted that the Government issued G.O.Ms.No.111, dated 09.05.2012 regularising the services of the persons numbering 614 who approached the Court. Since batch of writ petitions were pending, the respondent was not in a position to dispose of the representation of the petitioner.

7. In paragraph 6 of the counter, it has been stated as under:

"6.It is further submitted that the petitioner is continuing his work in the temporary basis as on date and the petitioner also given a representation stating that to regularize his service, however the employer those who employed as daily wages on temporary basis were not regularized and the similarly placed persons has approached this Honourable court and this court has also considered the issue and directed the respondent to regularize the service of the persons those who are working for long time and the Government has preferred the writ appeal and the same was also dismissed. Subsequent to that the Government preferred a special leave petition before the Supreme Court and the same was also dismissed."

8. Thus, it is admitted by the second respondent that similarly placed persons approached this Court for regularization and the learned Single Judge of this Court granted the relief, which was confirmed by a Division Bench of this Court as well as the Hon'ble Apex Court.

9. The learned Additional Government Pleader by placing reliance upon the letter dated 14.03.2014 of the Secretary of the School Education Department submitted that the Apex Court in its judgment dated 21.02.2014 in Secretary to Government School,

Education Department, Chennai v. R.Govindaswamy and others, reported in (2014) 4 SCC 769 held that even temporary, ad hoc or daily based services for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against the sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

10. The decision in R.Govindaswamy, supra relates to regularization of part-time sweepers and the learned Single Judge directed to regularise the services of the employees on full-time basis based on the individual representation after verifying the service particulars from the date of completion of 10 years of service with time scale of pay. Aggrieved by the same, the Government preferred writ appeals and the same were also dismissed by a Division Bench. Against which, the Government preferred appeals before the Apex Court. While allowing the appeals, the Apex Court observed that the Government has already implemented the impugned judgments and does not want to disturb the services of the employees, the services of the employees which stood regularised should not be affected.

11. It is to be noted that as per the counter averments, the petitioner was appointed in the sanctioned post on temporary basis as Night Watchman. As stated above, in the counter, the second respondent stated that similarly placed persons have been regularised. It is admitted by the second respondent in the counter itself that due to pendency of batch of writ petitions, the representation of the petitioner could not be considered.

12. In State of Karnataka v. Umadevi, reported in (2006) 4 SCC 1, the Apex Court held as follows:

"48. .... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 & 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though

they have never been selected in terms of the relevant recruitment rules."

13. In this case, as admitted by the official respondents, the petitioner was initially appointed as a Cholera Overseer on temporary basis in the Alandur Municipality through employment exchange, which shows that the petitioner was appointed through employment exchange in a sanctioned post on temporary basis. His temporary service was extended from time to time from the period 1978 to 1980 in the Alandur Municipality. Thereafter, the Alandur Municipal Council Committee had passed a resolution on 18.6.1980 appointing the petitioner as Night Watchman on temporary basis in the time scale of pay of Rs.250-5-330-10-400, which also shows that in a sanctioned post only the petitioner was appointed as Night Watchman. It is seen that thereafter the petitioner was transferred to the Primary School, Nanganallur, under the control of the third respondent and he continued his post as Night Watchman till the filing of the writ petition and thereafter also till retirement.

14. In view of the fact that the similarly placed persons have been regularised and taking into consideration of the petitioner's temporary service for a long number of years and also in view of the counter averments, particularly in paragraph 6, the services of the petitioner is to be regularised from the date of the initial appointment with attendant benefits.

15. In the result, the writ petition is allowed. The respondents are directed to regularise the services of the petitioner as Night Watchman from the date of his initial appointment with all attendant benefits, including revision of pay, and are also directed to pay arrears of salary to him within a period of twelve weeks from the date of receipt of a copy of this order. No costs.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar vs

To 1.The Secretary to Government, School Education Department, Fort St. George, Chennai - 600 009.

2.The Director of Elementary Education, DPI Complex, Chennai - 600 006.

3.The District Education Officer, Nasarathpettai, Kannikapuram, Kancheepuram District.

+1cc to Mr.M.SureshKumar, Advocate, S.R.No.48373 +1cc to the Government Pleader, S.R.No.48641 W.P.No.4582 of 2012 RRK(20/03/2018)